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7c952b2b-1c88-4827-9c66-b4ed2b94092c | Ex parte Shelby County Board of Equalization. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Central Shelby LTD. v. Shelby County Board of Equalization) | N/A | 1130017 | Alabama | Alabama Supreme Court | REL:04/11/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1130017
_________________________
Ex parte Shelby County Board of Equalization
PETITION FOR WRIT OF MANDAMUS
(In re: Central Shelby LTD.
v.
Shelby County Board of Equalization)
(Shelby Circuit Court, CV-13-900699)
SHAW, Justice.
The Shelby County Board of Equalization ("the Board")
petitions this Court for a writ of mandamus, or, in the
1130017
alternative, a writ of prohibition, directing the Shelby
Circuit Court to dismiss as untimely an appeal filed by
Central Shelby LTD. ("Central Shelby") challenging a final ad
valorem tax assessment issued by the Board. We grant the
petition for the writ of mandamus and issue the writ.
Facts and Procedural History
In response to Central Shelby's objection to the Board's
2013 assessed value of real property owned by Central Shelby,
the Board, on May 29, 2013, entered a final ad valorem
assessment. On June 18, 2013, Central Shelby, pursuant to §§
40-3-24 and -25, Ala. Code 1975, electronically filed, in the
Shelby Circuit Court, its notice of appeal from that decision.
On July 3, 2013, the clerk of the Shelby Circuit Court
mailed a copy of the notice of appeal to the Board, which
received the notice on July 8, 2013. Thereafter, the Board
moved to dismiss the appeal on the ground that Central Shelby
had not filed with the secretary of the Board its notice of
appeal within 30 days of the final assessment as, the Board
contended, § 40-3-25 requires. The trial court, without
stating the findings on which its decision was based, denied
the Board's motion. In response, the Board filed the present
2
1130017
petition alleging that, as a result of the alleged untimely
notice to it of Central Shelby's appeal, the trial court
lacked
subject-matter
jurisdiction
over
the
underlying
appeal.
We subsequently ordered answers and briefs.
Standard of Review
"The
question
of
subject-matter
jurisdiction
is
reviewable by a petition for a writ of mandamus." Ex parte
Liberty Nat'l Life Ins. Co., 888 So. 2d 478, 480 (Ala. 2003).
A writ of mandamus will be issued 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."'
"Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810,
813 (Ala. 2003)(quoting Ex parte Alfab, Inc., 586
So. 2d 889, 891 (Ala. 1991)). Mandamus will lie to
direct a trial court to vacate a void judgment or
order. Ex parte Chamblee, 899 So. 2d 244, 249 (Ala.
2004)."
Ex parte Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala. 2004).
Discussion
Section 40-3-25 provides, in pertinent part:
"All appeals from the rulings of the board of
equalization fixing value of property shall be taken
within 30 days after the final decision of said
3
1130017
board fixing the assessed valuation as provided in
this chapter. The taxpayer shall file notice of
said appeal with the secretary of the board of
equalization and with the clerk of the circuit court
and shall file bond to be filed with and approved by
the clerk of the circuit court, conditioned to pay
all costs ...."
(Emphasis added.)
The Board maintains that, pursuant to § 40–3–25, a
taxpayer, in order to timely challenge a final tax assessment,
must file a notice of appeal with both the secretary of the
Board and the clerk of the circuit court within 30 days of the
final assessment being challenged. No notice of appeal was
filed by Central Shelby with the secretary of the Board;
although the Board received a copy of the notice from the
Shelby Circuit Court clerk, that notice was not mailed to or
received by the Board until after the 30-day period had
elapsed. On the other hand, Central Shelby counters that its
timely filing of its notice of appeal with the circuit clerk
was sufficient to invoke the trial court's subject-matter
jurisdiction even though the Board indisputably did not
receive "notice" of Central Shelby's appeal within 30 days of
the date of the final assessment. It further contends that
because the statutory requirement of "notice" to the Board
4
1130017
appears in a separate sentence, the 30-day time frame for
taking the appeal does not apply to the notice to the Board.
This Court has stated that, in applying a Code section:
"'"Words used in a statute must be given
their
natural,
plain,
ordinary,
and
commonly understood meaning, and where
plain language is used a court is bound to
interpret that language to mean exactly
what it says. If the language of the
statute is unambiguous, then there is no
room for judicial construction and the
clearly
expressed
intent
of
the
legislature
must be given effect."'
"Blue Cross & Blue Shield v. Nielsen, 714 So. 2d
293, 296 (Ala. 1998) (quoting IMED Corp. v. Systems
Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992)); see also Tuscaloosa County Comm'n v. Deputy
Sheriffs' Ass'n, 589 So. 2d 687, 689 (Ala. 1991);
Coastal States Gas Transmission Co. v. Alabama Pub.
Serv. Comm'n, 524 So. 2d 357, 360 (Ala. 1988);
Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of
Hartselle, 460 So. 2d 1219, 1223 (Ala. 1984); Dumas
Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So.
2d 534, 536 (Ala. 1983); Town of Loxley v. Rosinton
Water, Sewer, & Fire Protection Auth., Inc., 376 So.
2d 705, 708 (Ala. 1979). It is true that when
looking at a statute we might sometimes think that
the ramifications of the words are inefficient or
unusual. However, it is our job to say what the law
is, not to say what it should be. Therefore, only
if there is no rational way to interpret the words
as stated will we look beyond those words to
determine legislative intent. To apply a different
policy would turn this Court into a legislative
body, and doing that, of course, would be utterly
inconsistent with the doctrine of separation of
powers. See Ex parte T.B., 698 So. 2d 127, 130 (Ala.
1997)."
5
1130017
DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270,
275–76 (Ala. 1998).
The initial sentence of § 40-3-25 clearly establishes a
30-day time frame for appealing the Board's final assessment
to the circuit court. The sentence that follows provides
that, in order to perfect the appeal, the requisite notice of
appeal must be filed with both the Board and with the circuit
clerk. In light of the plain language of the Code section,
this Court finds persuasive the Board's reliance on the
analysis of the Court of Civil Appeals in State v. Crenshaw,
47 Ala. App. 3, 249 So. 2d 617 (1970), in which, in
considering the identical language of the predecessor statute
to § 40-3-25, that court explained:
"[A] taxpayer may perfect an appeal from a final
assessment of the Board so long as he files, within
thirty days, a notice of appeal with the Secretary
of the Board and Clerk of the Circuit Court, a bond
for costs, and, either files a supersedeas bond, or
pays the taxes based on the prior year's assessment.
Such a construction would require that all of these
procedures would have to be complied with at the
same time for the appeal to be perfected."
47 Ala. App. at 5, 249 So. 2d at 619. See, e.g., Ex parte
State Dep't of Revenue, 102 So. 3d 396, 398-99 (Ala. Civ. App.
2012) (interpreting a similar provision in § 40-2A-9(g), Ala.
6
1130017
Code 1975, as "requir[ing] the party appealing from [an
administrative law judge's] order to file a notice of appeal
with both the [Alabama Department of Revenue's Administrative
Law Division] and the circuit court within 30 days of the
entry of the ... order"); State Dep't of Revenue v. Welding
Eng'g & Supply Co., 452 So. 2d 1340, 1342 (Ala. Civ. App.
1984) (concluding that former § 40-2-22, Ala. Code 1975, which
provided for taxpayer appeals from assessments by the
department of revenue, "clearly provides that a timely filing
of a notice of appeal with the secretary of the department is
one of the prerequisites which must be met by a taxpayer in
order to perfect an appeal to the circuit court from the
department's final tax assessments," that such filing "is a
jurisdictional
requirement,
and
[that]
there must
be
compliance with it before a circuit court has jurisdiction
over the subject matter," and stating that, "if such a notice
of appeal is not filed with the secretary of the department
within thirty days from the entry of the final tax assessment,
the taxpayer's appeal to the circuit court should be
dismissed").
7
1130017
Central Shelby argues that it properly invoked the trial
court's jurisdiction by taking the underlying appeal to the
appropriate circuit court within 30 days of the challenged
final assessment. But that is not what § 40-3-25 or the
foregoing authorities require. Central Shelby faults the
circuit clerk for her alleged untimely mailing of the notice
of appeal to the secretary of the Board. However, the Code
section clearly charges the appealing taxpayer with the
responsibility of filing the notice of appeal with the
secretary of the Board.
"The right of appeal in tax proceedings is a right
conferred by statute and must be exercised in the mode and
within the time prescribed by the statute." Denson v. First
Nat'l Bank, 276 Ala. 146, 148, 159 So. 2d 849, 850 (1964).
See also Canoe Creek Corp. v. Calhoun Cnty. Bd. of
Equalization, 668 So. 2d 826, 827-28 (Ala. Civ. App. 1995)
(finding, where the appeal bond required by § 40-3-25 was not
filed within the 30-day period, that the appeal of a final tax
assessment to the circuit court was not perfected); Welding
Eng'g, 452 So. 2d at 1342-43 ("When the legislature has
prescribed the means and method of perfecting an appeal from
8
1130017
a tax assessment to the circuit court, that procedure must be
followed."); Coughlin v. State, 455 So. 2d 17, 18 (Ala. Civ.
App. 1983), aff'd, 455 So. 2d 18 (Ala. 1984) ("The rule is
that the right to appeal in a tax proceeding is a right
conferred by statute and must be exercised in the manner and
within the time required by the statute."); State v. Colonial
Refrigerated Transp., Inc., 48 Ala. App. 46, 50, 261 So. 2d
767, 770 (Ala. Civ. App. 1971) (same). Here, § 40-3-25
plainly prescribes that a notice of appeal from a final
assessment of the Board must be filed with both the circuit
court and the secretary of the Board within 30 days; clearly,
both did not occur in this case.
As a result of Central Shelby's failure to comply with
the provisions of § 40-3-25, its appeal was not perfected and
the trial court's jurisdiction was never invoked. Therefore,
the appeal was due to be dismissed as the Board requested.
Because the trial court did not acquire jurisdiction over the
appeal, we grant the Board's petition and direct the trial
court (1) to vacate its order denying the Board's motion to
dismiss and (2) to dismiss Central Shelby's appeal as untimely
filed.
PETITION GRANTED; WRIT ISSUED.
Stuart, Parker, Main, and Wise, JJ., concur.
9 | April 11, 2014 |
889260c0-c5ee-49eb-b8da-08e8c9bdcb51 | Luong v. Alabama | N/A | 1121097 | Alabama | Alabama Supreme Court | REL: 03/14/2014
REL: 05/23/2014 as modified on denial of rehearing
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121097
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Lam Luong
v.
State of Alabama)
(Mobile Circuit Court, CC-08-840;
Court of Criminal Appeals, CR-08-1219)
STUART, Justice.
1121097
In February 2008, a Mobile County grand jury charged Lam
Luong with five counts of capital murder in connection with
the deaths of his four children. The murders were made
capital because: (1) two or more persons were killed "by one
act or pursuant to one scheme or course of conduct," see §
13A-5-40(a)(10), Ala. Code 1975; and (2) each child was less
than 14 years of age when he or she was murdered, see § 13A-5-
40(a)(15), Ala. Code 1975. Following a jury trial, Luong was
convicted of five counts of capital murder. The trial court
sentenced Luong to death for each of the five capital-murder
convictions. The Court of Criminal Appeals reversed Luong's
convictions and death sentences, holding that the trial court
erred by refusing to move the trial from Mobile County
because,
it
reasoned,
the
pretrial
publicity
was
presumptively
prejudicial and by refusing to conduct individual questioning
of the potential jurors regarding their exposure to that
publicity. The Court of Criminal Appeals also held that the
trial court erred in denying defense counsel funds to travel
to Vietnam to investigate
mitigation
evidence and in admitting
into evidence during the sentencing hearing a videotape
simulation using sandbags approximately the weight of each
2
1121097
child illustrating the length of time it took for each child
to fall from the bridge to the water. Luong v. State, [Ms.
1
CR-08-1219, February 15, 2013] ___ So. 3d ___ (Ala. Crim. App.
2013). This Court granted the State's petition to review the
decision of the Court of Criminal Appeals. We reverse and
remand.
Facts
In its sentencing order, the trial court presented the
following facts surrounding the offenses:
"[Luong]
met
Kieu Phan,
the
children's
mother
in
2004. She lived in Irvington and he was working on
a shrimp boat in Bayou La Batre. At the time, she
was pregnant with Ryan, and although not [Luong's]
biological child, he treated Ryan as his own.
Thereafter, [Luong] and Kieu had the three other
children, Hannah, Lindsey, and Danny.
"Some time after Hurricane Katrina in August of
2005, they moved to Hinesville, Georgia. Kieu
worked in a nail salon and [Luong] first worked at
a car wash and then took a job as a chef at a
restaurant. But it was also in Hinesville that
marital problems arose. [Luong] took a girlfriend,
he wouldn't work, and he was smoking crack. Kieu
was upset by this and decided to move back to
Irvington with the children and move in with her
mother. [Luong] followed along. This was in
December of 2007, approximately a month before he
killed the children. Back in Irvington things did
Luong killed his four children by throwing them off a
1
bridge into the water 100 feet below the bridge.
3
1121097
not improve. He still had a girlfriend, still did
not work regularly, was asking Kieu and her mother,
Dung, for money, and was using the money to buy
crack and was staying out all night. The family was
not happy with his behavior and communicated their
displeasure to him.
"Monday morning, January 7, 2008, around 8:30
a.m., [Luong] took Hannah, Lindsey, and Danny and
put them in the family van and left the house. A
few minutes later, he returned and got Ryan. It was
then that he made the 15-20 minute drive with his
children to the top of the Dauphin Island Bridge and
threw them to their deaths.
"Ryan Phan was 3 years and 11 months old, Hannah
Luong was 2 years and 8 months old, Lindsey Luong
was 1 year and 11 months old and Danny Luong was 4
months old. On Jan. 7, 2008, [Luong] put them in
the family van, drove them from their home in
Irvington to the top of the Dauphin Island Bridge.
There, he pulled the van over to the side of the
roadway and threw all four children, one by one,
over the rail, some 106 feet, to their deaths in the
water below.
"After leaving the bridge, the van was running
out of gasoline. Luong set about trying to get gas
and then obtaining money from Kieu to buy crack.
Several witnesses testified about their encounters
with [Luong] as he was trying to enlist their
assistance in obtaining gasoline. They all said
that he did not appear to be under the influence of
drugs or alcohol. A video from a Chevron gas
station also showed [Luong] attempting to obtain gas
shortly after throwing the children from the bridge.
He did not appear at all impaired.
"[Luong's] day's travels, after killing his
children, ended around 5:30 p.m. when the van had a
flat tire and a wrecker towed him home. Kieu's
mother, Dung, had been calling him all day to find
4
1121097
out where the children were but Luong would not
answer the phone. [Luong] informed her that he gave
the children to a woman named Kim who acted like she
knew the family and Kim had not returned the
children. When Kieu learned of this, she insisted
he report the children missing, which he did.
"At the Bayou La Batre police station the night
of January 7, 2008, [Luong] maintained the story
that he gave the children to a woman named Kim who
never returned the children. There were some
variations in the different versions he related, but
the essential 'theme' was that he gave the children
to a woman named Kim.
"The next day he told Captain Darryl Wilson that
if Wilson would take him to Biloxi, Mississippi,
that maybe they could find Kim. Captain Wilson took
[Luong] to Biloxi, but after riding around for about
an hour, [Luong] stated that he did not know where
to find the children. They returned to the Bayou La
Batre police department and shortly thereafter
[Luong] told his wife, Kieu, that the children were
dead. He further informed Captain Wilson that the
children were in the water, and he agreed to take
Captain Wilson to the location. [Luong] directed
Captain Wilson to the top of the Dauphin Island
Bridge and pointed out the exact locations where he
parked the van and threw the children into the water
below.
"[Luong] subsequently gave a recorded statement
in which he admitted throwing his children into the
water from the bridge. He stated, 'My family they
make me.' He said his family and his wife looked
down on him like he was nothing. Captain Wilson
asked [Luong] if he contemplated killing himself
when he was on the bridge and [Luong] said he did.
However, when Captain Wilson inquired why he did
not, [Luong] said, 'I wanted to see what my wife and
family looked like.' Wilson replied, 'You wanted to
watch your wife's face after you told her that you
5
1121097
had killed them?' [Luong] nodded in the affirmative
and said, 'Uh-huh.'
"Several witnesses driving across the bridge at
the time [Luong] was in the act of throwing his
children off of the bridge one at a time witnessed
various parts of the events. Howard Yeager saw a
van matching the description of [Luong's] van on top
of the bridge during the relevant time period. Jeff
Coolidge saw [Luong] parked in the location where
[Luong] pointed out he was parked, and saw [Luong]
throw something over the side. As Coolidge got
closer to the van he saw three toddlers in the van.
Alton Knight, in another vehicle, saw a van matching
the description of [Luong's] van and observed a
little girl, a toddler, with dark hair and pigtails
in the van. (The children's grandmother, Dung,
testified that Lindsey had pigtails when she left
that morning.) Frank Collier, who was in the
vehicle with Alton King, saw a van matching the
description of [Luong's] van and saw [Luong]
straddling the rail of the bridge.
"The next
day
...
[Luong]
was
interviewed
again,
and at this time he recanted his earlier statement,
and reverted back to the 'Kim' story. He smiled and
told Captain Wilson, 'If you find the bodies, then
you charge me.'
"Before any of the bodies were found, but after
he had been arrested and was in jail, Luong called
his wife from the jail and during the conversation
laughed and told her that no one would find the
children.
"A massive search effort began. On Saturday,
January 12, 4-month-old Danny was found 12.5 miles
west of the bridge on the banks of an isolated marsh
area. On Sunday, January 13, 3-year-11-month-old
Ryan was found 16.4 miles west of the bridge. On
Tuesday, January 15, 1-year-11-month-old Lindsey was
found in Mississippi, 18 miles west of the bridge
6
1121097
and five days later, on January 20, 2-year-11-month-
old Hannah was located floating in the Gulf of
Mexico, south of Venice, Louisiana, 144 miles west
of the bridge.
"The cause of death for Ryan, Danny and Lindsey
was blunt force trauma and asphyxia due to drowning.
The cause of death for Hanna was drowning.
"....
"The most convincing evidence of Luong's guilt
was his confession to throwing his children off the
Dauphin Island Bridge, which was corroborated by
[Luong] pointing out the location of the murders,
and by witnesses who saw either him or children
matching the description of his children on the
bridge at the time he said he threw them into the
water. This was further corroborated by the
locations where the bodies of the children were
later found."
Analysis
I.
First, the State contends that the decision of the Court
of Criminal Appeals that "Luong's case represents one of those
rare instances where prejudice must be presumed," ___ So. 3d
at ___, conflicts with Skilling v. United States, 561 U.S.
358, 130 S.Ct. 2896 (2010), and Ex parte Fowler, 574 So. 2d
745 (Ala. 1990). The State maintains that the holdings of the
Court of Criminal Appeals that the
evidence
indicated presumed
prejudice against Luong and that his case should have been
7
1121097
transferred
to
another
venue
ignores
two
important
principles:
the principle that criminal trials should be held in the
communities where the crimes occurred and the principle that
the law vests the trial court with discretion in determining
how to ensure the impartiality of a jury. The State
acknowledges that "[i]n today's world, when a crime is
committed that is as incomprehensible as Luong's, the media
will extensively cover it as a matter of course," but it
emphasizes that "the advent of 24-hour news and the internet"
does not mean that a fair trial cannot be conducted in the
community where the offense was committed.
In Skilling, the United States Supreme Court examined
whether the publicity attending the securities scandal
involving Enron Corporation prevented an Enron executive
charged with criminal conduct from receiving a fair trial in
Houston, Texas, where Enron's corporate headquarters were
located. The Supreme Court recognized that media coverage of
the crimes did not alone create a presumption that a trial in
the venue where the
offense
was committed necessarily deprived
the defendant of due process and that "[a] presumption of
prejudice ... attends only the extreme case." 561 U.S. ___,
8
1121097
130 S.Ct. at 2915. The Supreme Court then examined the
pretrial publicity and alleged community prejudice in that
case, in light of the following factors: (1) the size and
characteristics of the community where the offenses occurred;
(2) the content of the media coverage; (3) the timing of the
media coverage in relation to the trial; and (4) the media
interference with the trial or its influence on the verdict.
Skilling, 561 U.S. at ___, 130 S.Ct. at 2915-17. The Supreme
Court concluded that no presumption of prejudice existed in
Skilling.
In Ex parte Fowler, this Court reviewed whether the trial
court exceeded the scope of its discretion in denying a
defendant's request for a change of venue for her new trial.
This Court stated:
"It is well established in Alabama, however, that
the existence of pretrial publicity, even if
extensive, does not in and of itself constitute a
ground for changing venue and thereby divesting the
trial court of jurisdiction of an offense. Beecher
v. State, 288 Ala. 1, 256 So. 2d 154 (1971), rev'd
on other grounds, 408 U.S. 234, 92 S.Ct. 2282, 33
L.Ed.2d 317 (1972); see, also, the cases annotated
at § 15-2-20. In Nelson v. State, 440 So. 2d 1130
(Ala. Crim. App. 1983), the Court of Criminal
Appeals correctly noted that jurors do not have to
be totally ignorant of the facts and issues involved
in a particular case in order to reach an unbiased
verdict. Quoting Irvin v. Dowd, 366 U.S. 717,
[substituted p. 9]
1121097
722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751, 756
(1961), the court further noted:
"'"In these days of swift, widespread
and diverse methods of communication, an
important case can be expected to arouse
the interest of the public in the vicinity,
and scarcely any of those best qualified to
serve as jurors will not have formed some
impression or opinion as to the merits of
the case. This is particularly true in
criminal cases. To hold that the mere
existence of any preconceived notion as to
the guilt or innocence of an accused,
without more, is sufficient to rebut the
presumption
of
a
prospective
juror's
impartiality would be to establish an
impossible standard. It is sufficient if
the juror can lay aside his impression or
opinion and render a verdict based on the
evidence presented in court."'
"440 So. 2d at 1131. To satisfy her burden of proof
in the present case, [the defendant] had to
establish that prejudicial pretrial publicity has so
saturated [the county] as to have a probable
prejudicial impact on the prospective jurors there,
thus rendering the trial setting inherently suspect.
This required a showing that a feeling of deep and
bitter prejudice exists in [the county] as a result
of the publicity. Holladay v. State, 549 So. 2d 122
(Ala. Crim. App. 1988), aff'd Ex parte Holladay, 549
So. 2d 135 (Ala. 1989), cert. denied, 493 U.S. 1012,
110 S.Ct. 575, 107 L.Ed.2d 569 (1989)."
574 So. 2d at 747-48.
Unequivocally, the record establishes that the media
coverage of these offenses and the proceedings before Luong's
trial were extensive; however, this fact alone does not
10
1121097
support a finding of presumed prejudice. To make such a
determination,
this
Court
considers
the
pretrial
publicity
and
the alleged community prejudice in light of the Skilling
factors.
A. The size and characteristics of the community
where the offenses occurred.
The record establishes that Mobile County has a large
and diverse population. According to the 2010 census, Mobile
County was Alabama's second largest county with a population
of over 400,000 citizens. Even though the record indicates
that a large percentage of Mobile County residents read the
local newspaper, the size of the population of Mobile County
reduces the likelihood of prejudice. In light of Mobile
County's large population and its diverse pool of citizens,
this Court is reluctant to conclude that 12 impartial jurors
could not be empaneled. See Gentile v. State Bar of Nevada,
501
U.S.
1030,
1044
(1991)(plurality
opinion)(recognizing
that
the likelihood of a presumption of prejudice was less because
venire was selected from pool of over 600,000 residents). But
see Rideau v. Louisiana, 373 U.S. 723 (1963)(finding a
presumption of prejudice in a case where the offense was
committed in a community of 150,000 residents).
11
1121097
B. The content of the media coverage.
As previously observed, the record clearly establishes
that the newspaper, television, and radio coverage of the
offenses and the subsequent proceedings were extensive.
However, as the State maintains:
"[I]f exposure to a certain level of pretrial
publicity renders a community presumptively unable
to convene an impartial jury, then no venue will be
acceptable, and no trial will be possible, in any
case that draws significant national attention."
The Court of Criminal Appeals provides a thorough summary of
the content of the articles published in the Mobile Press-
Register, the local newspaper of Mobile County, that are
contained in the record, see Luong v. State, ___ So. 3d at
___. This Court has reviewed those articles and concludes
that, although they do not paint a flattering picture of
Luong, the media coverage mainly focused on the facts
surrounding the offenses and the proceedings of the case.
Additionally,
the majority of the information contained in
the
media reports was admitted into evidence at trial. This Court
has also reviewed the personal opinions expressed through
comments on the newspaper's Web site, the call-in telephone
line, and the editorial pages. Although statements were made
12
1121097
condemning Luong, other statements were made to the effect
that Luong "was entitled to his day in court." This Court
cannot conclude that, in this age of digital communication,
the published opinions of certain of the citizens in this
particular community constitute grounds for presuming that a
fair trial could not be conducted in Mobile County. Cf.
Woodward v. State, 123 So. 3d 989, 1050 (Ala. Crim. App.
2012).
This Court has also considered Luong's argument that the
media coverage of Luong's confession and the withdrawal of his
guilty plea amounted to "the kind of deeply prejudicial
pretrial exposure that jurors cannot be
reasonably
expected to
ignore." However, in light of the admission into evidence at
trial of Luong's confession in which he admitted that he
threw his children off the bridge, the publicity about his
confession and guilty-plea proceeding did not result in a
preconceived prejudice that permeated the trial, preventing
the seating of a fair and impartial jury.
A review of the record simply does not support a finding
that the content of the media coverage incited anger,
revulsion, and indignation to the degree that jurors chosen
from citizens of Mobile County could not determine Luong's
13
1121097
guilt or innocence based solely on the evidence presented at
trial.
C. The timing of the coverage in relation to the
trial.
Luong admitted to this Court that 45 of the 59 articles
published in the Mobile Press-Register and cited in the
opinion of the Court of Criminal Appeals were published more
than a year before his trial. Indeed, the record establishes
2
that the majority of the media coverage occurred during the
first month following the offenses. The fact that the
majority of the publicity occurred more than a year before the
trial supports a conclusion that a fair and impartial jury
could be selected from the community. See Ex parte Travis,
776 So. 2d 874, 879 (Ala. 2000)(holding that prejudice is
unlikely as a result of publicity that occurred more than a
year before the trial).
According to Luong, television coverage "continued to
2
run" in the two months before the trial. The record, however,
provides limited information about the content of the
television coverage, and neither the transcripts nor the
videotapes of the television coverage were presented to the
trial court. Therefore, this Court cannot evaluate the
prejudice, if any, the television coverage had upon the
community.
14
1121097
D. The media interference with the trial or its
influence on the verdict.
The record establishes that the trial court ordered
certain precautions to ensure that the media did not interfere
with the trial or that media representatives did not have
contact with the jurors. Such procedures are precisely the
type of preventive measures courts should take to avoid
tainting the jury. Nothing in the record indicates that the
media interfered with Luong's trial.
In Skilling the United States Supreme Court found that
the jury's acquittal of Skilling of several counts with which
he had been charged supported its conclusion that a
presumption of prejudice did not exist. However, in light of
the facts of this case, in particular Luong's admission that
he threw each of his children off the bridge, the fact that
Luong was not acquitted of any of the charged offenses does
not either support or rebut a presumption of jury
bias or impartiality. The evidence in this case simply
did not create any inference from which the jury could
conclude that he killed some, but not all, of his children.
Therefore, in light of the facts of this case, the
[substituted p. 15]
1121097
jury's verdict neither supports nor negates a finding of
presumed prejudice.
E. Additional factor raised by Luong.
This Court has also considered Luong's argument that the
"Mobile community's close involvement with the case" resulted
in prejudice that prevented a fair trial. The Court of
Criminal Appeals relied on State v. James, 767 P.2d 259 (Utah
1989), and Rideau in reaching its conclusion that prejudice
was presumed. After examining those cases in light of the
facts of this case, this Court concludes that those cases are
distinguishable.
In State v. James, the size of the community and the
actions of the defendant are substantially different than
here. The James community was much smaller than the community
in this case. The town where the offense in James was
committed had a population of 28,880; the county had a
population of 69,200. In this case, the populations of Mobile
and Mobile County are substantially larger. Additionally,
3
the James community engaged in a rescue effort much more
As previously noted, Mobile County has a population of
3
over 400,000 citizens.
[substituted p. 16]
1121097
widespread than the one in this case. The defendant in James
played the role of victim and deceived the public by leading
the citizens to believe that the child was alive and could be
rescued, resulting in a massive search when the defendant knew
that the child was dead. The James community searched for a
missing child reported to be alive; here, the publicity about
and search for the children occurred after the children were
dead. Luong did not deceive the Mobile community; the
community involvement began after he admitted that the
children were dead, and the community then assisted in the
recovery of the bodies. The small size of the community and
the actions of the defendant in James supported a finding of
presumed prejudice in light of the community's involvement in
a rescue effort and its frustration over the defendant's
deception. In this case, the larger population of Mobile
County and the facts surrounding the involvement of the
community in the search for the bodies make these facts and
circumstances
less
inflammatory
than
the
facts
and
circumstances in James and did not create an environment where
prejudice must be presumed.
17
1121097
Rideau is the "seminal" case discussing prejudice
presumed from pretrial publicity. The evidence in Rideau
established that the offense was committed in a community of
150,000 residents and that an "out-of-court" trial of Rideau
was conducted when the media published Rideau's interrogation
and confession. In this case, the media did not broadcast a
tape-recording of Luong's confession, and, although the media
did report on Luong's guilty-plea proceeding, the report was
objective and detailed a public event that transpired in
court. Because Luong was not "tried" in the media and because
the community of Mobile is larger than the community in
Rideau, Rideau is distinguishable.
Finally, this Court has considered the decision in Wilson
v. State, 480 So. 2d 78 (Ala. Crim. App. 1985), reversing a
trial court's order refusing to transfer a case. The offense
in Wilson occurred in a town of less than 10,000, and the
community encouraged the local officials to arrest the
defendant. The evidence indicated that the public believed
that Wilson, a white male, had killed one of his employees, a
black male. When the sheriff refused to arrest Wilson, there
was public outcry. Evidence was presented that 20 years
18
1121097
earlier Wilson's grandfather had been tried for the murder of
a young black activist and found not guilty. Additionally,
testimony was presented that community talk indicated that
Wilson's trial was an opportunity to avenge the death of the
black activist at the hands of Wilson's grandfather. The
Court of Criminal Appeals held that the record disclosed that
"bias and prejudice" against Wilson permeated the community
and that the trial court had exceeded the scope of its
discretion in denying Wilson's motion for a change of venue.
Unlike the record in Wilson, the record in this case does
not establish that bias and prejudice permeated the Mobile
community at the time of Luong's trial. Although the facts
surrounding the offenses in this case are inflammatory, no
evidence indicates that the community demanded Luong's arrest
or that an underlying bias against Luong existed at the time
of trial.
This Court acknowledges that the record supports a
finding that the community of Mobile grieved over the tragic
deaths of the four children. The community exhibited its
compassion by helping to search for the children's bodies and
its generosity by raising funds to pay for funeral expenses
19
1121097
for the children. This type of community involvement,
however, does not create a presumption of bias against Luong;
rather, it indicates the humanity and mercy of the citizens of
Mobile County. We cannot conclude that such acts support a
finding that Luong could not receive a fair trial in Mobile
County.
After considering the pretrial publicity, the community
involvement, and the alleged resulting community prejudice in
this case, in light of the size and characteristics of Mobile
County, the content of the pretrial publicity, the timing of
media coverage in relation to Luong's trial, and the lack of
media interference with the trial or influence on the verdict,
this Court concludes that this case does not present "one of
those rare instances where prejudice must be presumed," ___
So. 3d at ___, i.e., that the publicity was so prejudicial
that
the
jurors
could
not
decide
the
case
fairly.
Unquestionably, the record establishes that members of the
venire recalled the offenses; however, the record does not
support the conclusion that the community's initial feelings
of shock and reprehensibility at the time the offenses were
discovered were present in the venire for Luong's trial.
[substituted p. 20]
1121097
"If, in this age of instant, mass communication, we
were to automatically disqualify persons who have
heard about an alleged crime from serving as a
juror, the inevitable result would be that truly
heinous or notorious acts will go unpunished. The
law does not prohibit the informed citizen from
participating in the affairs of justice. In
prominent cases of national concern, we cannot allow
widespread publicity concerning these matters to
paralyze our system."
Calley v. Callaway, 519 F.2d 184, 210 (5th Cir. 1975). See
also Patton v. Yount, 467 U.S. 1025, 1035 (1984)(recognizing
that "[i]t is not unusual that one's recollection of the fact
that a notorious crime was committed lingers long after the
feelings of revulsion have passed"). Therefore, this Court
holds that the trial court did not exceed the scope of its
discretion in refusing to find presumed prejudice against
Luong and refusing to transfer his case on that basis, and the
judgment of the Court of Criminal Appeals in this regard is
reversed.
II.
Next, the State contends that the Court of Criminal
Appeals' holding that the trial court's refusal to conduct
individual voir dire of the venire concerning the effects of
the pretrial publicity on the veniremembers' capacities to be
fair precluded Luong from showing actual prejudice conflicts
21
1121097
with cases that hold that a trial court has wide discretion in
conducting voir dire and in making determinations of juror
bias and prejudice. See Skilling, 561 U.S. at ___, 130 S.Ct.
at
2917
(recognizing
that
"[n]o
hard-and-fast
formula
dictates
the necessary depth or breadth of voir dire" and that "[j]ury
selection ... is 'particularly within the province of the
trial judge'"); and Patton v. Yount, 467 U.S. at 1036 (noting
that the trial court must determine "did a juror swear that he
could set aside any opinion he might hold and decide the case
on the evidence, and should the juror's protestation of
impartiality have been believed"). According to the State,
the trial court's use of juror questionnaires and its
questions posed to the venire adequately provided the trial
court and the parties an opportunity to determine whether the
veniremembers could base their decision on the evidence
presented at trial. The State admits that individual voir
dire of the venire is the "preferred approach" as a matter of
policy when a case involves extensive publicity but maintains
that the trial court's procedures in this case satisfied the
requirements of the established law, adequately assessed the
risk of bias and prejudice among the veniremembers, and did
22
1121097
not render the process of jury selection constitutionally
deficient.
To assist the trial court and the parties in determining
the effect of the pretrial publicity on the venire, the trial
court
required
the
veniremembers
to
complete
jury
questionnaires and then to respond to questions propounded to
the venire as a whole. The jury questionnaire asked each
veniremember to answer the following questions:
"Did you read or hear anything concerning this
case?"
_______________
"Before coming to the courthouse?"
_______________
"Since arriving at the courthouse?"
_______________
"If [you have read or heard anything about this
case], what did you hear?"
The questionnaire then asked the veniremember to identify the
television programs he or she watched; the local news stations
watched; the frequency with which
the
veniremember watched the
news; the radio stations the veniremember listened to; and the
periodicals,
including
magazines
and
newspapers,
the
veniremember read. During the voir dire, the following
occurred:
23
1121097
"THE COURT: Now, listen to this question very
carefully. Would any of you, based on what you have
read, seen, or heard, or remember could you set
those things aside and serve as a fair and impartial
juror?
"In other words, is there any member of the jury
who thinks because they have a recollection of this
case, whether it be from radio, television, or
newspaper, Internet, or any other source, that it
would be impossible for you to put that aside, lay
that aside and sit as a fair and impartial juror in
this case and base your decision only on the
evidence as you hear it in this courtroom?
"Can any of you –- or would any of you tell me
it would be impossible for you to sit as a fair and
impartial jury in this case?
"(Response.)
"THE COURT: I see a hand in the back. Could you
please stand, sir, and just give us your name and
number?
"PJ [T.]: [T], 141.
"THE COURT: Mr. [T.], you are telling me that
regardless of what you may have heard, read or seen,
you are telling me that you in no way could set that
aside and sit as a juror?
"PJ [T.]: No, sir.
"THE COURT: Thank you. Is it 144?
"PJ [T.]: 141.
"THE COURT: All right. The rest of you are
telling me that even though you may have heard,
read, or seen matters about this case, and you may
have had some preconceived impression or opinion,
24
1121097
based on what you have heard, read or seen, that you
could sit as a juror in this case, base your verdict
only on the evidence as it comes from the witness
stand and any evidence as it comes from the witness
stand and any evidence that may be introduced into
evidence in the form of photographs or documents or
something, and you could render a fair and impartial
verdict by setting aside any of that and base your
verdict on the evidence that you hear in this
courtroom? You can do that?
"(No response.)
"THE COURT: If you can't, other than Mr. T.,
please raise your hand.
"(No response.)"
When Luong preserved his objection to the trial court's denial
of his motion to conduct individual voir dire with regard to
pretrial publicity, the trial court responded:
"Okay. First of all, it's my reading of the law
that individual voir dire is not a requirement and
it is not a right. Only where the Court feels, in
its discretion, that it is necessary to explore
other areas more thoroughly is an individual voir
dire preferable.
"Secondly, the Court has gone to a significant
length to have the attorneys for both parties
develop
a
lengthy
questionnaire.
And
this
questionnaire was given to the venire on Monday, and
they were give all the time needed, and encouraged
by me to be thorough in their answers in filling out
the questionnaires.
"The Court then, at the parties' request, gave
an entire day to go through these questionnaires,
25
1121097
read them, and study them, so that they could more
intelligently strike a jury.
"The law further says, as I read it from various
cases dealing with change of venues and pretrial
publicity, that even though a person might have a
preconceived
recollection
based
on
pretrial
publicity, if they say they can put aside what they
have heard, read or seen, that's all that's
necessary, if they can render a fair and impartial
verdict based on the evidence as it is adduced at
trial.
"....
"From my reading of the law, at least the
Alabama Supreme Court is going to have to absolutely
change 180 degrees its years of precedent in saying
that I need to have or allow defense individual voir
dire. Because no one other than Mr. [T.] indicated
that they would have any problem whatsoever in
setting aside anything that they may have heard,
read or seen."
In Ex parte Anderson, 602 So. 2d 898, 899 (Ala. 1992),
this Court provided the standard of review for a trial court's
decision regarding whether to conduct individual voir dire,
stating:
"Whether
to
allow
individual
voir
dire
examinations is within the trial court's discretion.
Hallford v. State, 548 So. 2d 526, 538 (Ala. Crim.
App. 1988), affirmed, 548 So. 2d 547 (Ala. 1989),
cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107
L.Ed.2d 342 (1989). Furthermore, '"[t]he decision
of the trial court in denying individual voir dire
examination will not be disturbed absent abuse of
that discretion."' Henderson v. State, 538 So. 2d
276, 283 (Ala. Crim. App. 1990), affirmed, 583 So.
26
1121097
2d 305 (Ala. 1991), cert. denied, 503 U.S. 908, 112
S.Ct. 1268, 117 L.Ed.2d 496 (1992)(quoting Hallford,
548 So. 2d at 538)."
The United States Supreme Court in Skilling discussed the
trial court's responsibility in selecting a
fair
and impartial
jury and the appellate court's deference in reviewing the
selection process when pretrial publicity is at issue,
stating:
"When pretrial publicity is at issue, 'primary
reliance on the judgment of the trial court makes
[especially] good sense' because the judge 'sits in
the locale where the publicity is said to have had
its effect' and may base her evaluation on her 'own
perception of the depth and extent of news stories
that might influence a juror.' ... Appellate courts
making after-the-fact assessments of the media's
impact on jurors should be mindful that their
judgments lack the on-the-spot comprehension of the
situation possessed by trial judges.
"Reviewing courts are properly resistant to
second-guessing the trial judge's estimation of a
juror's impartiality, for that judge's appraisal is
ordinarily
influenced
by
a
host
of
factors
impossible to capture fully in the record -- among
them, the prospective juror's inflection, sincerity,
demeanor, candor, body language, and apprehension of
duty. ... In contrast to the cold transcript
received by the appellate court, the in-the-moment
voir dire affords the trial court a more intimate
and immediate basis for assessing a venire member's
fitness for jury service."
Skilling, 561 U.S. at ___, 130 S.Ct. at 2918.
27
1121097
In Ex parte Brown, 632 So. 2d 14 (Ala. 1992), this Court
examined whether the trial court's refusal to conduct
individual voir dire even though
the evidence established that
the pretrial publicity with regard to the offense and the
defendant was significant denied the defendant his right to an
impartial jury. Because Brown discusses the United States
Supreme Court decision in Mu'min v. Virginia, 500 U.S. 415
(1991), addressing this issue and because both cases are
analogous to this case, we quote extensively from the facts
and analysis in Brown:
"On August 10, 1987, the bodies of Linda LeMonte
and her daughter, Sheila Smoke, were found in their
home. Dr. Allan Stillwell testified that LeMonte
died as a result of a nine-inch cut to her throat
and that Smoke died as a result of multiple stab
wounds to the chest, throat, and abdomen. On August
12, 1987, Brown was arrested for the murders.
"Prior to voir dire of the venire, the defendant
moved for individual voir dire, based on the
pretrial publicity of the case. The judge denied
the motion, but during voir dire asked the following
question: 'Now, ladies and gentlemen, does anyone
know anything about this case, either what you have
heard, read, know first-hand, news media, anybody
know anything about this case?' Of the 66 members of
the jury venire, 42 members (or 63%) responded
affirmatively. The trial judge then continued:
"'All right. Now, ladies and gentlemen,
those of you who stood and stated that you
had either read, heard, or talked about
28
1121097
this particular case, this is one of the
most crucial questions I have asked all
morning. This is the question where the
seriousness of your oath will come forth.
You will understand the seriousness of it
again, the only thing this court, –- the
thing this court is required to do, and
these lawyers are required to do, is to
strike or empanel a fair and impartial
jury. That's what the system requires.
That's what we intend to do. Is there any
member of the venire who has heard, read,
talked about, knows anything about this
case, or believes that you have already
formed some opinion, have any preconceived
ideas, have [a] predisposition to the
extent that it would interfere with your
ability to go into the jury room with the
rest of the jurors, ... absorb the
evidence, listen to the evidence, weigh it,
sift through it, and, at the appropriate
time, render a fair and impartial verdict,
based on the evidence and the law that I
charge you is applicable in this case? I'm
going to give you until 1:30 to make that
decision, because we are going to take a
lunch break. I want to let you think about
that question because that's the crucial
question in this case, whether those that
have read or heard something about this
case, could you still be a fair and
impartial juror? Court will be in recess
until 1:30.'
"After the lunch break, the following occurred:
"'BY THE COURT: All right, the question I
asked you just before lunch, any member of
the venire believes or those that stood
[and] said that you had heard, read, talked
about this matter, either one of you feel
that it would interfere with your ability
29
1121097
to render a fair and impartial verdict with
the rest of the jurors, after listening to
the evidence and the law that I charge you
that is applicable in this case? If you
would,
please
stand.
Any
further
questions?'
"Defense
counsel
then stated
that because
of
the
unusual amount of pretrial publicity and the intense
amount of interest this case had generated in the
community, he wished to individually question the
prospective jurors concerning what they had heard or
read about the case in order to determine the extent
of what the jurors knew about the case. Defense
counsel further stated that he did not believe that
the jury had been thoroughly examined on the issue
of pretrial publicity, and he added, 'Human nature
[is] such that people will not readily get up and
admit in a courtroom in front of a judge, who is the
ultimate symbol of impartiality, that they cannot be
fair ... reasonable and ... objective.' In
response, the judge stated:
"'I have painstakingly and in great detail
voir dired this jury venire, okay? And I
believe that I have done it about as
thoroughly as it could have been done.
Now, I don't know any other way for me to
make the jurors say pretrial publicity
would affect them other than ask them the
questions the way I have asked them. Now,
you know, I can't, and I don't think I
should go to the extent, and I'll –- not
only the law but fairness doesn't require
me to go to extent of having carte blanche
exposition of asking the jurors questions,
especially the detailed way in which I have
voir dired this jury, and trying to seek
out, ferret out their views about certain
things.'
30
1121097
"The judge further stated that he believed that
individual voir dire was necessary only if a
prospective juror equivocated as to whether he or
she could be fair and impartial. The trial judge
then asked the jury venire:
"'Does any ... member of the venire know of
any reason, any reason whatsoever that you
believe that you should not be selected to
serve on this jury? If you do, stand, I'll
take you in chambers and find out what the
reason is.... Anyone has any predisposed
position about this case ...? Anyone in
your mind feel that you could not be fair
in this matter, or render a fair, impartial
verdict?'
"In response to those questions, two of the
jurors admitted that they could not be fair and
impartial. These jurors were excused. The judge
denied
defense
counsel's
renewed
request
for
individual voir dire.
"The issue before this Court is whether the
Court of Criminal Appeals erred when it held that
the instant case is distinguishable from Mu'Min v.
Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d
493 (1991).
"In Mu'Min, the following had been reported in
the news media: (1) Mu'Min's previous criminal
history; (2) the details of the charged crime; (3)
the fact that Mu'Min had been rejected for parole
six times; (4) the details of the prior murders of
which Mu'Min had been convicted; (5) Mu'Min's prison
infractions; (6) the fact that the death penalty had
not been available at the time of the previous
murders; (7) the fact that Mu'Min had confessed to
the charged crime; and (8) the opinion of local
officials that Mu'Min was guilty. There had been 47
newspaper articles published related to the murder.
31
1121097
"Further, in Mu'Min the petitioner submitted 64
proposed voir dire questions to the trial judge and
filed a motion for individual voir dire. The trial
judge denied the motion for individual voir dire,
but he separated the venire into panels of four to
deal with the issue of publicity. If a veniremember
stated that he or she had acquired information about
the alleged offense or the accused from the news
media or from any other source, the judge then
proceeded to ask each person individually whether
the information he or she had received affected that
person's impartiality in the case. The defendant in
Mu'Min argued that the judge's failure to question
the veniremembers about the specific content of the
news reports to which they had been exposed violated
his Sixth Amendment right to an impartial jury and
his Fourteenth Amendment right to due process. The
Supreme Court held that the trial judge had only to
examine
the
extent
of
the
exposure
to
the
prejudicial publicity in order to determine whether
a juror could act impartially.
"In the instant case, Brown filed a request for
individual voir dire because of the pre-trial
publicity. The trial judge denied this request and
proceeded to ask the venire as a whole whether the
members could be impartial. Some of the types of
pre-trial publicity involved in this case were as
follows: (1) 53 front page newspaper articles; (2)
radio broadcasts (lead stories); (3) deputy district
attorney's statements to the effect that this case
was '[o]ne of the most graphically horrible cases
we've had since I've been a D.A.,' and that 'if any
case called for the electric chair, Brown's does';
(4) a reference by the Montgomery chief of police to
the crime scene as 'one of the most hideous ... in
this area in a long time'; (5) publication of the
details of the defendant's prior crimes; and (6)
statements by the prosecutor to the effect that the
defendant had admitted the crime.
32
1121097
"This case is virtually indistinguishable from
Mu'Min. The only meaningful factual difference
between this case and Mu'Min is that the trial judge
in Mu'Min broke the venire into panels of four to
determine whether the jurors could be impartial,
whereas in this case the trial judge asked the
venire as a whole whether the members could be
impartial. The method of determining impartiality
is not critical. The crucial requirement is that
the trial court get enough information to make a
meaningful determination of juror impartiality. As
the Court in Mu'Min stated:
"'Whether a trial court decides to put
questions about the content of publicity to
a potential juror or not, it must make the
same
decision
at
the
end
of
the
questioning: is this juror to be believed
when he says he has not formed an opinion
about the case?'
"500 U.S. at 425, 111 S.Ct. at 1905.
"After carefully reviewing the record, we
conclude that the trial judge acquired adequate
information from the venire to make an independent
determination as to whether the jurors would be
impartial."
632 So. 2d at 15-17.
This case is essentially indistinguishable from Brown and
Mu'Min, the United State Supreme Court case discussed in
Brown. Similar to the pretrial publicity in Brown and Mu'Min,
the pretrial publicity in this case included numerous
newspaper articles and radio and television broadcasts
discussing the nature of the offenses, the potential
33
1121097
punishments for the offenses, the details of the defendant's
life, and his confession to committing the offenses. Like the
trial courts in Brown and Mu'Min, the trial court refused to
conduct individual voir dire and obtained
information
from the
veniremembers by propounding questions to the venire to
determine whether the veniremembers would be impartial. Just
as in Mu'Min and in Brown, the question to be answered by this
Court is whether the trial court erred by accepting, without
individual voir dire, the assurances of the seated jurors that
they could put aside what they had read or heard and render a
fair verdict based on the evidence.
Applying the precedent of the United States Supreme Court
and this Court to the facts of this case, we cannot conclude
that the trial court exceeded the scope of its discretion in
denying Luong's request that the trial court conduct
individual voir dire. The record indicates that the trial
court was acutely aware of the pretrial publicity, the local
reaction to the crime, Luong's reputation, and the alleged
community prejudice. The record further reflects that the
trial court was concerned about providing Luong with a fair
and unbiased jury. The trial court's determination that
34
1121097
individual voir dire regarding pretrial publicity was not
required was the culmination of a lengthy process that
incorporated responses to questionnaires, responses or the
lack thereof to oral inquiries about bias, and repeated
admonishments to the venire of the need for candor. The trial
court asked the veniremembers if they could determine the case
based only on the evidence presented. With the exception of
one veniremember, who was struck, the other veniremembers
indicated that, even though they had knowledge of the case,
they could set aside any preconceived notions and render a
fair and impartial decision based upon the evidence. The
record does not establish that any of the seated veniremembers
indicated a potential bias based on his or her exposure to
pretrial publicity. Only speculation and conjecture supports
a finding otherwise. Individual voir dire is required only
when there is an indication that the assurances of the seated
jurors that they could put aside what they had read or heard
and render a fair verdict based on the evidence are not
genuine. The record in this case indicates that the
veniremembers were contemplative of the trial court's
questions and genuine in their responses. Although this Court
35
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may have employed different voir dire procedures, it cannot
conclude that the trial court exceeded its discretion in
denying individual voir dire with regard to the impact of the
publicity to uncover bias. Because the record does not
establish that the veniremembers were not forthright with
their responses that they could render a fair verdict based on
the evidence, and in light of the broad discretion vested in
the trial court in conducting voir dire, the Court of Criminal
Appeals erred in holding that individual voir dire was
mandated, and its judgment in this regard is reversed.
III.
The State further contends the Court of Criminal Appeals'
holding that the trial court exceeded the scope of its
discretion by denying Luong's counsel funds to travel to
Vietnam to interview family members to develop mitigation
evidence conflicts with Bui v. State, 888 So. 2d 1227 (Ala.
2004). In Bui, this Court stated: "While we recognize
defense
counsel's
obligation
to
conduct
a
thorough
investigation of a defendant's background, the trial court
must consider the reasonableness of the investigation." 888
So. 2d at 1230. We further opined that "'a court must
[substituted p. 36]
1121097
consider not only the quantum of the evidence already known to
counsel, but whether the known evidence would lead a
reasonable attorney to investigate further.'" 888 So. 2d at
1230 (quoting Wiggins v. Smith, 539 U.S. 510, 527 (2003)).
Luong moved the trial court for funds for his counsel to
travel to Vietnam to investigate his childhood and to
interview
various
relatives,
including
his
mother,
stepfather,
and aunts in an effort to develop mitigation evidence. In
support of his motion, Luong attached an affidavit from a Dr.
Paul Leung, a Vietnam native and a mitigation expert. Dr.
Leung averred:
"I am of the opinion that Lam Luong's childhood and
adolescence in Vietnam is significant mitigation
evidence. Vietnamese society is generally cruel in
its treatment of Amerasian children, especially
black Amerasians, and they are often ostracized and
banished from society. Lam Luong is a black
Amerasian and his personal history reveals he was
treated much like other Amerasian children born
before the fall of Saigon in 1975."
The foregoing affidavit, however, does not adequately
establish that the "known evidence" would lead a reasonable
attorney to investigate further. The affidavit presents
generalizations about the treatment of Amerasian children in
Vietnam and does not provide any specific information about
37
1121097
Luong's childhood from which the trial court could determine
that
additional investigation
in
Vietnam would yield
mitigation evidence. Therefore, the trial court did not
exceed the scope of its discretion in denying Luong's motion.
Moreover, the trial court did not deny Luong's motion
without providing an avenue for future relief. The trial
court
suggested
that
Luong's
counsel
conduct
videoconferencing
with Luong's relatives in Vietnam to determine what, if any,
potential evidence the relatives could provide. The trial
court further provided that, if the videoconferencing
indicated that mitigation evidence could be developed in
Vietnam, Luong could request funds for travel at a later date.
Because the record establishes that the trial court
considered the reasonableness of Luong's request and provided
a means for Luong to develop mitigation evidence, the trial
court did not exceed the scope of its discretion in denying
Luong's request for funds for his counsel to travel to Vietnam
to investigate mitigation evidence, and the judgment of the
Court of Criminal Appeals holding otherwise is reversed.
IV.
38
1121097
Last, the State contends that the Court of Criminal
Appeals erred in determining that the trial court exceeded the
scope of its discretion by admitting into evidence at the
sentencing hearing a videotape of Cpt. Darryl Wilson tossing
sandbags of the approximate weight of each of the children off
the Dauphin Island Bridge and his testimony about the rate of
speed at which the children fell. The Court of Criminal
Appeals held that
"because there was no testimony that showed that the
experiment was similar to the actual events that
occurred on the Dauphin Island Bridge, the admission
of the evidence of Cpt. Wilson's experiment was not
relevant to or probative of the issue of Luong's
sentencing."
Luong, ___ So. 3d at ___. According to the State, the
decision of the Court of Criminal Appeals conflicts with this
Court's decision in Ex parte Hinton, 548 So. 2d 562 (Ala.
1989), which recognizes that § 13A-5-45(d), Ala. Code 1975,
provides for the admission of "[a]ny evidence which has
probative value and is relevant to sentence." The State
maintains that the videotape and Cpt. Wilson's testimony
demonstrated how the offenses were committed and were
probative and relevant
to
the jury's determination whether the
aggravating circumstance that "the capital offense was
39
1121097
especially heinous, atrocious, or cruel as compared to other
capital offenses," see § 13A-5-49(8), Ala. Code 1975, was
applicable.
This Court's review of the record indicates that although
Luong objected to the admissibility of the videotape and to
Cpt. Wilson's testimony before the sentencing hearing began,
he did not object at the time the evidence was admitted. The
law is well established that when a party is denied relief
upon the filing of a motion in limine, the party must object
with specificity at the time the evidence is proffered at
trial to preserve the issue for appellate review. See Parks
v. State, 587 So. 2d 1012, 1015 (Ala. 1991); and Huff v.
State, 678 So. 2d 293, 296-97 (Ala. Crim. App. 1995). Because
Luong did not object with specificity when the trial court
admitted the videotape and testimony into evidence at the
sentencing hearing, this issue is not preserved for appellate
review. However, because Luong has been sentenced to death,
his failure to object at trial does not bar appellate review;
40
1121097
rather, this Court may conduct a review for plain error. See
Rule 45A, Ala. R. App. P.4
In Ex parte Brown, 11 So. 3d 933, 935-36 (Ala. 2008),
this Court explained:
"'The standard of review in reviewing a
claim under the plain-error doctrine is
stricter
than
the
standard
used
in
reviewing an issue that was properly raised
in the trial court or on appeal. As the
United States Supreme Court stated in
United States v. Young, 470 U.S. 1, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985), the
plain-error doctrine applies only if the
error is "particularly egregious" and if it
"seriously
affect[s]
the
fairness,
integrity or public reputation of judicial
proceedings." See Ex parte Price, 725 So.
2d 1063 (Ala. 1998).'"
(Quoting Hall v. State, 820 So. 2d 113, 121–22 (Ala. Crim.
App. 1999).)
Rule 45A, Ala. R. App. P., states:
4
"In all cases in which the death penalty has
been imposed, the Court of Criminal Appeals shall
notice any plain error or defect in the proceedings
under review, whether or not brought to the
attention of the trial court, and take appropriate
appellate action by reason thereof, whenever such
error has or probably has adversely affected the
substantial right of the appellant."
41
1121097
Additionally, this Court recognizes that this alleged
error occurred
during
the sentencing hearing of Luong's trial.
Section 13A-5-45(d), Ala. Code 1975, provides that "[a]ny
evidence which has probative value and is relevant to
sentence" is admissible during the sentencing phase of a
capital trial. The Alabama Rules of Evidence do not apply at
sentencing. Rule 1101(b)(3) of the Alabama Rules of Evidence
provides:
"(b)
Rules
Inapplicable.
These
rules,
other
than
those with respect to privileges, do not apply in
the following situations:
"....
"(3)
Miscellaneous
Proceedings.
Proceedings for extradition or rendition;
preliminary hearings in criminal cases;
sentencing,
or
granting
or
revoking
probation;
issuance
of
warrants
for
arrest,
criminal summonses, and search warrants;
and proceedings with respect to release on
bail or otherwise."
(Emphasis added.) See also Whatley v. State, [Ms. CR-08-0696,
Oct. 1, 2010] ___ So. 3d ___ (Ala. Crim. App. 2010)(holding
that no rule of evidence barred the relevant testimony of the
social worker at the penalty phase because "[t]he Rules of
Evidence do not apply to sentencing hearings"). Furthermore,
42
1121097
in Harris v. State, 352 So. 2d 479 (Ala. 1977), which predates
the adoption of the Alabama Rules of Evidence, this Court
stated:
"In the conduct of the sentencing hearing, the
rules of evidence should be relaxed; and, while the
criteria for aggravating circumstances are strictly
construed against the State, proof of aggravating
and mitigating circumstances may be by deposition,
written interrogatories, affidavits or by reliable
hearsay. While some discretion must of necessity be
vested in the trial judge, wide latitude should be
given the parties and their counsel in making
opening statements, proffer of evidence, and in
making
closing
arguments.
Particularly,
the
convicted defendant should not be restricted unduly;
for, literally, he is pleading for his life."
352 So. 2d at 495 (emphasis added).
In Duke v. State, 889 So. 2d 1, 18 (Ala. Crim. App. 2002)
rev'd on other grounds, 544 U.S. 901 (2005), the Court of
Criminal Appeals held that the trial court did not exceed the
scope of its discretion by admitting into evidence during the
sentencing hearing of a capital trial a mannequin to
demonstrate the way the victims were killed. Although this
case involves a videotape demonstrating how the offenses were
committed, we find the caselaw and reasoning in Duke
instructive. Duke argued that the use of a mannequin, which
was not comparable to the size and physical characteristics of
43
1121097
the victims, constituted prejudice that was not outweighed by
any probative value. In considering this issue, the Court of
Criminal Appeals stated:
"A claim of this nature is relatively rare;
however, this Court in Minor v. State, 780 So. 2d
707 (Ala. Crim. App. 1999), rev'd on other grounds,
780 So. 2d 796 (Ala. 2000), addressed the use of a
doll in a capital-murder prosecution to demonstrate
how the victim's injuries may have occurred. We
stated:
"'"The
rule
on
the
admissibility of experiments in
open court is stated in Shows v.
Brunson, 229 Ala. 682, 682, 159
So. 248 (1935).
"'"'Experiments
or
tests of this character
in
open
court
are
usually
within
the
discretion of the trial
judge,
guided
by
a
sound judgment as to
whether the result will
b e
s u f f i c i e n t l y
relevant and material
to
warrant
such
procedure. 22 C.J. p.
700, § 899.
"'"'Similarity
of
conditions, and a test
that will go to the
substantial question in
hand, should appear.'
"'"See also Hawkins v. State, 53
Ala. App. 89, 93, 297 So. 2d 813
44
1121097
(1974). Both the scope and
extent of the experiment, if
allowed, rest within the sound
discretion of the trial judge.
The exercise of that discretion
will not be reversed on appeal
unless it has been clearly and
grossly abused. Campbell v.
State, 55 Ala. 80 (1876); C.
Gamble,
McElroy's
Alabama
Evidence, § 81.02(1) (3rd ed.
1977).
"'"While the conditions of
the
experiment
and
of
the
occurrence in issue should be
substantially similar, they need
not
be
identical.
McElroy,
81.01(4).
"'"'A
reasonable
or
substantial similarity
suffices and only where
the
conditions
are
dissimilar
in
an
essential
particular
should the evidence of
an
experiment
be
rejected. If we have a
case
wh er e
the
conditions
are
not
identical,
then
the
dissimilarity goes to
the
weight
of
the
evidence
of
the
experiment but not to
its admissibility.'
"'"See also Eddy v. State, 352
So. 2d 1161 (Ala. Cr. App.
1977)."
45
1121097
"'Ivey v. State, 369 So. 2d 1276, 1278–79
(Ala. Cr. App. 1979). See also, C. Gamble,
McElroy's Alabama Evidence, § 81.02 (5th
ed. 1996).
"'However, before the demonstration,
the trial court should determine if the
prejudicial effect of the demonstration
substantially
outweighs
its
probative
value. Even if the trial court finds the
demonstration to be relevant and helpful to
the jury, the trial court may still exclude
it if the probative value is substantially
outweighed
by
the
danger
of
unfair
prejudice. See Rule 403, Ala. R. Evid.;
McElroy § 81.02. "The power to make this
determination is vested in the trial
court." Hayes v. State, 717 So. 2d [30,]
37 [(Ala. Crim. App. 1997)].'
"780 So. 2d at 762–63."
889 So. 2d at 18. Cf. Morgan v. State, 518 So. 2d 186, 189
(Ala. Crim. App. 1987)(holding that the trial court did not
exceed the scope of its discretion in admitting into evidence
during the guilt phase of a capital trial a videotaped
reenactment of the offense).
The question presented by the admission of the videotape
and Cpt. Wilson's testimony is whether the evidence had
probative value and was relevant to a jury determination and,
if it was probative and relevant, whether the prejudicial
46
1121097
effect of the evidence substantially outweighed its probative
value.
The test for probativeness is whether an experiment or
demonstration is "substantially" like the real event. I
Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama
Evidence § 81.001(2)(6th ed. 2009). This Court has viewed the
videotape, which shows the Dauphin Island Bridge and Cpt.
Wilson dropping sandbags from the bridge, and has read Cpt.
Wilson's testimony. Cpt. Wilson testified that he "made the
sandbags to the approximate weights ... of each child" and
that he dropped the bags from the top of the bridge at that
point where Luong had stated he had dropped the children. He
also testified that the weather on the day he dropped the
sandbags was similar to the weather on the day the offenses
were committed. Luong did not cross-examine Cpt. Wilson about
the videotape or about whether the conditions on the day it
was made were similar to the conditions on the day of the
offenses. The videotape was illustrative of the offenses and
relevant to the determination whether the aggravating
circumstance that the offenses were heinous, atrocious, or
cruel applied to these murders. Considering the content of
47
1121097
the videotape and the "relaxed" evidentiary standard during a
sentencing hearing, the videotape had probative value and was
relevant to the determination of an aggravating circumstance.
Moreover, this Court cannot agree with Luong that because
the videotape had a "big visual impact" the risk of prejudice
against him was extreme to the extent that it affected his
substantial rights. Luong admitted that he threw his children
off the Dauphin Island Bridge. The videotape demonstrated the
acts Luong admitted he committed and did not create a danger
unfair prejudice that substantially outweighed the probative
value of the evidence. Cf. Duke, supra (holding that the
prejudicial impact of a demonstration in open court during the
penalty phase of how the children's throats were slit did not
outweigh the probative value of the demonstration). This
Court agrees with the trial court that the probative value of
the evidence outweighed any danger of unfair prejudice.
This
Court
has
also
considered
the
questionable
credibility and accuracy of Cpt. Wilson's testimony that
"objects fall at the same rate of speed, regardless of the
weight," and that the children fell at a speed of 25 mph.
Luong had an opportunity to challenge this testimony through
48
1121097
cross-examination, and he chose not to do so. See Ballard v.
State, 767 So. 2d 1123, 1140 (Ala. Crim. App. 1999)("'A party
is given wide latitude on cross-examination to test a
witness's
partiality,
bias,
intent,
credibility,
or
prejudice,
or to impeach, illustrate, or test the accuracy of the
witness's testimony or recollection as well as the extent of
his knowledge.'" (quoting Williams v. State, 710 So. 2d 1276,
1327 (Ala. Crim. App. 1996))). Therefore, in light of Luong's
acceptance of Cpt. Wilson's testimony and the fact that the
jurors observed the rate at which the sandbags fell when they
watched the videotape, this Court cannot conclude that the
admission
of
the
videotape
"seriously
affected
his
substantial
rights" and "had an unfair prejudicial impact on the jury's
deliberations." See Ex parte Brown, 11 So. 3d 933, 938 (Ala.
2008). See also Ex parte Walker, 972 So. 2d 737, 752 (Ala.
2007) (recognizing that the appellant has the burden of
establishing
prejudice relating to an issue being reviewed for
plain error).
Therefore, the judgment of the Court of Criminal Appeals
holding that the trial court exceeded the scope of its
discretion in admitting the videotape and Cpt. Wilson's
testimony into evidence is reversed.
49
1121097
Conclusion
Based on the foregoing, the judgment of the Court of
Criminal Appeals is reversed, and this case is remanded for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Bolin, Shaw, and Bryan, JJ., concur.
Parker, Murdock, and Main, JJ., dissent.
Wise, J., recuses herself.*
*Justice Wise was a member of the Court of Criminal
Appeals when that court considered this case.
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1121097
PARKER, Justice (dissenting).
I respectfully dissent from the main opinion. I write
specifically to address Parts I and II of that opinion.
This Court has a duty to protect the Constitution and to
uphold is provisions.
"The right of the accused to a fair and
impartial trial, or to a fair trial before an
impartial
jury,
is
a
constitutional
right.
Regardless
of
all
other
considerations,
it
affirmatively appears from the record before us in
its entirety that the accused did not have a trial
by an impartial jury. We cannot, if we were so
disposed, ignore the solemn duty placed upon this
court by our organic law. The Constitution is the
supreme law of this jurisdiction, and we are
enjoined to enforce and to uphold its provisions. No
higher obligation could be placed upon us. Fidelity
to our oaths demands that we give effect to the
constitutional guaranty that every person accused of
crime has a right to a trial before an impartial
jury. We are convinced that the accused has been
denied his constitutional right. ...
"In the case of Johnson v. Craft et al., 205
Ala. 386, 87 So. 375 [(1921)], it was said:
"'The Constitution's control is absolute
wherever and to whatever its provisions
apply;
and
every
officer,
executive,
legislative, and judicial, is bound by oath
(section 279) to support the Constitution,
to vindicate and uphold its mandates, and
to observe and enforce its inhibitions
without regard to extrinsic circumstances.
It commits to nobody, officer, or agent any
authority or power whatever to change or
modify or suspend the effect or operation
of its mandates or its prohibitions.'"
51
1121097
Martin v. State, 22 Ala. App. 154, 158, 113 So. 602, 606
(1926)(emphasis added), reversed on other grounds, 216 Ala.
160, 113 So. 602 (1926). These principles compel me to
dissent from the main opinion for the specific reasons set
forth below.
I.
I dissent from the conclusion in the main opinion that
"the trial court did not exceed the scope of its discretion in
refusing to find presumed prejudice against [Lam] Luong ...."
___ So. 3d at ___.
Under
the
Sixth
Amendment
to
the
United
States
Constitution, every criminal defendant has a right to an
impartial jury. One of the ways a criminal defendant's right
to an impartial jury can be threatened is by media coverage.
In certain cases, when extensive and inflammatory media
coverage has saturated the community, a presumption may arise
that any potential jurors are prejudiced against the
defendant. In order to ensure that a criminal defendant's
Sixth Amendment right to an impartial jury is protected, the
Supreme Court of the United States has developed a four-factor
test to determine whether a presumption of juror prejudice
exists in light of the specific facts of a case. The four
52
1121097
factors are: "(1) the size and characteristics of the
community where the crimes occurred; (2) the general content
of the media coverage; (3) the timing of the media coverage in
relation to the trial; and (4) the media interference with the
trial or the verdict." Luong v. State, [Ms. CR-08-1219,
February 15, 2013] ___ So. 3d ___, ___ (Ala. Crim. App. 2013)
(summarizing the four factors set forth in Skilling v. United
States, 561 U.S. 358, ___, 130 S. Ct. 2896, 2915-16 (2010)).
Of critical importance in the present case is the second
factor: the content of the media coverage. Generally, the
presumed-prejudice principle is "rarely applicable" and is
"reserved for extreme situations." Coleman v. Kemp, 778 F.2d
1487, 1537 (11th Cir. 1985). However, the Supreme Court of
the United States has held that when a confession is
accompanied by media coverage of other prejudicial or
inflammatory information, prejudice is presumed. Rideau v.
Louisiana, 373 U.S. 723, 733 (1963). The media coverage in
this case, the details of which are set forth in the Court of
Criminal Appeals' opinion in Luong and discussed more
thoroughly below, warrants a presumption that the jurors,
chosen from citizens in Mobile County, were
prejudiced
against
Luong.
"The theory of [the trial] system is that the
53
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conclusions to be reached in a case will be induced only by
evidence and argument in open court, and not by any outside
influence, whether of private talk or public print."
Patterson v. Colorado ex rel. Attorney General of Colorado,
205 U.S. 454, 462 (1907). Accordingly, a trial court may,
upon motion by the defense or the prosecution, transfer a case
to another county or take any other action designed to ensure
that a fair trial may be had if there exists in the county in
which the prosecution is pending such prejudice that a fair
trial cannot be had there. See Skilling, 561 U.S. at ___, 130
S.
Ct.
at
2913
("The
Constitution's
place-of-trial
prescriptions ... do not impede transfer of the proceeding to
a
different
district
at
the
defendant's
request
if
extraordinary local prejudice will prevent a fair trial —- a
'basic requirement of due process.'").
The prerequisite for obtaining a change of venue on the
ground of prejudice is that the prejudice is such that it will
prevent a fair and impartial trial in the current venue. This
prejudice can take several forms, but the ground most commonly
advanced for a change of venue is that adverse pretrial
publicity precludes the selection of an unbiased jury. 4
Wayne R. LaFave et al., Criminal Procedure § 16.3(b), 806 (3d
54
1121097
ed. 2007). In other words, when pretrial publicity creates
prejudice, a change of venue may be appropriate.
Furthermore, prejudice may be presumed where "'pretrial
publicity is so pervasive and prejudicial that [a court]
cannot expect to find an unbiased jury pool in the
community.'" House v. Hatch, 527 F.3d 1010, 1023-24 (10th
Cir. 2008) (quoting Goss v. Nelson, 439 F.3d 621, 628 (10th
Cir. 2006)); see also United States v. Angiulo, 897 F.2d 1169,
1181 (1st Cir. 1990) (stating that court must consider whether
prejudicial inflammatory publicity regarding the defendant's
case so saturated the community as to render it virtually
impossible to obtain an impartial jury there). To justify a
presumption of prejudice under this standard, the publicity
must be both extensive and sensational in nature. Angiulo,
897 F.2d at 1181.
The rationale underlying the principle of presumed
prejudice is that defendants and judges "simply cannot rely on
'"jurors' claims that they can be impartial."'" United States
v. McVeigh, 153 F.3d 1166, 1182 (10th Cir. 1998) (quoting
Mu'Min v. Virginia, 500 U.S. 415, 429 (1991), quoting in turn
Patton v. Yount, 467 U.S. 1025, 1031 (1984) ("[A]dverse
pretrial publicity can create such a presumption of prejudice
55
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in a community that the jurors' claims that they can be
impartial should not be believed.")); Hayes v. Ayers, 632 F.3d
500, 511 (9th Cir. 2011) ("We may give 'little weight' to a
prospective juror's assurances of impartiality 'where the
general atmosphere in the community or courtroom is
sufficiently inflammatory.'" (citations omitted)); United
States v. Abello-Silva, 948 F.2d 1168, 1176-77 (10th Cir.
1991) ("In rare cases, the community is so predisposed that
prejudice can be presumed, and venue must be transferred as a
matter of law."); 6 LaFave, Criminal Procedure § 23.2(a), 264
("[P]rejudicial publicity may be so inflammatory and so
pervasive that the voir dire simply cannot be trusted to fully
reveal the likely prejudice among prospective jurors.").
As mentioned above, the principle of presumed prejudice
is rarely applicable and is reserved for extreme situations.
See Hayes, 632 F.3d at 508; United States v. Campa, 459 F.3d
1121, 1143 (11th Cir. 2006); accord Skilling, 561 U.S. at ___,
130 S. Ct. at 2915 ("A presumption of prejudice, our decisions
indicate, attends only the extreme case."). The defendant's
burden in proving presumed prejudice is, consequently,
extremely high. McVeigh, 153 F.3d at 1182. Thus, it has been
said that to establish presumptive prejudice, the defendant
56
1121097
must show that "an irrepressibly hostile attitude pervade[s]
the community" and that the publicity "dictates the
community's opinion as to guilt or innocence." Abello-Silva,
948 F.2d at 1176. It likewise has been said that prejudice
cannot be presumed unless the trial atmosphere has been
"'utterly corrupted by press coverage.'" Campa, 459 F.3d at
1144 (quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977)).
The reviewing court "must find that the publicity in essence
displaced the judicial process, thereby denying the defendant
his constitutional right to a fair trial." McVeigh, 153 F.3d
at 1181. As stated above, the Supreme Court of the United
States has considered four factors in determining whether a
trial court should presume prejudice from media coverage: (1)
the size and characteristics of the community in which the
crime or crimes occurred; (2) whether the media coverage
contained a confession or other blatantly prejudicial
information of the type readers or viewers could not
reasonably be expected to shut from sight, i.e., the general
content of the media; (3) the temporal proximity between the
media coverage and the defendant's trial; and (4) media
interference with the jury's verdict. Skilling, 561 U.S. at
___, 130 S. Ct. at 2913-16.
57
1121097
I agree with the Court of Criminal Appeals' analysis of
each of the above factors. I find the Court of Criminal
Appeals' discussion of the second prong to be particularly
persuasive in this case.
In Rideau v. Louisiana, 373 U.S. 723 (1963), the seminal
case
concerning
presumed
prejudice,
the
defendant's
videotaped
confession to law enforcement was broadcast on numerous
occasions over a local television station to a relatively
small community; the Supreme Court of the United States
concluded that such media coverage resulted in a "kangaroo
court" that derailed due process and quashed any hope of a
fair trial in that location. 373 U.S. at 726. The Supreme
Court held that "the spectacle of [the defendant] personally
confessing in detail to the crimes with which he was later to
be charged," to the tens of thousands of people who saw and
heard it, "in a very real sense was [the defendant's] trial –-
at which he pleaded guilty to murder. Any subsequent court
proceedings in a community so pervasively exposed to such a
spectacle could be but a hollow formality." Rideau, 373 U.S.
at 726. The Supreme Court reached this conclusion "without
pausing to examine a particularized transcript of the voir
58
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dire examination of the members of the jury." 373 U.S. at
727. The Supreme Court held that prejudice was presumed.
In Skilling, the Supreme Court of the United States noted
that, although the news stories regarding the defendant and
the crime were not kind by any means, they did not contain "a
confession or other blatantly prejudicial information" of the
type readers or viewers could not reasonably be expected to
ignore. 561 U.S. at ___, 130 S. Ct. at 2916. Comparing the
content of the media coverage in Skilling to that of Rideau,
supra, the Supreme Court found that the content of the media
coverage did not warrant a presumption of prejudice.
Skilling, 561 U.S. at ___, 130 S. Ct. at 2916. The Supreme
Court noted in Rideau that "[w]hat the people ... saw on their
television sets was [the defendant], in jail, flanked by the
sheriff and two state troopers, admitting in detail the
commission of the robbery, kidnapping, and murder,
in
response
to leading questions by the sheriff." Rideau, 373 U.S. at
725. The Supreme Court also noted in Rideau that "[f]or
anyone who has ever watched television the conclusion cannot
be avoided that this spectacle, to the tens of thousands of
people who saw and heard it, in a very real sense was [the
defendant's] trial -- at which he pleaded guilty to murder."
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373 U.S. at 726. In contrast, the Supreme Court noted in
Skilling
that
although
Rideau's
"dramatically
staged
admission
of guilt ... was likely imprinted indelibly in the mind of
anyone who watched it," the pretrial publicity involving
Skilling, in comparison, was less memorable, and thus less
prejudicial; Skilling did not involve any confession, much
less a blatantly prejudicial smoking-gun variety confession,
that could invite prejudgment opinions throughout the
community regarding his culpability. Skilling, 561 U.S. at
___, 130 S. Ct. at 2916. The United States District Court for
the Southern District of Texas denied Skilling's change-of-
venue motion, despite "isolated incidents of intemperate
commentary," because the media coverage "ha[d] [mostly] been
objective and unemotional," and the facts of the case were
"neither heinous nor sensational." 561 U.S. at ___, 130 S.
Ct. at 2908. The court concluded that pretrial publicity
concerning the case did not warrant a presumption that the
defendant would be unable to obtain a fair trial in that
venue. 561 U.S. at ___, 130 S. Ct. at 2909.
In Ex parte Fowler, 574 So. 2d 745 (1990), this Court
also declined to presume prejudice when the media coverage
gave only "factual and objective accounts of the events
60
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surrounding the petitioner's case." 574 So. 2d at 748. The
defendant in Fowler attempted to show that there had been
extensive publicity surrounding the case in Fayette
County
and
that some of that publicity had spilled over into Lamar
County, the county the trial judge, upon a motion for a change
of venue, deemed appropriate in which to try the case.
Fowler, 547 So. 2d at 749. The defendant introduced the
results of a survey of 200 potential jurors in Lamar County.
A majority of those who participated in the survey stated that
they had knowledge of the case. Those who stated that they
were aware of the case also stated that they had acquired
their knowledge largely by reading articles appearing in
newspapers published in Fayette, Lamar, and Tuscaloosa
Counties, by listening to the radio, and by talking with
friends and relatives. Of those who participated in the
survey, 46% stated that, based on what they had read or heard
about the case, they personally believed that the defendant
was not justified in killing her husband. After carefully
reviewing the numerous newspaper articles and the transcripts
of radio broadcasts that were contained in the record, this
Court concluded that none of the media coverage was inherently
prejudicial or tended to inflame the community to rally
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against the defendant. To the contrary, the media coverage
contained only factual and objective accounts of the events
surrounding the defendant's case and not necessarily anything
that would be unfairly prejudicial or inflammatory. Id.
In this case, Lam Luong confessed to throwing his four
children, one at a time, off the Dauphin Island Bridge. The
State
emphasizes,
however,
that
Luong's
confession,
unlike
the
defendant's confession in Rideau, was not broadcast. State's
brief, at p. 36. However, Luong's guilty plea was broadcast.
State's brief, at p. 36.
The Supreme Court of the United States in Skilling hinted
that a guilty plea, by itself, whether treated the same as a
confession or as mere "blatantly prejudicial information,"
might not be enough to warrant the presumption of prejudice
when the guilty plea is made by a codefendant; it, however,
did not address the effect of broadcasting a defendant's
guilty plea, as occurred in this case. Skilling, 561 U.S. at
___, 130 S. Ct. at 2917 ("Although publicity about a
codefendant's guilty plea calls for inquiry to guard against
actual prejudice, it does not ordinarily –- and, we are
satisfied, it did not here –- warrant an automatic presumption
of prejudice.").
62
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Regardless, because the media content consisted of other
prejudicial information, not only a confession or a guilty
plea, such as "Luong's prior criminal history, ... Luong's
desire to plead guilty, Luong's decision to withdraw his
guilty plea, the community's outrage over the death of the
four children, and what the community believed should be
Luong's punishment," Luong, ___ So. 3d at ___, it is not
necessary to determine whether a confession alone has any
bearing
upon
the
presumption-of-prejudice
analysis
and
whether
a guilty plea is treated as a confession under Skilling.
The Court of Criminal Appeals detailed the extensive
media coverage in Luong, as follows:
"Most of the articles cited above appeared on
the front page of the [Mobile] Press-Register and
were often accompanied by photographs of the four
children, photographs of the recovery efforts, and
photographs of individuals mourning the loss of the
four victims. It was reported on numerous occasions
that Luong had been described by the local community
as a crack addict, that the motive for the murders
was revenge, that Luong had a criminal history, that
Luong had been in trouble with the law in Georgia
and Mississippi, that Luong had been arrested in
Georgia for possessing crack cocaine, that Luong had
pleaded guilty in 1997 to possessing cocaine in the
State of Mississippi, that Luong had had another
drug charge in 2000 but that charge was dropped,
that Luong's drug problem and his behavior were
getting worse, and that Luong had said that he
wanted his case to be more famous than Virginia Tech
or September 11, 2001.
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"There were articles describing the impact of
the crime on the community and the community's
efforts to come to terms with the ramifications of
Luong's actions. There was extensive publicity
concerning the community's involvement in the case
and
the
recovery
efforts
the
community
had
undertaken to find the bodies of the four children.
At one point over 150 people, mostly volunteers,
helped with the recovery efforts, and the newspaper
asked all owners of property near the water to walk
their properties. A local cemetery donated the
plots for the children to be buried and set aside a
plot for the children's mother. A local school
raised money for the mother. A permanent memorial
was erected at Maritime Park in Bayou La Batre to
honor the children. The community was invited to
the graveside service for the children, the family
of the victims hosted an appreciation dinner for the
volunteers who had searched for the children's
bodies, and a moment of silence was observed at a
Mardi
Gras
parade
to
honor
the
children.
Individuals indicated how consumed the Mobile
community had become with the tragedy and the anger
and outrage that the community felt toward Luong.
"Luong's case also received extensive local
television coverage. Bob Cashen, news director for
local FOX affiliate WALA-TV, Channel 10, stated that
his station aired 143 news segments related to the
murders. Christian Stapleton, the custodian of
records for local CBS affiliate WKRG, Channel 5,
stated that 442 stories had been aired concerning
the case from January 2008 through January 2009.
Wes Finley, news director for local NBC affiliate
WPMI, Channel 15, furnished a list of 93 stories
that had been aired about the case. WKRG also
hosted an online forum concerning the murders
entitled 'Children Thrown from the Bridge.' One
topic in this forum entitled 'How Should the Baby
Killer be Dealt With' was viewed over 16,000 times."
64
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Luong, ___ So. 3d at ___ (footnote and reference to record
omitted).
Further, in support of his change-of-venue motion, Luong
presented the results of a telephone poll that had been
conducted by Dr. Verne Kennedy, the president of Market
Research Insight, Inc. Dr. Kennedy's poll, conducted in
January 2009 of 350 people in the Mobile area, revealed that
84% of those polled had heard about the case, that 44% had
heard a great deal about the case, that 71% had a personal
opinion that Luong was guilty, and that 75% thought that other
people viewed Luong as guilty.
The media coverage in this case was extensive and
sensational; I agree with the Court of Criminal Appeals
concerning this issue and its conclusion that "Luong's case
represents one of those rare instances where prejudice must be
presumed." Luong, ___ So. 3d at ___. Therefore, I
respectfully dissent from the conclusion in the main opinion
that "the trial court did not exceed the scope of its
discretion in refusing to find presumed prejudice against
Luong ...." ___ So. 3d at ___.
II.
65
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I also dissent from the conclusion in the main opinion
that "the Court of Criminal Appeals erred in holding that
individual voir dire was mandated ...." ___ So. 3d at ___.
Based on my conclusion that Luong put forth evidence of
pervasive prejudice against him based on the extensive and
sensational media coverage, the burden then shifted to the
State to rebut that presumption. Campa, 459 F.3d at 1143. In
Campa, the United States Court of Appeals for the Eleventh
Circuit held that "the government can rebut any presumption of
juror prejudice by demonstrating that the district court's
careful and thorough voir dire, as well as its use of
prophylactic measures to insulate the jury from outside
influences, ensured that the defendant received a fair trial
by an impartial jury." 459 F.3d at 1143. Individual voir
dire was necessary in order to ensure that the veniremembers
selected to serve on Luong's jury held no prejudice against
him.
I note that, in Alabama, voir dire is conducted under the
discretion of the trial court and that, "'[e]ven in capital
cases, there is no requirement that a defendant be allowed to
question each prospective juror individually during voir dire
examination ....'" Browning v. State, 549 So. 2d 548, 552
66
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(Ala. Crim. App. 1989) (quoting Hallford v. State, 548 So. 2d
526 (Ala. Crim. App. 1988)). Additionally, according to the
United States Supreme Court, "no hard-and-fast formula
dictates the necessary depth or breadth of voir dire."
Skilling, 561 U.S. at ___, 130 S. Ct. at 2917.
However, "individual questioning may be necessary under
some circumstances to ensure that all [juror] prejudice has
been exposed." Haney v. State, 603 So. 2d 368, 402 (Ala.
Crim. App. 1991). Also, "questions on voir dire must be
sufficient to identify prospective jurors who hold views that
would prevent or substantially impair them from performing
the
duties required of jurors." Jackson v. Houk, 687 F.3d 723,
735 (6th Cir. 2012); see also 6 LaFave, Criminal Procedure §
23.2(f), 278 ("Yet another way to overcome the prejudicial
impact of pretrial publicity is by a voir dire that identifies
those prospective jurors influenced by the publicity and a
challenge procedure that eliminates all persons in that group
who actually have been biased by the publicity.").
In the present case, in light of the voluminous evidence
put forth by Luong establishing a presumption of prejudice
based on the extensive and sensational media coverage,
individual voir dire was required to ensure that Luong receive
67
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a fair trial by an impartial jury. In support of my
conclusion, a comparison of two cases decided by the United
States Court of Appeals for the Eleventh Circuit, Campa,
supra, and Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985), is
helpful.
In Campa, a case concerning whether presumed prejudice
based on extensive and inflammatory media coverage existed,
the Eleventh Circuit Court of Appeals stated:
"Once the defendant puts forth evidence of the
pervasive prejudice against him, the government can
rebut any presumption of juror prejudice by
demonstrating that the district court's careful and
thorough voir dire, as well as its use of
prophylactic measure to insulate the jury from
outside influences, ensured that the defendant
received a fair trial by an impartial jury."
459 F.3d at 1143. The Eleventh Circuit then examined the
trial court's voir dire of the veniremembers and stated:
"The voir dire in this case was a model voir
dire for a high profile case. The court conducted a
meticulous two-phase voir dire stretching over seven
days.
In
contrast
to
the
generalized,
pre-fabricated, and sometimes leading questions of
[a] survey [submitted by the defendant] were the
detailed and neutral voir dire questions that the
court
carefully
crafted
with
the
parties'
assistance. In the first phase of voir dire, the
court screened 168 prospective jurors for hardship
and their ability to reach a verdict based solely on
the evidence. In the second phase, the court
extensively
and
individually
questioned
82
prospective jurors outside the venire's presence
regarding
sensitive
subjects
....
Phase
two
68
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questioning revealed that most of the prospective
jurors, and all of the empaneled jurors, had been
exposed to little or no media coverage of the case.
Those who had been exposed to media coverage of the
case vaguely recalled a 'shootdown,' but little
else. Ultimately, the court struck 32 out of 168
potential jurors (19%) for Cuba-related animus [the
defendant was Cuban], which was well within an
acceptable range."
459 F.3d at 1147 (footnotes omitted). The Eleventh Circuit
concluded:
"In sum, the record in this case amply
demonstrates
that
the
district
court
took
extraordinary measures to carefully select a fair
and impartial jury. The court extensively and
individually questioned the prospective jurors,
repeatedly cautioned them not to read anything or
talk to anyone about the case, insulated the jurors
from media publicity, provided the defendants with
extra peremptory challenges, struck 32 persons for
cause, and struck all of the Cuban–Americans over
the government's Batson[ v. Kentucky, 476 U.S. 79
(1986),] objection. Under these circumstances, we
will not disturb the district court's broad
discretion in assessing the jurors' credibility and
impartiality."
459 F.3d at 1148.
In Coleman v. Kemp, the Eleventh Circuit stated that a
presumption of juror prejudice as a result of media coverage
could be rebutted by voir dire of the members of the jury.
778 F.2d at 1541 n. 25. In Coleman, the defendant was charged
with murdering six individuals. 778 F.2d at 1488. Once
charges were brought against the defendant, the defendant
69
1121097
filed a motion for a change of venue, alleging that refusal to
grant the motion would deprive him of his right to an
impartial jury guaranteed by the Sixth Amendment; the trial
court denied the defendant's motion, and the defendant
appealed. On appeal, the defendant argued that the "pretrial
publicity and the community's atmosphere were so prejudicial
and inflammatory that the trial court's refusal to grant the
[defendant's] motion for a change of venue deprived him of his
rights guaranteed by the Sixth ... Amendment[]." 778 F.2d at
1489. The Coleman court concluded that the defendant could
not receive a fair trial before an impartial jury in that
venue because of the presumption of prejudice that had arisen
as a result of the inflammatory pretrial publicity that had
saturated the community. 778 F.2d at 1537-38. The State
argued that the transcript of the voir dire record setting
forth the "examination of the members of the jury" could rebut
any presumption of prejudice; the Coleman court agreed that
there could be such a rebuttal. However, the Coleman court
concluded that the voir dire examinations conducted by the
trial judge were insufficient to rebut the presumption of
prejudice for two reasons.
70
1121097
First, the problem with the voir dire in Coleman was that
the trial court in that case did not ask "questions which were
calculated to elicit the disclosure of the existence of actual
prejudice, the degree to which the jurors had been exposed to
prejudicial publicity, and how such exposure had affected the
jurors' attitude towards the trial." 778 F.2d at 1542.
Instead, the trial court in that case conducted an
insufficient voir dire by asking leading questions and
inducing conclusory answers.
Second, the voir dire in Coleman was insufficient because
the trial court examined prospective jurors in the presence of
other prospective jurors who had not yet been examined. The
Coleman court stated that preferable voir dire procedures
would have followed the American Bar Association Guidelines,
as follows:
"'If there is a substantial possibility that
individual jurors will be ineligible to serve
because of exposure to potentially prejudicial
material, the examination of each juror with respect
to exposure shall take place outside the presence of
other chosen and prospective jurors.'"
778 F.2d at 1542.
The voir dire in the present case is more similar to the
voir dire conducted in Coleman than to the voir dire conducted
in Campa. In the present case, the trial court failed to
71
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conduct a sufficient voir dire examination of each juror by
failing to obtain enough information to evaluate the degree to
which the jurors had been exposed to prejudicial publicity and
how such exposure had affected the jurors' attitudes toward
the trial. According to the Court of Criminal Appeals, the
trial court conducted the voir dire in the following order:
"On March 9, 2009, the voir dire examination
began, and 156 prospective jurors completed juror
questionnaires
related
to
Luong's
case.
The
questionnaire consisted of 11 pages. Question number
51 specifically asked the jurors if they had read or
heard about the case and the content of what they
had read or heard. ... Most of the jurors who
indicated that they had heard or read about the case
did not complete the question concerning the content
of what they had heard or read.
"A review of the questionnaires indicated that
of the 156 jurors who completed questionnaires, 139
of those jurors had heard about the case and only 15
had not heard about the case; 38 of the jurors who
had heard about the case responded that they had
heard or read that Luong either had confessed to the
murders or had pleaded guilty to the murders.
"After the circuit court held that it was
allowing
individual
voir
dire,
the
following
occurred:
"'The Court: What I am going to do is I'm
going to say: I want everybody to raise
their hand if they have heard, read, or
seen, or by word of mouth know anything
about this case. Raise your hand. Don't
tell me what it is.
"'We're going to take their names.
I'm going to have them identify who they
72
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are
and
then
we
will
take
them
individually.'
"However, during voir dire examination the
circuit court merely asked the following questions
concerning pretrial publicity:
"'The Court: Okay. I have told you that
there has been media coverage from various
media outlets about this case. And I want
to see a show of hands as to who may
remember
seeing,
reading
or
hearing
anything about this case.
"'(Response.)
"'The Court: Okay. I Think a better
question would be -- please put your hands
down.
"'(Laughter.)
"'The Court: Who among you have not heard,
read or seen anything about this case?
"'(Response.)
"'The Court: Okay. Could you -- Ma'am,
could you stand and give us your name and
your number?
"'[S.E.]: [S.E.], number 62.
"'The Court: Thank you, ma'am. You may be
seated.
"'Yes, sir?
"'[L.M.]: [L.M.], number 63.
"'The Court: Thank you very much. Okay
"'Now, listen to this question very
carefully. Would any of you, based on what
73
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you have read, seen, or heard, or remember,
could you set those things aside and serve
as a fair and impartial juror?
"'In other words, is there any member
of the jury who thinks because they have a
recollection of this case, whether it be
from radio, television, or newspaper,
Internet, or any other source, that it
would be impossible for you to put that
aside, lay that aside and sit as a fair and
impartial juror in this case and base your
decision only on the evidence as you hear
it is in this courtroom?
"'Can any of you -- or would any of
you tell me it would be impossible for you
to sit as a fair and impartial juror in
this case?
"'(Response.)
"'The Court: I see a hand in the back.
Could you please stand, sir, and just give
us your name and number?
"'[S.T.]: Mr. [S.T.], 141.
"'The Court: [S.T.], you are telling me
that regardless of what you have heard,
read or seen, you are telling me that you
in no way could set that aside and sit as
a juror?
"'[S.T.]: No, sir.
"'The Court: Thank you. Is it 144?
"'[S.T.]: 141.
"'The Court: All right. The rest of you are
telling me that even though you may have
heard, read or seen matters about this
case,
and
you
may
have
had
some
74
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preconceived impression or opinion, based
on what you have heard, read or seen, that
you could sit as a juror in this case, base
your verdict only on the evidence as it
comes from the witness stand and any
evidence that may be introduced into
evidence in the form of photographs or
documents or something, and you could
render a fair and impartial verdict by
setting aside any of that and base your
verdict on the evidence that you hear in
this courtroom? You can do that.
"'(Response.)
"'The Court: If you can't, other than
[S.T.], please raise your hand.
"'(No response.)'"
Luong, ___ So. 3d at ___ (footnotes omitted). As the Court of
Criminal Appeals noted, Luong objected to the trial court's
method of handling the issue of pretrial publicity and the
court's failure to allow individual voir dire. ___ So. 3d at
___.
Further, the trial court in this case did not follow the
American Bar Association Guideline, recommended in Coleman,
that "'the examination of each juror with respect to exposure
shall take place outside the presence of other chosen and
prospective jurors.'" Coleman, 778 F.2d at 1542. The trial
court questioned the prospective jurors as a whole.
75
1121097
The voir dire conducted in this case is a mere shadow of
the "model voir dire for a high profile case" employed by the
federal district court in Campa. In the present case, all 12
jurors who served in Luong's jury indicated in their juror
questionnaires that they had heard that Luong had confessed or
that he had pleaded guilty; however, none of those jurors were
questioned individually. Instead, during the voir dire
examination, the trial court merely asked the prospective
jurors to raise their hands if they remembered seeing,
reading, or hearing anything about the case. None of the
jurors who served on Luong's jury were questioned
individually
concerning their exposure to pretrial publicity. The trial
court's failure to conduct an individual voir dire of the
jurors left unrebutted the presumption that the jurors were
prejudiced against Luong based on the inflammatory pretrial
publicity that saturated the community. In short, the trial
court did not get enough information to make a meaningful
determination of juror impartiality.
Therefore, I dissent from the conclusion in the main
opinion that "the Court of Criminal Appeals erred in holding
that individual voir dire was mandated." ___ So. 3d at ___.
76
1121097
I also write to address the sentiment in the following
paragraph from the main opinion:
"This
Court
has
also
considered
Luong's
argument
that the media coverage of Luong's confession and
the withdrawal of his guilty plea amounted to 'the
kind of deeply prejudicial pretrial exposure that
jurors cannot be reasonably expected to ignore.'
However, in light of the admission into evidence at
trial of Luong's confession in which he admitted
that he threw his children off the bridge, the
publicity about his confession and guilty-plea
proceeding did not result in a preconceived
prejudice that permeated the trial, preventing the
seating of a fair and impartial jury."
___ So. 3d at ___.
It appears that the main opinion concludes that because
Luong was so obviously guilty it was harmless error that his
Sixth Amendment right to an impartial jury was violated. I
disagree.
In Irvin v. Dowd, 366 U.S. 717, 722 (1961), the Supreme
Court of the United States noted that a "'fair trial in a fair
tribunal is a basic requirement of due process.'" (Quoting In
re Murchison, 349 U.S. 133, 136 (1955).) There, when the
defendant was indicted for murder, the defendant immediately
filed a motion for a change of venue alleging that the jury
pool was highly prejudiced due to "widespread
and
inflammatory
publicity." 366 U.S. at 720. The trial court granted the
defendant's motion and transferred the case to Gibson County.
77
1121097
Alleging that Gibson County was also saturated with
inflammatory publicity, the defendant filed a second motion
for a change of venue. This motion was denied by the trial
court based on the Indiana statute that allows only a single
change of venue. However, based on an Indiana Supreme Court
decision that states that it is a "'duty of the judiciary to
provide to every accused a public trial by an impartial jury
even though to do so the court must grant a second change of
venue and thus contravene [the statute],'" 366 U.S. at 721
(quoting State ex rel. Gannon v. Porter Circuit Court, 239
Ind. 637, 642, 159 N.E.2d 713, 715 (1959)), the United States
Supreme Court agreed with the defendant that the media
coverage in Gibson County was extensive and inflammatory and,
thus, vacated the judgments of the Supreme Court of Indiana
and the trial court, which had denied the defendant's second
motion for a change of venue. The United States Supreme Court
also added that only a jury, based on evidence presented in
court, can strip a person of his or her liberty and that "this
is true, regardless of the heinousness of the crime charged,
the apparent guilt of the offender or the station in life
which he occupies." 366 U.S. at 722.
78
1121097
In Coleman, the defendant had been charged with six
counts of murder. The United States Court of Appeals for the
Eleventh Circuit agreed with the State that evidence of the
defendant's guilt was overwhelming. 778 F.2d at 1541.
However, regardless of the evidence of the defendant's guilt
in that case, the Coleman court affirmed the trial court's
holding that a presumption that the jury was prejudiced
against the defendant based on extensive and inflammatory
media coverage existed because "to hold otherwise would mean
an obviously guilty defendant would have no right to a fair
trial before an impartial jury, a holding which would be
contrary
to
the
well
established
and
fundamental
constitutional right of every defendant to a trial." 778 F.2d
at 1541.
In the case at hand, this Court should not simply
overlook the presumption that the jury was prejudiced against
Luong based on the overwhelming evidence of his guilt. To do
so violates Luong's right to a fair trial before an impartial
jury.
Therefore, I must dissent.
Murdock and Main, JJ., concur.
79
1121097
MURDOCK, Justice (dissenting).
Reading the pervasive and sensational nature of the pre-
trial publicity in this case, as summarized by the Court of
Criminal Appeals in Luong v. State, [Ms. CR-08-1219,
February 15, 2013] ___ So. 3d ___, ___ (Ala. Crim. App. 2013),
and requoted near the end of Part I of Justice Parker's
dissenting opinion, ___ So. 3d at ___, as well as the polling
data referenced by Justice Parker in support of that summary,
___ So. 3d at ___, it is hard to imagine a case involving more
extensive and more prejudicial publicity or a case that would
more readily warrant a conclusion of presumed prejudice. By
the same token, it is hard to imagine a case with a greater
need for individualized voir dire to enable a defendant to
show actual prejudice. I recognize that we have witnessed
significant changes in news and communication technologies in
recent years; however, the fundamental and well established
constitutional principles at stake have not changed. With
all due respect, I fear that if these principles are not to be
allowed operative effect in a case such as this one, then they
are left with little or no meaningful field of operation.
80 | May 23, 2014 |
36d25f05-8338-434f-8ded-c0588d6632bb | Beasley v. Poellnitz | N/A | 1110353 | Alabama | Alabama Supreme Court | Following appellate mediation, this case was assigned to
1
Justice Main on July 24, 2013.
Rel: 05/30/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1110353
_________________________
Mary Leila Beasley Schaeffer and the Estate of Emma Glass
Beasley
v.
William M. Poellnitz, as administrator of the Estate of
Edwin G. Young, deceased, et al.
Appeal from Perry Circuit Court
(CV-05-40)
MAIN, Justice.1
Mary Leila Beasley Schaeffer and the estate of Emma Glass
Beasley (hereinafter collectively referred to as "the Beasley
1110353
Emma and Lyle had a brother who was killed in World War
2
II. At the time of his death, he was not married and did not
have any children.
2
branch") appeal from a judgment entered on a jury verdict,
awarding
compensatory
damages and punitive
damages on
mismanagement-of-trust and conversion claims in an action by
William M. Poellnitz, as administrator of the estate of Edwin
Glass Young, deceased, Adele Young Sommers, and Willard P.
Young (hereinafter collectively referred to as "the Young
branch"). We affirm in part and we reverse in part and
render a judgment for the Beasley branch on certain of the
Young branch's claims.
I. Facts and Procedural History
This case involves the management of a family trust, the
Westwood Management Trust ("the Trust"); the disposition of
personal property after the death of a family member, Edwin
Glass Young ("Eddie"); and claims of moneys owed between
family members. The corpus of the Trust consists of family
farmland, called Westwood ("Westwood"), located in Uniontown,
Perry County, comprising 541 acres, and an antebellum house
situated on Westwood. Two sisters, Emma Glass Beasley
("Emma") and Lyle Glass Young ("Lyle"), inherited Westwood,
2
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Mary Leila Beasley Schaeffer had one son, Kurt, who died
3
in an automobile accident in June 2008. Kurt had one child,
a daughter, Juliet Alexandra Schaeffer, who was six years old
at the time of trial and who was living with her mother in
Kansas.
Emma's husband, James Samuel Beasley, Jr., died around
4
1950.
3
including the house, as well as two adjoining properties
called Shields, consisting of 329 acres ("the Shields
property"), and Davidson, consisting of 598 acres ("the
Davidson property"), from their parents, Julius Franklin Glass
and Adele Davidson Ellis Glass, who died in 1964 and 1988,
respectively. Emma had two daughters, Ellis Beasley Long
("Ellis") and Mary Leila Beasley Schaeffer ("Mary"). Lyle
3
had three children, Eddie, who died in 2005, Willard P. Young
("Billy"), and Adele Young Sommers ("Adele").
Members of the Beasley branch and the Young branch have
resided at Westwood sporadically throughout the years. In
particular, in the 1940s, Emma, along with her two daughters,
Ellis and Mary, and Emma's sister, Lyle, along with her
children, Eddie, Billy, and Adele, lived at Westwood. In
1951, Emma, Ellis, and Mary moved to Houston, Texas, while
various members of the Young branch continued to reside at
Westwood.
4
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4
In August 1964, Billy left Westwood to enter college, and
he never returned to live at Westwood. In the mid 1960s, Mary
and Ellis returned to Westwood and managed the family farms,
the primary product of which was cotton, and ran the cotton
gin on the property while their mother, Emma, remained in
Texas to care for her mother and her sister, Lyle, who both
had moved to Texas to live with her. Eddie assisted his
cousins, Mary and Ellis, in running the cotton gin in 1969 and
1970 before he married and moved to Louisiana. Adele moved
from Westwood around 1970 and did not return.
Lyle, who had moved to Texas to live with Emma in 1968,
developed substantial medical problems while there that
prevented her from working. Emma cared for Lyle while she
lived with her. Lyle's children did not assist with their
mother's care.
Lyle's children visited her infrequently while she was
living in Texas with Emma. During the time Lyle lived in
Texas -- from 1968 until her death in 1996 -- Eddie lived in
Louisiana until 1993, when he returned to Alabama; Billy lived
in California, where he had resided since 1972; and, Adele,
after leaving Westwood around 1970, lived in Texas for a brief
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5
period, where she completed high school and some college, and
subsequently moved to Florida.
In December 1995, Emma employed an attorney in Texas to
draft the Trust. The primary purpose of the Trust was to
protect, maintain, and provide for Emma and Lyle during their
lifetimes. The Trust instrument provided that Emma's and
Lyle's children held a beneficiary interest in the corpus of
the Trust, contingent upon the death of both Emma and Lyle.
Emma's and Lyle's children would receive distributions,
following the deaths of both Emma and Lyle, only if there was
sufficient net income each fiscal year to make proper
distributions. Emma was named the trustee of the Trust. On
December 21, 1995, Emma and Lyle executed the Trust
instrument. That same day, Emma and Lyle deeded Westwood,
including the house, to the Trust. Lyle died in June 1996.
Lyle's will provided that all of her assets were devised to
her 3 children -- Eddie, Billy, and Adele.
In May 1996, before Lyle's death, Billy initiated a
partition-of-land lawsuit in Marengo County concerning the
Shields property and the Davidson property. In January 1998,
the Beasley branch and the Young branch entered into a
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6
mediated settlement agreement. The Shields property and the
Davidson property were reapportioned and both the Beasley
branch and the Young branch received 433 acres of land. At
that time, the Young branch agreed to reimburse the Beasley
branch $28,000 incurred for the caretaking of their mother,
Lyle, upon the sale of their portion of the land.
Eddie, who had returned to Uniontown from Louisiana
around 1993, lived at the Westwood house for a short period in
1995 before moving to the cotton-gin office, where he remained
until he died there on February 3, 2005. While Eddie was
living in Uniontown from 1993 until his death in 2005, he did
not pay rent but performed various tasks on and for Westwood.
Eddie's body was removed from the cotton-gin office on
February 5, 2005. Because the cotton-gin office had been
burglarized on several occasions, Mary locked the cotton-gin
office after Eddie's body was removed.
The day after Eddie's body was removed, Mary, who had
moved back into the Westwood house in 1999 with her mother,
Emma, inventoried the items in the cotton-gin office and took
them to Westwood. That same day, Mary made arrangements for
Eddie's funeral and paid the initial $3,000. Eddie's funeral
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7
expenses totaled $8,966. Although Adele agreed to be
responsible for the costs of Eddie's funeral, Adele never paid
any portion of those costs. Mary and Emma paid the remaining
funeral expenses, and the funeral home assigned to Mary its
claim against Eddie's estate for those expenses.
In May 2005, Poellnitz informed Mary that he had been
appointed administrator of Eddie's estate, and he requested a
time when he could take possession of Eddie's personal items.
Mary delivered the items to Poellnitz's office. When
Poellnitz filed the complaint in this matter, he claimed that
several guns, numerous tools, furniture, china, sterling
silver, antique fly-fishing rods, and a gas grill belonging to
Eddie remained in Mary's possession. The complaint alleged
that the items had an approximate value of $25,000.
Mary responded in detail regarding the items Poellnitz
claimed belonged to Eddie. Mary stated, in the alternative,
that the items were not at Westwood; that they had been paid
for by, and belonged to, Westwood; or that the items had
previously been stolen from the cotton-gin office. At trial,
Mary testified that, after this action was filed in May 2005,
she had been instructed by her attorney not to return any of
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8
the items still in her possession until the issues could be
resolved in the litigation.
In addition to the items that Emma and Mary had removed
from the cotton-gin office, Eddie had furniture at the
Westwood house that had been left there by him. After Eddie
died, according to Mary, Poellnitz agreed that the Beasley
branch could purchase the furniture for an agreed-upon price
of $1,000. Because Eddie's estate owed the Beasley branch
quite a bit of money, Mary agreed to give a $1,000 credit
against the debt owed in exchange for the furniture.
On May 13, 2005, the Young branch sued Emma, individually
and as trustee, and Mary, individually, alleging conversion of
Eddie's personal property and demanding an accounting of the
Trust. The Beasley branch answered the complaint and denied
the allegations. The Beasley branch filed a counterclaim
seeking recovery on assorted debts totaling $79,395 allegedly
owed by the Young branch to the Beasley branch and attaching
various
documents
evidencing
those
debts.
In
its
counterclaim, the Beasley branch also named Veronica Young,
Billy's wife, as a counterclaim defendant, alleging that
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Ellis filed a motion for substitution after she was
5
appointed personal representative. The trial court entered an
order granting Ellis's motion for substitution.
9
certain sums were owed to the Beasley branch and the Trust by
both Billy and Veronica.
The Young branch then amended its complaint, alleging, in
addition to another claim not relevant to this appeal,
mismanagement of the Trust by the trustee, Emma, and seeking
a one-half interest in the furnishings and other family
heirlooms
in
the
Westwood
house,
and
answered
the
counterclaim, generally denying the allegations and asserting
affirmative defenses. The Young branch filed a second amended
complaint,
seeking,
among
other
things,
an
award
of
compensatory and punitive damages under theories of conversion
and mismanagement of the Trust. The Beasley branch filed a
motion to dismiss, which was denied.
Ellis returned to Westwood in September 2008, while the
litigation was pending. Emma, the trustee, died on June 12,
2010. Ellis was named personal representative of Emma's
estate. Mary and Adele became cotrustees of the Trust
5
pursuant to the Trust instrument.
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The Beasley
branch's
counterclaim
alleged
a
claim
against
6
Billy's wife, Veronica, for money loaned.
10
The case was eventually tried before a jury from May 25
to June 2, 2011, on the Young branch's mismanagement-of-trust
and conversion claims, as well as their claims for an
accounting and for an award of a one-half interest in the
furnishings and other heirlooms in the Westwood house. The
jury also considered the Beasley branch's counterclaims
against the Young branch for various money loaned to the Young
branch. The jury jointly awarded the Young branch $63,915.18
against Emma's estate and Mary on the claim alleging
mismanagement of the Trust. The jury awarded the Young branch
$3,645 on its claim of conversion of Eddie's property. The
jury jointly awarded the Young branch one-half of the
furnishings and heirlooms in the Westwood house, which the
jury valued at $172,000 in total. On the counterclaims the
jury exonerated Adele and Eddie's estate but awarded jointly
to Emma's estate and Mary $8,043.48 against Billy and an
additional $8,043.48 against his wife, Veronica. The jury
6
also returned a verdict in favor of the Young branch on their
claims for punitive damages, awarding $200,000 to each of
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The Beasley branch filed a motion to vacate the trial
7
court's appointment of Mackey as trustee, arguing that the
Trust expressly listed Emma's daughter, Ellis, as successor
trustee in a scenario such as this one. The trial court later
granted the motion to vacate in light of an agreement of the
parties, following a temporary remand by this Court for the
purpose of giving the trial court jurisdiction.
11
Eddie's estate, Billy, and Adele and assessing those amounts
collectively against the Beasley branch.
On June 5, 2011, the trial court removed Mary and Adele
as cotrustees of the Trust and removed Poellnitz as the
administrator of Eddie's estate. On June 14, 2011, the trial
court entered a judgment on the jury's verdict. The Beasley
branch filed postjudgment motions. On August 22, 2011, the
trial court appointed William Mackey as both administrator of
Eddie's estate and trustee of the Trust. On September 7,
7
2011, the Beasley branch filed motions for a judgment as a
matter of law ("JML"), a new trial, or a remittitur, which the
trial court denied. In its November 23, 2011, postjudgment
order, however, the trial court amended the jury's punitive-
damages award to assess $100,000 on behalf of each of Eddie's
estate, Billy, and Adele against Emma's estate, and $100,000
on behalf of each of Eddie's estate, Billy, and Adele against
Mary. The Beasley branch appealed.
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12
II. Standards of Review
A. Motion for a JML
"When reviewing a ruling on a motion for a JML,
this Court uses the same standard the trial court
used initially in deciding whether to grant or deny
the motion for a JML. Palm Harbor Homes, Inc. v.
Crawford, 689 So. 2d 3 (Ala. 1997). Regarding
questions of fact, the ultimate question is whether
the nonmovant has presented sufficient evidence to
allow the case to be submitted to the jury for a
factual resolution. Carter v. Henderson, 598 So. 2d
1350 (Ala. 1992). The nonmovant must have presented
substantial evidence in order to withstand a motion
for a JML. See § 12-21-12, Ala. Code 1975; West v.
Founders Life Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala. 1989). A reviewing court must
determine whether the party who bears the burden of
proof has produced substantial evidence creating a
factual dispute requiring resolution by the jury.
Carter, 598 So. 2d at 1353. In reviewing a ruling
on a motion for a JML, this Court views the evidence
in the light most favorable to the nonmovant and
entertains such reasonable inferences as the jury
would have been free to draw. Id. Regarding a
question of law, however, this Court indulges no
presumption of correctness as to the trial court's
ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.
2d 1126 (Ala. 1992)."
Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875
So. 2d 1143, 1152 (Ala. 2003).
B. Motion for a New Trial
"'"It is well established that a
ruling on a motion for a new
trial rests within the sound
discretion of the trial judge.
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13
The exercise of that discretion
carries with it a presumption of
correctness, which will not be
disturbed by this Court unless
some legal right is abused and
the record plainly and palpably
shows the trial judge to be in
error."'
"Curtis v. Faulkner Univ., 575 So. 2d 1064, 1065-66
(Ala. 1991) (quoting Kane v. Edward J. Woerner &
Sons, Inc., 543 So. 2d 693, 694 (Ala. 1989), quoting
in turn Hill v. Sherwood, 488 So. 2d 1357, 1359
(1986))."
Baptist Med. Ctr. Montclair v. Whitfield, 950 So. 2d 1121,
1125-26 (Ala. 2006).
C. Punitive Damages
This Court "review[s] the trial court's award of
punitive damages de novo, with no presumption of correctness."
Mack Trucks, Inc. v. Witherspoon, 867 So. 2d 307, 309 (Ala.
2003) (citing Acceptance Ins. Co. v. Brown, 832 So. 2d 1, 24
(Ala. 2001)). See also § 6–11–23, Ala. Code 1975 ("No
presumption of correctness shall apply as to the amount of
punitive damages awarded by the trier of the fact.").
III. Analysis
The Beasley branch essentially presents five issues on
appeal. First, the Beasley branch argues that it is entitled
to a JML on the mismanagement-of-trust claim. Second, the
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14
Beasley branch argues that it is entitled to a JML on the
conversion claim. Third, as to the punitive damages, the
Beasley branch argues that punitive damages were not
warranted. Alternatively, the Beasley branch argues that the
trial court improperly apportioned the punitive damages.
Regardless, it says, the punitive damages are excessive and
the award must be vacated or remitted. Fourth, the Beasley
branch argues that it is entitled to a JML on the Young
branch's claim to a one-half ownership interest in the
furnishings and heirlooms at Westwood or to a reduction of the
value of those furnishings and heirlooms. Last, the Beasley
branch argues that it was entitled to a JML on all of its
counterclaims for moneys loaned to the Young branch. As part
of its argument on its counterclaims, the Beasley branch
complains that the trial court cannot undo the Marengo County
judgment in the amount of $28,000. We consider these in turn.
A. Mismanagement of the Trust
Typically, a mismanagement-of-trust claim requires the
beneficiaries to produce evidence "showing what [the trustee]
should have done, how [the trustee] failed to do so, and how
any such failure proximately caused damage to the trust and in
1110353
The parties agree that Texas trust law was applicable to
8
the issues in this matter relating to the Trust.
15
what amount." See Regions Bank v. Lowery, 101 So. 3d 210,
213-14 (Ala. 2012). However, in this case, the Trust
instrument, which provides that it is governed by Texas law,8
directed that "[t]he Trustee be saved harmless from any
liability for any action which such Trustee may take, or for
the failure of such Trustee to take any action, if done in
good faith and without gross negligence." Consequently, the
Young branch had to prove gross negligence on the part of the
trustee. Gross negligence was defined at trial as "the
intentional failure to perform a manifested duty in reckless
disregard of the consequences as affecting the life and
property of another." See, e.g., U-Haul Int'l, Inc. v.
Waldrip, 380 S.W. 2d 118, 137-38 (Tex. 2012); Merchants' Bank
of Mobile v. Zadek, 84 So. 715, 717 (Ala. 1919).
Emma's estate and Mary first argue that the trial court
erred when it denied their motions for a JML because, they
say, the Young branch failed to prove gross negligence. The
Young branch had alleged that it did not receive substantial
distributions from the Trust or accountings and that those
failures represented gross negligence. The Young branch had
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16
also criticized trust-related payments shown in the Trust's
financial statements and had alleged that the trustee
improperly commingled funds.
The evidence showed that Emma served as trustee until her
death in June 2010. Mary served as the bookkeeper for the
Trust at Emma's direction. Mary subsequently served as
cotrustee with Adele after Emma died and until she and Adele
were removed as cotrustees by the trial court.
As to the mismanagement-of-trust claim against Mary,
based on the record before us, we conclude that there is no
evidence of mismanagement of the Trust by Mary for the limited
time she served as cotrustee with Adele. All the evidence at
trial concerned the time Emma served as the trustee.
Consequently, we conclude that, as a matter of law, the Young
branch's mismanagement-of-trust claim against Mary should not
have been submitted to the jury. Mary was entitled to a JML
as to that claim. Therefore, we reverse the trial court's
judgment against Mary on the mismanagement-of-trust claim and
render a judgment in her favor on that claim.
Next, we turn to the mismanagement-of-trust claim against
Emma. First, regarding distributions from the Trust, the
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17
Trust instrument directed Emma to distribute income from
Lyle's share, after Lyle's death in 1996, yearly to Eddie,
Billy, and Adele in equal thirds. However, the Trust
explicitly provided that the distributions depended upon
whether there was any income remaining in that particular year
after payment of trust-related expenses. The evidence failed
to demonstrate that there was any income left to distribute to
the beneficiaries of the Trust after the expenses were paid.
Instead,
the
evidence
showed
that
Emma
actually
put
substantial amounts of her own money into the Trust to keep
Westwood operational. Accordingly, there was no evidence
indicating that Emma acted with gross negligence in declining
to make any distributions from the Trust to the Young branch.
Second, as to accountings, the evidence showed that
yearly accounting statements showing income and expenses of
the Trust were prepared every year and were sent to the
Internal Revenue Service ("IRS") with the yearly tax returns
for the Trust. In addition, Eddie, Billy, and Adele were
provided with annual statements from the Trust to use in
preparing their personal tax returns. The evidence also
indicated that the Young branch never requested additional
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18
accountings. We cannot conclude, on the record before us,
that there was any evidence of gross negligence with regard to
the yearly accountings that Emma provided the Young branch.
Third,
regarding
improper
non-trust-related
expenses,
the
Young branch again failed to provide evidence supporting its
claim. The accounting records do not demonstrate that money
from the Trust was spent for improper, non-trust-related
purposes. Instead, Mary's testimony indicated that she kept
detailed records, and she explained every expense.
Similarly, as to the allegations of commingling, although
Emma used one business account for both the Trust and her
personal business activities, that same account was used
before the Trust was established to manage both Emma's
personal property and the family properties. There was no
evidence indicating that this practice in any way harmed the
Trust or diminished the corpus of the Trust. Instead, the
Trust funds were always accounted for separately and were
traceable in the Trust record books. Accordingly, there is no
evidence indicating that Emma acted with gross negligence in
continuing this long-standing family practice of using one
account for various properties.
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19
We conclude that the Young branch failed to present
sufficient evidence showing that Emma mismanaged the Trust.
Because
the
evidence
does
not
support
a
finding
of
mismanagement of the Trust, the trial court erred in denying
the motion for a JML filed by Emma's estate as to the Young
branch's mismanagement-of-trust claim. Therefore, that claim
should not have been submitted to the jury, and the trial
court's order denying Emma's estate's motion for a JML is due
to be reversed. We reverse the trial court's judgment on the
mismanagement-of-trust claim and render a judgment in favor of
Emma's estate.
B. Conversion
For a conversion claim to stand,
"'there must be a wrongful taking or a wrongful
detention or interference, an illegal assumption of
ownership, or an illegal use or misuse of another's
property. Covington v. Exxon Co. U.S.A., 551 So. 2d
935, 938 (Ala. 1989). "The gist of the action is
the wrongful exercise of dominion over property in
exclusion or defiance of a plaintiff's rights, where
said plaintiff has general or special title to the
property or the immediate right to possession." Ott
v. Fox, 362 So. 2d 836 (Ala. 1978) (emphasis
added).'"
Horne v. TGM Assocs., L.P., 56 So. 3d 615, 628 (Ala. 2010)
(quoting Baxter v. SouthTrust Bank of Dothan, 584 So. 2d 801,
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20
804–05 (Ala. 1991)). See Ex parte Anderson, 867 So. 2d 1125,
1129 (Ala. 2003). Further, "[a] plaintiff must establish that
the defendant converted specific personal property to his own
use and beneficial enjoyment or that the defendant destroyed
or exercised dominion over property to which, at the time of
the conversion, the plaintiff had a general or specific title
and of which the plaintiff was in actual possession or to
which he was entitled to immediate possession." Rice v.
Birmingham Coal & Coke Co., 608 So. 2d 713, 714 (Ala. 1992).
The conversion claim was brought on behalf of Eddie's
estate concerning Eddie's personal property located at the
cotton-gin office, where he lived before he died, and some
furniture located in the Westwood house. The jury returned a
verdict against the Beasley branch, both Emma's estate and
Mary, for $3,645 in compensatory damages. Initially, based on
the record before us, we must conclude that there was no
evidence indicating that Emma converted Eddie's personal
property. Instead, the evidence showed that only Mary was
involved in the disposition of Eddie's personal property.
Consequently, the Young branch failed to present evidence from
which a jury could find that Emma had converted Eddie's
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21
property. Because the evidence does not support a finding of
conversion against Emma, the trial court erred in denying the
motion for a JML filed by Emma's estate as to the conversion
claim against her. Therefore, the conversion claim against
Emma's estate should not have been submitted to the jury, and
the trial court's order denying the motion for a JML as to
Emma's estate is due to be reversed. We therefore render a
judgment in favor of Emma's estate on the conversion claim.
We, however, must consider the conversion claim as to
Mary. Mary argues that the trial court erred in denying a JML
on the conversion claim as to her because, she says, her
refusal to surrender Eddie's personal property was reasonable
and qualified. Whether there is a reasonable qualified
refusal to surrender personal property presents a jury
question. White v. Drivas, 954 So. 2d 1119, 1124 (Ala. Civ.
App 2006). See Gabrielson v. Healthcorp of Eufaula, Inc., 628
So. 2d 411, 414 (Ala. 1993). In this case, there was
sufficient evidence from which a jury could have found that
Mary had converted Eddie's personal property. Thus, the trial
court properly submitted the conversion claim as to Mary to
the jury. The jury rejected the qualified-refusal argument
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22
and returned a verdict in the amount of $3,645. Because the
compensatory-damages award was joint and several in nature and
because there is sufficient evidence indicating that Mary
converted Eddie's personal property to support the jury
verdict, we affirm the judgment on the conversion claim
against Mary.
C. Punitive Damages
Because we conclude that the trial court erred in denying
the Beasley branch's motions for a JML on the mismanagement-
of-trust claim, we reverse the award of punitive damages on
that claim. Thus, we need only consider whether the punitive
damages can stand against Mary on the conversion claim. We
conclude that we must reverse the punitive-damages award
against Mary on the conversion claim.
"Conversion is an intentional tort." Johnson v.
Northpointe Apartments, 744 So. 2d 899, 904 (Ala. 1999).
"Intentional torts ordinarily carry punitive damages, if the
jury chooses to award them." Tillis Trucking Co. v. Moses,
748 So. 2d 874, 887 n. 12 (Ala. 1999). "Punitive damages are
recoverable in a conversion case when the evidence shows legal
malice,
willfulness,
insult,
or
other
aggravating
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23
circumstances." Schwertfeger v. Moorehouse, 569 So. 2d 322,
324 (Ala. 1990). See Ex parte Norwood Hodges Motor Co., 680
So. 2d 245, 249 (Ala. 1996).
To warrant punitive damages under the conversion claim,
the Young branch must present clear and convincing evidence
indicating that Mary "consciously or deliberately engaged in
oppression, fraud, wantonness, or malice with regard" to the
Young branch, § 6–11–20(b)(1), Ala. Code 1975. There is no
clear and convincing evidence indicating that Mary possessed
such intent or knowledge. Therefore, there was no basis for
an award of punitive damages on the conversion claim. We,
therefore, reverse the judgment awarding punitive damages to
the Young branch on the mismanagement-of-trust claim and the
conversion claim.
D. Furnishings and Heirlooms in Westwood House
The Beasley branch argues that the Westwood furnishings
and heirlooms were a part of the Trust, as was the house
itself, and, it says, it was entitled to a JML on the Young
branch's claim to one-half of the furnishings and heirlooms in
the Westwood house. The Beasley branch also argues that the
1110353
24
jury's assessment of the value of the furnishings and
heirlooms based upon an appraisal was in error.
Our review of the record indicates that all evidence as
to ownership of the furnishings and heirlooms in the Westwood
house proved that the Young branch -- Eddie's estate, Billy,
and Adele -- had an undivided one-half interest in the
furnishings and heirlooms at Westwood. The record does not
show that the furnishings and heirlooms of Westwood were part
of the Trust. Instead, the Young branch received, under
Lyle's will, a one-half undivided interest in the furniture,
furnishings, and personal property in the Westwood house.
Regardless, assuming without deciding that the furnishings and
heirlooms were a part of the Trust, the Young branch was
entitled to a distribution of their share upon the death of
the remaining trust beneficiary, Emma, in June 2010.
In this case, the jury determined that the Young branch
had a one-half interest in the furniture, furnishings, jewels,
portraits, and personal items. The jury also determined that
the total value of the personal property at Westwood was
$172,000. The jury heard testimony from a number of experts
concerning the value and uniqueness of the personal property
1110353
25
and received into evidence an appraisal. Therefore, we affirm
the trial court's judgment on the jury's verdict in that
regard.
E. Counterclaims for Money Loaned
The Beasley branch presented counterclaims against
Eddie's estate, Billy, and Adele, as well as a claim against
Veronica, Billy's wife. At trial, the Beasley branch
submitted documents and exhibits to support its claims.
Specifically, the Beasley branch claimed that Eddie's estate
owed
the
Beasley
branch
$28,304.06,
that
Billy
owed
$67,331.92, and that Adele owed $5,317.97. The Beasley branch
claimed that Veronica owed a portion of the amount owed by her
husband, Billy. The Beasley branch argued that these amounts
included the judgment in the amount of $28,000 resulting from
the 1998 suit for partition filed by Billy in Marengo County.
The jury reviewed and considered the documents submitted by
the Beasley branch and entered a $0 verdict on the
counterclaims against Eddie's estate and Adele. On the
counterclaims against Billy and Veronica, the jury entered a
verdict of $8,043.48 against Billy and $8,043.48 against
Veronica.
1110353
26
The Beasley branch argues that the jury's verdict on its
counterclaims did not nullify the $28,000 Marengo County
judgment against the Young branch. The Beasley branch also
argues that it was entitled to a JML in its favor on its
counterclaims for money loaned to the Young branch.
The Beasley branch's argument, however, ignores the fact
that the jury had before it documents and exhibits supporting
its claims, including the Marengo County judgment in the
amount of $28,000. The Beasley branch cannot now complain
that it was error for the jury to consider the $28,000
judgment. "A jury's verdict is presumed correct, and that
presumption is strengthened by the trial court's denial of a
motion for a new trial. Wal-Mart Stores, Inc. v. Goodman, 789
So. 2d 166 (Ala. 2000)." Cochran v. Ward, 935 So. 2d 1169,
1176 (Ala. 2006). Further, our review of the record
indicates that the jury considered in detail the counterclaims
for money loaned. Consequently, we affirm the trial court's
judgment on the jury verdict on the Beasley branch's
counterclaims.
IV. Conclusion
The trial court erred in denying the Beasley branch's
motions for a JML as to the mismanagement-of-trust claim. We,
1110353
27
therefore, reverse the judgment as to the mismanagement-of-
trust claim and render a judgment in favor of Emma's estate
and Mary on that claim. Because the trial court should have
granted the Beasley branch's motions for a JML on the
mismanagement-of-trust claim, we reverse that portion of the
judgment awarding punitive damages on the jury's finding of
mismanagement of trust.
The trial court also erred in denying the motion for a
JML filed by Emma's estate as to the conversion claim. We,
therefore, reverse the judgment as to the conversion claim
against Emma's estate and render a judgment in favor of Emma's
estate on that claim. We affirm the judgment as to the
conversion claim against Mary, including the amount of the
compensatory damages awarded the Young branch on that claim.
However, because there is no clear and convincing evidence
that Mary "consciously and deliberately engaged in oppression,
fraud, wantonness, or malice," we reverse the trial court's
judgment insofar as it awarded punitive damages on the
conversion claim against Mary, as well as against Emma's
estate. We affirm the judgment as to the Young branch's one-
half interest in the furnishings and heirlooms in the Westwood
1110353
28
house and on the Beasley branch's counterclaims for money
loaned.
AFFIRMED IN PART, REVERSED IN PART, AND JUDGMENT
RENDERED.
Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., concur specially.
1110353
29
MOORE, Chief Justice (concurring specially).
I concur fully with the main opinion. I write specially
to point out that even were the plaintiffs -- the Young branch
-- entitled to a judgment in their favor on the mismanagement-
of-trust claim, the punitive-damages award would still be
subject to reversal.
I. The jury's failure to apportion punitive damages
Because an appellate court reviews a punitive-damages
award de novo, no deference is given to a judgment imposing
such an award.
"(a) On appeal, no presumption of correctness
shall apply to the amount of punitive damages
awarded.
"(b) The appellate court shall independently
reassess the nature, extent and economic impact of
such an award and reduce or increase the award if
appropriate in light of all the evidence."
§ 6-11-24, Ala. Code 1975. See also § 6-11-21(i), Ala. Code
1975 (noting the duty of the appellate courts "to scrutinize
all punitive damage awards, ensure that all punitive damage
awards comply with applicable procedural, evidentiary, and
constitutional requirements, and to order remittitur where
appropriate"). Further, "no defendant shall be liable for any
punitive damages unless that defendant has been expressly
1110353
30
found by the trier of fact to have engaged in conduct ...
warranting punitive damages, and such defendant shall be
liable only for punitive damages commensurate with that
defendant's own conduct." § 6-11-21(e), Ala. Code 1975.
Citing § 6-11-21(e), a leading treatise on damages
states: "The jury must apportion punitive damages against the
defendants based on culpability of conduct." Jenelle Mims
Marsh, Alabama Law of Damages § 4.3 (6th ed. 2012) (emphasis
added). Elaborating on § 6-11-21(e), the treatise further
states: "Joint tortfeasors are not jointly and severally
liable for an award of punitive damages. By statute, a
defendant is liable 'only for punitive damages commensurate
with the defendant's own conduct.' Thus, the trial court fact
finder must apportion punitive damages among the joint
tortfeasors." Id. § 4.7 (footnotes omitted; emphasis added).
This Court has stated the principle as follows: "Under the
pertinent provisions of the Alabama Code, as amended in 1999,
a defendant is liable 'only for punitive damages commensurate
with that defendant's own conduct' -- that is, joint
tortfeasors are not jointly and severally liable for an award
of punitive damages." Boles v. Parris, 952 So. 2d 364, 366
(Ala. 2006) (citing § 6-11-21(e)). See also BMW of North
1110353
Wrongful-death actions are the sole exception. Boles v.
9
Parris, 952 So. 2d at 366-69.
31
America, Inc. v. Gore, 517 U.S. 559, 575 (1996) ("Perhaps the
most important indicium of the reasonableness of a punitive
damages award is the degree of reprehensibility of the
defendant's conduct." (emphasis added)).
Under the common principle stated in statute, caselaw,
and the relevant treatise quoted above, a judgment awarding
punitive damages that does not apportion those damages
individually against each defendant must be vacated as
contrary to law. In this case the jury awarded $200,000 in
9
punitive damages to each member of the Young branch but did
not apportion those awards against the defendants -- the
Beasley branch -- individually. Because the jury did not
expressly allocate the award of punitive damages according to
the particular degree of liability of each member of the
Beasley branch, the punitive-damages verdict was contrary to
law.
II. The trial court's improper rewriting of the verdict
In its postjudgment order, the trial court, styling its
action a remittitur, apportioned the punitive-damages verdict
to assess $300,000 to each defendant: "The Court hereby
1110353
A remittitur may be made only in the context of
10
considering a motion for a new trial. "The court may, on
motion for new trial, require a remittitur as a condition to
the overruling of the motion for new trial ...." Rule 59(f),
Ala. R. Civ. P. In its postjudgment order the court does not
mention the term "new trial," nor does it state that the Young
branch must accept the "remittitur" or face a new trial.
32
modifies or clarifies said Judgment resulting in a remittitur
or diminution in the punitive damages arguably assessed
against each Defendant ...." The Court further explained that
its recharacterization of the verdict would make each
defendant liable for only $300,000 rather than the entire
$600,00 under the jury's unapportioned verdict. "By this
modification or remittitur, each Defendant owes One Hundred
Thousand and No/100s ($100,000.00) Dollars in punitive damages
to each Plaintiff, and is liable for only a total of Three
Hundred Thousand and No/100s ($300,000.00) Dollars in punitive
damages." The court, though styling its action a remittitur,
did not actually reduce the punitive-damages verdict, which
still remained at $600,000. Thus, its action was not a
remittitur
of
the
punitive-damages
award,
only
a
10
reapportionment of the verdict to eliminate joint and several
liability.
A trial court may not rewrite a verdict to change its
substance.
1110353
33
"It has long been settled that a court's right
to amend a jury verdict after discharge of the jury
is limited to matters of form or clerical errors
which are apparent by the record and does not extend
to matters of substance required to be passed upon
by the jury."
Alexiou v. Christu, 285 Ala. 346, 349, 232 So. 2d 595, 597
(1970). "If the court should aid the verdict of the jury which
is faulty as to substance, without the consent and concurrence
of the jury, it would then become not the verdict of the jury,
but of the court." W.T. Rawleigh Co. v. Hannon, 32 Ala. App.
147, 149, 22 So. 2d 603, 604 (1945).
Although Rule 60(a), Ala. R. Civ. P., permits a trial
court to correct clerical errors, "the Rule 60(a) motion can
only be used to make the judgment or record speak the truth
and cannot be used to make it say something other than what
was originally pronounced." Committee Comments to Rule 60(a).
By changing the jury's pronouncement from joint and several
liability to individual liability, the trial court, even if
presumed to have acted sua sponte under Rule 60(a), exceeded
its authority. By calling its rewriting of the verdict a
remittitur, the trial court admitted that it was changing the
verdict. However, because its change was not in fact a
remittitur, the alteration of the verdict "extend[ed] to
1110353
Again, wrongful-death actions are an exception. § 6-5-
11
462, Ala. Code 1975.
34
matters of substance required to be passed upon by a jury."
Great Atl. & Pac. Tea Co. v. Sealy, 374 So. 2d 877, 883 (Ala.
1979). Because, "[u]pon demand of a jury trial, the plaintiff
was entitled to have his cause adjudicated by a jury verdict,"
Hood v. Ham, 342 So. 2d 1317, 1318 (Ala. 1977), the trial
court had no power "to render a different decree." Great Atl.
& Pac. Tea Co., 374 So. 2d at 883.
III. Effect of Emma's death on the punitive-damages verdict
Emma died in June 2010; judgment was rendered a year
later in June 2011. "In almost all jurisdictions, it is held
that punitive damages may not be awarded against the estate of
a wrongdoer who has died prior to the entry of judgment."
Alabama Law of Damages § 4:7. Because the dead can be neither
punished nor deterred, assessing punitive damages against a
deceased person seems problematical.
See Green Oil Co. v.
11
Hornsby, 539 So. 2d 218, 222 (Ala. 1989) (noting that "the
purpose of punitive damages is not to compensate the plaintiff
but to punish the wrongdoer and to deter the wrongdoer and
others from committing similar wrongs in the future"). A
century ago, this Court stated that, "when the wrongdoer dies
1110353
35
before the action is brought to trial, and the action survives
against
his
personal
representative,
only
compensatory
damages
may be recovered." Meighan v. Birmingham Terminal Co., 165
Ala. 591, 599, 51 So. 775, 778 (1910). Although a federal case
cited by the plaintiffs distinguished this holding, Ellis v.
Zuck, 546 F.2d 643, 644 (5th Cir. 1977), its rationale was
that the principle applied in wrongful-death cases should be
extended to all punitive-damages cases. However, as noted,
wrongful-death cases are sui generis. This Court has held more
recently that a bank placed in receivership is not subject to
punitive damages because the purposes of punishment and
deterrence could not be accomplished against a defunct entity.
Resolution Trust Corp. v. Mooney, 592 So. 2d 186, 190 (Ala.
1991). Thus, punitive damages were not available against
Emma's estate.
IV. Conclusion
Even if the jury verdict on the mismanagement-of-trust
claim were correct, the award of punitive damages would still
have to be set aside.
Murdock, J., concurs. | May 30, 2014 |
6473faf8-5869-4307-a6e6-a8ed76d50cca | Jakeman v. Lawrence Group Management Company, LLC, et al. | N/A | 1111018 | Alabama | Alabama Supreme Court | REL: 03/21/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1111018
____________________
Kenneth Jakeman
v.
Lawrence Group Management Company, LLC, et al.
Appeal from Montgomery Circuit Court
(CV-10-650)
MURDOCK, Justice.
Kenneth Jakeman ("Kenneth") appeals from the trial
court's judgment dismissing his claims against defendants
Lawrence
Group
Management
Company,
LLC
("Lawrence"),
1111018
Kenneth also originally named as a defendant Alderwoods,
1
Inc. ("Alderwoods"), but Kenneth subsequently dismissed
Alderwoods from this action because it had sold MMC to
Lawrence in 2002 before the events giving rise to the action
occurred. Also, Judy is not a party to this appeal. See
note 3, infra.
2
Montgomery Memorial Cemetery ("MMC"), and Judy A. Jones
("Judy"). We affirm in part, reverse in part, and remand.
1
I. Facts and Procedural History
This is the second time this case has come before this
Court. In Jakeman v. Lawrence Group Management Co., 82 So. 3d
655 (Ala. 2011) ("Jakeman I"), the Court succinctly summarized
most of the facts and much of the key procedural history:
"Lawrence owns and operates Montgomery Memorial
Cemetery, a cemetery in Montgomery ('the cemetery').
Lawrence purchased the cemetery from Alderwoods[,
Inc. ('Alderwoods'),] in or around 2002. In 1967,
Kenneth's father, Ben Jakeman, purchased from MMC a
'family plot' in the cemetery containing 10 separate
burial
spaces.
The
plot
Ben
selected
was
specifically chosen because of its location adjacent
to plots owned by Ben's mother, Frances O'Neal.
Pursuant to the terms of the purchase agreement for
the family plot, burial within Ben's plot was
limited to members of either the Jakeman family or
the O'Neal family.
"In August 2002, MMC allegedly mistakenly
conveyed two spaces in Ben's family plot to James A.
Jones and his wife, Judy A. Jones. Following James's
death, on August 28, 2002, James was interred in one
of those two spaces.
1111018
3
"In 2006, Kenneth learned that James had been
buried in Ben's family plot, at which time, Kenneth
says, he immediately notified MMC and Ben. In
response to demands by Kenneth and Ben, MMC
disinterred James and moved both his body and his
marker; however, James was reinterred in another
space on Ben's family plot. Ben died in 2008. At
the time of Ben's death, James's body remained
buried in one of the spaces in Ben's plot.
"Despite the offer of an exchange of burial
spaces, and based upon their purported refusal to
again exhume and move James's body and marker, in
May 2010 Kenneth filed suit against Alderwoods,
Lawrence, MMC, and Judy A. Jones, alleging breach of
contract; trespass; negligence, willfulness, and/or
wantonness; the tort of outrage; and conversion. In
her answer to Kenneth's complaint, Judy asserted her
own cross-claim against Alderwoods, Lawrence, and
MMC, based on their alleged error in conveying to
her spaces already owned by Ben and the initial
erroneous burial of James, his disinterment, and his
subsequent erroneous reburial in another of Ben's
spaces.
"Alderwoods subsequently filed a motion to
dismiss Kenneth's complaint based on its contentions
that Kenneth lacked the requisite 'standing' to
pursue the stated claims, that the asserted tort
claims did not survive Ben's death, and that some of
the claims were barred by the expiration of the
applicable limitations periods. Lawrence and MMC
later joined Alderwoods's dismissal motion.
"The trial court conducted a hearing on the
motion to dismiss on July 28, 2010, at the
conclusion of which the trial court announced on the
record its intention to dismiss the action but to
provide Kenneth 30 days to refile any viable claims.
Also at the conclusion of the hearing, the trial
court requested a proposed order reflecting its
stated
decision, which counsel for Alderwoods
1111018
In
his complaint,
Kenneth alleged that
he
is
the personal
2
representative of the estate of Frances O'Neal.
4
volunteered to provide. The record reflects that,
on August 1, 2010, the trial court signed the order
prepared by Alderwoods granting the joint dismissal
motion, dismissing 'all claims brought by the
plaintiff against all defendants.' The order
further provided that 'all cross claims [were] also
dismissed.'
"On August 2, 2010, Judy, who was presumably
aware of the contents of the trial court's dismissal
order
at
the
time
it
was
signed,
filed
a
postjudgment motion pursuant to Rule 59(e), Ala. R.
Civ. P., seeking to alter, amend, or vacate the
order
on
the
ground
that
it
dismissed
her
cross-claim, which, she contended, was not addressed
by the dismissal motion and was, therefore, not
properly before the trial court on the motion to
dismiss. The clerk of the trial court subsequently
entered
the
trial
court's
previously
signed
dismissal order on September 17, 2010."
82 So. 3d at 656-57 (footnotes omitted).
On August 24, 2010, Kenneth filed a "Memorandum of Law"
in which he sought to explain to the trial court why he
believed he had standing to pursue his claims. On October 14,
2010, Kenneth filed a Rule 59(e), Ala. R. Civ. P., motion
seeking to alter, amend, or vacate the trial court's dismissal
order. Simultaneously, Kenneth filed a third amended
complaint in his individual capacity and on behalf of the
estate of Frances O'Neal. The complaint reiterated Kenneth's
2
1111018
5
individual claim of breach of contract, it asserted a breach-
of-contract claim on behalf of the estate of Frances O'Neal,
and it stated a claim for declaratory and injunctive relief;
the complaint did not allege any tort claims.
On September 9, 2010, Robert Jakeman, Kenneth's brother
and the personal representative of Ben Jakeman's estate,
purported to sell the rights to the Jakeman burial plot back
to MMC for $4,000. He also purported to relinquish all rights
thereto and waived any claims the estate of Ben Jakeman had or
could have against MMC or against Lawrence.
On October 29, 2010, the trial court entered an order
specifically denying only Kenneth's motion to alter, amend, or
vacate. On November 29, 2010, the trial court entered an
"Amended Order" reiterating its dismissal of all of Kenneth's
claims but ordering that "all cross-claims filed by Judy ...
are NOT DISMISSED and shall remain pending." Kenneth filed a
notice of appeal on that same date.
On October 7, 2011, this Court released its decision in
Jakeman I. In Jakeman I, this Court noted that the trial
court's order dismissing all claims asserted by both Kenneth
and Judy did not become effective until it was entered by the
1111018
6
clerk on September 17, 2010. At that time, Judy's previously
premature motion to alter, amend, or vacate the judgment was
deemed to be filed, giving the trial court 90 days to rule on
her motion. The trial court ruled on her motion through its
November 29, 2010, "Amended Order" which stated that Judy's
cross-claims remained pending against the other defendants.
The Jakeman I Court concluded that because undisposed claims
remained in the action and the trial court had not entered a
Rule 54(b), Ala. R. Civ. P., order, Kenneth had appealed from
a nonfinal judgment. Accordingly, this Court dismissed
Kenneth's appeal.
On February 27, 2012, Kenneth filed in the trial court a
motion seeking to have the judgment against him certified as
a final judgment under Rule 54(b), which the trial court
granted on April 9, 2012. Kenneth again appeals.
II. Standard of Review
"Unless it appears beyond a reasonable doubt
that the plaintiff can prove no set of facts in
support of his claim that would entitle him to
relief under some cognizable theory of law, the
court should not grant a motion to dismiss a
complaint. Rice v. United Ins. Co., 465 So. 2d 1100
(Ala. 1984). This Court, when reviewing a motion to
dismiss for failure to state a claim, must resolve
all doubts in favor of the plaintiff. Whitehead v.
Hester, 512 So. 2d 1297 (Ala. 1987). In our review,
1111018
Our references to "the defendants" in relation to the
3
motion to dismiss do not include Judy, who is not a party to
that motion and is not before us in this appeal.
7
we need not determine whether the plaintiff will
ultimately prevail, only whether he has stated a
claim on which he may possibly prevail. Fontenot v.
Bramlett, 470 So. 2d 669 (Ala. 1985)."
American Auto. Ins. Co. v. McDonald, 812 So. 2d 309, 311 (Ala.
2001).
III. Analysis
The defendants grounded their motion to dismiss on three
3
bases: (1) Kenneth's alleged lack of "standing"; (2) the
abatement of Kenneth's tort claims; and (3) the time-bar
created by the applicable statutes of limitations. As we
noted in the rendition of the facts from Jakeman I, the trial
court based its dismissal on a purported lack of standing. On
appeal, Kenneth makes no argument in an effort to redeem the
tort claims asserted by him in his original and first amended
complaint. He appears to have relinquished those claims;
therefore, we need not address the abatement issue. We thus
turn to the other two issues listed above.
A. "Standing"
Although both sides label the first issue before us as
one of "standing," in reality it is merely one of whether
1111018
8
Kenneth has stated a cause of action, i.e., whether he has
alleged a set of facts that, if true, will entitle him to
relief under Alabama law. See Rule 12(b)(6), Ala. R. Civ P.
"[O]ur courts too often have fallen into the trap of treating
as an issue of 'standing' that which is merely a failure to
state a cognizable cause of action or legal theory, or a
failure to satisfy [an] element of a cause of action." Wyeth,
Inc. v. Blue Cross & Blue Shield of Alabama, 42 So. 3d 1216,
1219 (Ala. 2010). Compare, e.g., Steele v. Federal Nat'l
Mortg. Ass'n, 69 So. 3d 89, 91 n. 2 (Ala. 2010) (citing Wyeth
as authority for rejecting the appellant's suggestion that a
plaintiff's failure to have made a demand for possession
before bringing an ejectment action presented an issue of
standing). In Ex parte BAC Home Loans Servicing, LP, [Ms.
1110373, Sept. 13, 2013] ___ So. 3d ___ (Ala. 2013), this
Court recently noted that the concept of standing was
developed by the federal courts for use in public-law actions
involving challenges to the actions of public officials and
agencies. We quoted 13A Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice and Procedure § 3531 (3d
ed. 2008), for the explanation that in private-law cases such
1111018
9
questions as whether "'the present plaintiff is ... entitled
to a remedy'" is "'better addressed through private-law
concepts'" such as "'cause-of-action, real-party-in-interest,
capacity, intervention, and like concepts.'" ___ So. 3d at
___ (some emphasis omitted).
The question in the present case is whether "the present
plaintiff," i.e., Kenneth, could be "entitled to a remedy"
under Alabama law. As discussed below, the question as
presented in this private-law action is no more than whether
the law recognizes in an heir such as Kenneth a right in the
burial plots at issue so as to enable him to prove the first
element in his claim of breach of contract and his claim for
injunctive relief. Kenneth contends that rights in the
Jakeman burial plot passed to Ben Jakeman's heirs at law,
including him, upon Ben's death. The defendants contend that
any rights in the Jakeman burial plot belong to Ben Jakeman's
estate and were therefore controlled by Robert Jakeman, the
personal representative of Ben Jakeman's estate. We agree
with Kenneth.
As early as 1880, the Alabama Supreme Court recognized
that "[t]he part of the burial-ground owned by [the
1111018
10
purchaser], on his death, descended to his heirs, impressed
with and subject to the uses, to which he had devoted it in
his life-time." Kingsbury v. Flowers, 65 Ala. 479, 484
(1880). In Kerlin v. Ramage, 200 Ala. 428, 429, 76 So. 360,
361 (1917), this Court recognized that "the purchaser or
licensee takes a property right, which the law will recognize
and protect against invasion as long as the place continues a
burying ground" and that that property right "will descend to
[the purchasers] heirs, impressed with and subject to the use
to which he has devoted it in his lifetime."
"The rule followed in Alabama is stated at 14 C.J.S.
Cemeteries § 25, as follows:
"'... ordinarily, the purchaser of a
lot in a cemetery, although under a deed
absolute in form and containing words of
inheritance, is regarded as acquiring only
a privilege, easement, or license to make
interments
in
the
lot
purchased,
exclusively of others, so long as the lot
remains a cemetery, and the fee remains in
the grantor subject to the grantee's right
to the exclusive use of the lot for burial
purposes. The lot owner's title to the lot
is a legal estate, and his interest is a
property right entitled to protection from
invasion, but only in a restricted sense
does it constitute an interest in real
property....'"
1111018
11
Whitesell v. City of Montgomery, 355 So. 2d 701, 702 (Ala.
1978) (emphasis added). See also 14 Am. Jur. 2d Cemeteries
§ 31 (2009) (stating that, "[i]n the absence of statute, a
burial lot not specifically devised does not pass under a
general or residuary devise but instead passes to the heirs at
law of the testator as if the testator had died intestate").
It is undisputed that Ben Jakeman's will did not
specifically devise his property interest in the Jakeman
burial plot. It is also undisputed that Kenneth is an heir at
law of Ben Jakeman. Therefore, under the foregoing
authorities, rights in the Jakeman burial plot owned by Ben
Jakeman passed to Kenneth and to any other heirs at law upon
Ben Jakeman's death.
The defendants contend that the above-quoted authorities
do not apply for two reasons. First, they contend that the
rule is stated only in cases involving private cemeteries, not
public cemeteries such as MMC. This is incorrect; Kerlin
involved a public cemetery. Moreover, none of our cases
espousing the rule in the context of a private cemetery have
stated that the rule applies only in such a context.
1111018
12
Second, the defendants cite Daniell v. Hopkins, 257 N.Y.
112, 177 N.E. 390 (1931), for the proposition that a burial
plot only assumes the sacred character of a family burial
ground once a family member has been interred in the plot and
that, before such an interment, rights in a burial plot are
devisable in the same manner as other real-property rights.
The defendants contend that Kenneth did not allege that a
Jakeman is buried in the Jakeman burial plot and so "it never
assumed the sacred character of a family burial ground."
Defendants' brief, p. 34. Consequently, the defendants argue
that "the personal representative of Ben Jakeman's estate has
the same authority to convey or alienate the Jakeman Lot, as
well as to bring any claims on behalf of the estate which Ben
Jakeman had at the time of his death." Id.
The defendants overlook the fact that the emphasis in
Daniell on interment being the key to whether the executors of
the estate in that case had the right to sell a burial plot
following the purchaser's death was based squarely on New York
statutory law. The defendants do not cite any Alabama law
that makes such a distinction. Our cases do not depend on
interment as the basis for the principles cited above.
1111018
13
The defendants claim that Ebenezer Baptist Church, Inc.
v. White, 513 So. 2d 1011 (Ala. 1987), makes such a
distinction, but, in fact, the White Court repeated the same
rules recited above concerning property rights in burial
plots.
"This Court has recognized many times the
sacredness of burial grounds. Hogan v. Woodward
Iron Co., 263 Ala. 513, 83 So. 2d 248 (1955); Kerlin
v. Ramage, 200 Ala. 428, 76 So. 360 (1917). The
rule in Alabama regarding a cemetery lot is that the
purchaser acquires 'only a privilege, easement, or
license to make interments in the lot purchased,
exclusively of others, so long as the lot remains a
cemetery, and the fee remains in the grantee subject
to the grantee's right to the exclusive use of the
lot for burial purposes.' Whitesell v. City of
Montgomery, 355 So. 2d 701, 702 (Ala. 1978). This
easement or privilege, however, entitles the next of
kin of the deceased to maintain an action against
the owners of the fee (in this case the church or
its trustees) or strangers who, without right,
desecrate or invade the burial lot of another.
Smith & Gaston Funeral Directors, Inc. v. Dean, 262
Ala. 600, 80 So. 2d 227 (1955)."
513 So. 2d at 1013.
Some of the plaintiffs in White whose relatives were
buried in the church cemetery sued to prevent the church from
disturbing or altering mounds, monuments, or footstones on any
grave site for maintenance purposes. This Court held that
those plaintiffs were entitled to "an injunction against the
1111018
14
church and its trustees to prevent them from disturbing the
grave sites." 513 So. 2d at 1014. Other plaintiffs sought an
easement by prescription in their family plots by virtue of
boundary markers surrounding some of the family plots,
maintenance of the unused grave sites, and the erection of a
tombstone with the name of the person to be buried in the
future at some of the grave sites. Those plaintiffs sought an
easement to prevent the church from removing the boundaries
and borders around the family plots to facilitate maintenance
of the cemetery and to prevent the church from selling unused
sites in family plots. This Court concluded that those
plaintiffs "have established an easement by prescription and
that the church is not entitled to destroy boundaries or to
sell unused grave sites in the family plots." Id.
To the extent that interment of family members was a
basis for the claim of the first group of plaintiffs in White
and as well as for the claims of those plaintiffs seeking to
establish adverse possession in White, this was so because no
purchase agreements for burial plots existed between the
plaintiffs and the church in White. If the plaintiffs had
rights in the burial plots, such rights had to be established
1111018
Even if an interment was necessary for the Jakeman burial
4
plot to assume the "sacred character of a family burial
ground," as the defendants put it, we must consider whether
there is any set of facts under which Kenneth might possibly
prevail. It is possible a family member is buried in the
Jakeman burial plot, in which case the distinction drawn by
the defendants is likewise immaterial.
In addition to his individual claim, Kenneth contends
5
that Frances O'Neal was a third-party beneficiary of the
contract at issue and that, as the personal representative of
her estate, he has asserted a viable claim. We note, however,
that, unlike his individual claim for relief, Kenneth did not
purport to file the third amended complaint (in which this
third-party-beneficiary claim is asserted for the first time)
until after the trial court had entered its order of dismissal
of this action, a judgment that the trial court never vacated.
Although on remand Kenneth may attempt to amend his complaint
to include this third-party-beneficiary claim, we see no basis
on which to conclude that this claim is properly before us in
this appeal.
15
by a means other than by an agreement. Kenneth does not need
to establish property rights in his father's burial plot
through other means because of Ben Jakeman's burial-plot
purchase agreement.4
Based on the foregoing, we conclude that Kenneth is
entitled to bring a cause of action alleging breach of
contract and his related claim for injunctive relief.
Therefore, the trial court erred in dismissing the claim
asserted by Kenneth in his individual capacity.5
1111018
16
B. Statute of Limitations
Before the trial court, the defendants contended that any
breach-of-contract claim brought by Kenneth was barred by the
six-year statute of limitations for such claims. See § 6-2-
34(9), Ala. Code 1975. The defendants noted that Kenneth
alleged that James Jones was first interred in the Jakeman
burial plot on August 28, 2002, but that Kenneth did not file
his action until May 25, 2010. Therefore, the defendants
contended, Kenneth's claims were time-barred.
"It is well settled that a cause of action for breach of
contract accrues when the contract is breached." Wheeler v.
George, 39 So. 3d 1061, 1084 (Ala. 2009). Kenneth alleged
that, on or around August 28, 2002, James Jones was buried in
one of the burial plots purchased by Ben Jakeman. Kenneth
alleged that on November 14, 2006, the cemetery disinterred
Jones and then buried his remains in another burial plot also
purchased by Ben Jakeman. Any alleged breaches of Ben
Jakeman's burial-plot purchase agreement occurred at the time
of these burials because the purchase agreement stated that
only members of the Jakeman and O'Neal families were to be
buried in the burial plots purchased by Ben Jakeman.
1111018
Of course, at this stage of the litigation, any dismissal
6
for failure to join an indispensable party would be without
17
Therefore, the alleged first breach of the contract is barred
by the six-year statute of limitations because it occurred on
August 28, 2002, and Kenneth did not file this action until
May 25, 2010, almost eight years later. The alleged second
breach of the contract, however, is not barred by the statute
of limitations because it occurred on November 14, 2006,
approximately four years before Kenneth filed this action.
Thus, the trial court's dismissal of Kenneth's breach-of-
contract claim cannot be affirmed on the basis of the
applicable statute of limitations.
C. Joinder of Necessary Parties
The defendants argue for the first time on appeal that
even if Kenneth has standing to bring a breach-of-contract
claim by virtue of his being an heir at law of Ben Jakeman,
and even if the statute of limitations does not bar such a
claim, the rights are held by all the heirs at law. Therefore,
the
defendants
contend,
the
other
heirs
at
law
are
indispensable parties to Kenneth's action. The defendants
contend that Kenneth's failure to join his fellow heirs at law
constitutes a separate ground for dismissal of his complaint.6
1111018
prejudice as opposed to the dismissal with prejudice entered
by the trial court below.
18
"[T]he failure to join an indispensable party may be
raised for the first time on appeal." Prattville Mem'l Chapel
v. Parker, 10 So. 3d 546, 560 (Ala. 2008). Under Rule 19,
Ala. R. Civ. P., "[i]t is the plaintiff's duty ... to join as
a party anyone required to be joined." Holland v. City of
Alabaster, 566 So. 2d 224, 226 (Ala. 1990). Rule 19(a)
provides, in part, that
"[a] person who is subject to jurisdiction of the
court shall be joined as a party in the action if
... the person claims an interest relating to the
subject of the action and is so situated that the
disposition of the action in the person's absence
may ... leave any of the persons already parties
subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by
reason of the claimed interest."
The parties appear to agree that Ben Jakeman has at least
three surviving heirs at law: Kenneth, Kenneth's brother
Robert Jakeman, and Kenneth's mother Velma Jakeman. If this
is the case, it would appear that not joining the other heirs
at law in this action could subject the defendants to multiple
obligations of liability. We decline, however, to decide in
the first instance whether there are other indispensable
parties to this litigation and whether those parties are
1111018
19
subject to the jurisdiction of the court, given the dearth of
information provided in this record on a motion to dismiss.
We simply instruct the trial court to consider as a threshold
issue on remand whether other parties need to be joined in
this action in accordance with Rule 19.
IV. Conclusion
Based on the foregoing, we conclude that Kenneth is
entitled to pursue his individual breach-of-contract claim
concerning MMC's reinterment of James Jones in one of the
burial plots purchased by Ben Jakeman and that he is entitled
to pursue his claim for injunctive relief. We reverse the
trial court's judgment on that basis and remand the case. On
remand, we also instruct the trial court to consider whether
Kenneth's
claims
require
the
joinder
of
other
parties
pursuant
to Rule 19, Ala. R. Civ. P. To the extent the trial court's
judgment dismissed other claims asserted by Kenneth on behalf
of Ben Jakeman's estate, the judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
DIRECTIONS.
Moore, C.J., and Bolin and Bryan, JJ., concur.
Main, J., concurs in the result.
1111018
20
MAIN, Justice (concurring in the result).
I concur in the result reached in this case for the same
reason I stated in my writing concurring in the result in
Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, Sept. 13,
2013] ___ So. 3d ___, ___ (Ala. 2013). | March 21, 2014 |
01b197e5-4603-4526-8d76-f01d0ceaa655 | Alabama v. Clayton | N/A | 1130012, 1130013 | Alabama | Alabama Supreme Court | REL: 04/04/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1130012
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: State of Alabama
v.
Jennifer Leigh Clayton)
(Montgomery Circuit Court, CC-11-914;
Court of Criminal Appeals, CR-11-1867)
____________________
1130013
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: State of Alabama
v.
Justin Andrew Bailey)
(Montgomery Circuit Court, CC-11-913;
Court of Criminal Appeals, CR-11-1866)
STUART, Justice.
Jennifer Leigh Clayton and Justin Andrew Bailey filed
1
2
separate motions requesting that the trial court suppress
evidence seized in a warrantless search of their apartment by
law-enforcement officers on January 7, 2011. After a hearing,
the trial court granted their motions to suppress the
evidence. The State appealed, and the Court of Criminal
A Montgomery grand jury issued an indictment charging
1
Clayton
with
two
counts
of
first-degree
unlawful
manufacturing
of methamphetamine, a violation of § 13A-12-218, Ala. Code
1975, and one count of unlawful possession of drug
paraphernalia, a violation of
§
13A-12-260(C), Ala. Code 1975.
A Montgomery grand jury issued an indictment charging
2
Bailey with two counts of first-degree unlawful manufacturing
of methamphetamine, a violation of § 13A-12-218, Ala. Code
1975; one count of unlawful possession of marijuana for
personal use, a violation of § 13A-12-214, Ala. Code 1975; and
one count of unlawful possession of drug paraphernalia, a
violation of § 13A-12-260(C), Ala. Code 1975.
2
1130012 and 1130013
Appeals affirmed the trial court's order as to the January 7
search. State v. Lee, [Ms. CR-11-1865, October 4, 2013] ___
3
So. 3d ___ (Ala. Crim. App. 2013). The State petitioned this
4
Court for certiorari review of the decision of the Court of
Criminal Appeals. We reverse and remand.
Facts and Procedural History
The following evidence was presented at the suppression
hearing. On January 7, 2011, between 12 a.m. and 1 a.m.,
Officer James Taylor and Sgt. James Hall, Montgomery law-
enforcement officers, as well as other Montgomery law-
enforcement officers and Montgomery firefighters, received a
dispatch indicating that a methamphetamine laboratory was in
5
operation at an apartment on Stonehenge Drive in Montgomery.
Officer Taylor and Sgt. Hall testified that when they arrived
The Court of Criminal Appeals reversed the trial court's
3
order as to a later search of the apartment and remanded the
case.
A third codefendant, Natasha Rae Lee, was an appellee in
4
the Court of Criminal Appeals (case no. CR-11-1865), which
issued one opinion addressing all three codefendants. She
petitioned this Court for certiorari review of the Court of
Criminal Appeals' decision. This Court denied her petition on
November 15, 2013 (case no. 1130032).
It appears that the dispatcher had received a call from
5
a citizen who identified himself and indicated that a
methamphetamine laboratory was operating in the apartment.
3
1130012 and 1130013
at the apartment complex they could smell an odor that they
6
knew from their training and experience was consistent with
the chemicals used during the production of methamphetamine.
Officer Taylor described the odor as a distinct, strong,
"ammonia-like," nauseating odor that is easily recognizable
once one knows it to be consistent with the process of
manufacturing methamphetamine. Sgt. Hall described the odor
as very strong, pungent, and offensive, explaining that it
almost burned the sinuses when inhaled.
The officers, in an effort to determine the origin of the
odor, knocked on the door of the apartment. The officers
testified that when Bailey opened the door the odor they knew
to be consistent with the manufacture of methamphetamine grew
stronger. The officers informed Bailey that they had received
calls about a strong odor coming from his residence and that
it had been reported that a methamphetamine laboratory was
being operated in the apartment. Bailey responded that the
calls had to be prank calls because no illegal activity was
going on in the apartment. Sgt. Hall informed Bailey and
Clayton, who was also present with two small children, that
The apartment complex had eight apartments.
6
4
1130012 and 1130013
law-enforcement officers had to enter the apartment and
conduct a protective sweep to clear the residence of all
occupants so that the fire department could enter and check
the apartment for safety reasons.
Sgt. Hall and Officer Taylor testified that they then
searched each room of the apartment "to make sure there was
nobody else in the apartment." Officer Taylor testified that
they spent approximately five minutes in the apartment and
that the apartment "appeared to be safe." Sgt. Hall testified
that because of the odor he and his officers did not stay in
the apartment long, just "long enough to make sure that the
apartment was clear, long enough to allow the infant to be
properly clothed for the cold weather." After Officer Taylor
and Sgt. Hall completed the protective sweep and left the
apartment with Bailey, Clayton, and her two children, they
turned the apartment over to the firefighters, who went inside
to "mak[e] sure there [were] no chemicals in there that could
explode endangering the other residents in the building."
Additionally, law-enforcement officers had the residents of
the other apartments leave their residences until the fire
department determined that they were not in danger from the
5
1130012 and 1130013
process of manufacturing methamphetamine and it was safe to
reenter the apartments.
During the firefighters' search of the apartment, they
located a methamphetamine "laboratory" inside a cooler in a
closet. The laboratory was not operating at the time. After
the firefighters showed the laboratory to Sgt. Hall, Sgt.
Hall notified the on-call narcotics officer, Detective Joel
Roberson. Sgt. Hall testified that even after the
methamphetamine laboratory was found he and the officers
continued to secure the area because "people can get hurt from
the odors" and "meth labs are known to explode."
Detective Roberson testified that when he arrived at the
apartment complex he could smell an odor that, based on his
training and experience, he knew to be consistent with the
odor created during the manufacture of methamphetamine.
Detective Roberson stated that when he entered the apartment
with
the
Montgomery
Fire
Department's
hazardous-materials
crew
a member of the crew showed him a foam cooler, which contained
"everything you needed to [manufacture] methamphetamine."
Detective Roberson also found other materials in the
apartment
known to be associated with manufacturing methamphetamine,
6
1130012 and 1130013
including lithium batteries, a funnel hidden under a bed, and
small plastic bags.
After
Detective Roberson had photographed
the methamphetamine laboratory, a crew from the Drug
Enforcement Administration collected and disposed of the
materials.
When questioned at the hearing on the motion to suppress
about the reason for conducting a warrantless entry into and
search
of
the
apartment,
Sgt.
Hall
testified
that
"[m]eth[amphetamine] labs are known to explode as well as
produce noxious fumes that can harm people" and that his
intent in going into the apartment was "to make sure that the
public remain safe." Sgt. Hall further stated that when he
was "clearing" the apartment he felt like he was in danger and
could be harmed by the odor. He stated that he limited the
number of officers who entered the apartment because of the
adverse health effects breathing the chemicals used in the
manufacture of
methamphetamine
can cause. Sgt. Hall testified
that he filed a letter of notice with his supervisor
documenting that he had been exposed to a methamphetamine
laboratory in case health issues later arose from the
exposure. When defense counsel asked Sgt. Hall if he felt
7
1130012 and 1130013
like he was in immediate danger, Sgt. Hall responded: "Yes,
sir. I did. ... Due to the odor that I was smelling, and I
knew ... what those odors can cause, harmful to me, so yes,
sir, I did feel like that I was in danger and could be
harmed."
Likewise, Officer Taylor testified that, because of the
odor, he did not want to enter the apartment. He explained
that, although the odor in the apartment did not appear to
hurt him, Sgt. Hall, Clayton, Bailey, or the children, an
emergency situation existed because "there was still the
odor."
Detective Roberson testified that the manufacture of
methamphetamine creates a high risk of explosion because the
chemicals used in the process become extremely volatile when
combined and can react violently, bursting into flames. He
further testified that the manufacture of methamphetamine
creates a health hazard for anyone who is near the
methamphetamine laboratory. He explained:
"If you can smell it, you're at risk. The proper
way
to
handle
this
[investigation
of
a
methamphetamine laboratory is] ... anybody that goes
anywhere near this lab should have on a respirator,
protective clothing, protective suit and that kind
of stuff. ... You know, it can –- anywhere that
8
1130012 and 1130013
there is air ducts, air vents that the chemicals can
travel, it can affect those areas, too."
The trial court concluded that no exigent circumstances
existed to justify entry into, or the search of, the apartment
because "there was no outward sign that danger was imminent"
and because one officer testified that "he entered the
apartment and did not feel he was in any type of danger." The
trial court granted Clayton's and Bailey's motions to
suppress. The Court of Criminal Appeals affirmed the trial
court's order as to the January 7 search.
Standard of Review
"'"'This Court reviews pure questions of law in criminal
cases de novo.'"' Ex parte Brown, 11 So. 3d 933, 935 (Ala.
2008) (quoting Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004), quoting in turn Ex parte Key, 890 So. 2d 1056, 1059
(Ala. 2003))." Hiler v. State, 44 So. 3d 543, 546 (Ala.
2009).
Discussion
The State contends that the Court of Criminal Appeals
erred in holding that the trial court properly granted
Clayton's and Bailey's motions to suppress the evidence
seized
9
1130012 and 1130013
from the January 7, 2011, warrantless entry into and search of
their apartment.
The Fourth Amendment to the United States Constitution
states:
"The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the person or things to be seized."
Article I, § 5, Ala. Const. of 1901, states the same
fundamental principle and also applies to this case.
In Johnson v. United States, 333 U.S. 10 (1948), the
United States Supreme Court recognized that there are
situations
where
the
requirement
that
law-enforcement
officers
secure a warrant before entry into a person's residence may be
obviated. The Supreme Court explained:
"Crime, even in the privacy of one's own quarters,
is, of course, of grave concern to society, and the
law allows such crime to be reached on proper
showing. The right of officers to thrust themselves
into a home is also a grave concern, not only to the
individual but to a society which chooses to dwell
in
reasonable
security
and
freedom
from
surveillance. When the right of privacy must
reasonably yield to the right of search is, as a
rule, to be decided by a judicial officer, not by a
policeman or Government enforcement agent.
10
1130012 and 1130013
"There are exceptional circumstances in which,
on balancing the need for effective law enforcement
against the right of privacy, it may be contended
that a magistrate's warrant for search may be
dispensed with."
333 U.S. at 14-15.
In Cameron v. State, 861 So. 2d 1145, 1149 (Ala. Crim.
App. 2003), the Alabama Court of Criminal Appeals recognized
one of the exceptional circumstances that justifies a
warrantless entry and search of a residence, stating:
"'It is well settled that warrantless
entries to and searches of a residence are
presumptively unreasonable and that the
burden is on the government to demonstrate
exigent
circumstances
justifying
a
warrantless entry and search. Welsh v.
Wisconsin, 466 U.S. 740 (1984); Payton v.
New York, 445 U.S. 573 (1980); Landreth v.
State, 600 So. 2d 440 (Ala. Cr. App. 1992).
To justify a warrantless entry and search,
the state needs to show both the existence
of
probable
cause
and
exigent
circumstances. United States v. Rodgers,
924 F.2d 219 (11th Cir. 1991), cert.
denied, 501 U.S. 1221, 111 S.Ct. 2834, 115
L.Ed. 2d 1003 (1991), appeal after remand,
981 F.2d 497 (11th Cir. 1993); Etheridge v.
State, 414 So. 2d 157 (Ala. Cr. App.
1982).'
"A.A.G. v. State, 668 So. 2d 122, 126 (Ala. Crim.
App. 1995) (some internal citations altered)."
In Wedgeworth v. State, 610 So. 2d 1244, 1247-48 (Ala.
Crim. App. 1992), the Court of Criminal Appeals held that law-
11
1130012 and 1130013
enforcement officers may conduct a warrantless search of a
motel room if the officers have probable cause to believe that
an illegal activity had been or was being committed and there
is an exigent circumstance, stating:
"This court has ... held ... that probable cause
combined with the existence of exigent circumstances
justifies a warrantless search. Cooper v. State, 480
So. 2d 8 (Ala. Cr. App. 1985). See also Blaine v.
State, 366 So. 2d 353 (Ala. Cr. App. 1978).
Moreover, an officer has probable cause to conduct
a search if a reasonably prudent person based on the
facts and circumstances that the officer knows would
be justified in concluding that the object of the
search or items sought are connected with criminal
activity, and that they will be found in the place
to be searched. Gord v. State, 475 So. 2d 900 (Ala.
Cr. App. 1988).
"... [T]his court has ruled that exigent
circumstances exist to justify a warrantless search
upon a reasonable cause to believe that those
premises contain individuals in imminent danger of
death or severe bodily harm. Ash v. State, 424 So.
2d 1381 (Ala. Cr. App. 1982). Moreover, where
exigent circumstances exist and there is probable
cause to believe that evidence of a crime may be
found, an immediate warrantless search is justified
as an exception to the Fourth Amendment's warrant
requirement. Hancock v. State, 368 So. 2d 581 (Ala.
Cr. App.), writ denied, 368 So. 2d 587 (Ala. ...
1979).
"... The Fourth Amendment does not require
police officers to delay in the course of an
investigation of a serious crime if to do so would
endanger the lives of others. Jones v. State, 49
Ala. App. 438, 272 So. 2d 910 (1973)."
12
1130012 and 1130013
Mindful of these principles of law, this Court now
considers whether the law-enforcement officers had probable
cause to believe that an illegal activity had been or was
being
committed in Clayton and Bailey's apartment coupled with
an exigent circumstance so as to justify the warrantless entry
and search of the apartment.
A. Probable Cause
The State contends that the law-enforcement officers had
probable cause to enter and search Clayton and Bailey's
apartment because,
it argues, when Bailey opened the apartment
door the odor known to them to be consistent with the process
of manufacturing methamphetamine grew stronger in intensity,
indicating that the occupants of the apartment were engaging
in an illegal activity –- the manufacture of methamphetamine
–- inside the apartment.
In Adams v. State, 815 So. 2d 578, 580-81 (Ala. 2001),
this Court recognized the standard for determining the
existence of probable cause, stating:
"In Woods v. State, 695 So. 2d 636 (Ala. Crim.
App. 1996), the Court of Criminal Appeals explained
the standard for determining the existence of
probable cause:
13
1130012 and 1130013
"'"Whether there is probable
cause [to] merit a warrantless
search and seizure is to be
determined by the totality of the
circumstances.
Illinois
v.
Gates, 462 U.S. 213, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983).
'Probable cause exists where all
the
facts
and
circumstances
within the officer's knowledge
are
sufficient to
warrant a
person of reasonable caution to
conclude that an offense has been
or is being committed and that
contraband would be found in the
place to be searched.' Sheridan
v. State, 591 So. 2d 129, 130
(Ala. Crim. App. 1991)."
"'State v. Stallworth, 645 So. 2d 323, 325
[(Ala. Crim. App. 1994)].... "When we
speak of probable cause, we are dealing
with probabilities which are factual and
practical
considerations
of
everyday
experience." [Sterling v. State, 421 So.
2d 1375, 1381 (Ala. Crim. App. 1982)].'
"695 So. 2d at 640 (citations omitted)."
In Johnson v. United States, supra, law-enforcement
officers had received information from a confidential
informant that a person was smoking opium, an illegal
controlled substance, in a hotel room. The law-enforcement
officers, who had been sent to investigate the odor, were
experienced in narcotics, recognized the
odor of burning opium
while they were in the hall, and determined that the odor was
14
1130012 and 1130013
emanating from a certain room. The officers knocked and
informed
the
occupant
that
they
were
law-enforcement
officers.
When the occupant opened the door, one of the officers stated
that he wanted to discuss the opium smell in the room. The
occupant denied that there was such a smell. The law-
enforcement officers then arrested the occupant, searched the
room, and seized opium and its smoking apparatus. Although
the United States Supreme Court held that the warrantless
entry and search of the room was unconstitutional because an
exigent circumstance did not exist to excuse the need for a
warrant, the Court did state that the odor known to the
officers as the odor of burning opium could constitute
probable cause for issuing a warrant, stating:
"At the time entry was demanded the officers
were possessed of evidence which a magistrate might
have found to be probable cause for issuing a
warrant. We cannot sustain defendant's contention,
erroneously made, on the strength of Taylor v.
United States, 286 U.S. 1 [(1932)], that odors
cannot be evidence sufficient to constitute probable
cause grounds for any search. That decision held
only that odors alone do not authorize a search
without [a] warrant. If the presence of odors is
testified to before a magistrate and he finds the
affiant qualified to know the odor, and it is one
sufficiently distinctive to identify a forbidden
substance, this Court has never held such a basis
insufficient to justify issuance of a search
15
1130012 and 1130013
warrant. Indeed it might very well be found to be
evidence of most persuasive character."
333 U.S. at 13. See also Coolidge v. New Hampshire, 403 U.S.
443,
468
(1971)("Incontrovertible
testimony
of
the
senses
that
an incriminating object is on premises belonging to a criminal
suspect may establish the fullest possible measure
of
probable
cause.").
In Cameron v. State, supra, the Court of Criminal Appeals
held that the overwhelming odor of marijuana emanating from a
house, combined with the law-enforcement officer's testimony
explaining his ability, based on his training and experience,
to identify the odor of marijuana established that probable
cause existed for the officer to believe that an illegal
substance was located inside the residence. Cf. Blake v.
State, 772 So. 2d 1200, 1205 (Ala. Crim. App. 2000) (holding
that the odor of drugs emanating from a vehicle provided
probable cause to search the vehicle); Adams v. State, 815 So.
2d at 581 ("A police officer's detecting the smell of raw or
burned marijuana coming from a particular place or person is
sufficient to provide probable cause to search that place or
person.").
16
1130012 and 1130013
In this case, the evidence establishes that the law-
enforcement officers had probable cause to believe that an
illegal
activity
–-
the
unlawful
manufacturing
of
methamphetamine –- –- was or had been occurring inside Clayton
and Bailey's apartment. The law-enforcement officers
testified that when Bailey opened the door to the apartment
the odor that they knew, based on their training and
experience,
to be consistent with the process of
manufacturing
of methamphetamine became stronger. Because the evidence
7
established that the odor consistent with the process of
manufacturing methamphetamine emanated from Clayton and
Bailey's apartment and that the officers, based on their
training and experience, had the ability to recognize the
odor, the law-enforcement officers had probable cause to
believe that the occupants of the apartment were engaged in
the illegal activity of manufacturing methamphetamine inside
the apartment. A.A.G. v. State, 668 So. 2d 122, 127 (Ala.
Crim.
App.
1995)("The
establishment
of
probable
cause
requires
A police officer is not required to have a warrant to
7
approach a residence and knock because that is "no more than
any private citizen might do." Kentucky v. King, 563 U.S.
___, ___, 131 S. Ct. 1849, 1862 (2011).
17
1130012 and 1130013
only that facts available to the officer at the moment of
[entry] would warrant a person of reasonable caution to
believe
that
the
action
taken
by
the
officer
was
appropriate."). Cf. Adams v. State, supra.
B. Exigent Circumstance
The State contends that the dangers to the public
created by the process of manufacturing methamphetamine
constitute an exigent circumstance that requires immediate
action from law-enforcement
officers to protect the public and
that overcomes the delay incident to obtaining a warrant.
Clayton and Bailey disagree, arguing that the statements and
actions
of the law-enforcement officers in this case establish
that there was no danger of harm to themselves or the public.
Therefore, they maintain that an exigent circumstance did not
exist that authorized the warrantless entry into and search of
their apartment by law-enforcement officers.
"'The exigent circumstances doctrine applies only when
the inevitable delay incident to obtaining a warrant must give
way to an urgent need for immediate action.'" Youtz v. State,
494 So. 2d 189, 193 (Ala. Crim. App. 1986)(quoting United
States v. Satterfield, 743 F.2d 827, 844 (11th Cir. 1984)).
18
1130012 and 1130013
"The burden rests on the State to prove the
existence of an exigent circumstance to overcome the
presumption of unreasonableness that attaches to
warrantless
residential
entries
and
searches.
McCammon v. State, 499 So. 2d 811 (Ala. Crim. App.
1986)(citing Welsh v. Wisconsin, 466 U.S. 740, 104
S.Ct. 2091, 80 L.Ed.2d 732 (1984)). See also Vale
v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26
L.Ed.2d 409 (1970)('The burden rests on the State to
show
the
existence
of
such
an
exceptional
situation.').
"'"[N]o exigency is created simply because
there is probable cause to believe that a
serious crime has been committed." Welsh
[v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct.
2091, 80 L.Ed.2d 732 (1984)]; Mincey [v.
Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408,
57 L.Ed.2d 290 (1978)]. "[T]he mere
presence of narcotics, without more, is not
such an exigent circumstance as would
permit entry into private premises without
a proper warrant." People v. Lee, 83 A.D.
2d 311, 444 N.Y.S.2d 100, 102-103 (1981),
cert. denied, 460 U.S. 1044, 103 S.Ct.
1443, 75 L.Ed.2d 798 (1983). See also
People v. Ouellette, 78 Ill. 2d 511, 36
Ill. Dec. 666, 669-70, 401 N.E.2d 507,
510-11 (1979). "The presence of contraband
without more does not give rise to exigent
circumstances." United States v. Torres,
705 F.2d 1287, 1297 (11th Cir. 1983).
"'There have been various attempts to
formulate
an
all
encompassing
definition
of
exigent circumstances. See Harbaugh and
Faust, "Knock on Any Door" -- Home Arrests
After Payton and Steagald, 86 Dick. L. Rev.
191 (1982); Donnino and Girese, Exigent
Circumstances
For
A
Warrantless
Home
Arrest, 45 Alb. L. Rev. 90 (1980); Comment,
Warrantless
Arrests:
Justification
By
19
1130012 and 1130013
Exigent Circumstances, 6 Hamline L. Rev.
191 (1983); W. LaFave, 2 Search and Seizure
§ 6.5 (1978). However, "[t]he exigent
circumstances doctrine applies only when
the inevitable delay incident to obtaining
a warrant must give way to an urgent need
for immediate action." United States v.
Satterfield, 743 F.2d [827, 844 (11th Cir.
1984)].'"
Cameron v. State, 861 So. 2d at 1150-51 (quoting Youtz, 494
So. 2d at 193. See Illinois v. McArthur, 531 U.S. 326, 331
(2001)(defining
exigent
circumstances
as
a
"specially
pressing
or urgent law enforcement need"); Brigham City, Utah v.
Stuart, 547 U.S. 398, 406 (2006)(noting that any warrantless
search entry based on exigent circumstances must be supported
by a genuine exigency).
The United States Supreme Court has held that "'[t]he
need to protect or preserve life or avoid serious injury is
justification for what would be otherwise illegal absent an
exigency or emergency.'" Mincey v. Arizona, 437 U.S. 385,
392-93 (1987) (quoting Wayne v. United States, 318 F.2d 205,
212 (D.D.C. 1963)).
For
example, law-enforcement officers can
enter a residence without a warrant to render emergency
assistance to an injured person or to protect a person from
immediate injury. Mincey, 437 U.S. at 392. Moreover, the
20
1130012 and 1130013
state of mind of the law-enforcement officer is immaterial "as
long as the circumstances, viewed objectively, justify [the
officer's] action." Scott v. United States, 436 U.S. 128, 138
(1978).
Courts have recognized the dangers created during the
process of manufacturing methamphetamine, and numerous cases
have upheld warrantless searches by law-enforcement officers
who had probable cause to believe that they had located an
active methamphetamine-manufacturing operation. See Williams
v. State, 995 So. 2d 915 (Ala. Crim. App. 2008); Kleinholz v.
United States, 339 F.3d 674 (8th Cir. 2003)(noting that the
volatile
nature
of
an
operating
methamphetamine
laboratory
can
create a danger supporting the finding of an exigent
circumstance justifying an immediate search); Louisiana v.
Shumaker, 914 So. 2d 1156, 1167-68 (La. Ct. App. 2005)
(holding the chemical smell known to be associated with the
illegal manufacture of methamphetamine and the dangers of the
manufacture of methamphetamine established an immediate need
for the officers to enter the residence without a warrant to
protect the public); United States v. Lloyd, 396 F.3d 948, 954
(8th Cir. 2005); United States v. Walsh, 299 F.3d 729, 734
21
1130012 and 1130013
(8th Cir. 2002)("[P]otential hazards of methamphetamine
manufacture are well documented, and numerous cases have
upheld
limited
warrantless searches by police officers who had
probable cause to believe they had uncovered an on-going
methamphetamine manufacturing operation."); United States v.
Wilson, 865 F.2d 215, 217 (9th Cir. 1989); United States v.
Echegoyen, 799 F.2d 1271, 1278-79 (9th Cir. 1986); United
States v. Brock, 667 F. 2d 1131, 1318 (9th Cir. 1982); and
People v. Messina, 165 Cal. App. 3d 937, 212 Cal. Rptr. 75
(1985). At least one state has codified the exigent
circumstance
created
by
the
process
of
manufacturing
methamphetamine. Ohio Revised Code Section 2933.33 provides:
"If a law enforcement officer has probable cause to
believe that particular premises are used for the
illegal manufacture of methamphetamine, for the
purpose of conducting a search of the premises
without a warrant, the risk of explosion or fire
from the illegal manufacture of methamphetamine
causing injury to the public constitutes exigent
circumstances and reasonable grounds to believe that
there is an immediate need to protect lives, or
property, of the officer and other individuals in
the vicinity of the illegal manufacture."
In Williams, supra, the Court of Criminal Appeals held
that
the
observation
of
an
operating
methamphetamine
laboratory by law-enforcement officers constituted an exigent
22
1130012 and 1130013
circumstance justifying a warrantless search. The Court of
Criminal Appeals stated:
"The
State
contends
that
the
methamphetamine
lab
itself created an exigent circumstance that enabled
law-enforcement officials to conduct a warrantless
search of Williams's mobile home. The appellate
courts of Alabama have not previously addressed the
narrow issue whether the threat posed by an
operating methamphetamine lab constitutes an exigent
circumstance allowing a warrantless search of a
residence
law-enforcement
officials
suspect
contains
a methamphetamine lab.
"Jurisdictions that have tackled the issue have
held that the dangers posed by an operating
methamphetamine lab are sufficient to constitute an
exigent circumstance for purposes of conducting a
warrantless search of a residence. For example, in
United States v. Layne, 324 F.3d 464, 468–69 (6th
Cir. 2003), the United States Court of Appeals for
the Sixth Circuit noted that the production of
methamphetamine '"poses serious dangers to both
human life and to the environment ... [and] these
chemicals
and
substances
are
utilized
in
a
manufacturing process that is unstable, volatile,
and highly combustible. Even small amounts of these
chemicals,
when
mixed
improperly,
can
cause
explosions and fires."' Id., quoting H.R. Rep.
106–878, pt. 1 at *22 (September 21, 2000).
"The Maine Supreme Court also has held that
discovery of an operating methamphetamine lab can
provide an exigent circumstance that would allow a
warrantless search. State v. Bilynsky, 932 A.2d
1169 (Me. 2007). In its opinion, the Maine court
included a catalog of those jurisdictions that have
held that discovery of an operating methamphetamine
lab constitutes an exigent circumstance, beginning
with United States v. Williams, 431 F.3d 1115 (8th
Cir. 2005), in which the United States Court of
23
1130012 and 1130013
Appeals for the Eighth Circuit held that the
discovery of an operating methamphetamine lab in the
defendant's home rendered a protective sweep of the
home necessary to protect the safety of the officers
and local residents.
"The Bilynsky court then cited other cases
consistent with Williams, stating that
"'the Eighth Circuit noted that "[t]he
potential
hazards
of
methamphetamine
manufacture
are
well
documented,
and
numerous
cases
have
upheld
limited
warrantless
searches
by
police
officers
who
had probable cause to believe they had
uncovered
an
ongoing
methamphetamine
manufacturing
operation."
United
States
v.
Walsh, 299 F.3d 729, 734 (8th Cir. 2002).
The court cited five cases [in Walsh] from
the Ninth and Tenth Circuits to support
that proposition. Id. Courts outside the
Eighth, Ninth, and Tenth Circuits have
reached the same result. See, e.g., United
States v. Denson, No. 1:05–CR–088 ... (E.D.
Tenn. Feb. 2, 2006)[(not reported in F.
Supp.)]; People v. Duncan, 42 Cal. 3d 91,
227 Cal. Rptr. 654, 720 P.2d 2, 10–11
(1986); Holder v. State, 847 N.E.2d 930,
939–40 (Ind. 2006); State v. Castile, No.
M2004–02572–CCA–R3–CD
...
(Tenn.
Crim.
App.
June 28, 2006)[(not reported in S.W.3d)].'
"State v. Bilynsky, 932 A.2d 1169, 1175–76 (Me.
2007).
"The Iowa Supreme Court has found that '[t]he
volatile
nature
of
the
dangers
created
by
methamphetamine labs can be exigent circumstances
justifying an immediate limited search of premises
harboring such a lab.' State v. Simmons, 714 N.W.2d
264, 273 (Iowa 2006); see also Kleinholz v. United
States, 339 F.3d 674, 677 (8th Cir. 2003)(explaining
24
1130012 and 1130013
that the volatile nature of methamphetamine labs
presents
exigent
circumstances
justifying
an
immediate limited search when officers smelled odor
associated with the production of methamphetamine);
and State v. Chapman, 107 Or. App. 325, 332–33, 813
P.2d 557, 560–61 (1991)(concluding that a working
methamphetamine lab provided exigent circumstances
for warrantless search).
"Based on the inherent dangers of an operating
methamphetamine
lab,
we
now
hold
that
[the
observation] of such a lab by law-enforcement
officials
constitutes
an
exigent
circumstance
justifying a warrantless search."
995 So. 2d at 920-21.
In
Williams,
the
law-enforcement
officers
were
investigating a tip from a confidential informant that a
methamphetamine laboratory was being operated at a certain
location. When the officers arrived at the location, they
smelled an odor known to them, based on their training and
experience,
to
be consistent with the process of manufacturing
methamphetamine coming from a shed and a mobile home on the
premises. Additionally, one of the officers observed the
operating methamphetamine laboratory in the shed. The Court
of
Criminal
Appeals
held
that
the
totality
of
the
circumstances
established
that
an
exigent
circumstance
existed
making the law-enforcement officers' warrantless entry into
and search of the mobile home proper. Williams establishes
25
1130012 and 1130013
that the observation of a methamphetamine laboratory in the
process of making methamphetamine, as evidenced by the law-
enforcement officer's testimony that he saw the laboratory in
operation, creates an exigent circumstance.
In this case, the question presented is whether the
process of manufacturing methamphetamine, evidenced by the
odor known by law-enforcement officers to be generated during
the manufacturing process, establishes a sufficient risk of
danger to the public, creating an exigent circumstance
justifying an immediate entry into and search of a residence
by law-enforcement officers.
In United States v. Clarke, 564 F.3d 949 (8th Cir. 2009),
the United States Court of Appeals for the Eighth Circuit
confronted this same issue. In Clarke, law-enforcement
officers had received an anonymous tip that methamphetamine
was being produced at Clarke's residence. When the officers
arrived at the residence, they smelled a chemical odor around
the house that they knew, based on their training and
experience, to be associated with the manufacture of
methamphetamine. When no one responded to their knocks on the
door, the officers entered the residence to ensure the safety
26
1130012 and 1130013
of any occupants. After determining that the officers had
probable cause, the Eighth Circuit Court of Appeals held that
exigent circumstances existed, stating:
"Because the officers had probable cause to believe
methamphetamine was being produced in Clarke's home,
the officers reasonably concluded there was a
potential threat to the safety of the officers,
anybody inside the home, and anyone in the
surrounding area. See United States v. Walsh, 299
F.3d 729, 734 (8th Cir. 2002)(declaring, '[o]ur
court has consistently considered safety factors in
determining whether exigent circumstances existed,'
and '[t]he potential hazards of methamphetamine
manufacture are well documented, and numerous cases
have upheld limited warrantless searches by police
officers who had probable cause to believe they had
uncovered an on-going methamphetamine manufacturing
operation')."
564 F.3d at 959
In United States v. Rhiger, 315 F.3d 1283, 1288 (10th
Cir. 2003), the United States Court of Appeals for the Tenth
Circuit noted that it had, in an earlier decision, determined
that the
"'basic aspects of the "exigent circumstances"
exception [with regard to the manufacturing of
methamphetamine] are that (1) law enforcement
officers must have reasonable grounds to believe
that there is immediate need to protect their lives
or others or their property or that of others, (2)
the search must not be motivated by an intent to
arrest and seize the evidence, and (3) there must be
some reasonable basis, approaching probable cause to
27
1130012 and 1130013
associate an emergency with the area or place to be
searched.'"
(Quoting United States v. Weeks, 995 F.2d 964, 970 (10th Cir.
1993).) See also People v. Doll, 21 N.Y.3d 665, 998 N.E.2d
384, 975 N.Y.S.2d 721 (2013).
The record in this case establishes that an exigent
circumstance existed requiring immediate action by the law-
enforcement officers to protect themselves, the occupants of
the apartment, and the public. Here, when the law-enforcement
officers arrived at the apartment complex in response to a
dispatch informing them that it had been reported that
methamphetamine
was
being
manufactured
in
Bailey
and
Clayton's
apartment, they smelled an odor they recognized, based on
their training and experience, to be consistent with the
process of manufacturing methamphetamine. The officers
testified that when Bailey opened the apartment door the odor
grew stronger. The record establishes that the inhalation of
the odor of the chemicals used in the manufacturing of
methamphetamine has adverse health effects, that the process
of manufacturing methamphetamine creates a high risk of
explosion, and that the officers believed that they, the
occupants of the apartment, and the public were in immediate
28
1130012 and 1130013
danger. The immediacy of the situation is evidenced not only
by the officers' expeditious protective sweep of the
apartment, but by the presence of the firefighters at the
apartment complex and the evacuation of the other residents of
the complex. Additionally, the record establishes that the
purpose of the officers' entry into and search of the
apartment was to remove any occupants from the potential harm
manufacturing methamphetamine can cause and to secure the
apartment for the firefighters to investigate the source of
the odor, not to search for evidence. Here, exigent
circumstances
existed,
requiring
immediate
action,
because
the
law-enforcement
officers
reasonably
believed
that
methamphetamine
was
being
manufactured
in
Clayton
and
Bailey's
apartment
and
because
the
process
of
manufacturing
methamphetamine constitutes an emergency, life-threatening
situation that requires immediate action to protect the law-
enforcement officers and the public.
Here, the law-enforcement officers were justified in
entering and searching the apartment because the officers,
acting on probable cause and in good faith, reasonably
believed from the totality of the circumstances that the
29
1130012 and 1130013
nature of the manufacture of methamphetamine posed a risk of
danger to them and the public. See Moore v. State, 650 So. 2d
958,
962-63
(Ala.
Crim.
App.
1994)("Whether
exigent
circumstances exist depends upon whether an 'emergency
situation' exists. An emergency situation exists 'when the
officers in good faith believe that they or someone within are
in peril of bodily harm ....").
This Court does not find persuasive Clayton and Bailey's
argument that the behavior of the officers indicated that
there was no need for immediate action. A fair reading of the
record establishes that, in light of the odor the law-
enforcement officers recognized to be consistent with the
process of manufacturing methamphetamine, the law-enforcement
officers were concerned about their safety and the safety of
the occupants of the apartment and the public. The fact that
Sgt. Hall remained in the apartment to allow Clayton to dress
her two-year-old child before escorting them outside into the
cold temperature does not extinguish the urgency of the
situation or the concern for public safety; rather, it
exhibits Sgt. Hall's desire not to cause additional risk to
the child's health. Additionally, the record clearly
30
1130012 and 1130013
demonstrates that the officers remained inside the apartment
just long enough to remove its occupants and then left as
quickly as possible. Cf. United States v. Echegoyen, supra
(rejecting defendant's argument that the behavior of the
officers before, during, and after the search indicated that
the alleged exigent circumstance was pretextual and holding
that the evidence supported the conclusion that there was a
potentially
dangerous
fire
hazard
based
on
testimony
regarding
the chemical smell and the risk of fire posed by the illegal
manufacturing of narcotics).
Moreover, to hold, as Bailey and Clayton urge, that the
law-enforcement officers had to secure a warrant before
entering the residence would have placed the safety of all in
the vicinity of the odor in danger. This Court finds it
immaterial
in
our
determination
whether
an
exigent
circumstance
existed
that
the
methamphetamine
laboratory
found
in the apartment was inactive. The pivotal consideration is
that the record establishes that at the time the law-
enforcement officers entered the apartment they had a good-
faith belief, based on the odor known to them to be consistent
with the process of manufacturing methamphetamine, that
31
1130012 and 1130013
methamphetamine was being manufactured in the apartment and
that the process of manufacturing methamphetamine posed a
danger to the occupants of the apartment, the officers, and
the public.
Conclusion
Because the law-enforcement officers had probable cause
to believe that methamphetamine was being manufactured inside
the apartment and because the process of manufacturing
methamphetamine, in light of its explosive nature, creates an
exigent
circumstance,
the
law-enforcement
officers'
warrantless entry into and search of Bailey and Clayton's
apartment on January 7, 2011, was proper. Therefore, the
judgment of the Court of Criminal Appeals holding otherwise is
reversed, and this case is remanded to that court for
proceedings consistent with this opinion.
1130012 -- REVERSED AND REMANDED.
1130013 -- REVERSED AND REMANDED.
Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.
Murdock, J., concurs specially.
Moore, C.J., concurs in the result.
32
1130012 and 1130013
MURDOCK, Justice (concurring specially).
It appears that the police had a right to be in the
hallway outside the apartment in question. When the door to
the apartment was voluntarily opened by one of its occupants,
two things happened: (1) the police became aware of a strong
smell consistent with the operation of an illegal "meth lab"
inside the apartment and (2) the occupants became aware that
the police were aware of the foregoing. Although I concur in
the main opinion, I write separately to note that the only
argument made by the State is that the health risks associated
with the possible presence of a meth lab constituted an
exigent circumstance justifying a warrantless search of the
apartment by members of the fire department. The State does
not argue in this case that the prospect for the destruction
of evidence of a crime given items (1) and (2) above would
constitute an exigency justifying the immediate search of the
apartment by the police without the necessity of a warrant or
the involvement of the fire department acting in the interest
of public safety. See generally Kentucky v. King, 563 U.S.
___, ___, 131 S.Ct. 1849, 1858 (2011) ("[W]arrantless
searches
are allowed when the circumstances make it reasonable, within
33
1130012 and 1130013
the meaning of the Fourth Amendment, to dispense with the
warrant requirement. Therefore, the answer to the question
before us is that the exigent circumstances rule justifies a
warrantless search when the conduct of the police preceding
the exigency is reasonable in the same sense. Where, as here,
the police did not create the exigency by engaging or
threatening to engage in conduct that violates the Fourth
Amendment, warrantless entry to prevent the destruction of
evidence is reasonable and thus allowed.").
34 | April 4, 2014 |
00985244-baba-48aa-ab3d-bc965f254924 | Gray v. Bain | N/A | 1130378 | Alabama | Alabama Supreme Court | REL: 09/26/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1130378
____________________
Jean S. Gray
v.
Larry O. Bain and Sharon Johnston
Appeal from Elmore Circuit Court
(CV-99-0238)
MURDOCK, Justice.
Jean S. Gray appeals from two orders of the Elmore
Circuit Court in an action filed against Larry O. Bain and
Sharon Johnston in which Gray sought a judgment declaring that
she owned a parcel of land (hereinafter "the parcel") and an
1130378
injunction preventing Bain and Johnston from asserting any
rights to the parcel. We conclude that the trial court erred
in granting a Rule 60(b), Ala. R. Civ. P., motion filed by
Bain and Johnston that set aside a settlement of the action.
I. Facts and Procedural History
This action has been appealed twice before. In Bain v.
Gray, 835 So. 2d 1034 (Ala. Civ. App. 2002) ("Bain I"), the
Court of Civil Appeals summarized the pertinent underlying
facts of the dispute between the parties.
"The .05-acre parcel in dispute is located in
the Kowaliga Bay Estates subdivision in Elmore
County. The record indicates that the parcel is a
rocky, narrow strip of land that slopes steeply down
on its west side into a slough on Lake Martin. The
parcel is bordered to the east by Big Oak Drive, to
the north by Cove Drive, and to the south by Poplar
Drive.
"The record contains a copy of the original
subdivision plat filed in September 1953. The
subdivision plat divides the property composing the
subdivision into units, then into blocks, and then
into lots. From our review of the record, it
appears that all of the smallest divisions of the
property in the subdivision plat are designated by
lot numbers, with the exception of the disputed
parcel. However, on the subdivision plat, three
lines are drawn across the parcel. The record
indicates that those lines, if continued across Big
Oak Drive, match the lines dividing Lots 2, 3, and
4, of Block No. 5, Unit No. 2, of the Kowaliga Bay
Estates subdivision.
2
1130378
"Gray owns Lots 2, 3, and 4, of Block No. 5,
Unit No. 2, of the Kowaliga Bay Estates subdivision,
the lots directly across Big Oak Drive from the
parcel. [Bain and Johnston] own Lot 13 and Lot 14
of Block 8, Unit 2, of the Kowaliga Bay Estates
subdivision. One of [Bain and Johnston's] lots is
directly across the slough from the parcel. The
parties' deeds describe their respective properties
by lot, block, and unit numbers; all of the deeds
preceding those deeds date back to the time the
subdivision plat was recorded, and describe the
properties by lot, block, and unit numbers. None of
the deeds to the parties' properties contain a
metes-and-bounds description, and none of the deeds
reference or describe the parcel."
835 So. 2d at 1035-36.
On June 9, 1999, Gray and her husband Burl A. Gray filed
this action asking seeking declaratory and injunctive relief
concerning ownership of the parcel. Bain and Johnston
1
answered and filed a counterclaim also seeking
declaratory
and
injunctive relief concerning ownership of the parcel.
"On September 28, 2000, [Bain and Johnston]
filed a motion for a summary judgment. On
December 22, 2000, Jean Gray filed a motion for a
summary judgment and a brief in support of that
motion. The trial court held a hearing on both
parties' summary-judgment motions. On May 4, 2001,
the trial court denied the parties' summary-judgment
motions and issued an order dividing the parcel
between the parties. [Bain and Johnston] filed a
motion to alter, amend, or vacate the trial court's
Burl Gray died on August 27, 1999. Jean Gray moved to
1
have him dismissed as a party, and the trial court granted
that motion.
3
1130378
May 4, 2001, order; that motion was denied by
operation of law. [Bain and Johnston] appealed to
the Supreme Court of Alabama; Gray cross-appealed.
The Supreme Court of Alabama transferred the appeals
to [the Court of Civil Appeals] pursuant to
§ 12-2-7(6), Ala. Code 1975."
835 So. 2d at 1035.
In Bain I, the Court of Civil Appeals explained that the
trial court had divided the parcel between the parties after
concluding that the original intent of the subdivision
developers was ambiguous. The Court of Civil Appeals
concluded that the trial court had erred in dividing the
parcel at the summary-judgment stage, because, it held, "if
the trial court determines that the deed is ambiguous, the
intent of the grantor becomes a factual issue," and "[w]hen a
genuine issue of material fact exists regarding the intent of
the grantor in the deed, a summary judgment is not
appropriate." 835 So. 2d at 1038. The Court of Civil Appeals
also noted that "the trial court erred in dividing the parcel
in a manner inconsistent with the parties' assertions and
unsupported by the evidence presented by the parties at the
hearing on the parties' summary-judgment motions." Id.
Accordingly, the Court of Civil Appeals reversed the trial
4
1130378
court's judgment and remanded the cause for further
proceedings.
For reasons not fully explained by the parties, nothing
further occurred in this action for several years. On August
2
19, 2011, following the retirement of presiding Judge John
Rochester, this case was assigned to Judge Sibley Reynolds.
Following several continuances, the trial court set the case
for a May 30, 2012, trial date.
On May 30, 2012, with all parties present, a settlement
agreement was reached during a recess in the proceedings. The
terms of the settlement were read into the record by Gray's
attorney. As the terms were read, the parties and their
attorneys
interjected
to
seek
clarification
on
certain
points.
One such interjection was made by Bain and Johnston's counsel,
who stated:
"MR. HAYNES: Judge, on the very first paragraph.
Bob, you said this earlier but did not recite it
then. I believe it's an oversight or I didn't hear
it. We believe that the waterfront that Ms. Gray
would get would be more or less approximately
eighty-seven feet, but that specific number is not
controlling. It is the points that he referred to
going through the delta points.
The parties do indicate that attempts to settle the
2
dispute were made during this period.
5
1130378
"THE COURT: That will be established by the Speaks
survey.
"MR. HAYNES: Correct.
"MR. RENEAU [Gray's counsel]: He's right. That's
in my notes and I neglected to say it."
(Emphasis added.) After several such exchanges between the
parties, their attorneys, and the trial court, the trial court
asked Bain and Johnston's attorney:
"Do we have an agreement?
MR. HAYNES: Yes, sir.
"THE COURT: Ms. Gray, is that your understanding of
the agreement?
"MS. GRAY: I wish you could see the pictures of
what is built over there.
"THE COURT: Ms. Gray, if I start taking testimony,
I'm not going to look. Is that your understanding
of the agreement?
"MS. GRAY: Yes.
"THE COURT: Is that your agreement?
"MS, GRAY: Yes.
"THE COURT: Mr. Bain, is that your understanding of
the agreement?
"MR. BAIN: Yes, sir.
"THE COURT: Is that your agreement?
6
1130378
MR. BAIN: The only problem I have is when we agreed
in the back room to what their first offer was about
the property lines going across from three and going
down to, what was that point, delta point four, we
agreed to that. We didn't really agree to come over
a foot and out a foot and do that. We agreed to
what they offered. You know, we have been trying to
settle this for a long, long time, thirteen years.
You know, just to have to change it after we walk
out here, we're not really happy.
"THE COURT: Mr. Bain, we're five minutes from that.
That's
what
I
was
asking.
Is
that
your
understanding of the agreement?
"MR. BAIN: Yes, sir.
"THE COURT: Is that your agreement?
"MR. BAIN: Yes, sir.
"THE
COURT:
Ms.
Johnston,
is
that
your
understanding of the agreement?
"MS. JOHNSTON: Yes, sir.
"THE COURT: Is that your agreement?
"MS. JOHNSTON: Uh-huh (positive response).
"THE COURT: Thank you, I will enter that order just
as soon as it's presented. ..."
On June 12, 2012, the trial court entered an order based
on the terms of the settlement. In pertinent part, the order
provided:
"1. The parties will divide absolute ownership of
the disputed property with the Plaintiff, Jean S.
Gray (hereinafter referred to as 'Gray') receiving
7
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the northern portion of the disputed property (which
has been labeled as Parcel 57 by the Elmore County
Revenue Commissioner's Office) and the Defendants,
Larry O. Bain and Sharon Johnston (hereinafter
referred to as 'Bain and Johnston') receiving the
southern portion of same. [Bain and Johnston's]
surveyor, Stephen Speaks, shall at [Bain and
Johnston's] expense, prepare a boundary survey of
the parcels to be received by the respective
parties. Said survey shall be in accordance with a
survey previously prepared by Speaks with the
addition of the boundary line which will now divide
the property into the two parcels to be received by
the respective parties. The common boundary line
shall begin on the west side of Big Oak Drive at the
point which would represent the boundary line
between Lot 3 and Lot 4, Block 5, Unit 2 of Kowaliga
Bay Estates. Beginning at said point, the boundary
line shall proceed to a point which is one foot from
the point designated as the Delta Point between L-4
and L-5 on the previous Speaks survey. Said point
shall be determined in a manner which will cause the
remainder of the boundary line which intersects said
Delta Point to be perpendicular to Big Oak Drive.
The express purpose of the above is to cause the
property line to enter Lake Martin at an angle
perpendicular to Big Oak Drive.
"2. Upon completion of the new Speaks survey set
forth in the proceeding paragraph, the parties shall
exchange
Quitclaim
Deeds
wherein
each
party
relinquishes any and all claim of interest in the
property to be received by the opposing party. Each
party, at its own expense, shall record their Quit-
claim Deed in the Office of the Judge of Probate of
Elmore County, Alabama, within seven days of the
receipt of same, and immediately thereafter shall
deliver a recorded copy of said Quitclaim Deed to
the Elmore Revenue Commissioner's Office so that the
property
may
be
appropriately
assessed
for
ad valorem tax purposes in the future.
8
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"3. The Court hereby orders the Elmore Revenue
Commissioner's Office to terminate, beginning with
the next ad valorem tax year, its assessment of the
disputed property as Parcel 57 (which the parties
currently have double assessed), and immediately
thereafter to begin assessing the property to the
respective
parties
in
accordance
with
the
descriptions set for in said Quitclaim Deeds
referenced above.
"4. Bain and Johnston will not oppose, publicly or
privately, any attempt by Gray to vacate Cove Drive
west of its intersection with Big Oak Drive (the
same lying between Lots 1 and 2, Block 5, Unit 2 of
Kowaliga Bay Estates).
"5. Bain and Johnston will not oppose Gray's efforts
to obtain the appropriate license or permit from
Alabama Power Company to build a dock or a pier,
including a ramp or stairway to said dock/pier
abutting the property described in her Quitclaim
Deed, nor will they oppose the construction of same.
Likewise,
Gray
will
not
oppose
the
licensing/permitting or construction of a pier/dock
by Bain and Johnston abutting the property described
in their Quitclaim Deed. Any pier/dock to be
constructed by either party must be done in
accordance with the applicable regulations of
Alabama Power Company.
"6. Bain and Johnston shall have the right, but not
the obligation, to maintain the seawall which they
previously built on property described in Gray's
Quitclaim Deed. Bain and Johnston, however, shall
not have the right to change or increase the height
of said seawall without first obtaining written
permission from Gray to do so.
"7. Neither party may construct any structure or
improvements on the property described in their
respective Quitclaim Deeds, other than as set forth
9
1130378
above, without first obtaining the written consent
of the other party.
"8. Neither party shall in any way intentionally
harass or annoy the other party or create a nuisance
on the property described in their respective Quit-
claim Deeds.
"9. The terms of this Order shall be appurtenant to
and shall run with the land so as to be binding on
the successors, assignees or heirs of the respective
parties.
"10. A separate Order to Revenue Commissioner will
be signed by the Court concurrently herewith. Said
order to Revenue Commissioner shall be delivered to
the Revenue Commissioner's Office and further, a
copy of same shall be recorded in the records
maintained in the Elmore Probate Office so as to
provide appropriate notice of the terms of same."
(Emphasis added.) As the settlement agreement provided, the
trial court also executed on June 12, 2012, an order directed
to the Elmore Revenue Commissioner's office, ordering that
office to begin assessing the parcel in accordance with the
quitclaim deeds it would receive describing the two segments
of the parcel.
According to Bain and Johnston, after the survey work
began on the parcel, it became clear to them that the boundary
line described in the settlement agreement was not the
boundary line they thought they were agreeing to. Bain and
Johnston "believed that the boundary line between Lots 4 and
10
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5 started at the end of the seawall they built on the Big Oak
side of the slough. Instead, the point was closer to the
creek end of the slough then they had anticipated."
On July 24, 2012, Bain and Johnston filed a "Motion for
Relief from Judgment" pursuant to Rule 60(b), Ala. R. Civ. P.
In pertinent part, the motion asserted:
"[A] mistake was made when [Bain and Johnston]
'agreed' to a settlement prior to the commencement
of the trial. [Bain and Johnston] telephoned Jim
Bain, an employee of their business who is also the
brother of Larry Bain, and asked him to go and
determine where the property boundary line would be
if
they
proposed
settlement
were
accepted.
Unfortunately, Jim Bain mistakenly 'located' the
boundary line and called back explaining where he
thought the line would be situated between [Gray]
and [Bain and Johnston]. Jim Bain's understanding
was erroneous and his description of where the line
would be was off by several feet such that [Bain and
Johnston] would never have agreed to the proposed
settlement. [Bain and Johnston's] understanding of
the settlement at the time the settlement was made,
based on what they were mistakenly informed by Jim
Bain, was simply wrong."
On July 25, 2012, Gray filed a response in opposition to
the "Motion for Relief from Judgment." In her response, Gray
noted that the settlement had occurred "[a]fter more than
three (3) hours of negotiation." Gray further observed that,
"[w]hile counsel were reading their agreement into
the record in the presence of the Court, several
disagreements arose, which ultimately were resolved
11
1130378
with input from the Court. The final agreement to
the settlement read into the record was delayed over
the lunch break at the request of [Bain and
Johnston] so that they could have an employee plot
the exact location of the boundary line to which the
parties were agreeing."
Gray argued that relief under Rule 60(b) "is an extraordinary
remedy that is not to be used for the purpose of relieving a
party from the effects of a free and voluntary consent
judgment."
On September 26, 2012, the trial court held a hearing on
Bain and Johnston's Rule 60(b) motion. The trial court took
testimony from witnesses as to whether Bain and Johnston were
mistaken as to the actual boundary line dividing the parcel
when they agreed to the settlement on May 30, 2012.
Jim Bain testified that on May 30, 2012, his brother
Larry called him while Jim was at lunch and asked him to drive
out to the parcel and to measure the distance from one point
to another. Specifically,
"[Larry Bain] explained to me that he was concerned
about where a certain distance would hit on the
shoreline. He asked me to go to his house and
across the waterway and measure from a boathouse
building back in a, I guess that would be a,
southerly direction and tell him where that distance
hit. There is a big rock and a bench that was built
out of stone that he wanted to know how far away
12
1130378
from that boathouse it was. And I give him that
information."
Jim Bain explained that the distance from the boathouse to the
"big rock" was 83 feet, or 85 feet to the center of the rock
because it is "a wide rock." He testified that he related
this information to his brother and that he also sent some
pictures using his cellular telephone. Jim Bain stated that
he simply measured the distance between two points that were
given to him by Larry Bain in that telephone conversation.
Larry Bain next testified as to what he asked his brother
Jim to measure.
"A.
I asked him to go to what we thought was the
property
line,
which
was
next
to
their
boathouse, where we built a seawall already and
measure over eighty-three feet because those
were numbers that were being given to us, you
know, on some sort of split of the property.
That's what he told us. The seawall --
"Q.
Just answer the question. What was your
understanding as to the significance of the
eighty-three
feet
as
you
negotiated
the
settlement of your case for this property?
"A.
Well, that's where he told us where that big
rock was, so we felt like we could agree on
some sort of division right in there."
Bain asserted that the reason it was important for the
boundary line to be where he thought it was as opposed to what
13
1130378
was described in the settlement agreement was that the latter
boundary line would allow Gray to build a pier that could
block Bain and Johnston's access to the water for loading and
unloading equipment in their business.
On cross-examination, Bain was asked who made the mistake
at issue, and he responded: "I'm going to have to say it was
my mistake, my total mistake because that is where I was
assuming the property line was, was next to that boathouse."
He was then asked about what he heard on the day the
settlement agreement was read into the record.
"Q.
Now, when we were in court before Judge
Reynolds and we read the common boundary line
shall begin at the west side of Big Oak Drive
at a point which will represent the boundary
line between lot three and lot four of block
five unit two of Kowaliga Bay Estates, you
understood where that was, didn't you?
"A.
No, sir, I didn't understand where it was
because I couldn't see it on a map. I mean,
you know, I couldn't see it -- where it was in
adjacent to the land. That is why we had
somebody go out and try to give us an idea of
where that position was.
"Q.
Well, you understood where it was on the survey
we were looking at that day, didn't you?
"A.
Well, I'm not a surveyor, but I could see it on
the survey. That never told me where it was on
the property --
14
1130378
"Q.
All right.
"A.
-- as I was looking from my house, no, sir.
"Q.
But you knew that that was the starting point
of this boundary line that we were agreeing to?
"A.
Yes. I believe that is what y'all were saying
was the starting line.
"Q.
Then we said beginning at this point the
boundary line shall proceed to a point which is
one foot from the point designated at the delta
point between L-4 and L-5 on the previous
Speaks survey. And you heard that, didn't you?
"A.
I did hear that.
"Q.
And you were able to look at the Speaks survey
and see where that point was?
"A.
I think you threw that out there after -- that
little angle you put on there was not on the
survey. That you changed the angle on, I don't
think that was there.
"Q.
But the delta point didn't change is what I'm
saying?
"A.
That's right.
"Q.
You knew where that delta point was?
"A.
I could see it on the survey, yes, sir.
"Q.
So you knew that it was from that point between
lot three and four on the west side of Big Oak
Drive to that delta point?
"A.
I knew it was somewhere in between there, yes,
sir.
15
1130378
"Q.
Then we said, said point shall be determined in
a manner which will cause the remainder of the
boundary line which intersects the delta point
to be perpendicular to Big Oak Drive. I left
out the part where I said it should be one foot
from the delta point. So you knew that day
that the line was going to be perpendicular to
Big Oak Drive extending into the lake, didn't
you?
"A.
Yes, sir.
"Q.
You didn't say anything to anybody that day
about, wait a minute, I told my brother to
measure eighty-three feet and it is not the
same?
"A.
No, because we felt like that would have been a
fair split on the property where he told us the
eighty-three feet was. We felt like we could
live with that.
"Q.
But you knew when the settlement was being read
into the Court that day that there was no
mention of eighty-three feet?
"A.
Well, that was just what we were being told. It
was going to be eighty-three -- seven feet
dispute, but that is not even what that is on
that survey.
"Q.
Well, Mr. Bain, listen to me. That may have
been what your lawyers told you, but that is
not what was discussed in open court with Judge
Reynolds for the agreement, was it?
"A.
No, sir."
Sharon Johnston also testified as to where she believed
they were agreeing that the boundary line would be located,
16
1130378
echoing Bain's understanding. On cross-examination, Johnston
was asked if, at the time the settlement agreement was read
into the record, she understood the location of the boundary
line that was being described. She responded:
"We're trying to imagine eighty-three feet and where
it is in relation to the bench and the rock and that
sort of thing because we know that property. So
that is why we asked someone to go out there. So
no, I didn't understand to the degree that you are
saying. This was a map that was sitting by itself
with no trees, no rocks, no seawall, nothing. So we
could not visualize where this actually was going to
be. ... So without seeing this actual survey, we
could not make a rationale decision."
Gray's attorney further explored Johnston's understanding at
the time the settlement agreement was made:
"Q.
... You understood on May 30th when we were in
here and when you made the agreement that the
boundary line as it extended into the lake was
going to be perpendicular to Big Oak Drive,
didn't you?
"A. Yes.
"Q. That didn't concern you that day?
"A.
I saw it in a different direction.
"Q.
Okay. Are you claiming that anything was said
in open court in the presence of Judge Reynolds
about eighty-three feet?
"A.
That was the basis on all [sic] judgment on our
agreement.
17
1130378
"Q.
But there was no way for us to know that or for
the Court to know that.
"A.
Well, you mentioned seven feet. There was a
seven foot difference. We agreed to give them
seven more feet. Then you added the one foot
diversion.
"Q.
All right.
"A.
At the very end.
"Q.
I don't recall mentioning seven feet. I recall
mentioning exactly what is in the order that it
was going to be from the boundary line up here
on Big Oak Drive to the delta point. Isn't
that right?
"A.
That's correct."
The last witness in the hearing was Jean Gray. Gray
testified that she understood the line described in the
settlement agreement to be the line the parties had agreed to
on May 30, 2012, for dividing the parcel into two segments and
that the agreement was reflected in the order executed by the
trial court on June 12, 2012. On cross-examination, Gray was
asked whether she knew what Bain and Johnston "thought or
believed on May 30" that they were agreeing to, and Gray
admitted she did not know their thoughts.
18
1130378
On September 26, 2012, the trial court entered an order
granting Bain and Johnston's Rule 60(b) motion; that order
stated, in pertinent part:
"Testimony being taken on the record on the
issue of mistake as to the location of certain
points along the waterfront and locations within a
certain plat map.
"Order of June 12, 2012, is set aside as [Bain
and Johnston] having made mistakes in their
understanding of certain locations of points.
"Case is reset for February 26, and February 27,
2013, at 9:00 a.m. for both days of trial."
On
October
8,
2012,
Gray
filed
a
"Motion
for
Reconsideration" of the trial court's September 26, 2012,
order. In the motion, Gray argued, among other points, that
the trial court had erred based on the testimony presented in
the September 26, 2012, hearing and that the ruling improperly
undermined
the
parties'
confirmation
of
their
understanding
of
the settlement during the May 30, 2012, hearing. Gray
recounted that the reason the parties agreed on the delta
point as the reference point for dividing the parcel at the
shoreline was because "it was impractical, if not impossible,
to make an exact determination" of the footage of shoreline
that would be received by each party "due to the meandering
19
1130378
nature of the shoreline." Gray noted that the delta point had
not moved and that it was easily located by Speaks for the
surveys he performed. Gray argued that Bain and Johnston
"heard that the terms of the settlement to which
they agreed mandated that the location of the
boundary line as it entered Lake Martin would be
determined solely by reference to the Delta Point
and with no consideration being given to shoreline
footage. If Bain and Johnston wanted to confirm the
actual shoreline footage involved with the common
boundary line as mandated by reference to an
unambiguous Delta Point, they should have advised
the Court that they were not prepared to accept the
terms of the settlement at that time. Obviously
they did not do so. Based upon the testimony
presented
by
[Bain
and
Johnston]
at
the
September 26, 2012, hearing, we now know that Bain
and Johnston simply attempted to approximate the
location of the proposed boundary line based solely
upon information which was not discussed in open
court and which was not part of the settlement
agreement or the Court's June 12, 2012, order. Gray
would respectfully suggest that a 'mistake' about a
fact which was not discussed in open court and which
was not part of the agreement to which the parties
assented in open court is not the type of mistake
for which Rule 60(b) relief is available."
Bain and Johnston did not file a response to Gray's motion.
On October 9, 2012, the trial court denied Gray's "Motion
for Reconsideration." On October 31, 2012, Gray appealed the
trial court's disposition of Bain and Johnston's Rule 60(b)
motion to this Court. We transferred the appeal to the Court
of Civil Appeals. On May 22, 2013, the Court of Civil Appeals
20
1130378
dismissed Gray's appeal as being from a nonfinal judgment.
3
Gray v. Bain (No. 2120406, May 22, 2013), ___ So. 3d ___ (Ala.
Civ. App. 2013) (table).
A trial on the merits was conducted on September 19 and
20, 2013. Following trial and the submission of arguments by
both sides, the trial court entered an order on November 19,
2013. In that order, the trial court concluded that the
original plat was ambiguous as to the ownership of the parcel
and that Bain and Johnston "have a chain of title for over
thirty years, color of title, possession, tax payment and
deeds with generalized descriptions and testimony that
factually places title in them." Accordingly, the trial court
concluded that fee-simple title to the parcel was to be vested
This Court has held that "[a]n order granting a motion
3
seeking relief from a judgment under Rule 60(b), Ala. R. Civ.
P., is generally considered an interlocutory order because
further proceedings are contemplated by the trial court;
therefore, such an order is not appealable." Ex parte
Overton, 985 So. 2d 423, 424 (Ala. 2007). This Court also has
stated that "'[a] petition for the writ of mandamus is a
proper method for attacking the grant of a Rule 60(b)
motion.'" Ex parte Wallace, Jordan, Ratliff & Brandt, L.L.C.,
29 So. 3d 175, 177 (Ala. 2009) (quoting Ex parte A&B Transp.,
Inc., 8 So. 3d 924, 931 (Ala. 2007)). Gray did not file a
petition for a writ of mandamus, and the Court of Civil
Appeals apparently chose not to treat her appeal as such a
petition; it therefore dismissed Gray's appeal as being from
a nonfinal judgment.
21
1130378
in Bain and Johnston. The trial court also concluded that
"the original intent of the developers was to attach the
disputed real estate to the lot owners so as to give the
possessor of the end of the slough the use of both side[s],
given the disputed area had no development/usable value."
On December 19, 2013, Gray appealed to the Court of Civil
Appeals the trial court's September 26, 2012, order granting
Bain and Johnston's Rule 60(b) motion and the trial court's
November 19, 2013, order awarding title to the parcel to Bain
and Johnston. On December 27, 2013, the Court of Civil
Appeals transferred Gray's appeal to this Court due to a lack
of subject-matter jurisdiction in that court.
II. Standard of Review
This Court has held that the decision whether to grant or
deny a motion made pursuant to Rule 60(b) is "within the sound
discretion of the trial judge, and the appellate standard of
review is whether the trial court abused its discretion."
Ex parte Dowling, 477 So. 2d 400, 402 (Ala. 1985).
22
1130378
III. Analysis
We begin by examining the trial court's September 26,
2012, order granting Bain and Johnston's Rule 60(b) motion
because a ruling in Gray's favor as to that order would
require reinstatement of the settlement agreement and
necessarily moot examination of the trial court's
November
19,
2013, order on the merits of ownership of the parcel. Gray
makes several arguments regarding the order granting Bain and
Johnston's Rule 60(b) motion, but the one we focus on is
Gray's assertion that
"[a]ny fair reading of the record, when putting
things in the light most favorable to Bain and
Johnston, would simply indicate that because Bain
and Johnston attempted to approximate the location
of the negotiated common boundary line by means not
authorized under the terms of the settlement, they
thought that the common boundary line would be
located a few feet further north than actually was
the case."
Gray contends that Bain and Johnston's "mistake" was actually
a free and deliberate choice they made for which Rule 60(b) is
not intended to provide them relief. See, e.g., Ex parte
Mealing, [Ms. 2120973, Oct. 25, 2013] ___ So. 3d ___, ___
(Ala. Civ. App. 2013) (stating that "Rule 60(b) is not
designed to relieve a party from the deliberate choices he or
23
1130378
she has made"); Murphy v. Golden Poultry Co., 634 So. 2d 1027,
1029 (Ala. Civ. App. 1994) (noting that "[i]t is not the
intent of Rule 60(b) to relieve a party from the free,
calculated, and deliberate choices he/she has made").
Bain and Johnston answer this argument by contending that
they demonstrated through testimony at the September 26,
2012,
hearing that at the time they assented to the settlement
agreement they simply made a mistake as to where the boundary
line dividing the parcel between the parties would be located
and that they never would have agreed to the boundary line
described in the settlement agreement had they understood its
actual location at that time. Bain and Johnston assert that
they established the existence of a mistake that entitled them
to relief under Rule 60(b).
Even if Bain and Johnston made an honest mistake, the
evidence and arguments are unequivocal that they alone made
the mistake. Bain repeatedly testified that the mistake at
issue was his mistake. Johnston testified that she shared
Bain's understanding of the boundary line. There is no
suggestion that Gray did not understand where the boundary
line would be located at the time the parties reached the
24
1130378
settlement, and, in fact, her undisputed testimony confirmed
that she understood the terms of the agreement. Thus, the
undisputed evidence is that the mistake at issue was a
unilateral mistake on the part of Bain and Johnston.
The trial court appears to have incorrectly assumed -- as
do Bain and Johnston -- that any mistake as to a material fact
of the settlement agreement justified its rescission.
"Rule 60(b)(1)[, Fed. R. Civ. P.,] authorizes the court to
give relief from a judgment, order, or proceeding for
'mistake, inadvertence, surprise, or excusable neglect,'" but
"judgments entered as a result of settlements may be reopened
[only] when fraud or mutual mistake is shown." 11 Charles
Alan Wright, Arthur K. Miller & Mary Kay Kane, Federal
Practice & Procedure § 2858 (2012). The reason for this is
4
that, although a mutual mistake of fact will permit a court to
reform or rescind a binding settlement agreement,
a
unilateral
mistake does not justify such relief. "Unilateral mistakes do
"Because the Federal Rules of Civil Procedure were used
4
as a model for Alabama's procedural rules, these 'federal
decisions are highly persuasive when we are called upon to
construe the Alabama Rules.'" Ex parte Full Circle Distrib.,
L.L.C., 883 So. 2d 638, 643 (Ala. 2003) (quoting City of
Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala.
1981)).
25
1130378
not
support
reformation
(absent
some
fraud
or
misrepresentation). Moreover, one party is not customarily
charged to know what is on the other party's mind, so as to
concoct some constructive mutual mistake where there is but a
unilateral mistake." 27 Richard A. Lord, Williston on
Contracts § 70:109 (4th ed. 2003). "As a general rule,
rescission is unavailable where a unilateral mistake is
unknown to the other party (even though that mistake relates
to a basic assumption of a contract and has a material effect
on the agreed exchange of performances)." Williston at
§ 70:111. This Court has explained:
"We have often had occasion to point out the
grounds on which a court of equity will assume
jurisdiction to reform written instruments. 'First,
where there is a mutual mistake, that is, where
there has been a meeting of minds, an agreement
actually entered into, but the contract, deed,
settlement, or other instrument, in its written
form, does not express what was really intended by
the parties thereto; and, second, where there has
been a mistake of one party, accompanied by fraud or
other inequitable conduct of the remaining parties;'
and also where there has been a mistake on the part
of the scrivener. Of course the mistake must be
unmixed with negligence on the part of the party
seeking relief."
Ballentine v. Bradley, 236 Ala. 326, 328, 182 So. 399, 400-01
(1938). There was no allegation that Bain and Johnston's
26
1130378
mistake was accompanied by fraud or other inequitable conduct
on Gray's part. See also Hackney v. First Alabama Bank, 555
So. 2d 97, 101 (Ala. 1989) (citing the Restatement (Second) of
Contracts §§ 153 and 154 (1979), and holding that, unlike a
mutual mistake of fact, a unilateral mistake will not serve as
a basis for avoiding the contract unless the effect of the
mistake is such that enforcement of the contract would be
unconscionable or the nonmistaken party had reason to know of
the mistake or his or her fault caused it). Meyer v. Meyer,
952 So. 2d 384, 391-92 (Ala. Civ. App. 2006) (declining to
authorize reformation or rescission of a contract as the
result of a mistake that the court concluded was not a "mutual
mistake" and relying on § 8-1-2, Ala. Code 1975, which
provides as follows: "When, through fraud, a mutual mistake
of the parties or a mistake of one party which the other at
the time knew or suspected, a written contract does not truly
express the intention of the parties, it may be revised by a
court on the application of the party aggrieved so as to
express that intention, so far as it can be done without
prejudice to the rights acquired by third persons in good
faith and for value.").
27
1130378
Federal authorities also concur that only a mutual
mistake, and not a unilateral one, permits a court to rescind
or reform a binding settlement agreement.
"In the instant case, ... the district court
erroneously concluded that since a mutual mistake of
material fact would suffice to warrant reformation
of a settlement agreement, a unilateral mistake also
constituted permissible reason to do so. Existing
precedent, however, dictates that only the existence
of fraud or mutual mistake can justify reopening an
otherwise valid settlement agreement. 'One who
attacks a settlement must bear the burden of showing
that the contract he had made is tainted with
invalidity, either by fraud practiced upon him or by
a mutual mistake under which both parties acted.'
Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 630,
68 S.Ct. 296, 298, 92 L.Ed. 242 (1948) (emphasis
added); Asberry v. United States Postal Serv., 692
F.2d 1378, 1380 (Fed. Cir. 1982) (same).
"'If a mistake was made in the present
case, it was made by the defendant alone.
Unlike a mutual mistake, a unilateral
mistake is not sufficient to allow the
mistaken party to limit or avoid the effect
of
an
otherwise
valid
settlement
agreement.
Kline v. Florida Airlines, Inc., 496 F.2d
919, 920 (5th Cir. 1974); United States v.
Bissett-Berman Corp., 481 F.2d 764, 768
(9th Cir. 1973); Virginia Impression Prod.
Co. v. SCM Corp., 448 F.2d 262, 265 (4th
Cir. 1971)[, cert. denied, 405 U.S. 936, 92
S.Ct. 945, 30 L.Ed.2d 811 (1971)].'
"Cheyenne-Arapaho Tribes of Indians of Oklahoma v.
United States, 671 F.2d 1305, 1311, 229 Ct. Cl. 434
(1982); accord Mid-South Towing Co. v. Har-Win,
Inc., 733 F.2d 386, 392 (5th Cir. 1984) ('In this
case, OKC's alleged ignorance ... is, at most, a
28
1130378
unilateral mistake. There is no claim that either
Mid-South or American Employers' concealed these
other surveys or misrepresented their contents, nor
that there was any overreaching.'); Swift Chem. Co.
v. Usamex Fertilizers, Inc., 490 F. Supp. 1343, 1356
(E.D. La. 1980) ('Whatever the truth is, at best
only one of the parties could have been mistaken
about the issue. A unilateral mistake about a
particular fact is insufficient to reform a contract
otherwise properly entered into.'), aff'd, 646 F.2d
1121 (5th Cir. 1981); Albano Cleaners, Inc. [v.
United States], 455 F.2d 556, 560 (Ct. Cl. 1972);
see also Bowater No. Am. Corp. [v. Murray Mach.,
Inc.], 773 F.2d [71] at 75 [(6th Cir. 1985)] ('The
adequacy of the contract formation [of a settlement
agreement] is further supported by the [fact that]
... there was no mutual mistake, nor was there
mistake due to fraud which only one of the parties
would have known about.') (emphasis added). In the
case at bar, there was no mutual mistake or
fraudulent misrepresentation."
Brown v. County of Genesee, 872 F.2d 169, 174-75 (6th Cir.
1989). See also Allen v. WestPoint-Pepperell, Inc., 945 F.2d
40, 46 (2d Cir. 1991) (stating that "the necessary elements
for rescission based on mutual mistake [are]: both parties to
the release shared the same erroneous belief as to a material
fact, and their acts did not in fact accomplish their mutual
intent").
The "exception to the general principle denying relief
for unilateral mistake [is] when the nonmistaken party knows
or
has
reason
to
know
of
the
unilateral
mistake."
29
1130378
28 Williston on Contracts § 70:229. Such was not the case
here. Gray testified without dispute that she had no idea
that Bain and Johnston had a different belief than she did as
to location of the boundary line dividing the parcel when the
parties agreed to the settlement.
In
fact,
as
Gray
observed
in
her
"Motion
for
Reconsideration," the situation presented in this case
reflects one in which the parties who made the mistake simply
made an assumption without gathering enough information to
confirm that assumption before assenting to the settlement
agreement. In a similar scenario, the United States Court of
Appeals for the Fifth Circuit explained:
"[E]ven if we accept the contention that Davis gave
his consent to the release based on a mistake of
fact concerning the role of various companies in the
alleged wrongdoing, Davis and his lawyers had an
obligation to determine the facts through discovery
before entering into a broad release of all claims.
A party to a settlement who 'has the means in hand
of ascertaining the facts, but neglects to [use
those means] cannot thereafter have the settlement
set aside because of mistake.' Talbot v. Douglas
Moving & Warehouse Co., 228 So. 2d 222, 224 (La. Ct.
App. 1969), cert. denied, 255 La. 247, 230 So. 2d 94
(1970)."
Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198
(5th Cir. 1991).
30
1130378
Bain and Johnston assert that "[b]efore agreeing to the
settlement, and without a map from which to visualize starting
points, Mr. Bain did everything he could to verify the place
where the new boundary line on Parcel 57 would be in the short
space of time available to him." But the "rush" to confirm
measurements was self-imposed. There is no reason, and Bain
and Johnston offer none, why they could not have declined to
agree to the proposed settlement until they felt sure about
the location of the boundary line -- if indeed they were
unsure about its location. For that matter, there is no
reason the settlement could not have been made contingent on
the parties' agreement with the second Speaks survey
establishing the boundary line dividing the parcel. Bain and
Johnston employed neither course of action. Instead, they
voluntarily proceeded to enter into a binding settlement
agreement that they affirmed in open court, that was
memorialized in a court order, and that became a final
judgment. The current appeal arises from their request that
the trial court undo this agreement and the final judgment
resulting therefrom and provide them instead with a full trial
on the merits of the dispute in question. In short, Bain and
31
1130378
Johnston requested, and the trial court granted, Rule 60(b)
relief based on their own unilateral mistake made within the
context of a free and deliberate choice to settle a matter
that had been pending for 13 years between the parties.5
Bain and Johnston contend that the case of Fabarc Steel
5
Supply, Inc. v. Davis, 422 So. 2d 797 (Ala. Civ. App. 1982),
supports the trial court's decision to grant them Rule 60(b)
relief. In Fabarc, a trial court set aside a worker's
compensation consent judgment under Rule 60(b). Ironically,
in their summary of the facts in Fabarc, Bain and Johnston
note the very fact that distinguishes that case from their
situation:
"The claimant had injured his fingers on the job,
but while he was being treated for his injuries, an
injection into his shoulder allegedly injured his
shoulder to the point that he was totally disabled.
The treating physician told the worker and his
employer that the shoulder was the result of
bursitis. Because of this, the worker went ahead
and settled his case for approximately $1500.
"After
the
worker
learned
that the
problems
with
his shoulder were work related, he moved to set
aside the settlement, which the trial court granted
on the grounds of mutual mistake as to the true
extent of Mr. Davis' injuries."
The Court of Civil Appeals in Fabarc affirmed the trial
court's judgment, likewise noting the existence of a mutual
mistake:
"In the instant case, plaintiff had been told by
Dr. Veach that his shoulder pain was the result of
bursitis. After contacting an attorney, he was
advised that the injury to his fingers would be
fairly compensated by the settlement agreement.
Although plaintiff was totally disabled by the pain
32
1130378
"'The
law
favors
the
amicable
settlement
of
controversies, and it is the duty of courts rather to
encourage than to discourage parties in resorting to
compromise as a mode of adjusting conflicting claims.'" Tatum
v. Cater, 270 Ala. 445, 448, 119 So. 2d 223, 225 (1960)
(quoting 11 Am. Jur. Compromise and Settlement § 4). In this
case, the parties apparently had been attempting to settle
their dispute over the ownership of the parcel for 13 years.
When the parties finally settled, they affirmed their assent
to the terms of the settlement in open court following
specific and repeated inquiries from the trial court.
Based on the foregoing, we conclude that the trial court
erred in granting Bain and Johnston's Rule 60(b) motion that
set aside the binding settlement agreement between the
parties. We therefore reverse the September 26, 2012, order
in his shoulder and arm, everyone else involved
apparently relied on Dr. Veach's opinion that such
pain was not related to plaintiff's injury to his
fingers. In considering the 60(b) motion, the court
could have determined that plaintiff, uneducated and
not qualified to relate the shoulder pain to the
on-the-job injury, accepted the settlement in
reliance on representations that the settlement
amount was all the money to which he was entitled."
Fabarc, 422 So. 2d at 799 (emphasis added).
33
1130378
granting Bain and Johnston's Rule 60(b) motion. As we noted
at the outset of our analysis, this result also necessarily
means that the trial court should not have entertained a trial
on the merits. Accordingly, the trial court's November 19,
2013, order resulting from that trial and awarding the parcel
to Bain and Johnston is due to be set aside. On remand, the
trial court is instructed to vacate its November 19, 2013,
order and to reinstate its June 12, 2012, judgment approving
the parties' settlement agreement.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Main and Bryan, JJ., concur.
Moore, C.J., and Bolin, J., concur in the result.
34 | September 26, 2014 |
2b480c5f-15aa-44f3-9f12-379810163253 | Dunaway v. Alabama | N/A | 1090697 | Alabama | Alabama Supreme Court | REL: 04/18/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1090697
____________________
Ex parte Larry Dunaway
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Larry Dunaway
v.
State of Alabama)
(Barbour Circuit Court, CC-97-75.60 and CC-97-76.60;
Court of Criminal Appeals, CR-06-0996)
MURDOCK, Justice.
1090697
Larry Dunaway filed a Rule 32, Ala. R. Crim. P., petition
1
in the Barbour Circuit Court ("the Rule 32 court") challenging
his 1997 convictions for the capital murder of his girlfriend
Tressa M. Patterson and Patterson's 22-month-old son James
Patterson. See Dunaway v. State, 746 So. 2d 1021 (Ala. Crim.
2
App. 1998) (affirming Dunaway's convictions) ("Dunaway I"),
aff'd, 746 So. 2d 1042 (Ala. 1999), cert. denied, 529 U.S.
1089 (2000). The Rule 32 court entered an order denying
Dunaway's petition, and the Court of Criminal Appeals
affirmed. See Dunaway v. State, [Ms. CR-06-0996, Dec. 18,
2009] ___ So. 3d ___ (Ala. Crim. App. 2009) ("Dunaway II").
Dunaway petitioned this Court for a writ of certiorari to
review the Court of Criminal Appeals' decision in Dunaway II.
We granted the writ to consider (1) Dunaway's claims of
misconduct by four jurors who allegedly failed to disclose
In the opinions of the Court of Criminal Appeals and this
1
Court on direct appeal, Dunaway is referred to as "Larry D.
Dunaway, Jr." In the Court of Criminal Appeals' opinion in
this Rule 32 proceeding, he is referred to as "Larry Dunaway."
Both names appear in the record of both the direct appeal and
the Rule 32 proceedings.
The jury voted 10-2 in favor of a death sentence for the
2
murder of James Patterson and 7-5 in favor of life
imprisonment without the possibility of parole for the murder
of Tressa Patterson. The trial court followed the jury's
sentencing recommendations.
2
1090697
pertinent information during voir dire; (2) Dunaway's claim
that the Rule 32 court erred by denying his Brady v. Maryland,
373 U.S. 83 (1963), claims that he was denied due process as
a result of District Attorney Boyd Whigham's failure to
disclose
alleged
relationships
between
him
and
certain
jurors;
and (3) Dunaway's claim that he received ineffective
assistance of trial counsel during the sentencing phase of his
trial. Because we conclude that Dunaway is entitled to a new
trial based on his juror-misconduct claim, we pretermit any
discussion of his nondisclosure claim as to Whigham and his
ineffective-assistance-of-counsel claim.
I. Background Facts and Procedural History
The following is from the rendition of facts by the Court
of Criminals in Dunaway I:
"The evidence showed that [Dunaway] lived with
his girlfriend, Tressa Patterson, and her son, James
Patterson, in a mobile home in Barbour County. On
the evening of January 8, 1997, the mobile home
burned. Investigators subsequently discovered the
burned bodies of Tressa Patterson and James
Patterson, who was 22 months old, in the remains of
the mobile home.
"....
"Deputy
State
Fire
Marshal
Edward
Paulk
investigated the fire. Paulk testified that the
fire started in the living room area and that it
3
1090697
consumed the center of the room. He determined that
the fire was not caused by accidental or natural
causes. He also testified that alcohol could have
been used as an accelerant, but that evidence it had
been so used would have been destroyed by the water
used to extinguish the fire.
"In the course of his investigation, Paulk
interviewed [Dunaway]. [Dunaway] made an oral
statement and gave a written statement about the
fire. In his oral statement, [Dunaway] claimed that
he was not present when the fire began. He stated
that he had ridden with a 'crack-head' in a red
pickup truck into Clayton, where he hoped to sell
some crack cocaine. [Dunaway] claimed that he
decided not to sell the crack, that the man dropped
him off on Highway 239 near his mobile home, and
that he walked home from there. [Dunaway] claimed
that he first saw the fire while he was walking
home. He stated that the last time he saw Tressa,
she was lying on the couch and James was with her.
"Subsequently, [Dunaway] admitted to Paulk that
the story about the man in the red truck was not
true. Paulk then asked [Dunaway] if he could take
a written statement from him, and [Dunaway] agreed.
In that statement, [Dunaway] admitted that he and
Tressa
had
been
having
problems
in
their
relationship since Thanksgiving of 1996. He stated
that Tressa had told him to move out by December 26,
1996, that he had not moved out, and that they had
been arguing since December 26, 1996. On or about
January 5, 1997, when [Dunaway] still had not moved
out, Tressa removed his clothing from the mobile
home.
"On January 8, 1997, [Dunaway] watched over
James while Tressa was at work. He stated that he
and Tressa got into another argument when she came
home from work, and that he put a rifle to his head
to show his 'love' for her. He claimed that he
pulled the trigger, but it did not fire. He then
4
1090697
laid the rifle on his lap and accidentally fired it
at Tressa. [Dunaway] stated that Tressa gasped when
she was struck by the first bullet. The noise
caused him to panic and he accidentally fired the
rifle a second time. [Dunaway] told Paulk that
after he determined that Tressa was dead, he said to
James, 'Man, yo momma's dead.' He then poured
rubbing alcohol over Tressa's body and beside the
fireplace in the living room. He laid James down
near his mother's body and set the alcohol on fire.
He then fled to a nearby wooded area and hid the
rifle.
"[Dunaway] testified at trial in his own
defense. He testified that his mother suffered from
paranoid schizophrenia, and that he had heard voices
telling him what to do since he was a child. His
trial testimony about the murders was similar to his
statement to Paulk, except that he testified that
voices started talking to him while he was in the
mobile home. He stated that he did not remember
everything he did between the time he shot Tressa
and the time he realized he was in the woods, and he
added that he was not in control of himself at the
time. He contended that he did what the voices told
him to do. He testified that he made up the story
about going to Clayton because he was scared and
nervous. He also admitted that, in spite of his
statements
[to
neighbors
to
the
contrary]
immediately following the fire, he knew Tressa and
James were in the mobile home when it was burning.
"During his testimony, [Dunaway] admitted that
he had previously been convicted, pursuant to a
guilty plea, of car-jacking in Louisiana. He also
admitted that a weapon had been used to commit the
crime.
"Dr. James Lauridson, the medical examiner,
testified that Tressa died from a gunshot wound to
the chest. He determined that she was badly injured
before [Dunaway] started the fire, but she probably
5
1090697
did not die instantly. There was no carbon monoxide
in her blood and no sign of inhaled smoke or soot in
her airways. Therefore, Lauridson concluded that
she may not have been breathing when the fire began.
"Lauridson
testified
that
James's
body
showed
no
signs that he had suffered any injuries before the
fire. There was a great deal of soot in his
windpipe, indicating that he was probably alive when
the fire became fully developed. Toxicological
tests revealed that James had a fatal level of
carbon monoxide in his blood. Lauridson stated that
James died because he choked to death while inhaling
smoke and other by-products of the fire.
"....
"[Dunaway] initially entered a plea of not
guilty. Subsequently, he amended his plea to assert
that he was not guilty by reason of mental disease
or defect. The trial court ordered an evaluation to
determine whether [Dunaway] was suffering from a
mental disease or defect at the time of the offense;
whether the symptoms of any disease or defect
contributed to the commission of the offense, and,
if so, in what manner; whether [Dunaway] was capable
of assisting in his own defense; and whether he was
competent to stand trial. Dr. Michael D'Errico, a
forensic
psychologist
and
certified
forensic
examiner for the State of Alabama, examined
[Dunaway] pursuant to the trial court's order and
found [Dunaway] to be competent to stand trial.
"D'Errico met with [Dunaway] for one to two
hours on June 5, 1997, interviewing him and
administering a psychological test. D'Errico also
reviewed reports by law enforcement officers,
Paulk's report, statements of several witnesses, and
a statement [Dunaway] made to deputies about the
offenses. Finally, D'Errico reviewed records
pertaining to prior psychological treatment provided
to [Dunaway], including treatment he received during
6
1090697
1992 and 1993 at the Methodist Children's Home of
Ruston, Louisiana, and he conducted a telephone
interview with [Dunaway's] stepmother, who 'had been
partially responsible for [his] upbringing since he
was age five.' Based on his evaluation of [Dunaway],
D'Errico testified as follows:
"'At the time I did my evaluation, I
thought there was a possibility that Mr.
Dunaway
was
experiencing
symptoms
of
anxiety and possibly depression. But,
overall, I didn't have enough information
to make a clear diagnosis of a severe
mental illness.
"'...
At
the
time
I
did
my
evaluation, I felt that Mr. Dunaway did not
meet the usual criteria for what we call
severe mental disease or defect.'
"Dr. Fernando Lopez, a psychiatrist, evaluated
[Dunaway] for the defense. He first talked to
[Dunaway] on September 5, 1997, and subsequently
talked to him on three other occasions. His
evaluation included interviewing, psychological
testing, and reviewing records relating to prior
treatment. Lopez testified, in part, as follows:
"'Q. Based on your evaluations, can
you give us and the jury some idea of how
[Dunaway] reacted to certain questions or
stimuli or whatever?
"'A. We interviewed the young man and
tested him, and we reviewed some previous
information we had from Louisiana, mostly,
and interactions with other psychiatrists
and counselors, and also reviewed forensic
examinations by my colleagues, and my
observations indicated that this man is
suffering from mental illness.
7
1090697
"'Q. Okay. And at the current time
you feel he is suffering from mental
illness?
"'A. This has been going on gradually
for the past several years, and is coming
to develop one of these days into an
illness....
"'The illness I'm talking about is
schizophrenia. This is an illness of young
adults, mostly males, between 15 and 25
years of age. And half the women but
later, 25 to 35 years of age. And it is
incipient, it is gradual. It doesn't
happen overnight. It evolves gradually.
And finally, these people come to the
courts usually for behavior they have done,
and they are displayed acting these
thoughts that they have, misperception--
misconceptions, and usually work with
sending them to state hospitals with
psychiatric units to be treated.'
"He stated that, in his opinion, [Dunaway] was
'undergoing this psychiatric disorder' at the time
of the murders. He further testified, 'I believe
that he is suffering from a mental illness and, as
such, his behavior, although he knows the difference
between right and wrong, at the time of the
incident, he could not perceive the wrongfulness of
his acts.' On cross-examination, he stated that
[Dunaway] knew right from wrong but was not himself
while he was committing the murders. He noted:
"'[H]e can formulate things, but the will,
the action, the volition we call it, is
impaired in doing the thinking. At that
moment, you can claim that he was under the
influence of the irresistible impulse and
he had to justify it cognitively, you
know.'
8
1090697
"He
stated
that
[Dunaway]
perceived
Tressa's
threatening to end their relationship as an attack
or threat to him, and that his mental condition
caused him to react as he did. Therefore, Lopez
concluded that [Dunaway] was reacting to feeling
threatened and had no control over his reaction.
"Lopez
also
testified
that
[Dunaway]
stated
that
he accidentally shot Tressa Patterson and then went
into the woods. He told Lopez that he started
hearing voices telling him to 'Send them to hell,'
and that he went back and set the mobile home on
fire. ... Lopez stated that [Dunaway] told him that
he did not hear voices until after he shot Tressa
Patterson and concealed the rifle. Lopez testified
that
his
review
of
records
of
[Dunaway's]
psychological treatment in 1992 and 1993 indicated
that [Dunaway] claimed that he heard voices at that
time too. Lopez admitted, however, that [Dunaway]
was experiencing some legal problems at that time
and that he seemed to hear these 'voices' only when
he was in legal trouble."
Dunaway I, 746 So. 2d at 1023-27 (citations to record
omitted).
We note that Dunaway was 20 years old at the time of the
murders. He had lived in Louisiana and Texas for most of his
life and had moved to Alabama with Patterson and her child
approximately three months before the murders.
As noted above, Dunaway filed a Rule 32 petition, which
was denied after proceedings at which the court heard
ore tenus evidence. We will discuss the pertinent testimony
9
1090697
and evidence from the Rule 32 proceeding in conjunction with
Dunaway's respective claims.
II. Analysis
Before beginning our discussion of Dunaway's claims, we
note that the parties repeatedly reference the record from
Dunaway I in their briefs and that Dunaway referenced that
record in his Rule 32 petition. The Rule 32 court took
judicial notice of the record from Dunaway I, as did the Court
of Criminal Appeals. Dunaway II, ___ So. 3d at ___ n.3. We
have also taken judicial notice of the record from Dunaway I,
which was before us on Dunaway's appeal from that decision.
Dunaway asserts that juror misconduct occurred as to
jurors L.L., E.B., M.B., and V.S. A claim of juror misconduct
raised in a
postconviction petition concerns the issue whether
there has been a "constitutional violation that would require
a new trial" under Rule 32.1(a), Ala. R. Crim. P. Ex parte
Pierce, 851 So. 2d 606, 612 (Ala. 2000).
A. Claim as to L.L.
Dunaway asserts that juror L.L. failed to disclose during
voir dire that a member of her family had been the victim of
10
1090697
an
attempted
murder
approximately
nine
months
before
Dunaway's
trial.
On the day of voir dire, a few minutes before 10:45 a.m.,
the trial court gave prospective jurors a "Juror Information
Questionnaire." The questionnaire was a five-page form that
asked for information such as a juror's name, address, place
of birth, marital status, children, parents, religious
affiliation, military service, employment history, education,
past jury service, past involvement in lawsuits, favored
media
resources, etc. When the trial judge delivered the
questionnaires to the prospective jurors, he stated:
"I would ask you to complete it fully. Answer every
question, fill in every blank that is called for.
If you have trouble reading, there will be somebody
here who can assist you with that. ... We are
looking for information that would help speed things
up a good bit. And it is very important that you
fill these out accurately and completely."
Among the questions on the questionnaire was the following:
"21. Have you, or any member of your family or anyone you
know ever been the victim of a crime?" L.L. answered "no" to
that question.
Oral voir dire began shortly after the prospective jurors
returned from lunch at 12:45 p.m. As Dunaway notes in his
11
1090697
brief: "[D]uring questioning of the venire, defense counsel
specifically asked whether 'anybody in your family [has] ever
been a victim of a crime?' Juror L.L. did not respond."
(References to record omitted.) In addition, immediately
after the aforementioned question, defense counsel asked:
"Now other than a family member, have any of you had
a close or a good friend, however you would like to
term it who has been a victim of a crime? In other
words, a friend of yours that has been robbed or
murdered or raped or whatever the case?"
L.L. did not respond.
Despite the foregoing, at the Rule 32 proceeding, L.L.
testified as follows:
"Q. Do you remember serving on a jury in 1997?
"A. Yes.
"Q. Was Larry Dunaway the defendant in that case?
"A. Yes.
"Q.
[L.L.], has anyone in your family ever been the
victim of a crime?
"A. Yes.
"Q. Who was that family member?
"A. [S.S.]
"Q. What happened to [S.S.]?
"A. She got shot.
12
1090697
"Q. Do you know where she got shot?
"A. In her home in Clio.
"Q.
Was she hospitalized as a result of her
injuries?
"A. Yes.
"Q. And how long was she in the hospital?
"A. A little over a month if I'm not mistaken.
"Q. Were her injuries serious?
"A. Yes.
"Q. Were they life threatening?
"A. Yes.
"Q. Do you know when this happened?
"A.
I can't be specific; '95 or '96. I'm not for
sure.
"Q.
Do you remember how you first found out that
[S.S.] had been shot?
"A. Somebody had called.
"Q.
Do you know if she knew the person that shot
her?
"A. Yes.
"Q. And do you know how she knew him?
"A. I'm not for sure how she knew him.
13
1090697
"Q.
Do you know if the person who shot her was
arrested and went to the trial?
"A.
It was like during the same time as this one,
as [Dunaway's] was. I am not sure what the
results was.
"Q.
Were you asked to be a juror in that case?
"A.
I was dismissed because I was related to [S.S.]
"Q. Are you close to age with [S.S.]?
"A. Two years difference.
"Q. Did you grow up close by?
"A. Like walking distance.
"Q. Were you close to her?
"A. Yes.
"Q. You grew up with her?
"A. Yes."
On cross-examination, L.L. testified as follows:
"Q.
... I talked to you a week or so ago on the
phone. I just need to ask you a few questions.
"....
"Q.
[Y]ou told me back when I was talking to you on
the telephone that if you were asked the
question had a family member been shot or a
victim of crime that you would have told the
lawyers that if you were asked?
"A. Yes.
14
1090697
"Q.
And I think you said if you didn't tell them it
was because --
"A. I didn't understand it.
"Q. I don't want to put words in your mouth.
"A. Uh-huh (affirmative response).
"Q.
I think there was a questionnaire that they
asked y'all to fill out before [Dunaway's]
trial. Do you remember filling that out?
"A.
I may have. It's been a while. I can't
remember what it was.
"Q.
You don't have any specific memory of filling
out about five or six pages?
"A.
I remember filling something out, but I done
forgot what it was because it's been a while.
"Q.
Well, if they asked you the question on the
questionnaire if you or a member of your family
had been the victim of a crime and you said,
no, would that have been a mistake?
"A.
Yes.
"Q.
Now, the fact that your cousin was a victim of
a crime, did that affect your deliberations in
[Dunaway's] case in any way whatsoever?
"A.
No.
"Q.
Did you base your verdict and your sentence
recommendation just on the evidence that you
heard while in the jury box and on Judge
Gaither's law?
"A. Yes."
15
1090697
The Rule 32 court then engaged in a colloquy with L.L.:
"Q.
[L.L.], let me ask you this: Are you sure or
do you know if the shooting of [S.S.] happened
before on or after your service as a juror in
the Dunaway case?
"A. It was before.
"Q. Are you sure?
"A. Yes.
"THE COURT: I tried the [S.S.] case
after I took the Bench, but Dunaway was the
year before. Do y'all have any dates or
records that show?
"A.
It was like during that same time because they
had both of them here during that time.
"[STATE'S COUNSEL]: In the Dunaway
record, there was some references to the
other defendant Gissendanner. And I think
they struck the jury and tried [Dunaway]
first, and then they were going to try that
case second. I don't know if it was a
mistrial or what.
"[DUNAWAY'S COUNSEL]: I think the
defendant didn't appear.
"THE COURT: That's right.
"[STATE'S COUNSEL]: I think the
record from Mr. Dunaway's trial indicates
specifically
that
that
particular
trial
and
jury was struck.
"I'm just trying to keep this file
from turning into eighteen volumes.
16
1090697
"THE COURT: Just so the record is
straight, [L.L.] was dismissed from the
Gissendanner
consideration
because
of
being
related to [S.S.] but not dismissed from
the Dunaway case where she ended up serving
as a juror.
"[STATE'S COUNSEL]: Correct.
"[DUNAWAY'S COUNSEL]: And it is our
legal claim that the only reason she wasn't
dismissed was because of the failure to
reveal
the
relationship
when
asked
directly
about it.
"THE COURT: You are claiming you
didn't know about it, but she was on the
same
panel
and
was
dismissed
from
Gissendanner?
"[DUNAWAY'S COUNSEL]: The striking of
the Dunaway jury happened separately but on
the same day.
"THE COURT: Oh, they weren't here?
See, I wasn't here then so I don't know.
"[STATE'S COUNSEL]: I know in the
transcript there was some talk between
Judge Gaither and the other defendant's
lawyer.
"THE COURT: There is no reference to
consolidating of voir dires or qualifying
the panel as a whole?
"[DUNAWAY'S COUNSEL]: No.
"[STATE'S COUNSEL]: I think general
qualifications -- I don't know if they made
the transcript, but there was general voir
dire in the Dunaway case, and then there
17
1090697
were some questions from [the district
attorney who prosecuted Dunaway]; and then
I think
[Dunaway's trial counsel], and then
they got into the panels.
"THE COURT: Prior to the striking of
Gissendanner? I mean, do you know which
was struck first?
"[DUNAWAY'S COUNSEL]: I want to say
Dunaway was struck first. From the way I
read the record, Judge, it looks like
Dunaway was struck first. And I think some
jurors did serve on both jur[ies].
"THE COURT: Okay. Thank you, [L.L.]"3
Voir dire was conducted as to Dunaway's case first.
3
Notwithstanding the order of voir dire, Dunaway asserts that
he proved at the Rule 32 hearing that, on the very same day
that L.L. represented in Mr. Dunaway's case that no one in her
family had ever been a victim of a crime, she was excused
from jury service in an attempted-murder case in the same
courthouse because she was a family member of the victim. In
support of this argument, Dunaway refers to L.L.'s testimony
at the Rule 32 hearing and to a copy of the juror-strike list
from a criminal
case against Lorenzo Gissendanner; L.L.'s name
is crossed through on the strike list, which was offered as an
exhibit at the Rule 32 hearing. The State points out in its
brief that the testimony and document Dunaway references do
not indicate the reason L.L.'s name was struck, whether her
name was struck during or before voir dire in that case, or
whether the prosecutor was aware of L.L.'s background based on
the voir dire that occurred in Gissendanner's case.
We also note that, in paragraph 81 of his amended Rule 32
petition, Dunaway asserted that certain of his constitutional
rights were violated when prospective jurors were allegedly
improperly exposed to questioning about another case. In the
context of this assertion, Dunaway states that "a second jury
was chosen almost simultaneously with his."
18
1090697
As to Dunaway's claim concerning L.L., the Rule 32
court's order states:
"Dunaway contends juror [L.L.] did not disclose
during voir dire that a member of her family was a
victim of a shooting. According to Dunaway, if
[L.L.] had divulged this information, his trial
counsel would have removed her by a for-cause
challenge or by exercising a peremptory strike.
"... Dunaway's [Rule 32 petition] counsel did
not ask [Dunaway's trial counsel] if they would have
removed [L.L.] if she had indicated she was related
to a shooting victim. Further, [L.L.] indicated at
the hearing that if she did not inform defense
counsel and the prosecutor one of her relatives was
the victim of a shooting it was because she was not
asked or did not understand the question. In any
event, [L.L.] affirmatively indicated that the fact
her relative had been the victim of a shooting did
not affect her deliberations in Dunaway's case and
that
she
based
her
verdicts
and
sentencing
recommendations on the evidence at trial and the
trial court's jury instructions.
"The Court finds this allegation of juror
misconduct is without merit. Rule 32.7(d), Ala. R.
Crim. P. In the alternative, the Court finds
Dunaway failed to meet his burden of proving by a
preponderance of evidence that this allegation of
juror misconduct might have caused him to be
prejudiced as required by Rule 32.3, Ala. R. Crim.
P."
(References to record from Rule 32 proceeding omitted.)
In addressing Dunaway's claim as to L.L., the Court of
Criminal Appeals stated:
19
1090697
"At the Rule 32 evidentiary hearing, L.L. testified
that she had a family member who had been the victim
of a shooting in the family member's home; she did
not identify the family member's relationship to
her. Dunaway pleaded in his consolidated petition
that L.L.'s 'cousin' had been the victim of a
violent crime.
"....
"... The record indicates that during voir dire
examination the entire venire was asked if they had
a family member or a friend who had been the victim
of a crime. L.L. did not respond to this question.
Dunaway asserts that the jurors were asked three
times if they had a family member who had been the
victim of a crime. However, the venire was
questioned in three panels and each panel was asked
the same question. Postconviction counsel asked
L.L. very few questions -- her direct examination
consists of approximately two pages of transcript.
L.L. was not asked what her relationship was to the
family member. Also, on cross-examination L.L.
responded that she did not hear a question related
to her family and that the fact that a family member
had been the victim of a shooting had no impact on
her verdict in Dunaway's case. Also, Dunaway's
counsel were not asked whether they would have
struck L.L. for cause had she answered the
questions. We agree with the circuit court that
Dunaway was due no relief in regard to juror L.L.
because he failed to meet his burden of proof."
Dunaway II, ___ So. 3d at ___ (emphasis added).
According to Dunaway, the Court of Criminal Appeals'
decision denying his juror-misconduct claim as to L.L.
conflicts with Ex parte Dobyne, 805 So. 2d 763 (Ala. 2001),
20
1090697
Ex parte Ledbetter, 404 So. 2d 731 (Ala. 1981), and Ex parte
Dixon, 55 So. 3d 1257, 1262-63 (Ala. 2010). We agree.
This Court stated in Dobyne:
"The proper standard for determining whether
juror misconduct warrants a new trial, as set out by
this Court's precedent, is whether the misconduct
might have prejudiced, not whether it actually did
prejudice, the defendant. See Ex parte Stewart, 659
So. 2d 122 (Ala. 1993); Campbell v. Williams, 638
So. 2d 804 (Ala. 1994); Union Mortgage Co. v.
Barlow, 595 So. 2d 1335 (Ala. 1992), cert. denied,
506 U.S. 906, 113 S. Ct. 301, 121 L. Ed. 2d 224
(1992). The 'might-have-been-prejudiced' standard,
of course, casts a 'lighter' burden on the defendant
than the actual-prejudice standard. See Tomlin v.
State, ... 695 So. 2d [157,] 170 [(Ala. Crim. App.
1996)]. For a more recent detailed discussion of
the burden of proof required to make a showing under
the 'might-have-been-prejudiced' standard, see Ex
parte Apicella, 809 So. 2d 865, 871 (Ala. 2001) ('It
is clear, then, that the question whether the jury's
decision might have been affected is answered not by
a bare showing of juror misconduct, but rather by an
examination of the circumstances particular to the
case.' (Emphasis [on 'might'] original.)).
"It is true that the parties in a case are
entitled to true and honest answers to their
questions on voir dire, so that they may exercise
their peremptory strikes wisely. See Fabianke v.
Weaver, 527 So. 2d 1253 (Ala. 1988). However, not
every failure to respond properly to questions
propounded during voir dire 'automatically entitles
[the defendant] to a new trial or reversal of the
cause on appeal.' Freeman v. Hall, 286 Ala. 161,
166, 238 So. 2d 330, 335 (1970) .... As stated
previously, the proper standard to apply in
determining whether a party is entitled to a new
trial in this circumstance is 'whether the defendant
21
1090697
might have been prejudiced by a veniremember's
failure to make a proper response.' Ex parte
Stewart,
659
So.
2d
at
124.
Further,
the
determination of whether a party might have been
prejudiced,
i.e.,
whether
there
was
probable
prejudice, is a matter within the trial court's
discretion. Eaton v. Horton, 565 So. 2d 183 (Ala.
1990); Land & Assocs., Inc. v. Simmons, 562 So. 2d
140 (Ala. 1989) (Houston, J., concurring specially).
"'The determination of whether the
complaining party was prejudiced by a
juror's failure to answer voir dire
questions is a matter within the discretion
of the trial court and will not be reversed
unless the court has abused its discretion.
Some of the factors that this Court has
approved for using to determine whether
there was probable prejudice include:
"temporal
remoteness
of
the
matter
inquired
about, the ambiguity of the question
propounded,
the
prospective
juror's
inadvertence or willfulness in falsifying
or failing to answer, the failure of the
juror to recollect, and the materiality of
the matter inquired about."'
"Union Mortgage Co. v. Barlow, 595 So. 2d at 1342-43
(quoting Freeman v. Hall, supra (other citations
omitted)). ...
"The form of prejudice that would entitle a
party to relief for a juror's nondisclosure or
falsification in voir dire would be its effect, if
any, to cause the party to forgo challenging the
juror for cause or exercising a peremptory challenge
to strike the juror. Ex parte Ledbetter, 404 So. 2d
731 (Ala. 1981); Warrick v. State, 460 So. 2d 320
(Ala. Crim. App. 1984); and Leach v. State, 31 Ala.
App. 390, 18 So. 2d 285 (1944). If the party
establishes that the juror's disclosure of the truth
would have caused the party either to (successfully)
22
1090697
challenge the juror for cause or to exercise a
peremptory challenge to strike the juror, then the
party has made a prima facie showing of prejudice.
Id. Such prejudice can be established by the
obvious tendency of the true facts to bias the
juror, as in Ledbetter, supra, or by direct
testimony of trial counsel that the true facts would
have prompted a challenge against the juror, as in
State v. Freeman, 605 So. 2d 1258 (Ala. Crim. App.
1992)."
Ex parte Dobyne, 805 So. 2d at 771-73 (footnote omitted and
some emphasis added).
In Ex parte Dixon, this Court noted the following facts
as being pertinent to the juror-nondisclosure issue in that
case:
"... Dixon contends that L.A., who served as a juror
at his trial, failed to respond correctly to the
following question asked during voir dire of the
venire:
"'Have you or a member of your immediate
family ever been a criminal defendant in a
criminal case in either the district court
or the circuit court in this county where
[the district attorney or any of his
assistants] prosecuted the case?'
"L.A. did not respond to this question; however,
criminal charges were pending against her at the
time of Dixon's trial. About two months before
Dixon's trial, L.A. had been twice charged by family
members with a misdemeanor. The charges had been
served on L.A., and she had posted an appearance
bond in each case. About a week before Dixon's
trial, L.A.'s case had been continued by the trial
court. At the time of Dixon's trial, L.A. personally
23
1090697
was engaged in discussing the disposition of the
charges with the district attorney. Shortly after
Dixon's trial, L.A.'s case was placed in pretrial
diversion status."
55 So. 3d at 1259 (footnote omitted). We also noted that
"Dixon's trial counsel testified at the evidentiary hearing
that, had he known of the pending charges, he would have
challenged L.A. for cause or exercised one [of] his peremptory
challenges to remove her." 55 So. 3d at 1263.
The trial court denied Dixon's motion for a new trial
grounded on the alleged prejudice resulting from L.A.'s
nondisclosure. The Court of Criminal Appeals affirmed by an
unpublished memorandum, concluding "that L.A.'s failure to
disclose information about the criminal charges pending
against her was inadvertent, rather than willful," and "that
there was no prejudice to Dixon by L.A.'s failure to respond
because she later testified that the fact that charges were
pending against her did not affect her verdict." 55 So. 3d at
1260. On certiorari review, this Court stated:
"[W]e conclude that the trial court exceeded its
discretion in denying Dixon's motion for a new trial
based on L.A.'s failure to disclose in response to
a question on voir dire that criminal charges were
pending against her. An analysis of the Dobyne
factors reveals that most of those factors indicate
24
1090697
that Dixon was prejudiced by L.A.'s failure to
respond.
"The matter was not temporally remote -– the
criminal charges had been filed less than two months
before Dixon's trial and they were still pending at
the time of Dixon's trial.
"As
to
the
ambiguity of
the
question
propounded,
we conclude that the question was sufficiently
definite to require an affirmative response from
L.A. At the evidentiary hearing on Dixon's motion
for
a
new
trial,
L.A.
testified
that
her
understanding of the question was such that it did
not require an affirmative answer, but the record
simply does not provide adequate support for this
assertion. L.A. did not offer a single reason she
would understand the question to not require an
affirmative
response;
instead,
she
offered
a
shifting series of explanations for her failure to
respond affirmatively to the question, including
(1) that she had not been arrested, but had merely
been 'served papers,' (2) that she was not aware
that the charges were criminal charges because they
related to a family dispute, (3) that the matter
'wasn't trouble with the law, it was a family
member,' and (4) that she knew that the charges were
going to be dropped. We find these 'hairsplitting'
explanations to be wholly inadequate, especially in
light of L.A.'s testimony that she herself had been
negotiating with the district attorney about the
disposition of those pending charges before Dixon's
trial and that she was aware that her case had been
continued on April 3, 2007, approximately one week
before the start of Dixon's trial. At a minimum,
the question was framed so as to require L.A. to
mention the charges.
"Even if the question was ambiguous, however,
the district attorney could have avoided the need
for a new trial had he disclosed the fact of the
pending charges when L.A. failed to respond
25
1090697
affirmatively to the question. The district
attorney himself was negotiating the disposition of
L.A.'s cases, and the prosecutor in this case has
never denied knowledge of the pending charges
against L.A. Although various Alabama courts have
held that the State does not have a general
obligation to disclose information on veniremembers,
fairness dictates that the State cannot stand mute
when a juror fails to respond (or responds
incorrectly) to a question on voir dire and the
prosecutor is aware of the true facts.
"In Wright v. State, 678 So. 2d 1216 (Ala. Crim.
App. 1996), the Court of Criminal Appeals reversed
a conviction because one of the jurors failed to
disclose a close family relationship with a staff
member in the district attorney's office, who was
present in the courtroom. The court stated:
"'We might have found [the juror's]
silence harmless and that the appellant
suffered no prejudice ... were it not for
the silence of [the staff member]. ...
[W]e find the appearance of probable
prejudice existed where both a member of
the district attorney's staff, who was
seated at the prosecution's table and who
participated in jury selection, and a juror
failed to disclose information inquired
about during voir dire relevant to the
defense
in
exercising
its
peremptory
strikes.'
"678 So. 2d at 1220. See also Tomlin [v. State],
695 So. 2d [157] at 176 [(Ala. Crim. App. 1996)]
(juror failed to disclose pending drug-possession
charge; there was no indication that prosecutors
knew of the pending criminal charge, but 'had the
prosecutors known, we believe considerations of
basic fairness would have created an affirmative
duty on the part of the prosecutors to make the
disclosure'); Berger v. United States, 295 U.S. 78,
26
1090697
87, 55 S. Ct. 629, 79 L. Ed. 1314 (1935) ('while [a
prosecutor] may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty
to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.');
Shields v. State, 680 So. 2d 969, 974 (Ala. Crim.
App. 1996) (the '"'prudent prosecutor will resolve
doubtful
questions
in
favor
of
disclosure'"'
(quoting Kyles v. Whitley, 514 U.S. 419, 439, 115 S.
Ct. 1555, 131 L. Ed. 2d 490 (1995), quoting in turn
United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct.
2392, 49 L. Ed. 2d 342 (1976))).
"The materiality
of
L.A.'s
failure
to
respond
to
the question and the prejudice to Dixon are
evidenced by the testimony of Dixon's trial counsel
and by the nature of the information not disclosed.
Dixon's trial counsel testified at the evidentiary
hearing that, had he known of the pending charges,
he would have challenged L.A. for cause or exercised
one his peremptory challenges to remove her. The
direct testimony of Dixon's trial counsel is prima
facie evidence of prejudice to Dixon.
"Further, even in
the
absence
of
such
testimony,
the potential for juror bias is obvious under the
present circumstances. As Judge Welch stated in his
dissent
to
the
Court
of
Criminal
Appeals'
unpublished memorandum:
"'Certainly it would be a serious concern
if a prospective juror was subject to the
discretionary decisions of the district
attorney. Human nature being what it is,
it would have been natural for defense
counsel to be suspicious about a juror who
was beholden to the State, and to be
reluctant to take the chance that the juror
might be biased and wanting to curry favor
with the State by voting to convict.
Indeed, trial counsel testified that had
27
1090697
L.A. been truthful he would have attempted
to strike her for cause, and, failing that,
he would have exercised a peremptory
challenge and struck her from the venire.'
"55 So. 3d at 1254. See also Tomlin, 695 So. 2d at
175 (juror's failure to disclose pending charge of
possession
of
cocaine
warranted
reversal
of
conviction).
"The State contends that the presumption of
prejudice was rebutted by L.A.'s testimony at the
hearing on Dixon's motion for a new trial that the
fact that she had pending criminal charges against
her did not affect her verdict. The State's
contention is based upon L.A.'s negative response
when asked whether her verdict was prejudiced by
circumstances relating to the pendency of the
criminal charges against her. The State cites no
authority and makes no legal argument to support the
assertion that the presumption of prejudice can be
rebutted merely by a juror's conclusory statement
that his or her verdict was not affected by the
potential source of bias. In any event, the juror's
own testimony as to his or her impartiality in
rendering a verdict does nothing to rebut evidence
that trial counsel would have challenged the juror
for cause or would have used a peremptory challenge
to strike that juror had the juror responded
truthfully to the question. The point of peremptory
challenges is to reduce the effect of hidden or
unconscious biases. See Bruner v. Cawthon, 681 So.
2d 173 (Ala. l996) (Maddox, J., concurring in the
result)
(discussing
possible
use
of
written
questionnaires to 'disclose hidden prejudices that
the juror might not even suspect he or she has'); Ex
parte Branch, 526 So. 2d 609, 628 (Ala. 1987)
(discussing
role
of
peremptory
challenges
in
identifying and excluding jurors likely to be biased
against a party).
28
1090697
"Dobyne
is
distinguishable
from
the
present
case
as to prejudice. The juror in Dobyne failed to
disclose that many years before Dobyne's trial she
had had some limited contact with the defendant in
her capacity as a special-education coordinator.
She testified at the defendant's Rule 32, Ala. R.
Crim. P., hearing that she did not remember the
defendant. The trial court found that no prejudice
had occurred. Dobyne's trial counsel testified at
the Rule 32 hearing, but he did not state that he
would have challenged the juror if he had known of
the relationship. He also testified that, other
than the juror's prior contact with the defendant,
he considered her to be a desirable juror. This
Court concluded that there was no error in the trial
court's
rejection
of
the
defendant's
juror-misconduct claim.
"In the present case, we conclude that the
juror's bare assertion of impartiality is not
sufficient to rebut the prima facie evidence, both
direct and inferential, that Dixon was prejudiced by
her failure to disclose her pending criminal
charges. As Judge Welch stated in his dissent:
"'It would seem to me that it is
intellectually dishonest to pretend that
Dixon was not prejudiced by L.A.'s silence.
The record clearly reflects that at the
time of voir dire L.A. was a criminal
defendant, who for all practical purposes
was in the middle of negotiating a plea
agreement with the State. I believe that
it would be difficult for a juror in L.A.'s
position to be unbiased. I certainly do
not believe that we can presume, despite
L.A.'s protest to the contrary, that she
was unaffected by her relationship with the
State.
"'....
29
1090697
"'... Jurors know that it is their
job to be fair and to avoid prejudice and
bias. They are so instructed during the
court's oral charge. After a trial, asking
a juror if her verdict was affected by
anything that would reflect on her ability
to be fair, especially after that juror has
been thoroughly questioned by defense
counsel, is extremely unlikely to elicit a
positive response. In essence the juror
would have to admit her misconduct or bias
in open court and to testify that she
intentionally disregarded her duty to be
fair. The juror would be unfamiliar with
what would be the personal consequences of
such an admission and might very well fear
that she would be held in contempt or
charged with a crime such as obstruction of
justice if she admitted that her verdict
was tainted by her bias. For these reasons
it is unwise to place great weight on an
answer affirming a lack of bias.'
"55 So. 3d at 1254–55.
"Therefore, we conclude that L.A.'s failure to
disclose the pending criminal charges was material
and that Dixon was prejudiced by L.A.'s failure to
disclose those charges and her ongoing negotiations
with the district attorney's office at the very time
of Dixon's trial. Even if L.A. honestly believed
that those charges would not affect her decision,
the legal standard for bias is unquestionably met in
this case. Further, we conclude that the prejudice
was sufficient to warrant a new trial, particularly
in view of the fact that the district attorney could
easily have avoided the necessity for a new trial by
disclosing the pending charges."
55 So. 3d
1261-65
(emphasis added; emphasis omitted; footnotes
omitted).
30
1090697
It is clear from the testimony and evidence presented in
the Rule 32 proceeding that L.L. was particularly close to a
family member, identified as L.L.'s cousin, who, like one of
the victims here, was shot by a male assailant in her home.
L.L. was on the jury pool for both Dunaway's case and the case
against her cousin's alleged assailant, which were scheduled
to be tried the same week. The jury on which L.L. served for
purposes of the Dunaway case was struck on the same day as the
jury for the case against her cousin's alleged assailant. In
4
fact, at the end of voir dire on the day before Dunaway's
trial, the prospective jurors for both cases were seated
together in the courtroom when the court called out the names
of the jurors for each case. The names of the jurors who had
been selected for the case against the cousin's alleged
As noted above, voir dire in Dunaway's case occurred
4
first. There is no evidence in the record indicating that
Dunaway's counsel was present when oral voir dire was
conducted in the case involving L.L.'s family member. The
record does not contain a clear indication that District
Attorney Whigham was present for the latter voir dire, though
it appears he was the prosecutor in that case. Nevertheless,
we note that Dunaway's oral voir dire began, like most such
voir dires, with questions to the jurors about whether they
knew any of the counsel, parties, or witnesses in the case.
We need not assume whether voir dire in the case in which
L.L.'s close family member was a victim included such a
question, because L.L. testified that "I was
dismissed because
I was related to [S.S.]"
31
1090697
assailant were called first, and they were told to return for
trial on Thursday of that week; the names of the jurors for
Dunaway's case were then called, and they were told to return
for trial the following morning. Nonetheless, L.L. failed to
provide a truthful answer on her written questionnaire and to
oral questions as to her knowledge of family or friends who
had been the victim of a crime.
Despite these troubling facts, the Court of Criminal
Appeals agreed with the conclusion of the Rule 32 court that
Dunaway did not meet his burden of proving that he might have
been prejudiced by L.L.'s failure to disclose that a family
member had been the victim of a violent crime. In reaching
this conclusion, the Court of Criminal Appeals emphasized the
fact that Dunaway's Rule 32 counsel did not ask his trial
counsel if they would have stricken L.L. from the jury had
they known she was related to a shooting victim.
We have repeatedly recognized that prejudice in such a
case is not measured by the likelihood that the questionable
juror did in fact alter his or her verdict based on the
undisclosed facts (something that can be difficult even for
the juror to assess, much less for a defendant to prove after
32
1090697
the fact). Rather, the prejudice concerns the fairness of the
trial process. Specifically, "[t]he form of prejudice that
would entitle a party to relief for a juror's nondisclosure or
falsification in voir dire would be its effect, if any, to
cause the party to forgo challenging the juror for cause or
exercising a peremptory challenge to strike the juror."
Ex parte Dobyne, 805 So. 2d at 772. Moreover, such prejudice
5
can be established by direct testimony of trial counsel or "by
the obvious tendency of the true facts to bias the juror."
805 So. 2d at 773 (citing Ex parte Ledbetter). Thus, the
focus of the Court of Criminal Appeals on the lack of
testimony by Dunaway's trial counsel fails to take adequate
The Court of Criminal Appeals also observed that L.L.
5
testified that the fact that a family member had been the
victim of a shooting had no impact on her verdict in the
Dunaway trial. As noted, Ex parte Dixon fully explained why
such testimony was not an adequate response to the procedural
prejudice at issue and even can be suspect. See Ex parte
Dixon, 55 So. 3d at 1264. Other cases have expressed similar
concerns. See Wood v. Woodham, 561 So. 2d 224, 228 (Ala.
1989) (stating that "the simple extraction of an affirmative
response from a potential juror does not necessarily absolve
that juror of probable prejudice"); Wright v. Holy Name of
Jesus Med. Ctr., 628 So. 2d 510, 512 (Ala. 1993) (patient of
doctor-defendant should have been removed despite statement
that relationship would not "sway" her verdict); and Dixon v.
Hardey, 591 So. 2d 3, 7 (Ala. 1991) (although juror did not
admit bias, "to disregard her apprehensions would be to ignore
the realities of human nature") (abrogated by Bethea v.
Springhill Mem'l Hosp., 833 So. 2d 1, 6-7 (Ala. 2002)).
33
1090697
account of the obvious potential for bias in this case given
(1) the "close" relationship L.L. had with her cousin, (2) the
similarities between the two crimes -– both involving the
shooting of a female in her home by a male, (3) the fact that
the crime against L.L.'s cousin occurred within two weeks of
the crime Dunaway was charged with, and (4) the fact that
proceedings relating to the trial of L.L.'s cousin's attacker
were commenced contemporaneously with the Dunaway's trial
proceedings. The likelihood that the absence of these facts
caused Dunaway's counsel to forgo a challenge to L.L. that he
otherwise would have made is obvious. In addition, we have in
this case the fact that Dunaway's trial counsel struck the
majority of prospective jurors who disclosed that a family
member had been the victim of a crime.
The Ex parte Dobyne Court recited five factors that have
been used to determine whether probable prejudice existed as
a result of a juror's failure to disclose:
(1)
the temporal remoteness of the matter inquired
about;
(2)
the ambiguity of the question propounded;
(3)
the
prospective
juror's
inadvertence
or
willfulness in falsifying or failing to answer;
34
1090697
(4)
the failure of the juror to recollect; and
(5)
the materiality of the matter inquired about.
805 So. 2d at 772. In this case, all five of those factors
arguably support a finding of probable prejudice. The Court
of Criminal Appeals, however, attempts to buttress its
conclusion by emphasizing the third factor –- the possible
inadvertence of the juror's false answer. They point out
that, on cross-examination, L.L. stated that the reason she
did not volunteer the information is that she did not hear a
question related to her family. Aside from the fact that
inadvertence or willfulness is only one of the five factors at
issue, the Court of Criminal Appeals' conclusion as to this
factor ignores the fact that L.L. unquestionably answered
incorrectly a similar question on her written questionnaire.
In addition, she was asked essentially the same question at
least twice during oral voir dire.
Moreover, in his brief on appeal, Dunaway aptly provides
the
following
further
response
to
the
inadvertence/willfulness
factor:
"[T]his Court has held that a juror's inadvertence
in failing to answer voir dire questions does not
eliminate prejudice:
35
1090697
"'Our courts have held that the concealment
by a juror of information called for in
voir
dire
examination
need
not
be
deliberate in order to justify a reversal,
for it may be unintentional, but insofar as
the resultant prejudice to a party is
concerned it is the same.'
"Sanders v. Scarvey, [284 Ala. 215,] 224 So. 2d 247,
251 (Ala. 1969) (finding prejudice where jurors
failed to reveal that they had brought suit in a
personal injury case). Similarly, in Alabama Gas
Corp. v. American Furniture Galleries. Inc., 439 So.
2d 33 (Ala. 1983), this Court stated:
"'Nevertheless, if the failure to answer
was prejudicial to the inquiring party, the
result is the same as if it had been
deliberate. Parties have the right to have
questions answered truthfully so that they
may exercise their discretion wisely in the
use of their peremptory strikes, and that
right is denied when a juror fails to
answer
correctly.
And
when
the
circumstances disclose that such a failure
probably prejudiced the complaining party,
in the trial court's discretion, its grant
of a new trial will not be reversed.'
"Id. at 36; see also Leach v. State, [31 Ala. App.
390,] 18 So. 2d 285, 286 (Ala. 1944) ('Whether such
concealment was deliberate or unintentional, on the
part of the juror, need not be considered, insofar
as
the
resultant
prejudice
to
defendant
be
concerned.')."
Thus, the possibly inadvertent nature of L.L.'s nondisclosure
does not foreclose the probability of prejudice resulting from
the nondisclosure.
36
1090697
The parties in a case are entitled to true and honest
answers to their questions on voir dire. See Ex parte Dobyne,
supra. The fairness of our jury system, particularly in
criminal cases, depends on such answers. Dunaway, no less
than any other accused defendant, was entitled to that
procedural fairness.
B. Claims as to E.B., M.B., and V.S.
Dunaway asserts that jurors E.B. and V.S. and alternate
juror M.B. each failed to disclose during voir dire that she
had some previous relationship
with Boyd Whigham, the district
attorney who prosecuted Dunaway. We
have carefully considered
Dunaway's claims as to V.S. and M.B. and conclude they are
without merit. Dunaway's claim as to E.B., however, has
merit, and, as to that claim, his petition was due to be
granted by the Rule 32 court.
Dunaway contends that E.B. failed to disclose that
Whigham had previously represented her in a custody dispute
related to her granddaughter, that this past relationship
constitutes evidence that Dunaway might have been prejudiced
by E.B.'s presence on the jury, and that E.B.'s failure to
reveal the information constitutes a ground for a new trial.
37
1090697
The "Juror Information Questionnaire" completed by E.B.
contained no response to question no. 24: "If you now know,
or if you have known, anyone in any District Attorney's
office, probation and parole department, police department or
... correctional office, please supply the person's name and
the agency for which he or she works or did work." In
addition, E.B. did not respond when Whigham asked during oral
voir dire whether any of the prospective jurors was a former
client of his.
E.B.'s testimony at the Rule 32 hearing is as follows:
"Q.
And was Boyd Whigham the district attorney in
[Dunaway's] case?
"A.
Yes.
"Q.
Prior to your jury service, did you know Mr.
Whigham?
"A.
Yes, I did.
"Q.
And has he ever done any legal work for you?
"A.
Yes. He won custody of my granddaughter.
"Q.
And how old was your granddaughter at the time
you got custody of her?
"A.
She was thirteen months.
"Q.
How old is your granddaughter now?
"A.
Nineteen.
38
1090697
"Q.
After you got custody of your granddaughter,
where did she live?
"A.
She lived in the house with me.
"Q.
And how long did she live with you?
"A.
Until she got sixteen.
"Q.
Who raised your granddaughter?
"A.
I did.
"....
"Q.
Did you ever meet with Mr. Whigham to talk
about this custody case?
"A.
Yes. Just before he won custody of her, we had
to go to the office and speak with him.
"Q.
Did the case go to trial?
"A.
Yes, it did.
"Q.
Were you asked to testify in that case?
"A.
Just for a little -- a few words.
"Q.
And why did your family choose to have Mr.
Whigham represent you in this case?
"A.
Well, we knew him to be a good lawyer.
"Q.
And how did he do in your case?
"A.
He did very well."
(Emphasis added.) On cross-examination, E.B. testified as
follows:
39
1090697
"Q.
Did you hire Mr. Whigham to do your child
custody matter about your granddaughter or did
someone else do that?
"A.
My son did.
"Q.
So your son was the man that paid Mr. Whigham
his fee?
"A.
Yes.
"Q.
And you say your granddaughter is nineteen
years old now?
"A.
Yes.
"Q.
So would it be about 1985 when this happened,
this child custody matter came up?
"A.
Yes.
"Q.
[E.B.], the fact that Mr. Whigham was the
attorney in the child custody case, did that
have any bearing at all on your sitting as a
juror in Larry Dunaway's case?
"A.
No.
"Q.
Okay. Did you base your verdict and your
sentence recommendations on the evidence you
heard here in the courtroom and the law that
Judge Gaither told you to?
"A. Yes."
On redirect examination, E.B. testified as follows:
"Q.
How old was your son -- When was your son born?
"A.
In '63.
40
1090697
"Q.
Did he live with you at the time of the custody
trial?
"A. Yes."
The Rule 32 court's order denying Dunaway's claim as to
E.B. states:
"Dunaway contends juror [E.B.] did not disclose
in her juror questionnaire she knew Boyd Whigham,
the Barbour County District Attorney, before trial.
According to Dunaway, Mr. Whigham 'provided legal
assistance in a child custody suit regarding her
granddaughter during the 1980s.' (Consolidated
petition on p. 7) According to Dunaway, if [E.B.]
had divulged this information, his trial counsel
would have removed her by a for-cause challenge or
by exercising a peremptory strike.
"... Dunaway's [Rule 32 petition] counsel did
not ask [his trial counsel] if they would have
removed
[E.B.]
if
she
had
disclosed
this
information. Further, at the evidentiary hearing,
[E.B.] indicated Whigham's prior representation had
no bearing at all on her ability to sit on Dunaway's
case. According to [E.B.], she based her verdicts
and sentencing recommendations on the evidence
presented at Dunaway's trial.
"... The Court finds this allegation of juror
misconduct is without merit. Rule 32.7(d), Ala. R.
Crim. P. In the alternative, the Court finds
Dunaway failed to meet his burden of proving by a
preponderance of evidence that this allegation of
juror misconduct might have caused him to be
prejudiced as required by Rule 32.3, Ala. R. Crim.
P."
The Court of Criminal Appeals addressed Dunaway's claim
as to E.B. by noting:
41
1090697
"The record indicates that the jury was asked if
the district attorney had previously represented any
one of them while he was in private practice. Juror
E.B. did not respond. During the postconviction
hearing E.B. said that in the early 1980s her 'son'
had retained Whigham to represent him in a custody
dispute involving her granddaughter. She said that
Whigham's representation of her son had no bearing
on her verdict in Dunaway's case.
"....
"There is no indication that the circuit court
abused its considerable discretion in denying
Dunaway relief on his claims related to juror[] E.B.
..."
___ So. 3d at ___.
We first note that the State argues that E.B.'s failure
to respond was truthful because she was not a client of
Whigham's; her son retained and paid Whigham. The State's
argument, however, is incorrect, as is the Court of Criminal
Appeals' conclusion that Whigham
represented E.B.'s son in the
custody proceeding. The fact that E.B.'s son retained and
paid Whigham does not establish that E.B. was not Whigham's
client in the custody proceeding. Indeed, E.B. affirmed
during her examination that Whigham did the legal work for her
and that her family chose "to have Mr. Whigham represent
[her]" because they knew he was a good attorney. She was the
person who obtained custody of the grandchild, not her son;
42
1090697
there is no evidence indicating that Whigham represented
E.B.'s son in the custody proceeding or that E.B. was not
represented by Whigham in that proceeding. Furthermore, even
if we could exclude consideration of Whigham's representation
of E.B., there is still the significant matter of her failure
to truthfully answer the written question in
her
questionnaire
regarding whether she knew the district attorney.
Also, as with the alleged misconduct of L.L., the Court
of Criminal Appeals' observation that Dunaway's Rule 32
counsel did not ask his trial counsel whether he would have
challenged E.B. had he known
about
the
undisclosed
information
gives short shrift to the "obvious tendency" of the
relationship to create bias and to have made it likely that,
had they known of the relationship, counsel for Dunaway would
have struck E.B. from the jury. As Dunaway notes: "The
attorney-client relationship is similar to the doctor-patient
relationship in that it is a 'close, personal relationship
built upon trust and confidence.'" (Quoting Boykin v.
Keebler, 648 So. 2d 550, 552 (Ala. 1994).) Whigham helped
E.B. to obtain custody of her granddaughter, and, as a result
of Whigham's work, E.B. was able to raise her granddaughter in
43
1090697
her own home. E.B. testified that Whigham "did very well" for
her family in winning the custody dispute. The materiality of
the question regarding whether any prospective juror had been
represented by the district attorney in the past is obvious,
and the nature of Whigham's representation of E.B. -- a
custody dispute over E.B.'s granddaughter -- obviously
implicates personal emotions. It takes no leap of imagination
to assume that E.B. carried a favorable opinion of Whigham
based on his representation of her when he was in private
practice and that this opinion could have biased her view of
Dunaway's case.
6
Dunaway has cited several cases from other jurisdictions
6
that support such a conclusion. See Fugate v. Commonwealth,
993 S.W.2d 931, 938-39 (Ky. 1999) (trial court erred in
denying for-cause challenge of two jurors who had previously
been represented by prosecuting attorney and who stated that
they were satisfied with their representation); State v.
Hatley, 233 W. Va. 747, 751-52, 679 S.E.2d 579, 583-84 (2009)
("In many West Virginia communities, prospective jurors will
often know the parties and their attorneys. Nevertheless,
this familiarity does not remove the trial court's obligation
to empanel a fair and impartial jury .... This obligation
includes striking prospective jurors who have a significant
past or current relationship with a party or a law firm.");
O'Dell v. Miller, 211 W. Va. 285, 291, 565 S.E.2d 407, 413
(2002) (trial court erred in refusing to strike for cause
juror who had been defendant's patient and who was currently
represented by law firm representing defendant).
44
1090697
Moreover, the observation of the Court of Criminal
Appeals ignores the fact that Dunaway's trial counsel
repeatedly sought information concerning whether prospective
jurors previously had ties to the district attorney.
Dunaway's trial counsel filed a "Motion to Require Disclosure
of Any and All Information Concerning Prospective Jurors that
may be Favorable to Defense." This motion sought any
information regarding a prospective juror's fitness and cited
the district attorney's "long association" with Barbour
County. Dunaway's trial counsel also filed a "Motion to
Disclose the Past and Present Relationships, Associations and
Ties Between the District Attorney and Prospective Jurors,"
which sought disclosure of all relationships or associations
with prospective jurors. During discussions between
the
trial
court, Whigham, and Dunaway's counsel after the venire had
been assembled and while the prospective jurors were
completing the "Juror Information Questionnaire," Dunaway's
counsel specifically noted the filing of the aforementioned
motions. Dunaway's counsel stated that he was seeking
information of "any ties between the district attorney and
prospective jurors. ... You know, we will be able to ask the
45
1090697
jurors the things which -– . As you know, sometimes jurors
don't respond." (Emphasis added.) The trial court granted the
motions.
Thereafter, during oral voir dire, Whigham stated:
"[A]nd I have practiced here for a number of years.
Some of you have been my clients over the years and
some of you might have been their clients over the
years. And they have a right to know that. If you
were a client of mine at any time, if you will
please raise your hand so they would know it."
(Emphasis added.)
Several
prospective jurors responded to the
question, and Whigham even called out the name of one
prospective juror he apparently knew, though it is unclear
whether that prospective juror had responded to the question.
Nevertheless, as noted above, E.B. did not respond to
Whigham's question, just as she did not respond to question
no. 24 on the "Juror Information Questionnaire" that asked
every prospective juror whether he or she knew the district
attorney.
7
In response to the foregoing motions and discussion and
7
the trial court's granting of those motions, the district
attorney did not disclose a prior relationship with E.B. The
record contains no direct evidence indicating whether Whigham
did or did not remember E.B. as a former client. The State
obtained an affidavit from Whigham for purposes of the Rule 32
hearing; however, in that affidavit, of the four jurors at
issue in this appeal, Whigham mentioned only M.B., stating as
to her only that, at the time of Dunaway's trial, he did not
46
1090697
The facts not disclosed to Dunaway regarding the district
attorney's prior representation of E.B. in a child-custody
dispute are of a nature that would "tend[] ... to bias the
juror" and generate a challenge or other strike of that
prospective juror. In addition, of the five prospective
jurors who did respond on voir dire that they had been clients
of the district attorney, four of them were in fact stricken.
8
Thus, given the nature of the undisclosed relationship, the
emphasis
Dunaway's
trial
counsel
clearly
placed
on
discovering
relationships
between
the
district
attorney
and
the
prospective jurors, and the fact that his counsel challenged
most of the prospective jurors who accurately answered the
question, it is no stretch to assume that the information E.B.
did not disclose would have been important to Dunaway's trial
counsel in determining whether to challenge E.B. as a juror.
Again, we note that the parties in a case are entitled to
true and honest answers to their questions on voir dire. See
Ex parte Dobyne, supra.
remember a "divorce filing" for her.
Dunaway's trial counsel struck three of the prospective
8
jurors; the State struck one of the other two prospective
jurors. The fifth prospective juror had been a client of both
trial counsel.
47
1090697
III. Conclusion
Although the crimes of which Dunaway has been accused are
horrendous, that fact does not alter Dunaway's right to a fair
trial, for by definition it is only through a trial that
comports with constitutionally required principles that our
criminal-justice system can declare an accused such as
Dunaway
guilty of such a crime and, if necessary, determine the
appropriate punishment. Dunaway, no less than any other
defendant, is entitled to a process characterized by
constitutional fairness before he is found guilty.
In sum, the failure of disclosure relating to L.L. and
E.B. in this case "'"render[ed] hollow [Dunaway's] right of
peremptory challenge."'" Dixon, 55 So. 3d at 1261 (quoting
Tomlin, 695 So. 2d at 169, quoting in turn Knight v. State,
675 So. 2d 487, 494 (Ala. Crim. App. 1995)). Dunaway's
petition insofar as the claims as to L.L. and E.B. was due to
be granted. We reverse the judgment of the Court of Criminal
Appeals and remand the case to that court for proceedings or
an order consistent with this opinion. We pretermit any
discussion as to Dunaway's Brady claims and ineffective-
assistance-of-counsel claims.
48
1090697
REVERSED AND REMANDED.
Stuart, Parker, Shaw, and Bryan, JJ., concur.
Bolin, J., concurs in the result.
Moore, C.J., dissents.
Main and Wise, JJ., recuse themselves.*
*Justice Main and Justice Wise were members of the Court
of Criminal Appeals when that court considered this case.
49
1090697
MOORE, Chief Justice (dissenting).
I respectfully dissent because I believe that this Court
is not giving the trial court the deference it is due under
the exceeds-its-discretion standard.9
A trial court has considerable discretion in determining
whether probable prejudice exists. As the Court notes, we have
held that "'the determination of whether ... there was
probable prejudice[] is a matter within the trial court's
discretion,'" which will not be reversed "'"unless the court
has [exceeded] its discretion."'" ___ So. 3d at ___ (quoting
Ex parte Dobyne, 805 So. 2d 763, 772 (Ala. 2001), quoting in
turn Union Mortg. Co. v. Barlow, 595 So. 2d 1335, 1342 (Ala.
1992)).
"'A court exceeds its discretion when its ruling is
based on an erroneous conclusion of law or when it
has
acted
arbitrarily
without
employing
conscientious judgment, has exceeded the bounds of
reason in view of all circumstances, or has so far
ignored recognized principles of law or practice as
to cause substantial injustice.'"
Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of
Alabama, 991 So. 2d 701, 705 (Ala. 2008) (quoting Edwards v.
"This
Court
now
uses
the
phrase
'exceeded
its
discretion'
9
rather than the phrase 'abused its discretion.' The standard
of review remains the same." Classroomdirect.com, LLC v.
Draphix, LLC, 992 So. 2d 692, 701 n.1 (Ala. 2008).
50
1090697
Allied Home Mortg. Capital Corp., 962 So. 2d 194, 213 (Ala.
2007)).
With this deferential standard of review in mind, this
Court may grant Larry Dunaway relief if he can show that the
juror's
nondisclosure
or
falsification
probably
(not
possibly)
caused Dunaway to forgo challenging the juror for cause or
exercising a peremptory strike to remove the juror. Dobyne,
805 So. 2d at 772.
"'Some of the factors that this Court has approved
for using to determine whether there was probable
prejudice include: "temporal remoteness of the
matter inquired about, the ambiguity of the question
propounded, the prospective juror's inadvertence or
wilfulness in falsifying or failing to answer, the
failure of the juror to recollect, and the
materiality of the matter inquired about."'"
Id. (quoting Union Mortgage Co., 595 So. 2d at 1342-43,
quoting in turn Freeman v. Hall, 286 Ala. 161, 167, 238 So. 2d
330, 336 (1970)). Because Dunaway's trial counsel did not
testify as to whether they would have struck the jurors in
question, the only way to establish probable prejudice in this
case would be "from the obvious tendency of the true facts to
bias the juror." Dobyne, 805 So. 2d at 773. However, we must
remember that, in applying these rules, we still "'grant great
deference to the trial judge, who is on the scene and who can
51
1090697
best judge the credibility of the participants and determine
what actually occurred'"; therefore, we will not reverse the
judgment of the trial court unless the court has exceeded its
discretion. 805 So. 2d at 772 (quoting Ex parte Pressley, 770
So. 2d 143, 147 (Ala. 2000)).
Applying the Dobyne factors, the Court first holds that
L.L.'s failure to disclose that her cousin had been the victim
of a crime probably caused Dunaway to forgo a for-cause or
peremptory challenge. I am not convinced that the trial court
exceeded its discretion in arriving at the opposite
conclusion. First, the main opinion makes much of the fact
that L.L. was struck from the venire of her cousin's trial on
the same day as Dunaway's jury was struck, but it seems to
ignore the fact that L.L.'s cousin was shot nine months before
Dunaway's trial. As to the second, third, and fourth factors,
L.L.'s venire panel was asked only whether anyone had someone
in their "immediate family" who was a crime victim. The entire
venire was asked previously whether anyone in their family was
a crime victim, but that question did not specify whether
"family" referred to immediate family or extended family.
Although other evidence suggests that L.L. should have
52
1090697
understood the question, the trial judge was "'on the scene
and [was able to] best judge the credibility of the
participants and determine what actually occurred.'" Dobyne,
805 So. 2d at 772 (quoting Ex parte Pressley, 770 So. 2d at
147). Dunaway appears to be arguing that L.L. lied. However,
under these facts, the trial court could have reasonably found
that she was confused by the voir dire questions and made a
mistake on the questionnaire.
Finally, the materiality of L.L.'s nondisclosure is the
most important factor in this analysis. Dunaway easily could
have established the materiality of L.L.'s nondisclosure
simply by asking his trial counsel at the Rule 32, Ala. R.
Crim. P., hearing whether they would have struck L.L. had they
known that her cousin had been the victim of a crime. He did
not do so. This Court should consider this fact in determining
whether L.L.'s omission was material. See Dobyne, 805 So. 2d
at 773-74 (refusing to hold that Dobyne was probably
prejudiced partly because Dobyne did not ask trial counsel
whether a juror's nondisclosure caused counsel to forgo a
strike); Ex parte Dixon, 55 So. 3d 1257, 1264 (Ala. 2010).
Moreover, Dunaway did not strike two other jurors who had
53
1090697
disclosed that they had family members who had been victims of
crimes. Under these facts, the trial court could have soundly
concluded that L.L.'s omission was not material.
Consequently, I would hold that the trial court did not
exceed its discretion regarding L.L.'s nondisclosure, and I
believe that the Court fails to give the trial court the
deference due it under the standard of review by concluding
otherwise. Remarkably, the Court states that the five Dobyne
factors "arguably support a finding of probable prejudice."
___ So. 3d at ___ (emphasis added). This is a drastic
departure from the exceeds-its-discretion standard. As stated
above, if this Court holds that a trial court exceeded its
discretion, it holds that the trial court "has acted
arbitrarily without employing conscientious judgment, has
exceeded the bounds of reason in view of all circumstances, or
has so far ignored recognized principles of law or practice as
to cause substantial injustice." Wright Therapy Equip., 991
So. 2d at 705 (emphasis added). However, in this case, the
Court interprets the exceeds-its-discretion standard to mean
not that it must defer to the trial court unless the trial
court acted arbitrarily or exceeded the bounds of reason but,
54
1090697
rather, that it may overturn the trial court's ruling if the
evidence arguably supports a contrary finding. This resembles
a de novo review more than anything else.
Likewise, I am not convinced that the trial court
exceeded its discretion in holding that E.B.'s nondisclosure
did not constitute probable prejudice. As to the first Dobyne
factor, the event in question happened 12 years before
Dunaway's trial and was therefore temporally remote. As to the
second and third Dobyne factors, the prosecutor,
Boyd Whigham,
asked the venire whether any veniremember was "a client of
mine at any time." E.B. testified during the Rule 32 hearing
that she did not retain and pay Whigham but, rather, that her
son had retained and paid him. Thus, she might not have
answered because she was confused by the question. If she was
not Whigham's "client," then she was under no obligation to
answer. "'"Unless a juror is asked a question which applies to
[her] in a manner demanding response, it is permissible for a
juror to remain silent; the juror is under no duty to
disclose."'" Marshall v. State, 668 So. 2d 891, 894 (Ala.
Crim. App. 1995) (quoting Green v. State, 591 So. 2d 576, 579
(Ala. Crim. App. 1991), quoting in turn Parish v. State, 480
55
1090697
So. 2d 29, 30 (Ala. Crim. App. 1985)). The question was
ambiguous, and the trial court was in a much better position
than is this Court to assess whether E.B.'s nondisclosure was
inadvertent or willful.
Finally, as to the fifth Dobyne factor, I note again that
Dobyne's trial counsel did not testify as to whether they
would have struck E.B. had they known about the nondislosure,
which would have been the easiest way to establish
materiality.
Nevertheless,
Dunaway
adamantly
argues
that
this
information was material because he "actively sought
to
remove
all such jurors," referring to jurors who had been previously
represented by Whigham. (Dunaway's brief, at 31 (emphasis
added).) However, this argument contradicts Dunaway's earlier
concession that he struck only three out of five jurors who
had been represented by Whigham. (Dunaway's brief, at 27-28.)
Thus, under these facts, I cannot hold that the trial
court exceeded its discretion in concluding that probable
prejudice did not exist in spite of E.B.'s nondisclosure. The
main opinion states: "It takes no leap of imagination to
assume that E.B. carried a favorable opinion of Whigham based
on his representation of her when he was in private practice
56
1090697
and that this opinion could have biased her view of Dunaway's
case." ___ So. 3d at ___ (emphasis added). Again, the question
is not whether Whigham's past representation could
have biased
E.B.'s view but whether the trial court exceeded its
discretion in holding that E.B.'s nondisclosure probably did
not cause Dunaway to forgo a challenge. Dobyne, 805 So. 2d at
772.
In reviewing the evidence, this Court should have
"'grant[ed] great deference to the trial judge, who [was] on
the scene and who [could] best judge the credibility of the
participants and determine what actually occurred.'" Dobyne,
805 So. 2d at 772 (quoting Ex parte Pressley, 770 So. 2d at
147). After conducting its analysis of the Dobyne factors, the
best that the Court can do is conclude that the nondisclosures
by L.L. and E.B. "arguably support a finding of probable
prejudice" (L.L.), ___ So. 3d at ___ (emphasis added), or that
the facts at issue "could have biased" their decision (E.B.),
___ So. 3d at ___ (emphasis added). The trial court was in a
much better position than is this Court to determine whether
the jurors' nondisclosures probably prejudiced Dunaway. Even
though Dunaway confessed to murdering a 22-month-old baby by
57
1090697
setting him on fire, this Court is still duty-bound to reverse
his conviction if the jurors' nondisclosures deprived him of
a fair trial. However, "'"[a] defendant is entitled to a fair
trial but not a perfect one,"' for there are no perfect
trials." Brown v. United States, 411 U.S. 223, 231-32 (1973)
(quoting Bruton v. United States, 391 U.S. 123, 134 (1968),
quoting in turn Lutwak v. United States, 344 U.S. 604, 619
(1953)). For the reasons provided above, I cannot conclude
that the trial court acted "arbitrarily without employing
conscientious judgment" or that it "exceeded the bounds of
reason," Wright Therapy Equip., 991 So. 2d at 705, in
concluding that probable prejudice did not exist in this case.
Therefore, because I do not believe that this Court gave the
trial court's judgment the deference it was due, I must
dissent.
10
The
Court
pretermitted
discussion of
Dunaway's claims
as
10
to jurors V.S. and M.B., as well as to Dunaway's ineffective-
assistance-of-counsel claim and his Brady v. Maryland, 373
U.S. 83 (1963), claim. Just as I find Dunaway's arguments
unpersuasive as to L.L. and E.B., I also find his arguments
unpersuasive as to V.S. and M.B. I am also unpersuaded that
Dunaway's trial counsel were ineffective under the standard
established in Strickland v. Washington, 466 U.S. 668 (1984),
or that the Court of Criminal Appeals erred in affirming the
trial court's ruling on Dunaway's Brady claim.
58 | April 18, 2014 |
9677e5a2-7ee7-4a95-8e83-a7f363fae077 | Ex parte South Baldwin Regional Medical Center. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Sacred Heart Health System, Inc. v. Infirmary Health System, Inc., and South Baldwin Regional Medical Center) (Montgomery Circuit Court: CV-07-900905; Civil Appeals : 2090239). Writ Denied. No Opinion. | N/A | 1130665 | Alabama | Alabama Supreme Court | rel: 04/18/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1130665
_________________________
Ex parte South Baldwin Regional Medical Center
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Sacred Heart Health System, Inc.
v.
Infirmary Health System, Inc., and South Baldwin Regional
Medical Center)
(Montgomery Circuit Court, CV-07-900905;
Court of Civil Appeals, 2090239)
MAIN, Justice.
WRIT DENIED. NO OPINION.
Moore, C.J., and Bolin, Parker, Murdock, and Shaw, JJ.,
concur.
1130665
Stuart, J., concurs specially.
Wise and Bryan, JJ., recuse themselves.*
*Justice Bryan was a member of the Court of Civil Appeals
when that court considered this case.
2
1130665
STUART, Justice (concurring specially).
I concur with this Court's decision to deny the writ of
certiorari
requested
by
South
Baldwin
Regional
Medical
Center.
This case concerns whether a physicians group planning the
construction of an office building, which would include an
ambulatory
surgery
center,
outpatient
diagnostic
services,
and
physician offices, was required to obtain a certificate of
need from the State Health Planning and Development Agency
before leasing the medical-office building. In Ex parte
Sacred Heart Health System, Inc., [Ms. 1091788, November 21,
2012] ___ So. 3d ___ (Ala. 2012), this Court conducted a
thorough review of the facts and the issues presented in this
case and issued an extensive opinion, which included a revised
test for determining whether such a project fell under the
"physician's office exemption" in § 22-21-260(6), Ala. Code
1975. We reversed the judgment of the Court of Civil Appeals
and remanded the case for that court to remand the case for
the trial court to apply the revised test set forth in our
opinion to the facts of the case. The petition for a writ of
certiorari before us asks us to review the judgment of the
Court of Civil Appeals reviewing the trial court's judgment on
3
1130665
remand. See Sacred Heart Health Sys., Inc. v. Infirmary
Health Sys., [Ms. 2090239, March 7, 2014] ___ So. 3d ___ (Ala.
Civ. App. 2014).
A reading of the grounds pleaded in the petition clearly
indicates that South Baldwin Regional Medical Center is asking
this Court to reconsider arguments we rejected or decided
adversely to it in Ex parte Sacred Heart Health System and to
consider questions that are not material and do not require an
answer at this time.
First, South Baldwin Regional Medical Center alleges a
ground of conflict, see Rule 39(a)(1)(D), Ala. R. App. P.,
arguing:
"Although this Court's modification of the
[physician's-office-exemption] test did not include
a ruling that the test should no longer be applied
to a 'proposed facility, as a whole' [quoting from
a
[certificate-of-need
review
board]
ruling
addressing the [physician's office exemption], the
Court of Appeals nevertheless improperly narrowed
the scope of this Court's remand: 'Our reading of
the supreme court's opinion convinces us that the
space planned to house the proposed outpatient
surgery center and the space originally planned to
house the proposed rehabilitation center are not to
be considered in applying the [physician's-office-
exemption] application test.' ___ So. 3d at ___.
The Court of Appeals reversed the trial court after
erroneously
applying
the
[physician's-office-
exemption] test to only a portion of Sacred Heart's
leased space.
4
1130665
"Moreover,
the
Court
of
Civil
Appeals
improperly
limited the trial court's consideration of (1)
Sacred Heart's initial development of the project,
___ So. 3d at ___ ('The trial court was not ordered
to, and, in fact, should not have, determined
whether applying the [physician's office exemption]
to the [Sacred Heart Medical Group's] leased space
in the [medical-office building] would "circumvent"
the statutory language in ... §§ 22-21-263, and
22-21-265.'), and (2) the expenditure thresholds in
the [certificate-of-need] law based on its mistaken
reading of this Court's Remand Decision. ___ So. 3d
at ___ ('[W]e are constrained to agree with Sacred
Heart ... that the trial court was limited to
considering those spaces in the [medical-office
building] leased for use by [Sacred Heart Medical
Group] physicians and that it was not to consider
other areas of the [medical-office building] leased
by Sacred Heart [in applying § 22-21-263(a)(2)].')."
(South Baldwin Regional Medical Center's petition at pp. 2-4
(footnotes omitted).)
In Ex parte Sacred Heart Health System, we stated:
"The contested issue between the parties is
whether the portion of the medical-building project
Sacred Heart has leased for its Baldwin County
physicians to use ('the [Sacred Heart Medical Group]
leased space') is subject to Sacred Heart's first
obtaining a [certificate of need] from [the State
Health Planning & Development Agency]. Section
2
22-21-260 et seq., Ala. Code 1975, sets out the law
concerning the regulation of health-care facilities.
"....
"...
The
[physician's-office-exemption]
application
test
is
promulgated
to
provide
clarification
as
to
the
exemption
from
the
[certificate-of-need] review process for the offices
5
1130665
of licensed physicians, dentists, or group practices
and should not be interpreted as circumventing the
statutory language in §§ 22-21-260(6), 22-21-260(8),
22-21-263, and 22-21-265, Ala. Code 1975, or
otherwise applicable statutes or administrative
regulations pursuant to the 'State Health Plan.' ...
"_______________
" In examining the medical-building project as
2
a whole, this Court does not refer to the entire
building constructed by Johnson Development, which
contains space for medical and non-medical uses, but
to the portion of the building leased by the
specific physicians' practice seeking to apply the
physician's office exemption to the [certificate-of-
need] requirement. In this case, we review the
[Sacred Heart Medical Group] leased space because
that is the only space to be used by the [Sacred
Heart Medical Group] practice."
___ So. 3d at ___.
The Court of Civil Appeals properly interpreted our
holding in Ex parte Sacred Heart Health System and applied
that holding to the facts of this case. There is no conflict
between Ex parte Sacred Heart Health System and the decision
of the Court of Civil Appeals here.
Additionally,
alleging
that
it
pleads
"material
question[s] requiring decision[s] ... of first impression for
the Supreme Court of Alabama," see Rule 39(a)(1)(C), Ala. R.
App. P., South Baldwin Regional Medical Center asks this Court
to determine:
6
1130665
"I.
Whether the [physician's office exemption]
may be selectively applied to only part of
a health care facility's proposed project
which
includes
both
physicians'
offices
and
an ambulatory surgery center, diagnostic
center,
and
time-share
space
for
unaffiliated physicians.
"II.
Whether the [certificate-of-need] statute
allows a health care facility to develop
and lease space for an ambulatory surgery
center prior to obtaining a [certificate of
need].
"III.
Whether
a
health
care
facility
may
circumvent
the
[certificate-of-need]
expenditure
law
merely
by
employing
physicians and including some space for
them in a project."
(South Baldwin Regional Medical Center's petition at p. 4.)
The questions South Baldwin Regional Medical Center
alleges require a decision of first impression, however, are
not material and do not require answers. South Baldwin
Regional Medical Center's question as to whether the
physician's office exemption can be selectively applied to a
portion of a health-care facility's proposed project was
addressed and answered in Ex parte Sacred Heart Health System.
Because judicial records establish that the entity that was to
have operated a proposed ambulatory surgical center in the
building requested a certificate of need for that portion of
the building and the certificate of need was denied, whether
7
1130665
the certificate-of-need statutes allow a health-care facility
to develop and lease space for an ambulatory surgery center
before obtaining a certificate of need is not a question
presented in the facts of this case and, consequently, is not
material and does not require resolution at this time.
Likewise, the question whether a health-care facility can
circumvent the "[certificate-of-need] expenditure law" by
employing physicians and including some space for them in a
project is not presented by the facts in this case, is not
material to this case, and does not require an answer.
Because the grounds pleaded by South Baldwin Regional
Medical Center in its petition do not merit additional
consideration by this Court, the denial of the petition for
the writ of certiorari is proper.
8 | April 18, 2014 |
da68deea-0cd0-4303-8aa3-ca55dc817b14 | John Meeks and Oretha Meeks v. Roderick Morrow and Merchants & Farmers Bank | N/A | 1120688 | Alabama | Alabama Supreme Court | REL:03/14/2013
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120688
____________________
John Meeks and Oretha Meeks
v.
Roderick Morrow and Merchants & Farmers Bank
Appeal from Greene Circuit Court
(CV-09-900006)
On Application for Rehearing
MOORE, Chief Justice.
The opinion of December 20, 2013, is withdrawn, and the
following is substituted therefor.
1120688
John Meeks and Oretha Meeks appealed from a partial
summary judgment in favor of Roderick Morrow and Merchants &
Farmers Bank ("the Bank"). Because it appeared that the
judgment from which the Meekses purported to appeal was not a
final judgment, this Court’s clerk’s office remanded
the
cause
to the trial court, which then certified its order as final
pursuant to Rule 54(b), Ala. R. Civ. P. Having examined the
case, this Court now concludes that the trial court’s
certification was not proper and that the judgment was not
made final. Therefore, we dismiss the appeal.
I. Facts and Procedural History
In
1993,
the
Freedlander
Bankruptcy
Trust
("Freedlander")
deeded certain property in Greene County ("the property") to
Henry Lewis, who did not record his deed until January 2006.
In 1995, Lewis deeded the property to his grandmother, Bessie
Lard, whose deed also was not recorded until January 2006.
In 1998, Mrs. Meeks noticed a house on the property that
appeared to be empty. The house was "only a shell" at the time
and was "far from being in 'move in' condition." Meekses'
brief, at 15. At that time, the Meekses were unable to obtain
the financing they needed to buy the house and renovate it.
2
1120688
Consequently, the Meekses and Lard "worked out" an agreement
by which the Meekses would take possession of the house and
spend the money necessary to complete it, although they had
not purchased it. The agreement provided that when the house
was complete and the Meekses could obtain financing, they
would pay the purchase price of $58,000 and obtain a deed to
the property.
In 1999, the Meekses and Lard signed a document styled as
a "work-out agreement," in which the parties agreed to sell
the house and the property to Mrs. Meeks on the condition that
"this Work-Out Agreement must be ended by January 31, 2006."
The work-out agreement also provided that in the event Lard
died before the end of the agreement, Lewis had the right to
sign or print her name, apparently for the purpose of
finalizing the sale. Lard told Mrs. Meeks to make the payments
for the purchase price to Lewis.
Immediately after signing the work-out agreement, the
Meekses began working on the property. They bought the
supplies they needed to fix the house and did the work
themselves. The work necessary to renovate the house included
"plumbing,
electrical,
extension
of
gas
lines,
installation
of
3
1120688
flooring, roof repair, installation of sinks, toilets, and
cabinets." Meekses' brief, at 17. The Meekses planted grass,
trees, and flowers around the house, paved the driveway, and
sloped the yard using a bulldozer. Lewis helped with the
renovation and was paid by the Meekses in cash. The Meekses
contend that, following their work on the house, the property
was appraised at $240,000 and later at $250,000. The house
1
was complete enough by October 2004 that the Meekses could
officially move in. The Meekses contend that "[s]ince early
fall of 2004, anyone passing by our home would have been able
to see that we lived there." Meekses' brief, at 18.
In 2004, the Bank recorded a judgment against Lewis. One
of the Bank's directors, Ralph Liverman, performed a title
search. He advised the Bank that Freedlander held record title
to the property.
In 2006, the Meekses felt that the house was complete
and obtained a mortgage to finance their purchase of the
house. Lard had died in 2003, so Lewis signed her name to the
The value of the property is contested by the parties.
1
The Meekses argue that the Bank conceded that the renovated
property has a "replacement cost of over $600,000," Meekses'
brief, at 25, whereas the Bank argues that the Meekses' total
investment was "around $78,000 -- or more, but less than
$158,000.00." Bank's brief, at 21-22.
4
1120688
deed purporting to convey the property from Lard to the
Meekses. In 2006, Lewis recorded the deed conveying the
property from Freedlander to him, as well as the deed
conveying the property from him to Lard. The Meekses
thereafter recorded their deed. Thus, all the deeds were
recorded by the end of 2006. The Meekses also obtained a
title-insurance policy insuring their title as free of any
liens.
On December 13, 2006, the Bank initiated proceedings to
conduct a sheriff's sale on the property. The Meekses learned
of the sale on Friday, January 9, 2009. The sheriff held the
sale on Monday, January 12, 2009, after which the sheriff
deeded the property to Roderick Morrow as the highest bidder.
Morrow's bid was $48,000.
On January 29, 2009, the Meekses sued Morrow, seeking to
redeem the property and a temporary restraining order
preserving their possession of the house. On June 2, 2009,
Morrow answered and filed a counterclaim, asking the trial
court to order the Meekses to vacate the premises, to declare
the deed conveying the property from Lard to the Meekses to be
a nullity, to declare that the Meekses had no right of
5
1120688
redemption, and to award Morrow damages for the Meekses'
refusal to vacate the property and for any damage resulting
from the Meekses' failure to vacate.
On July 10, 2009, the Meekses amended their complaint,
adding as defendants the Bank and Lewis, alleging claims of
2
slander of title against the Bank and Morrow and wrongful
execution, negligence, "gross negligence," and wantonness
against the Bank. The Meekses also requested, in the
alternative, that an equitable lien be placed on the property.
Morrow filed a cross-claim against the Bank, alleging
misrepresentation and suppression and requesting compensatory
damages, punitive damages, prejudgment and postjudgment
interest, attorney fees, and costs in the event that the trial
court found the Meekses' title to be superior to Morrow’s.
Morrow moved for a summary judgment in 2009. The Meekses
opposed the motion and filed a cross-motion for a summary
judgment. The trial court held a hearing on the motions on
September 30, 2009, and gave Morrow more time to respond to
the Meekses' cross-motion for a summary judgment. The trial
court never ruled on either summary-judgment motion.
Apparently Lewis died at some point during this
2
litigation.
6
1120688
The Meekses filed their second amended complaint on May
4, 2010, adding a count of breach of fiduciary duty against
the Bank. The Meekses filed a third amended complaint on
August 19, 2011, requesting a judgment declaring that the
Meekses were bona fide purchasers of the property and seeking
damages for mental anguish against the Bank and Morrow and
requesting, in the alternative, that the sheriff's sale be set
aside or that they be granted damages for breach of warranty
of title by Lewis. The Meekses filed a fourth amended
complaint on August 28, 2012, requesting, in the alternative,
that the trial court declare the amount needed to redeem the
property and also, in the alternative, if the deed conveying
the property to the Meekses was invalid, requesting specific
performance from Lewis to convey the property to the Meekses.
Morrow and the Bank moved to strike the third and fourth
amended complaints. The parties have not briefed this Court on
whether the trial court ruled on those motions to strike, but
it appears from the trial court's order of February 26, 2013
(see infra), that it has not ruled on those motions.
The Meekses moved for a summary judgment again on July 6,
2012, before they filed their fourth amended complaint. On
7
1120688
December 6, 2012, the Bank moved for a summary judgment as to
the Meekses' claims against the Bank. Likewise, Morrow moved
for a summary judgment as to the Meekses' claims against him.
The trial court held a hearing on those motions on January 28,
2013.
On February 26, 2013, the trial court denied the Meekses'
summary-judgment motion and granted Morrow's and the Banks'
summary-judgment motions. The trial court found that the
unrecorded deed conveying the property from Lewis to Lard was
void as to the judgment the Bank recorded against Lewis. The
trial court also found that the deed conveying the property
from Lard to the Meekses was void on its face and that the
work-out agreement had not been properly executed. The trial
court concluded:
"Because of these reasons, the Meekses are without
title and cannot redeem the property, attack the
Sheriff’s sale or make their claims in this case
against either the Bank or Mr. Morrow. It is FURTHER
ORDERED that the Motion for Summary Judgment filed
on behalf of Merchants & Farmers Bank is GRANTED.
"The Court further finds that at the request of the
Meekses,
the
Court
had
entered
a
temporary
restraining order and the same is due to be
dissolved.
8
1120688
"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by
the Court that the temporary restraining order is
hereby dissolved.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the
Court that the Motion for Summary Judgment filed on
behalf of Roderick Morrow is hereby granted and,
finally,
"IT IS FURTHER ORDERED that Roderick Morrow is
entitled to immediate possession of the property."
Meekses' brief, Appendix B (capitalization in original).
The Meekses appealed. On July 22, 2013, this Court's
clerk's office sent an order to the trial court stating, in
relevant part:
"It appearing to the Court that the order appealed
from is not a final, appealable order in that there
remain unadjudicated claims,
"This cause is remanded to you to determine, within
fourteen (14) days from the date of this order,
whether to 1) make the order of February 26, 2013,
a final judgment pursuant to the provisions of Rule
54(b), Alabama Rules of Civil Procedure; or 2)
adjudicate the remaining claims and issue a final
judgment as to all claims; or 3) do nothing, in
which case this appeal will be dismissed as from a
non-final order."
The trial court replied, in relevant part, as follows:
"The Order granting partial summary judgment in
this case disposed of all the claims of the
plaintiffs against the defendant, Roderick Morrow,
and against the defendant, Merchants & Farmers Bank,
and has left pending the Counterclaim of Roderick
Morrow against the plaintiffs and the Crossclaims of
9
1120688
Roderick Morrow against Merchants & Farmers Bank and
the mortgage company.[ ] Furthermore, there may be
3
remaining a claim by the plaintiffs against the
estate of Henry Lewis and/or the Estate of Bessie
Lard based upon the allegations in some of the
Amended Complaints (the Court does not, at this
point, decide whether the plaintiffs can amend to
add those estates or not).
"The Court finds that there is no prejudice or
risk of inconsistent results in granting a partial
final judgment on the Order granting partial summary
judgment and this is true especially considering the
posture of the case and the fact that the plaintiffs
have requested appellate review of the summary
judgment order. In fact, the Court believes that
making the partial summary judgment order a final
judgment will expedite the remaining issues in this
case.
"Accordingly, the Court directs the entry of
final judgment on all claims of the plaintiffs
against the defendant, Roderick Morrow, and against
the defendant, Merchants & Farmers Bank, as set
forth in the Order granting summary judgment. The
Court further finds that there is no just reason for
delay and makes this express direction for the entry
of said partial final judgment."
The mortgage company to which the order refers appears
3
to be Option One Mortgage Corporation ("Option One"). The
Meekses contend that "Morrow filed a motion to add Option One
... as [a] necessary party defendan[t]" but that "such motion
was not ruled on." Meekses' brief, at vii. The Meekses also
claim that "Morrow later filed a pleading indicating he no
longer intended to add Option One as a party defendant."
Meekses' brief, at vii-viii. These motions do not appear in
the record. Meekses' brief, at vii-viii. However, the Meekses
state that "Option One is not a proper party to this appeal
and is omitted as an appellant." Meekses' brief, at viii.
10
1120688
The parties subsequently filed motions stating that they
believed the trial court properly certified its February 26,
2013, order as a final judgment under Rule 54(b), Ala. R. Civ.
P.
II. Analysis
Although the parties do not dispute the validity of the
trial court's Rule 54(b) certification, this Court takes note
of jurisdictional matters ex mero motu. Nunn v. Baker, 518 So.
2d 711, 712 (Ala. 1987). An appeal will be dismissed ex mero
motu if the order appealed is not a final judgment.
Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 362
(Ala. 2004).
Rule 54(b), Ala. R. Civ. P., provides:
"When more than one claim for relief is presented in
an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than
all of the claims or parties only upon an express
determination that there is no just reason for delay
and upon an express direction for the entry of
judgment."
In Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006), this
Court stated the following concerning certifications under
Rule 54(b):
11
1120688
"This Court looks with some disfavor upon
certifications under Rule 54(b).
"'It bears repeating, here, that
"'certifications
under
Rule
54(b)
should
be
entered only in exceptional cases and
should not be entered routinely.'" State v.
Lawhorn, 830 So. 2d 720, 725 (Ala. 2002)
(quoting Baker v. Bennett, 644 So. 2d 901,
903 (Ala. 1994), citing in turn Branch v.
SouthTrust Bank of Dothan, N.A., 514 So. 2d
1373 (Ala. 1987)). "'"Appellate review in
a piecemeal fashion is not favored."'"
Goldome Credit Corp. v. Player, 869 So. 2d
1146, 1148 (Ala. Civ. App. 2003) (quoting
Harper Sales Co. v. Brown, Stagner,
Richardson, Inc., 742 So. 2d 190, 192 (Ala.
Civ. App. 1999), quoting in turn Brown v.
Whitaker Contracting Corp., 681 So. 2d 226,
229 (Ala. Civ. App. 1996)) (emphasis
added).'
"Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d
354,
363
(Ala.
2004).
Also,
a
Rule
54(b)
certification should not be entered if the issues in
the claim being certified and a claim that will
remain pending in the trial court '"are so closely
intertwined that separate adjudication would pose an
unreasonable
risk
of
inconsistent
results."'
Clarke-Mobile Counties Gas Dist. v. Prior Energy
Corp., 834 So. 2d 88, 95 (Ala. 2002) (quoting Branch
v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373,
1374 (Ala. 1987))."
In determining whether the trial court exceeded its
discretion in determining in a Rule 54(b) certification that
there was no just reason for delay, the following five
12
1120688
factors, or those of them that are applicable, should be
considered:
"'"(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the
need for review might or might not be mooted by
future developments in the [trial] court; (3) the
possibility that the reviewing court might be
obliged to consider the same issue a second time;
(4) the presence or absence of a claim or
counterclaim which could result in a set-off against
the
judgment
sought
to
be
made
final;
(5)
miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of
trial, frivolity of competing claims, expense, and
the like."'"
Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1264 (Ala.
2010) (quoting MCI Constructors, LLC v. City of Greensboro,
610 F.3d 849, 855 (4th Cir. 2010)) (emphasis and footnote
omitted).
The most critical factor in this case is the relationship
between the adjudicated claims and the unadjudicated claims.
The trial court's February 26, 2013, order decided the
Meekses' claims against Morrow and the Bank, but left several
claims
pending:
Morrow's
counterclaim
against
the
Meekses,
and
Morrow's cross-claims against the Bank and Option
One
Mortgage
Corporation (see supra note 3). All of those claims, with the
possible exception of the claim against Option One, are
13
1120688
completely dependent upon our affirmance or reversal of the
trial court's February 26, 2013, order. Morrow's request for
damages is dependent upon this Court's affirmance of the
February 26, 2013, order. Likewise, Morrow's cross-claim
against the Bank seeking damages for fraud and suppression is
dependent upon this Court's reversing the trial court's order.
In this case, therefore, "'the parties' ... claims are
dependent on each other and a resolution of one claim would
impact the determination of the other.'" Gregory v. Ferguson,
10 So. 3d 596, 598 (Ala. Civ. App. 2008) (quoting BB & S Gen.
Contractors, Inc. v. Thornton & Assocs., Inc., 979 So. 2d 121,
125 (Ala. Civ. App. 2007)). Thus, the claims remaining before
the trial court and the claims before us on appeal are so
intertwined that they cannot be adjudicated without the
"unreasonable risk of inconsistent results." Schlarb, 955 So.
2d at 419-20.
III. Conclusion
We hold that the trial court exceeded its discretion in
certifying its order of February 26, 2013, as a final judgment
pursuant to Rule 54(b). "'"When it is determined that an order
appealed from is not a final judgment, it is the duty of the
Court to dismiss the appeal ex mero motu."'" Dzwonkowski, 892
14
1120688
So. 2d at 362 (quoting Tatum v. Freeman, 858 So. 2d 979, 980
(Ala. Civ. App. 2003), quoting in turn Powell v. Republic
Nat'l Life Ins. Co., 293 Ala. 101, 102, 300 So. 2d 359, 360
(1974)). Consequently, the appeal is dismissed as being from
a nonfinal judgment.
APPLICATION OVERRULED; OPINION OF DECEMBER 20, 2013,
WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.
Bolin, Murdock, Main, and Bryan, JJ., concur.
15 | March 14, 2014 |
98d2ac08-ff1d-4748-9ef0-94c471ecd0f4 | Ex parte Kevin Durrell Brown. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Kevin D. Brown v. State of Alabama)(Russell Circuit Court: CC-11-136; Criminal Appeals : CR-12-0007). Writ Denied. No Opinion. | N/A | 1130297 | Alabama | Alabama Supreme Court | Rel: 2/07/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1130297
____________________
Ex parte Kevin Durrell Brown
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Kevin D. Brown
v.
State of Alabama)
(Russell Circuit Court, CC-11-136;
Court of Criminal Appeals, CR-12-0007)
PARKER, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock, J., dissent.
1130297
MOORE, Chief Justice (dissenting).
I respectfully dissent because I believe the petition
demonstrates a probability of merit. In particular, the
petition alleges that the unpublished memorandum of the Court
of Criminal Appeals conflicts with C.D.C v. State, 821 So. 2d
1021, 1026 (Ala. Crim. App. 2001) (an accused is not entitled
to the defense of entrapment if he or she was predisposed to
commit the crime at issue), and Johnson v. State, 291 Ala.
639, 640, 285 So. 2d 723, 724 (1973) (the defense of
entrapment is a question for the jury when a court is
presented
with
conflicting
evidence
regarding
entrapment).
The
Court in Johnson opined that "[e]ntrapment occurs when State
officers or persons under their control, incite,
induce,
lure,
or instigate a person into committing a criminal offense,
which that person would not have otherwise committed, and had
no intention of committing." Id. In light of this definition,
the following alleged facts provide special and important
reasons to issue the writ of certiorari to consider whether,
based on the holdings in C.D.C. and Johnson, the Court of
Criminal Appeals properly held that the trial court had not
erred when it refused to give a jury charge on entrapment.
2
1130297
On February 3, 2011, Investigator Jacob Williams of
Russell County, who was wearing plain clothes, parked a pickup
truck outside Bowman Apartments in Phenix City; the apartment
complex is known for drug activity and is located within three
miles of a school and a housing project. Williams asked Kevin
Durrell Brown, who was walking home from work, whether Brown
had any marijuana to sell. Brown stated that he did not but
that he knew someone who did. He then entered an apartment and
returned to the pickup truck to instruct Williams to come back
in 30 minutes. Williams complied and returned to the apartment
30 minutes later. Brown then informed Williams that Brown
still had not obtained any marijuana but that he had another
source. Brown was unable to reach this source by telephone.
After insisting that he had yet another source, Brown accepted
$20 from Williams to purchase marijuana. Brown left with the
$20 and returned with a bag of marijuana. Two officers then
took Brown into custody, and one of the officers confiscated
the bag of marijuana.
3
1130297
In his petition for a writ of certiorari, Brown argues
that, because he was returning from work "and had no
inclination of doing anything for anyone," he was not
predisposed to distribute marijuana; therefore, he reasons,
under C.D.C., he was entitled to a jury charge on the defense
of entrapment. The fact that Brown did not have any marijuana
on his person when Williams approached him only strengthens
Brown's argument in this regard. If the evidence were to show
that Brown was not predisposed to distribute marijuana,
moreover, then the Court of Criminal Appeals' holding in its
unpublished memorandum might conflict with Johnson insofar as
an accused is guaranteed a jury charge on entrapment when the
evidence of entrapment presented by the accused and the State
is contradictory.
"It is well settled that one may avail himself of the
defense of entrapment where he is instigated, induced, or
lured by an officer of the law, for the purpose of
prosecution, into committing a crime that he otherwise had no
intention of committing." Adams v. State, 585 So. 2d 161, 163
(Ala. 1991). "Where the defense of entrapment is raised, two
4
1130297
separate issues of fact are presented: first, whether there
was governmental inducement; and second, if there was
inducement, whether the defendant was ready and willing to
commit the act without persuasion." Id. If a defendant has
carried his burden of showing that government conduct induced
him to commit a crime that he otherwise would not have
committed, "the prosecution must prove beyond a reasonable
doubt that the defendant was predisposed to commit the crime."
Lambeth v. State, 562 So. 2d 575, 578 (Ala. 1990). The facts
as presented in Brown's petition merit a closer look to see
whether Brown proffered evidence showing that he would not
have distributed marijuana but for Williams's conduct and,
accordingly, whether the burden shifted to the State to show
beyond a reasonable doubt that Brown was predisposed to
distribute marijuana.
5 | February 7, 2014 |
d249de74-b1f9-43f0-9947-499c94010a6d | Collar v. University of South Alabama | N/A | 1120641 | Alabama | Alabama Supreme Court | REL: 02/14/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1120641
_________________________
Ex parte Zeke Aull
PETITION FOR WRIT OF MANDAMUS
(In re: Reed Collar and Bonnie Collar, as parents of
Gilbert Collar, a minor, deceased
v.
University of South Alabama et al.)
(Mobile Circuit Court, CV-12-902672)
WISE, Justice.
The respondents, Reed Collar and Bonnie Collar, as the
parents of Gilbert Collar, a deceased minor, sued the
1120641
University
of South Alabama ("the University"); Zeke Aull,
the
chief of police for the University; Trevis Austin, a police
officer
for
the
University;
and
fictitiously
named
defendants,
asserting claims arising from Gilbert's death on the
University's campus in Mobile. Chief Aull filed a motion to
dismiss the claims against him, on the basis that he was
immune from suit pursuant to Art. I, § 14, Ala. Const. of
1901, and that, to the extent the complaint could be read as
asserting a claim against him in his individual capacity, that
claim was due to be dismissed on the ground of State-agent
immunity. The trial court denied Chief Aull's motion to
dismiss, and Chief Aull filed a petition for a writ of
mandamus requesting this Court to direct the trial court to
vacate its order denying the motion to dismiss and to enter an
order dismissing the claims asserted against him. We grant
the petition and issue the writ.
Facts and Procedural History
In October 2012, Gilbert was a student at the University.
During the early morning hours of October 6, 2012, Gilbert and
some other students were talking outside a dormitory at the
University. The complaint alleges:
2
1120641
"At some point while they were talking, Gilbert
Collar was given a substance that is believed to
have included illegal drugs.
"11. Gilbert Collar had a sudden and immediate
reaction to the substance he ingested. The reaction
caused him either to become extremely hot or to
believe that he was very hot. Gilbert Collar lost
the ability to fully understand his actions and to
reason. As a result, Gilbert Collar took off his
clothes and began running into and out of traffic on
the campus of the University of South Alabama."
The complaint also alleges that Gilbert subsequently went to
the University's police station and began hitting the windows
of the police sation. Gilbert started to walk away from the
building but came back and started hitting the door of the
police station. Gilbert then again walked away from the
police station.
At that time, Officer Austin and a dispatcher were inside
the police station. Officer Austin came out of the police
station through the door Gilbert had hit with his weapon
drawn. After Officer Austin called to Gilbert, Gilbert
started to advance toward the police station and "immediately
began acting in an erratic manner." The complaint further
alleges:
"Officer Austin began backing up and Gilbert Collar
continued to move toward him, crouching down,
jumping up and bounding around. ...
3
1120641
"....
"... At no point during the ensuing moments did
Gilbert Collar ever touch Officer Austin. On one or
more occasions, Gilbert Collar went to the ground
and put distance between himself and Officer Austin.
"....
"... When Gilbert Collar was a few feet from
Officer Austin, and for unexplainable reasons,
Officer Austin shot Gilbert Collar. After being
shot, Gilbert Collar rose to his feet and walked a
short distance before he fell to the ground for the
last time and died.
"... Literally seconds after Officer Austin
fired the fatal shot, other police officers arrived
at the station and were prepared to assist to
control the situation and arrest Gilbert Collar, if
necessary.
"... Even though Officer Austin had at his
disposal less lethal means of force, namely, his
physical ability, a baton and pepper spray, he was
not provided with option of a [T]aser, a weapon
known to be effective for controlling subjects who
are acting irrationally for some reason.
"... Defendants Chief Zeke Aull, the University
of South Alabama, and others, including Fictitious
Parties A-L, failed to provide a [T]aser, a non-
lethal weapon to its police officers, including
Officer Austin."
On December 3, 2012, the Collars sued the University,
Chief Aull, Officer Austin, and fictitiously named parties.
Count one of the complaint sought injunctive relief from the
University and Chief Aull in the form of requiring specific
4
1120641
training and equipment for police officers on
the
University's
campus. Count three alleged negligence claims against the
University, Chief Aull, and fictitiously named parties
A-L
and
sought monetary damages. Counts two and four alleged that
Officer Austin negligently used excessive force against
Gilbert and that, in using excessive deadly force, Officer
Austin acted wilfully, beyond his authority, and/or under a
mistaken interpretation of existing laws. Finally,
count
five
raised
negligence
claims
against
fictitiously
named
parties
M-
Z.
On December 18, 2012, the University filed a motion to
dismiss the Collars' claims against it on the ground that it
was entitled to State immunity pursuant to Art. I, § 14, Ala.
Const. of 1901. The trial court subsequently granted the
University's motion.
On December 27, 2012, Chief Aull filed a motion to
dismiss the claims against him. In his motion, Chief Aull
asserted that he also was immune from suit pursuant to Art. I,
§ 14, Ala. Const. of 1901. He also asserted that, to the
extent the complaint could be read as asserting a claim
against him in his individual capacity, that claim was due to
5
1120641
be dismissed on the ground of State-agent immunity. On
1
February 8, 2013, the trial court entered an order denying
Chief Aull's motion to dismiss. On March 4, 2013, Chief Aull
filed his petition for a writ of mandamus in this Court.
Standard of Review and Applicable Law
"'As this Court has consistently held,
the writ of mandamus is a
"'"'drastic
and
extraordinary
writ that will be issued only
when 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 Wood, 852 So. 2d 705, 708 (Ala.
2002) (quoting Ex parte United Serv.
Stations, Inc., 628 So. 2d 501, 503 (Ala.
1993)). "'In reviewing the denial of a
motion to dismiss by means of a mandamus
petition, we do not change our standard of
review ....'" Drummond Co. v. Alabama
Dep't of Transp., 937 So. 2d 56, 57 (Ala.
2006) (quoting Ex parte Haralson, 853 So.
2d 928, 931 (Ala. 2003)).
"'"In Newman v. Savas, 878
So. 2d 1147 (Ala. 2003), this
Court set out the standard of
See infra note 2.
1
6
1120641
review of a ruling on a motion to
d i s m iss
for
l a ck
o f
subject-matter jurisdiction:
"'"'A
ruling
on
a
motion to dismiss is
reviewed
without
a
p r e s u m p t i o n
o f
correctness. Nance v.
Matthews, 622 So. 2d
297, 299 (Ala. 1993).
This Court must accept
the allegations of the
complaint
as
true.
Creola Land Dev., Inc.
v. Bentbrooke Housing,
L.L.C., 828 So. 2d 285,
288
(Ala.
2002).
F u r t h e r m o r e ,
i n
reviewing a ruling on a
motion to dismiss we
will
not
consider
whether
the
pleader
will ultimately prevail
but whether the pleader
may possibly prevail.
Nance, 622 So. 2d at
299.'
"'"878 So. 2d at 1148-49."
"'Pontius v. State Farm Mut. Auto. Ins.
Co., 915 So. 2d 557, 563 (Ala. 2005). We
construe
all
doubts
regarding
the
sufficiency of the complaint in favor of
the plaintiff. Drummond Co., 937 So. 2d at
58.'
"Ex parte Alabama Dep't of Transp., 978 So. 2d 17,
20-21 (Ala. 2007)."
7
1120641
Ex parte Alabama Dep't of Transp., 978 So. 2d 718, 720 (Ala.
2007).
"The issue of immunity is a jurisdictional one.
'This constitutionally guaranteed principle of
sovereign immunity, acting as a jurisdictional bar,
precludes a court from exercising subject-matter
jurisdiction. Without jurisdiction, a court has no
power to act and must dismiss the action.' Alabama
State Docks Terminal Ry. v. Lyles, 797 So. 2d 432,
435 (2001). Therefore, a court's failure to dismiss
a case for lack of subject-matter jurisdiction based
on the doctrine of sovereign immunity may properly
be addressed by a petition for the writ of mandamus.
See Ex parte Alabama Dep't of Mental Health & Mental
Retardation, 837 So. 2d 808, 810–11 (Ala. 2002)."
Ex parte Murphy, 72 So. 3d 1202, 1205 (Ala. 2011).
With regard to claims against State officials in their
official capacity, this Court has stated:
"'"It is settled beyond cavil that State
officials cannot be sued for damages in
their official capacities. Burgoon v.
Alabama State Dep't of Human Res., 835 So.
2d 131, 132–33 (Ala. 2002)." Ex parte
Dangerfield, 49 So. 3d [675,] 681 [(Ala.
2010)].'
"Ex parte Montgomery Cnty. Bd. of Educ., 88 So. 3d
837, 842 (Ala. 2012). In Vandenberg v. Aramark
Educational Services, Inc., 81 So. 3d 326, 332 (Ala.
2011), this Court stated:
"'This
Court
has
held
that
the
immunity afforded the State by § 14 applies
to instrumentalities of the State and State
officers sued in their official capacities
when such an action is effectively an
8
1120641
action against the State. Lyons v. River
Road Constr., Inc., 858 So. 2d 257, 261
(Ala.
2003).
We
have
specifically
"extended the restriction on suits against
the State found in § 14 'to the state's
institutions
of
higher
learning'
and
ha[ve]
held those institutions absolutely immune
from suit as agencies of the State." Ex
parte Troy Univ., 961 So. 2d 105, 109 (Ala.
2006) (quoting Taylor v. Troy State Univ.,
437 So. 2d 472, 474 (Ala. 1983)). This §
14 bar also prohibits "actions against
officers, trustees, and employees of state
universities
in
their
official
capacities."
Alabama Agric. & Mech. Univ. v. Jones, 895
So. 2d 867, 873 (Ala. 2004).'
"In Alabama Department of Transportation v.
Harbert International, Inc., 990 So. 2d 831, 839–840
(Ala. 2008), this Court stated:
"'To determine whether an action against a
State officer is, in fact, one against the
State, this Court considers
"'"whether 'a result favorable to
the
plaintiff
would
directly
affect a contract or property
right of the State,' Mitchell
[v. Davis, 598 So. 2d 801, 806
(Ala.
1992)],
whether
the
defendant is simply a 'conduit'
through which the plaintiff seeks
recovery of damages from the
State, Barnes v. Dale, 530 So. 2d
770, 784 (Ala. 1988), and whether
'a judgment against the officer
would
directly
affect
the
financial status of the State
treasury,' Lyons [v. River Road
Constr., Inc.], 858 So. 2d [257]
at 261 [(Ala. 2003)]."
9
1120641
"'Haley [v. Barbour County], 885 So. 2d
[783] at 788 [(Ala. 2004)]. Additionally,
"[i]n
determining
whether
an
action
against
a state officer is barred by § 14, the
Court considers the nature of the suit or
the relief demanded, not the character of
the office of the person against whom the
suit is brought." Ex parte Carter, 395 So.
2d 65, 67–68 (Ala. 1980).'
"This Court also noted in Harbert that the immunity
afforded State officers sued in their official
capacities is not unlimited:
"'"[Section 14] immunity from
suit does not extend, in all
instances, to officers of the
State acting in their official
capacity. Unzicker v. State, 346
So. 2d 931 (Ala. 1977). In
limited circumstances the writ of
mandamus will lie to require
action of state officials. This
is
true
where discretion is
exhausted and that which remains
to be done is a ministerial act.
See
Hardin
v.
Fullilove
Excavating Co., Inc., 353 So. 2d
779 (Ala. 1977); Tennessee &
Coosa R.R. Co. v. Moore, 36 Ala.
371
(1860).
Action
may
be
enjoined if illegal, fraudulent,
unauthorized, done in bad faith
o r
u nder
a
mis t ak e n
interpretation of law. Wallace
v.
Board
of
Education
of
Montgomery Co., 280 Ala. 635, 197
So. 2d 428 (1967). If judgment
or discretion is abused, and
exercised in an arbitrary or
capricious manner, mandamus will
lie to compel a proper exercise
10
1120641
thereof. The writ will not lie
to
direct
the
manner
of
exercising discretion and neither
will
it
lie
to
compel
the
performance of a duty in a
certain
manner
where
the
performance of that duty rests
upon an ascertainment of facts,
or the existence of conditions,
to be determined by an officer in
his judgment or discretion. See
Barnes v. State, 274 Ala. 705,
151 So. 2d 619 (1963)."
"'McDowell–Purcell, Inc. v. Bass, 370 So.
2d 942, 944 (Ala. 1979).
"'Moreover, certain causes of action
are not barred by § 14:
"'"'There are four general
categories of actions which in
Aland v. Graham, 287 Ala. 226,
250 So. 2d 677 (1971), we stated
do
not
come
within
the
prohibition of § 14: (1) actions
brought to compel State officials
to perform their legal duties;
(2) actions brought to enjoin
State officials from enforcing an
unconstitutional law; (3) actions
to compel State officials to
perform ministerial acts; and (4)
actions
brought
under
the
Declaratory Judgments Act ...
seeking construction of a statute
and its application in a given
situation. 287 Ala. at 229–230,
250 So. 2d 677. Other actions
which are not prohibited by § 14
are:
(5)
valid
inverse
condemnation
actions
brought
11
1120641
against State officials in their
representative capacity; and (6)
actions for injunction or damages
brought against State officials
in their representative capacity
and individually where it was
alleged that
they
had
acted
fraudulently,
in
bad
faith,
beyond their authority or in a
mistaken interpretation of law.
Wallace v. Board of Education of
Montgomery County, 280 Ala. [635]
at 639, 197 So. 2d 428 [(1967)];
Unzicker v. State, 346 So. 2d
931, 933 (Ala. 1977); Engelhardt
v. Jenkins, 273 Ala. 352, 141 So.
2d 193 (1962).'"
"'Drummond Co. v. Alabama Dep't
of Transp.,
937 So. 2d 56, 58 (Ala. 2006) (quoting [Ex
parte] Carter, 395 So. 2d [65,] 68 [(Ala.
1980)]) (emphasis omitted). These actions
are sometimes referred to as "exceptions"
to § 14; however, in actuality these
actions are simply not considered to be
actions "'against the State' for § 14
purposes." Patterson v. Gladwin Corp., 835
So. 2d 137, 142 (Ala. 2002). This Court
has qualified those "exceptions," noting
that "'[a]n action is one against the
[S]tate when a favorable result for the
plaintiff would directly affect a contract
or property right of the State, or would
result in the plaintiff's recovery of money
from the [S]tate.'" Alabama Agric. & Mech.
Univ. v. Jones, 895 So. 2d 867, 873 (Ala.
2004) (quoting Shoals Cmty. Coll. v.
Colagross, 674 So. 2d 1311, 1314 (Ala. Civ.
App. 1995)) (emphasis added in Jones).'
"990 So. 2d at 839–40."
12
1120641
Ex parte Moulton, 116 So. 3d 1119, 1130-32 (Ala. 2013). This
Court further clarified the sixth "exception" to immunity as
follows:
"Indeed,
it
is
well established
that actions
for
damages against State agents in their official or
representative capacities are considered actions to
recover money from the State and are barred by State
immunity under § 14. Harris v. Owens, 105 So. 3d
430 (Ala. 2012); Ex parte Montgomery Cnty. Bd. of
Educ., [88 So. 3d 837 (Ala. 2012)]; Vandenberg v.
Aramark Educ. Servs., Inc., [81 So. 3d 326 (Ala.
2011)]; Ex parte Dangerfield, 49 So. 3d 675 (Ala.
2010); Lyons v. River Road Constr., Inc., 858 So. 2d
257, 261 (Ala. 2003); Burgoon v. Alabama State Dep't
of Human Res., 835 So. 2d 131, 132–33 (Ala. 2002);
Ex parte Mobile Cnty. Dep't of Human Res., 815 So.
2d 527 (Ala. 2001); Ex parte Butts, [775 So. 2d 173
(Ala. 2000)]; Ex parte Alabama Dep't of Forensic
Scis., 709 So. 2d 455 (Ala. 1997); Ex parte Franklin
Cnty. Dep't of Human Res., 674 So. 2d 1277, 1279
(Ala. 1996); and Alabama State Docks v. Saxon, 631
So. 2d 943, 946 (Ala. 1994). Accordingly, to the
extent the sixth 'exception' can be read as allowing
'actions for ... damages [to be] brought against
State officials in their representative capacity,'
it is an incorrect statement of the law as it
pertains to State immunity under § 14.
"The sixth 'exception,' as currently set forth
in [Alabama Department of Transportation v.] Harbert
[International, Inc., 990 So. 2d 831 (Ala. 2008),]
and other authorities, can also be read as allowing
'actions for injunction ... [to be] brought against
State officials in their representative capacity and
individually where it was alleged that they had
acted fraudulently, in bad faith, beyond their
authority or in a mistaken interpretation of law.'
Harbert, 990 So. 2d at 840. To the extent that the
sixth 'exception' as it is now formulated can be
13
1120641
read as allowing actions for injunctive relief
against
State
officials
or
agents
in
their
individual capacity, it is an incorrect statement of
the law because 'a suit for injunctive relief
against a State official in his or her individual
capacity would be meaningless. This is so because
State officials act for and represent the State only
in their official capacities.' Ex parte Dickson, 46
So. 3d 468, 474 (Ala. 2010).
"The
sixth
'exception,'
as
currently
formulated,
also allows 'actions for damages [to be] brought
against State officials ... individually where it
was alleged that they had acted fraudulently, in bad
faith, beyond their authority or in a mistaken
interpretation of law.' Harbert, 990 So. 2d at 840.
'This Court has recognized that a state officer or
employee may not escape individual tort liability by
"'arguing that his mere status as a state official
cloaks
him
with
the
state's
constitutional
immunity.'"' Phillips v. Thomas, 555 So. 2d 81, 83
(Ala. 1989) (quoting Barnes v. Dale, 530 So. 2d 770,
781 (Ala. 1988), quoting in turn Tort Liability of
State Officials in Alabama, 35 Ala. L. Rev. 153
(1984)). 'Clearly, a state officer or employee is
not protected by § 14 when he acts willfully,
maliciously, illegally, fraudulently, in bad faith,
beyond
his
authority,
or
under
a
mistaken
interpretation of the law.' Phillips, 555 So. 2d at
83. However, actions against State officials or
agents in their individual capacities are not
without limits. 'State officers and employees, in
their official capacities and individually, also are
absolutely immune from suit when the action is, in
effect, one against the State.' Phillips, 555 So.
2d at 83. In addition, as discussed in further
detail below, a State official or agent may be
entitled to State-agent immunity pursuant to Ex
parte Cranman, 792 So. 2d 392 (Ala. 2000), as to
actions asserted against him or her in his or her
individual capacity.
14
1120641
"Accordingly,
based
on
the
foregoing
considerations, this Court today restates the sixth
'exception' to the bar of State immunity under § 14
as follows:
"'(6)(a) actions for injunction brought
against
State
officials
in
their
representative
capacity
where
it
is
alleged
that they had acted fraudulently, in bad
faith, beyond their authority, or in a
mistaken interpretation of law,
Wallace v.
Board of Education of Montgomery County,
280 Ala. 635, 197 So. 2d 428 (1967), and
(b) actions for damages brought against
State
officials
in
their
individual
capacity where it is alleged that they had
acted fraudulently, in bad faith, beyond
their
authority,
or
in
a
mistaken
interpretation of law, subject to the
limitation that the action not be, in
effect, one against the State. Phillips v.
Thomas, 555 So. 2d 81, 83 (Ala. 1989).'"
Ex parte Moulton, 116 So. 3d at 1140-41.
Discussion
Chief Aull argues that the trial court erred when it
denied his motion to dismiss counts one and three of the
complaint against him on the ground of State immunity.
A. Count One -- Injunctive Relief
Chief Aull contends that the trial court erroneously
denied his motion to dismiss count one against him, which
sought injunctive relief. Specifically, he asserts that the
Collars' request for injunctive relief did not fall within any
15
1120641
of the "exceptions" to § 14 immunity because, he says, it was,
in effect, an impermissible claim for monetary
damages
against
the State. Count one asserts:
"28. Police departments on university campuses
throughout the State of Alabama require their police
officers to attend an approved police academy and
receive, at least, minimum standards training from
an accredited peace officer training facility.
After completion of an accredited police academy,
the individual police departments are required to
provide follow-up and continued training to its
officers.
"....
"30. The
University
of
South
Alabama
is
required
by law to take all meaningful measures to ensure
that its police officers have adequate training,
including how to effectuate a lawful arrest or to
restrain a person.
"31. The University of South Alabama is also
required by law to provide adequate equipment to its
police officers to ensure that they can perform
their jobs in a manner to effectuate lawful arrests.
"32. Chief Aull, in his capacity as the chief of
police of the University of South Alabama Police
Department, is required to ensure that the campus
police officers are adequately trained and equipped
to carry out their duties as police officers.
"33. The University of South Alabama and Chief
Aull failed to provide adequate training to Officer
Austin and also failed to provide him with a
[T]aser.
"34. Pursuant to well-established Alabama law,
it is essential that police officers employed by the
16
1120641
University
of
South
Alabama
receive
adequate
training and are provided appropriate equipment in
order to ensure that students and other persons are
not seriously injured or killed by police officers
employed by the University of South Alabama.
"35. Injunctive relief is needed so that no
others will be shot or killed on the campus of the
University of South Alabama by officers using
excessive force. Immediate and irreparable injury
will occur without injunctive relief. The failure of
the Court to issue injunctive relief could result in
imminent and irreparable injury and harm to others.
The benefit to the public greatly exceeds the burden
to the State by issuance of the sought-after relief.
"WHEREFORE, [the Collars] request that this
Court enter an Order for injunctive relief as
follows:
"A. Requiring all police officers at the
University of South Alabama to receive additional
training on the means and methods to adequately
control subjects utilizing the least restrictive and
harmful means; and
"B. Requiring the University of South Alabama
and Chief Aull to provide all necessary equipment,
including [T]asers, to the police officers at the
University and to provide concomitant training on
the safe and appropriate use of [T]asers.
"C. Granting such other relief as may be
necessary and appropriate."
Before we reach Chief Aull's claim that he is entitled to
dismissal of count one on the ground of State immunity, we
must first determine whether the Collars have standing to
pursue their claim for injunctive relief against Chief Aull.
17
1120641
"'"Standing
represents
a
jurisdictional requirement which remains
open to review at all stages of the
litigation." National Org. for Women, Inc.
v. Scheidler, 510 U.S. 249, 255, 114 S. Ct.
798, 127 L. Ed. 2d 99 (1994). "'[L]ack of
standing [is] a jurisdictional defect.'"
State v. Property at 2018 Rainbow Drive,
740 So. 2d 1025, 1028 (Ala. 1999) (quoting
Tyler House Apartments, Ltd. v. United
States, 38 Fed. Cl. 1, 7 (Fed. Cl. 1997)).
"[J]urisdictional matters are of such
magnitude that we take notice of them at
any time and do so even ex mero motu."
Nunn v. Baker, 518 So. 2d 711, 712 (Ala.
1987).'
"Ex parte Fort James Operating Co., 871 So. 2d 51,
54 (Ala. 2003)."
Miller v. Riley, 37 So. 3d 768, 772 (Ala. 2009).
In Ex parte Alabama Educational Television Commission,
[Ms. 1111494, Sept. 27, 2013] ___ So. 3d ___ (Ala. 2013), this
Court addressed whether Allan Pizzato, the former executive
director of Alabama Public Television ("APT"), and Pauline
Howland, the former deputy director and chief financial
officer of APT, had standing to pursue claims against APT for
violations of the Open Meetings Act, § 36-25A-1 et seq., Ala.
Code 1975. The facts in that case indicated that, at the
quarterly meeting of the Alabama Educational Television
Commission ("the Commission"), held on June 12, 2012, the
18
1120641
Commission voted to go into executive session to discuss
Pizzato's character
and
job performance. After the Commission
returned to its regular
meeting,
both Pizzato's employment and
Howland's employment were terminated. On July 11, 2012,
Pizzato
requested material from the Commission pursuant to
the
Open Records Act, § 36-12-40 et seq., Ala. Code 1975.
Subsequently,
Pizzato
sued
the
Commission
and
its
commissioners, alleging violations of the Open Meetings Act
and the Open Records Act. The Commission and the
commissioners moved to dismiss Pizzato's claims against them.
They argued, among other things, that Pizzato did not have
standing to bring a claim under the Open Meetings Act. The
trial court denied the motion to dismiss to the extent Pizzato
sought the civil fines provided for in the Open Meetings Act
and to the extent
Pizzato
sought declaratory and/or injunctive
relief against the Commission and against
the
commissioners in
their official capacities. Pizzato later filed a second
amended complaint in which he added Howland as a plaintiff.
Subsequently, the Commission moved the trial court to certify
three controlling questions of law for
an
immediate permissive
appeal. One of those questions was "whether § 36-25A-9(a),
19
1120641
Ala. Code 1975, gave Pizzato and Howard standing to bring
their claims." ___ So. 3d at ___. The trial court denied the
motion for a permissive appeal, and the Commission and the
commissioners petitioned for a writ of mandamus. In the main
opinion, this Court addressed the standing issue as follows:
"The Commission and the Commissioners argue that
although § 36-25A-9(a) allows for enforcement by
'any Alabama citizen,' a plaintiff must still
satisfy the three requirements for standing set
forth in Lujan v. Defenders of Wildlife, 504 U.S.
555 (1992).
"In Lujan, the United States Supreme Court
stated:
"'Over the years, our cases have
established
that
the
irreducible
constitutional
minimum
of
standing
contains
three elements. First, the plaintiff must
have suffered an "injury in fact" -– an
invasion of a legally protected interest
which is (a) concrete and particularized,
and
(b)
"actual
or
imminent,
not
'conjectural' or 'hypothetical.'" Second,
there must be a causal connection between
the injury and the conduct complained of --
the
injury
has
to
be
"fairly
...
trace[able] to the challenged action of the
defendant, and not ... th[e] result [of]
the independent action of some third party
not before the court." Simon v. Eastern Ky.
Welfare Rights Organization, 426 U.S. 26,
41-42, 96 S. Ct. 1917, 1926, 48 L. Ed. 2d
450 (1976). Third, it must be "likely," as
opposed to merely "speculative," that the
injury will be "redressed by a favorable
decision."'
20
1120641
"504 U.S. at 560-61 (citations omitted).
"This Court has adopted the Lujan test as the
means of determining standing in Alabama. See Ex
parte King, 50 So. 3d 1056, 1059 (Ala. 2010)
('Traditionally,
Alabama
courts
have
focused
primarily on the injury claimed by the aggrieved
party to determine whether that party has standing;
however, in 2003 this Court adopted the following,
more precise, rule regarding standing based upon the
test used by the Supreme Court of the United States:
"A party establishes standing to bring a ...
challenge ... when it demonstrates the existence of
(1) an actual, concrete and particularized 'injury
in fact' –- 'an invasion of a legally protected
interest'; (2) a 'causal connection between the
injury and the conduct complained of'; and (3) a
likelihood that the injury will be 'redressed by a
favorable decision.'"' (quoting Alabama Alcoholic
Beverage Control Bd. v. Henri–Duval Winery, L.L.C.,
890 So. 2d 70, 74 (Ala. 2003), quoting in turn
Lujan, 504 U.S. at 560–61)). See also Muhammad v.
Ford, 986 So. 2d 1158, 1162 (Ala. 2007) (stating
that, '[i]n [Henri-Duval], this Court adopted a more
precise rule regarding standing articulated by the
United States Supreme Court' in Lujan); Town of
Cedar Bluff v. Citizens Caring for Children, 904 So.
2d 1253, 1256 (Ala. 2004) (stating that the Court in
Henri-Duval had 'effectively restated' the standard
for standing, using the three-pronged test from
Lujan).
"Applying the Lujan test here, we conclude that
Pizzato and Howland do not have standing to bring
this action because they have failed to demonstrate
'a likelihood that [their alleged] injury will be
"redressed by a favorable decision."' Henri-Duval,
supra. Pizzato and Howland argue that they were
injured by the Commission's termination of their
employment and that that 'termination was the direct
result
and
consequence
of
the
Commissioners'
21
1120641
violation of the Open Meetings Act.' Pizzato and
Howland's brief, at 21. They also argue:
"'Pizzato amended his complaint to seek the
relief mandated by statute and by the
Circuit Court. Pizzato is both a citizen
and the former Executive Director of APT,
and his termination resulted directly from
a violation of the Open Meetings Act. As
such, he has every right to demand the
civil fines specified in Ala. Code § 36-
25A-9(g) in addition to whatever other
relief
the
Circuit
Court
deems
appropriate.'
"Pizzato and Howland's brief, at 23.
"In Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167,
186 (2000), the Supreme Court held that civil
penalties can serve as redress for standing purposes
'[t]o the extent that they encourage defendants to
discontinue current violations and deter them from
committing future ones.' The Supreme Court
distinguished Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 106 (1998), stating:
"'Steel
Co.
established
that
citizen
suitors lack standing to seek civil
penalties for violations that have abated
by the time of suit. We specifically
noted in that case that there was no
allegation
in
the
complaint
of
any
continuing or imminent violation, and that
no basis for such an allegation appeared to
exist.'
"Friends of the Earth, 528 U.S. at 187 (citation
omitted).
"Here, the only specific relief Pizzato and
Howland requested was the civil fines provided for
22
1120641
in § 36-25A-9(g). Like the injury in Steel Co.,
however, the alleged injury here was caused by an
alleged one-time violation of the Open Meetings Act
that was wholly past when Pizzato and Howland's
action was filed. Pizzato and Howland have not
alleged any 'continuing or imminent violation,' nor
does any 'basis for such an allegation appear to
exist.' Friends of the Earth, 528 U.S. at 187.
Thus, as in Steel Co., Pizzato and Howland's request
for civil fines 'seeks not remediation of [their]
injury ... but vindication of the rule of law.'
Steel Co., 523 U.S. at 106. In fact, Pizzato and
Howland argue:
"'To argue as [the Commission and the
Commissioners]
have
argued
that
Pizzato
has
suffered no redressable injury is to argue
that there is no public policy interest or
value to an injured party in seeing
wrongdoers held accountable for failing to
follow the law. Hearing such an argument
advanced by [the Commission and the
Commissioners] is offensive to those who
believe their government can –- and should
-– do better. This callous and nonchalant
attitude towards a clear violation of the
law is indicative of the very reason this
action must be maintained. Even if such a
judgment will not make Pizzato whole, the
value of enforcing the law cannot be viewed
through the narrow lens of costs and
benefits to those wronged by the violation.
The significance and value of requiring
Commissioners to comply with the Open
Meetings Act includes the significance and
value to Pizzato, but encompasses the
general public as well. The fact that such
value evades easy quantification by [the
Commission and the Commissioners] does not
diminish its importance.'
23
1120641
"Pizzato and Howland's brief, at 23-24. Fines
sought for such purposes do not satisfy the
redressability prong of the Lujan test. See Steel
Co., 523 U.S. at 107 ('Relief that does not remedy
the injury suffered cannot bootstrap a plaintiff
into federal court; that is the very essence of the
redressability requirement.'). Thus, Pizzato and
Howland have failed to establish standing under the
Lujan test for their claims against the Commission
and the Commissioners."
(Footnotes omitted.)
In the present case, count one of the complaint alleged
that the relief requested "is needed so that no others will be
shot or killed on the campus of the University of South
Alabama by officers using excessive force. ... The failure of
the Court to issue injunctive relief could result in imminent
and irreparable injury and harm to others." (Emphasis added.)
We empathize with the Collars' desire to prevent future injury
and future harm to others under similar circumstances.
However, the fact remains that, as was the case in Ex parte
Alabama Educational Television Commission, the Collars cannot
satisfy
the
redressability
requirement
of
the
test
established
in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), as to
their claim for injunctive relief. Providing additional
training and "Tasers" to the University's law-enforcement
officers will not remedy the injury suffered by the Collars in
24
1120641
this case. Therefore, the Collars have not established that,
under Lujan, they have standing to pursue their claims against
Chief Aull for injunctive relief. Thus, Chief Aull is
entitled to the dismissal of count one of the complaint.
B. Count Three -- Negligence Claim
Chief Aull argues that, under § 14, he is immune from
suit as to the Collars' claim seeking money damages against
him in his official capacity. In count three, the Collars
2
In their opposition to the motion to dismiss and in their
2
brief to this Court, the Collars state generally that they are
suing Chief Aull in both his official and his individual
capacities. They also assert that Chief Aull is not entitled
to State-agent immunity as to the individual-capacity claims
against him because, they say, he acted beyond his authority
and failed to discharge his duties pursuant to specific rules
and regulations. However, the Collars did not indicate
anywhere in the complaint that they were suing Chief Aull in
his individual capacity or that they were attempting to
recover money damages from Chief Aull's personal assets.
"A claim against an employee in his or her
individual capacity, however, does not seek to
recover damages from the governmental entity. See
Gamble v. Florida Dep't of Health & Rehabilitative
Servs., 779 F.2d 1509, 1513 (11th Cir. 1986)
('Whether a state officer is being sued for damages
in an official or an individual capacity is not mere
semantics; the question is whether the plaintiff is
reasonably seeking relief from the state coffers or
from the individual's assets.' (quoted in Ex parte
Troy Univ., 961 So. 2d 105, 110 (Ala. 2006)))."
Suttles v. Roy, 75 So. 3d 90, 98 (Ala. 2010). Additionally,
in count four of their complaint, which alleged claims against
25
1120641
alleged that the University, Chief Aull, and fictitiously
named parties A-L had breached their duties to the general
public:
"a. By failing to provide adequate training to
Officer Austin and its other police officers,
namely, training that he, as a sworn officer, is not
to use force greater than that necessary to
effectuate an arrest and/or to use the least
damaging or deadly means of force as the situation
presents;
Officer Austin, the Collars specifically allege: "Officer
Austin acted beyond his authority as a sworn police officer by
failing to discharge his duties, pursuant to the specific and
detailed rules and regulations, including the policies and
procedures of his own department and the policies and
procedures established by State law." However, the complaint
did not include any such allegations against Chief Aull.
Further, the only reference to Chief Aull's capacity is
included in count one, which alleged:
"Chief Aull, in his capacity as the chief of police
of
the
University
of
South
Alabama
Police
Department, is required to ensure that [officers]
can perform their jobs in a manner to effectuate
lawful arrests."
Thus, the complaint does not state a claim against Chief Aull
in his individual capacity. Cf. Ex parte Troy Univ., 961 So.
2d 105, 110 (Ala. 2006) (holding that "the nature of the
claims" against one of the defendants and "the course of the
proceedings" showed that the plaintiffs in that case were
proceeding against that defendant in her official capacity).
Accordingly, we pretermit any discussion regarding whether
Chief Aull, in his individual capacity, would be entitled to
State-agent immunity.
26
1120641
"b. By failing to provide adequate training to
Officer Austin and its other police officers to use
physical and verbal means to control a subject who
is under the influence of alcohol or drugs or who is
mentally unstable, or, only when appropriate, to use
his baton or pepper spray to control a situation,
such as the one at issue in this case;
"c. By failing to provide adequate training to
Officer Austin and its other police officers to call
for and wait for assistance from other officers,
employees of the University or citizens in order to
effectuate an arrest without the use of deadly
force; and
"d. By failing to provide Officer Austin and its
other officers with [T]asers and with adequate
training in the use and implementation of [T]asers
to assist with arresting subjects who are under the
influence of drugs or alcohol or who are mentally
unstable."
Count three further alleges that the University, Chief Aull,
and the fictitiously named parties had "negligently acted or
negligently failed to act, thereby creating circumstances
which proximately caused the death of Gilbert Collar" and
sought damages from the University, Chief Aull, and the
fictitiously named parties.
As this Court stated in Ex parte Moulton: "[I]t is well
established that actions for damages against State agents in
their official or representative capacities are considered
actions to recover money from the State and are barred by
27
1120641
State immunity under § 14." 116 So. 3d at 1140. Therefore,
Chief Aull is entitled to State immunity as to the Collars'
claims seeking monetary damages against him in his official
capacity, and there is no possibility that the Collars might
possibly prevail on such a claim. Thus, Chief Aull is
entitled to the dismissal of the negligence claim asserted in
count three. See Ex parte Burnell, 90 So. 3d 708 (Ala. 2012)
(holding that the defendant had established a clear legal
right to the dismissal of the complaint against him because
the claims in the complaint were barred by the doctrine of
State immunity and because the defendant was acting in the
line and scope of his duties as a deputy sheriff at the time
the plaintiff was injured); Ex parte Murphy, supra (holding
that the director of the Alabama Department of Public Safety
had a clear legal right to the dismissal of the plaintiffs'
claims seeking monetary damages against him in his official
capacity because the claims were barred by the doctrine of
State immunity).
Conclusion
Chief Aull has a clear legal right to the dismissal of
counts one and three of the complaint against him. Therefore,
28
1120641
we grant Chief Aull's petition for a writ of mandamus, and we
direct the trial court to vacate its order denying Chief
Aull's motion to dismiss and to grant Chief Aull's motion to
dismiss counts one and three of the complaint against him.
PETITION GRANTED; WRIT ISSUED.
Murdock and Bryan, JJ., concur.
Main, J., concurs in part and concurs in the result.
Bolin, J., concurs in the result.
Parker, J., concurs in the result in part and dissents in
part.
Moore, C.J., dissents.
Stuart, J., recuses herself.
29
1120641
MAIN, Justice (concurring in part and concurring in the
result).
As to Part B of the "Discussion" section of the main
opinion, which addresses count three of the complaint, the
negligence claim, I concur. However, as to Part A, which
addresses count one, the claim seeking injunctive relief, I
concur only in the result because I dissented in Ex parte
Alabama Educational Television Commission,[Ms. 1111494, Sept.
27, 2013] ___ So. 3d ____ (Ala. 2013), a case heavily relied
upon by the main opinion.
30
1120641
PARKER, Justice (concurring in the result in part and
dissenting in part).
I concur only in the result as to that part of the main
opinion addressing count one -- the claim for injunctive
relief -- and ordering the dismissal of that claim because I
dissented
in
Ex parte Alabama
Educational
Television
Commission, [Ms. 1111494, Sept. 27, 2013] ___ So. 3d ___ (Ala.
2013), a case on which the main opinion relies. I dissent
from that part of the main opinion addressing count three --
the negligence claim.
31 | February 14, 2014 |
983f97a5-9d1d-48b5-a885-4ab5e14de304 | Brantley v. Bassett | N/A | 1120965 | Alabama | Alabama Supreme Court | Rel: 3/14/14
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120965
____________________
Ex parte Clay Merches
PETITION FOR WRIT OF MANDAMUS
(In re: Cora Brantley et al.
v.
Dwight Bassett et al.)
(Hale Circuit Court, CV-11-0028)
BRYAN, Justice.
Clay Merches petitions this Court for a writ of mandamus
directing the trial court to dismiss, for lack of personal
1120965
jurisdiction, the claims against him. We grant the petition
and issue the writ.
Procedural History and Factual Background
In September 2011, Cora Brantley, Emanuel Brantley, and
Sharon Brantley (collectively "the plaintiffs") sued Builders
Transportation Company, LLC ("Builders Transportation"), and
Dwight Bassett, an employee of Builders Transportation,
in
the
Hale Circuit Court. The case concerns a missing flatbed
1
trailer
owned
by
Builders
Transportation,
a
Tennessee
company.
The plaintiffs are Alabama residents. The complaint alleged
that the parties had entered into a contract in which Builders
Transportation and Bassett had agreed to pay the plaintiffs
$10,000 in return for information about the location of the
missing trailer. The plaintiffs further alleged
that Builders
Transportation and Bassett had breached that contract by
failing to pay the plaintiffs $10,000 for the information
given about the trailer, which was located in a field in Hale
County. Instead of receiving $10,000, the plaintiffs were
arrested in Hale County and charged with receiving stolen
Although the complaint named "Builder Transportation
1
Company, LLC," as a defendant, the actual name of that company
is "Builders Transportation Company, LLC."
2
1120965
property and conspiracy to commit theft of property. Those
charges were later dismissed. Regarding the dismissed
charges, the complaint also alleged claims of malicious
prosecution and abuse of process.
In July 2012, the plaintiffs amended their complaint to
add Merches, an employee of Builders Transportation, as a
defendant. The claims and factual allegations made against
Merches in the amended complaint are the same as those made
against Builders Transportation and Bassett. Merches filed a
Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss the claims
against him for lack of personal jurisdiction. In his motion
to dismiss, Merches argued that he lacked the required minimum
contacts with Alabama sufficient to give the trial court
personal jurisdiction over him. In support of his motion,
Merches attached his own affidavit, in which he stated, in
pertinent part:
"2.
On October 20, 2009, I was an employee for
Builders Transportation ... and was a resident of
Memphis, Tennessee at that time.
"3.
On the same day, Plaintiffs placed a
telephone call to Builders Transportation which I
answered. The telephone call was regarding the
whereabouts of a trailer belonging to Builders
Transportation. Specifically, Plaintiffs stated
that they had knowledge of the location of the
3
1120965
trailer and if the company would pay $10,000.00 they
would agree to divulge the location of the trailer.
"4.
After the telephone conversation ended, I
called one of my supervisors, Dwight Bassett, and
relayed the information to him. I also spoke with
officers of the Tuscaloosa Police Department and
Deputy Sheriff Robert Clayton of the Hale County
Sheriffs Office regarding the situation. After
speaking with Mr. Bassett, the police, and Deputy
Clayton, I again spoke with Plaintiffs regarding the
subject trailer. All of the mentioned telephone
conversations
were
conducted
from
Memphis,
Tennessee.
"5.
During my two telephone conversations with
[the] Plaintiff[s], I never knowingly or willingly
entered into a valid contract with regard to the
recovery of the subject trailer.
"6.
I have never lived or worked in the state
of Alabama and I never initiated any communication
with Plaintiffs prior to the subject telephone
conversation. The only connection I have with this
case or the state of Alabama is answering the
subject telephone call and discussing the situation
via telephone with the Tuscaloosa Police Department,
Deputy Robert Clayton of the Hale County Sheriff's
Office,
and
a
subsequent
telephone
call
to
Plaintiffs.
"7.
Since October 20, 2009, I have obtained new
employment
and
now
reside
in
the
state
of
Minnesota."
The plaintiffs filed a response to the motion to dismiss,
arguing that the trial court has personal jurisdiction over
Merches. The plaintiffs attached to their response an
incident report, prepared
by
the Hale County Sheriff's Office,
4
1120965
documenting the recovery in Hale County of the trailer
belonging to Builders Transportation. According to the
incident report, the incident was reported by Bassett,
Merches's supervisor. The incident report lists Builders
Transportation as the "victim" and lists Cora Brantley and
Sharon Brantley, two of the plaintiffs in this case, as
"suspects." In pertinent part, the incident report contains
the following description regarding the recovery of the
trailer:
"Victim states that on 10-23-09 ... Merches
received a phone call from Cora Brantley asking if
there was a reward for the stolen trailer[.
Merches] said he would give her $1,000 if she would
tell him where the trailer was[, but] Cora told him
no. She said she would tell him [the location of
the trailer] if he gave her $10,000. [Merches]
agreed to give her the $10,000 so that Deputy Robert
Clayton could catch Cora. [Later that day,] Sharon
Brantley met Deputy Clayton at the Sawyerville
Convenience Store. [Builders Transportation] sent a
... driver down[. The driver] followed Sharon, and
Deputy Clayton followed the ... driver to an
abandoned field where the trailer was found[, but]
a quarter of the load was missing. Cora Brantley
showed up shortly after Sharon told her she was
going to be arrested. Both Sharon and Cora Brantley
where then placed under arrest and taken to the Hale
County Jail."
On April 9, 2013, the trial court denied Merches's motion
to dismiss. Merches subsequently filed another motion, again
5
1120965
asking the trial court to dismiss the claims against him for
lack of personal jurisdiction. Although Merches called that
motion a Rule 59, Ala. R. Civ. P., motion to alter, amend, or
vacate the denial of his Rule 12(b)(2) motion, a Rule 59
motion may be made only in reference to a final judgment. See
Ex parte Troutman Sanders, LLP, 866 So. 2d 547, 549-50 (Ala.
2003). Because the denial of the Rule 12(b)(2) motion was not
a final judgment, Merches's purported Rule 59 motion in
reference to that denial was simply a second motion seeking
dismissal. The trial court denied the second motion seeking
dismissal also. On May 21, 2013, Merches filed a petition for
a writ of mandamus to this court.
Standard of Review
A petition for a writ of mandamus is the proper vehicle
by which to challenge the denial of a motion to dismiss for
lack of personal jurisdiction. Ex parte Dill, Dill, Carr,
Stonbraker & Hutchings, P.C., 866 So. 2d 519, 525 (Ala. 2003).
"An appellate court considers de novo a trial court's judgment
on a party's motion to dismiss for lack of personal
jurisdiction." Elliott v. Van Kleef, 830 So. 2d 726, 729
(Ala. 2002). However, "an appellate court must give
6
1120965
deferential consideration to any findings of fact made by a
trial court based on evidence received ore tenus in connection
with a determination as to the nature and extent of a foreign
defendant's contacts with the forum state." Ex parte American
Timber & Steel Co., 102 So. 3d 347, 353 n.7 (Ala. 2011).
"A writ of mandamus is an extraordinary remedy,
and it will be 'issued only when 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 United
Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.
1993)."
Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894
(Ala. 1998).
Discussion
The extent of an Alabama court's personal jurisdiction
over an out-of-state defendant is governed by Rule 4.2(b),
Ala. R. Civ. P. Rule 4.2(b), as amended in 2004, provides:
"(b)
Basis
for
Out-of-State
Service.
An
appropriate basis exists for service of process
outside of this state upon a person or entity in any
action in this state when the person or entity has
such contacts with this state that the prosecution
of the action against the person or entity in this
state is not inconsistent with the constitution of
this state or the Constitution of the United States
...."
7
1120965
In Hiller Investments, Inc. v. Insultech Group, Inc., 957 So.
2d 1111, 1115 (Ala. 2006), this Court explained:
"[Rule 4.2(b)] extends the personal jurisdiction of
Alabama courts to the limit of due process under the
United States and Alabama Constitutions. When
applying Rule 4.2(b), this Court has interpreted the
due
process
guaranteed
under
the
Alabama
Constitution as coextensive with that guaranteed
under the United States Constitution."
"The plaintiff has the burden of proving that the trial
court has personal jurisdiction over the defendant." J.C.
Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So. 2d 194,
196 (Ala. 2008).
"'"'In considering a Rule
12(b)(2), Ala. R. Civ. P., motion
to dismiss for want of personal
jurisdiction,
a
court
must
consider as true the allegations
of the plaintiff's complaint not
controverted by the defendant's
affidavits, Robinson v. Giarmarco
& Bill, P.C., 74 F.3d 253 (11th
Cir.
1996),
and
Cable/Home
Communication Corp. v. Network
Productions, Inc., 902 F.2d 829
(11th Cir. 1990), and "where the
plaintiff's complaint and the
defendant's affidavits conflict,
the ... court must construe all
reasonable inferences in favor of
the plaintiff." Robinson, 74
F.3d at 255 (quoting Madara v.
Hall, 916 F.2d 1510, 1514 (11th
Cir. 1990)).'"
8
1120965
"'Wenger Tree Serv. v. Royal Truck &
Equip., Inc., 853 So. 2d 888, 894 (Ala.
2002) (quoting Ex parte McInnis, 820 So. 2d
795, 798 (Ala. 2001)). However, if the
defendant makes a prima facie evidentiary
showing that the Court has no personal
jurisdiction,
"the
plaintiff
is
then
required
to
substantiate
the
jurisdictional
allegations in the complaint by affidavits
or other competent proof, and he may not
merely
reiterate
the
factual
allegations
in
the complaint." Mercantile Capital, LP v.
Federal Transtel, Inc., 193 F. Supp. 2d
1243, 1247 (N.D. Ala. 2002)(citing Future
Tech. Today, Inc. v. OSF Healthcare Sys.,
218 F.3d 1247, 1249 (11th Cir. 2000)). See
also Hansen v. Neumueller GmbH, 163 F.R.D.
471,
474-75
(D.
Del.
1995)("When
a
defendant files a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(2), and
supports that motion with affidavits,
plaintiff is required to controvert those
affidavits with his own affidavits or other
competent evidence in order to survive the
motion.") (citing Time Share Vacation Club
v. Atlantic Resorts, Ltd., 735 F.2d 61, 63
(3d Cir. 1984)).'
"Ex parte Covington Pike Dodge, Inc., 904 So. 2d
226, 229-30 (Ala. 2004)."
Ex parte Bufkin, 936 So. 2d 1042, 1045 (Ala. 2006).
"'Two types of contacts can form a
basis for personal jurisdiction: general
contacts and specific contacts. General
contacts, which give rise to general
personal jurisdiction, consist of the
defendant's contacts with the forum state
that are unrelated to the cause of action
and
that
are
both
"continuous
and
systematic." Helicopteros Nacionales de
9
1120965
Colombia, S.A. v. Hall, 466 U.S. 408, 414
n. 9, 415, 104 S. Ct. 1868, 80 L. Ed. 2d
404 (1984); [citations omitted]. Specific
contacts, which give rise to specific
jurisdiction, consist of the defendant's
contacts with the forum state that are
related to the cause of action. Burger
King Corp. v. Rudzewicz, 471 U.S. 462,
472–75, 105 S. Ct. 2174, 85 L. Ed. 2d 528
(1985). Although the related contacts need
not be continuous and systematic, they must
rise to such a level as to cause the
defendant to anticipate being haled into
court in the forum state. Id.'
"Ex parte Phase III Constr., Inc., 723 So. 2d 1263,
1266 (Ala. 1998) (Lyons, J., concurring in the
result). Furthermore, this Court has held that, for
specific in personam jurisdiction, there must exist
'a clear, firm nexus between the acts of the
defendant and the consequences complained of.' Duke
v. Young, 496 So. 2d 37, 39 (Ala. 1986). See also
Ex parte Kamilewicz, 700 So. 2d 340, 345 n. 2 (Ala.
1997)."
Elliott, 830 So. 2d at 730.
In this case, the plaintiffs concede that the trial court
does not have general personal jurisdiction over Merches. The
issue is whether Merches has sufficient minimum contacts with
Alabama to allow the trial court to exercise specific personal
jurisdiction over him. Regarding specific jurisdiction, the
United States Supreme Court has explained:
"[T]he constitutional touchstone remains whether the
defendant
purposefully
established
'minimum
contacts' in the forum State. Although it has been
10
1120965
argued that foreseeability of causing injury in
another State should be sufficient to establish such
contacts
there
when
policy
considerations
so
require, the Court has consistently held that this
kind of foreseeability is not a 'sufficient
benchmark' for exercising personal jurisdiction.
Instead, 'the foreseeability that is critical to due
process analysis ... is that the defendant's conduct
and connection with the forum State are such that he
should reasonably anticipate being haled into court
there.' In defining when it is that a potential
defendant
should
'reasonably
anticipate'
out-of-state litigation, the Court frequently has
drawn from the reasoning of Hanson v. Denckla, 357
U.S. 235, 253 (1958):
"'The unilateral activity of those who
claim some relationship with a nonresident
defendant
cannot
satisfy
the
requirement
of
contact with the forum State. The
application of that rule will vary with the
quality and nature of the defendant's
activity, but it is essential in each case
that there be some act by which the
defendant
purposefully
avails
itself
of
the
privilege of conducting activities within
the forum State, thus invoking the benefits
and protections of its laws.'
"This
'purposeful
availment'
requirement
ensures
that a defendant will not be haled into a
jurisdiction solely as a result of 'random,'
'fortuitous,' or 'attenuated' contacts, or of the
'unilateral activity of another party or a third
person.' Jurisdiction is proper, however, where the
contacts proximately result from actions by the
defendant
himself
that
create
a
'substantial
connection' with the forum State. Thus where the
defendant 'deliberately' has engaged in significant
activities
within
a
State,
or
has
created
'continuing
obligations'
between
himself
and
residents of the forum, he manifestly has availed
11
1120965
himself of the privilege of conducting business
there, and because his activities are shielded by
'the benefits and protections' of the forum's laws
it is presumptively not unreasonable to require him
to submit to the burdens of litigation in that forum
as well.
"....
"Once it has been decided that a defendant
purposefully established minimum contacts within the
forum State, these contacts may be considered in
light of other factors to determine whether the
assertion of personal jurisdiction would comport
with 'fair play and substantial justice.' Thus
courts in 'appropriate case[s]' may evaluate 'the
burden on the defendant,' 'the forum State's
interest
in
adjudicating
the
dispute,'
'the
plaintiff's interest in obtaining convenient and
effective relief,' 'the interstate judicial system's
interest in obtaining the most efficient resolution
of controversies,' and the 'shared interest of the
several States in furthering fundamental substantive
social policies.'"
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-77 (1985)
(citations and footnotes omitted).
This Court has summarized the test for minimum contacts
explained in Burger King as follows:
"(1) The nonresident defendant's contacts must be
related to the plaintiff's cause of action or have
given rise to it. (2) By its contacts the
nonresident defendant must have purposefully availed
itself of the privilege of conducting business in
the forum state. (3) The nonresident defendant's
contacts with the forum must be 'such that the
nonresident
defendant
"'should
reasonably
anticipate
being haled into court'" in the forum state.'"
12
1120965
Ex parte Alamo Title Co., 128 So. 3d 700, 711 (Ala. 2013)
(quoting Ex parte Excelsior Fin., Inc., 42 So. 3d 96, 101
(Ala. 2010), quoting in turn Burger King, 471 U.S. at 473)
(citations and footnote omitted). "The issue of personal
jurisdiction '"stands or falls on the unique facts of [each]
case."'" Ex parte Citizens Prop. Ins. Corp., 15 So. 3d 511,
515 (Ala. 2009) (quoting Ex parte I.M.C., Inc., 485 So. 2d
724, 725 (Ala. 1986)).
The evidence in this case indicates that Merches's
contacts with Alabama were limited. According to his
affidavit, Merches, while working for Builders Transportation
in Tennessee, answered a telephone call placed to Builders
Transportation by "the plaintiffs," who are residents of
Alabama. The incident report notes that Merches actually
spoke
with
plaintiff Cora Brantley during that telephone call.
Cora told Merches that she had information about the location
of Builders Transportation's missing flatbed trailer and that
she would reveal that information if Builders Transportation
would pay her $10,000. After that first conversation ended,
Merches contacted his supervisor Bassett, and Merches also
contacted law-enforcement authorities in Alabama. Merches
13
1120965
then telephoned Cora and, according to the incident report,
"agreed to give her the $10,000 so that Deputy Robert Clayton
could catch Cora." Sharon Brantley subsequently led Deputy
Sheriff Clayton and a driver for Builders Transportation to
the trailer in Alabama.
It is undisputed that Merches's contacts with Alabama
relate to the cause of action. However, considering "'the
quality and nature of [Merches's] activity,'" Burger
King,
471
U.S. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958)), we cannot say that Merches purposefully availed
himself of the privilege of conducting activities in Alabama
or that he could have reasonably anticipated being haled into
court in Alabama. For one thing, Merches did not initiate
contact with the plaintiffs in Alabama. Given the limited
contacts in this case, the fact that Merches did not initiate
contact
with Alabama is particularly significant. See
Hiller,
957 So. 2d at 1118-19 (finding the first-contact factor to be
"highly significant" in evaluating whether minimum contacts
exist); and Ex parte Troncalli Chrysler Plymouth Dodge, Inc.,
876 So. 2d 459, 465 (Ala. 2003) ("Of particular relevance is
14
1120965
whether the plaintiff initiated the sale or contact."), and
cases cited therein.
More importantly, Merches's contacts with Alabama were
"'random,' 'fortuitous,' [i.e., occurring by chance, and]
'attenuated.'" Burger King, 471 U.S. at 475. Through no
action by Merches, the missing trailer owned by his employer
happened to turn up in an abandoned field in Alabama. Through
no action by Merches, the plaintiffs obtained information
about the location of the trailer in Alabama; Merches happened
to answer the telephone for his employer when Cora telephoned
his employer's Tennessee office seeking to trade that
information for $10,000. Although Merches then contacted the
authorities in Alabama to discuss the situation, he did so
only because he had been drawn into the situation by the
plaintiffs in Alabama. The evidence indicates that Merches,
acting on his employer's behalf, "agreed" to pay Cora $10,000
only "so that Deputy ... Clayton could catch Cora."
Considering that fact, we may safely conclude that Merches's
so-called "agreement" with Cora was made pursuant to the
advice of the Hale County Sheriff's Office. These activities
do not demonstrate purposeful availment.
15
1120965
The evidence indicates that, after Merches's second
telephone conversation with Cora, his contacts with Alabama
ceased. He was not present when Cora and Sharon were arrested
in Alabama, nor was he ever present in Alabama. Although
Merches, through telephone calls made on behalf of his
employer, was involved in the recovery of his employer's
trailer, his involvement ended with the second
telephone call.
The incident report, completed after the recovery of the
trailer, indicates that Merches's supervisor, Bassett,
reported the incident and lists Merches's employer as the
victim. An examination of the "nature and quality" of
Merches's contacts with Alabama reveals that his initial
contact was random and uninitiated and that
subsequent
limited
contacts naturally stemmed from the initial contact. In
short,
Merches's
contacts
with
Alabama
were
random,
fortuitous, and attenuated, i.e., they were not "actions by
[Merches] himself that create[d] a 'substantial connection'
with [Alabama]." Burger King, 471 U.S. at 475 (emphasis
omitted).
Our conclusion is in accord with our recent decision in
Ex parte Alamo Title Co., supra, and the cases cited therein.
16
1120965
In Alamo, we concluded that Alamo, an escrow agent, lacked
minimum contacts with Alabama. This Court noted that "Alamo
had virtually no contact with Alabama other than telephone and
electronic-mail communications [with other parties] and the
wiring of funds from [a] Texas bank account to [an] Alabama
bank account in relation to the real-estate transaction"
underlying the action. 128 So. 3d at 712. We concluded that
there was no evidence that Alamo "'purposefully availed'
itself of the protection of the laws of Alabama or that it
should reasonably have expected to be haled into court here."
128 So. 3d at 712. The Court in Alamo then noted other
similar cases in which this Court has found a lack of minimum
contacts, including Ex parte No. 1 Steel Products, Inc., 76
So. 3d 805 (Ala. 2011) (finding a lack of personal
jurisdiction when a nonresident defendant entered into a one-
time contract for the purchase of goods from an Alabama
plaintiff), and Vista Land & Equipment, L.L.C. v. Computer
Programs & Systems, Inc., 953 So. 2d 1170, 1177 (Ala. 2006)
("[O]ur caselaw does not authorize the exercise of personal
jurisdiction over a nonresident defendant solely on the basis
of contracts it may have entered into with Alabama parties;
17
1120965
rather, such jurisdiction is authorized when there is an
ongoing contractual relationship supported by the additional
contacts that are incidental to such a relationship.").
We conclude that Merches lacked sufficient minimum
contacts with Alabama to support the trial court's exercise of
personal jurisdiction over him. Merches has a clear legal
right to have the plaintiffs' claims against him dismissed for
lack of personal jurisdiction. Accordingly, we grant
Merches's petition for a writ of mandamus and issue the writ
directing the trial court to vacate its order denying
Merches's motion to dismiss and to enter an order dismissing
the claims against Merches.
Our
holding pretermits discussion
of the other arguments made by Merches.
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, and Wise, JJ., concur.
Murdock and Shaw, JJ., concur in the result.
18
1120965
MURDOCK, Justice (concurring in the result).
The main opinion bases its holding, in part, on the
contacts at issue here being "random," "fortuitous," and
"attenuated." ___ So. 3d at ___ (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462 (1985)). Because I do not find the
contacts at issue here to be "random, fortuitous, and
attenuated," in the sense contemplated in Burger King and the
cases it cites as examples (e.g, World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 297 (1980) (involving an accident
that just happened to occur in Oklahoma resulting from alleged
defects in a car purchased by the plaintiffs in New York and
unilaterally driven by the plaintiffs into Oklahoma)), I
concur in the result reached by the main opinion, but not in
the entirety of its analysis. Granted, the flatbed trailer at
issue in this case did end up in Alabama through no fault of
Builders Transportation Company, LLC ("Builders"). Once it
did, however, and Builders received a telephone call from an
Alabama resident, Builders then voluntarily, knowingly, and
deliberately proceeded to enter into a contract (or what is
alleged to be a contract) with an Alabama resident for the
19
1120965
payment of money to be received in Alabama for actions to be
performed in Alabama.
In place of the alleged "randomness" of the contacts with
the State of Alabama, I would place emphasis on the fact that
the claims in this case are based on a contract between an
out-of-state entity and an Alabama resident and that the out-
of-state entity that is a party to that contract is not
Merches. Merches may have been the employee or agent of the
out-of-state corporation through which that corporation acted
to enter into the alleged contract, but he did so only on
behalf of that corporation. That corporation, Builders, may
or may not have sufficient contact with Alabama to be amenable
to suit here, but that is not the question before us. No
contacts exist between Merches individually and Alabama that
would subject him personally to the jurisdiction of our courts
as to the claims at issue here. See, e.g, Ex parte Kohlberg
Kravis Roberts & Co., L.P., 78 So. 3d 959, 974 (Ala. 2011),
distinguishing
between
contract-based
actions
and
certain
tort
actions and quoting with approval from Thames v. Gunter–Dunn,
Inc., 373 So.2d 640, 641–42 (Ala. 1979), quoting in turn Idaho
20
1120965
Potato Comm'n v. Washington Potato Comm'n, 410 F.Supp. 171,
181 (D. Idaho 1975), as follows:
"[U]nless there is evidence that the act by the
corporate officer was other than as an agent for the
corporation, then personal jurisdiction over the
corporate officer will not lie. Fashion Two Twenty,
Inc. v. Steinberg, 339 F. Supp. 836, 842 (E.D.N.Y.
1971)."
As to the claims of abuse of process and malicious
prosecution, I also see no actions by Merches other than as
agent for Builders, the owner of the stolen property.
21 | March 14, 2014 |
a740833d-4fd1-4c70-92a9-dcad8b7fc3ca | Kennamer v. Ford Motor Credit Company LLC | N/A | 1120689 | Alabama | Alabama Supreme Court | REL:02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120689
____________________
Paul Kennamer and Dorothy Kennamer
v.
Ford Motor Credit Company LLC and Ray Pearman Lincoln, Inc.
Appeal from Marshall Circuit Court
(CV-12-0172)
BOLIN, Justice.
Paul Kennamer and Dorothy Kennamer appeal an order
entered by the Marshall Circuit Court compelling them to
arbitrate their claims against Ford Motor Credit Company LLC
1120689
(hereinafter "Ford Credit") and Ray Pearman Lincoln, Inc.
(hereinafter "the dealership").
Facts and Procedural History
On November 7, 2009, the Kennamers purchased a used
automobile from the dealership. As part of their purchase, the
Kennamers entered into a retail-installment contract with the
dealership,
which
the
dealership
subsequently
assigned
to
Ford
Credit. The installment contract contained an arbitration
provision, which provided as follows:
"Arbitration
is
a
method
of
resolving
any
claim,
dispute, or controversy (collectively, a 'Claim')
without filing a lawsuit in court. Either you or
Creditor ('us' or 'we') (each, a 'Party') may choose
at any time, including after a lawsuit is filed, to
have any Claim related to this contract decided by
arbitration. Such Claims include but are not limited
to the following: 1) Claims in contract, tort,
regulatory or otherwise; 2) Claims regarding the
interpretation, scope or validity of this clause, or
arbitrability of any issue; 3) Claims between you
and us, your/our employees, agents, successors,
assigns, subsidiaries, or affiliates; 4) Claims
arising out of or relating to your application for
credit, this contract, or any resulting transaction
or relationship, including that with the dealer, or
any such relationship with third parties who do not
sign this contract.
"RIGHTS YOU AND WE AGREE TO GIVE UP
"If either you or we choose to arbitrate a
claim, then you and we agree to waive the following
rights:
2
1120689
"RIGHT TO A TRIAL, WHETHER BY JUDGE OR JURY
"RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE
OR A CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE
AGAINST US WHETHER IN COURT OR IN ARBITRATION
"BROAD RIGHTS TO DISCOVERY AS ARE AVAILABLE IN
A LAWSUIT
"RIGHT TO APPEAL THE DECISION OF AN ARBITRATOR
"OTHER RIGHTS THAT ARE AVAILABLE IN A LAWSUIT
"Either
Party
must
contact
one
of
the
associations listed below and the other Party to
start
arbitration.
The
applicable
rules
(the
'Rules') may be obtained from the association.
"American
Arbitration
Association
('AAA'),
at
1-800-778-7879,
or
www.adr.org;
"National
Arbitration
Forum,
at
1-800-
474-2371, or www.arb-forum.com
"If there is a conflict between the Rules and
this contract, this contract shall govern. This
contract is subject to the Federal Arbitration Act
(9 U.S.C. § 1 et seq.) and the Federal Rules of
Evidence. The arbitration decision shall be in
writing with a supporting opinion. We will pay your
total reasonable arbitration fees and expenses (not
including attorney fees, except where applicable law
otherwise provides) in excess of $ 125. We will pay
the whole filing fee if we demand arbitration first.
Any portion of this arbitration clause that is
unenforceable shall be severed, and the remaining
provisions shall be enforced."
(Capitalization in original.)
3
1120689
The Kennamers also entered into a separate arbitration
agreement with the dealership, which provided, in pertinent
part, as follows:
"Buyer/lessee acknowledges and agrees that the
vehicle buyer/lessee is purchasing or leasing from
dealer
has
traveled
in
interstate
commerce.
Buyer/lessee thus acknowledges that the vehicle and
other
aspects
of
sale,
lease,
or
financing
transaction are involved in, affect, or have a
direct impact upon, interstate commerce.
"Buyer/lessee agree that all claims, demands,
disputes, or controversies of every kind or nature
between them arising from, concerning or relating to
any of the negotiations involved in the sale, lease,
or financing, of the vehicle, the terms and
provisions of the sale, lease, or financing
agreements, the arrangements for financing, purchase
of insurance, extended warranties, service contracts
or other products purchased as an incident to the
sale, lease, or financing of the vehicle, the
performance or condition of the vehicle, or any
other aspects of the vehicle and its sale, lease, or
financing, shall be settled by binding arbitration
conducted pursuant to the provision of the Federal
Arbitration Act 9 U.S.C. Section 1 et seq. and
according to the Commercial Arbitration Rules of the
Better Business Bureau of North Alabama. All parties
retain the right to seek relief in a small claims
court for disputes of claims within the scope of its
jurisdiction."
In the summer of 2010, the Kennamers began experiencing
problems with the car. The Kennamers contend that they
stopped making the monthly payments required under the
installment contract because of the mechanical problems.
4
1120689
Although the Kennamers were aware that the car had been
involved in an accident when they purchased it, they
discovered that the damage to the car had been more extensive
than they say they were told. According to the Kennamers, the
dealership and its salesman misrepresented the extent of the
damage
to
the
car,
and
they
relied
upon
those
misrepresentations in purchasing the
car. They confronted the
dealership (who contacted Ford Credit) with the allegations,
but the dealership and Ford Credit refused to cancel the
contract or to refund the Kennamers' money.
On February 1, 2011, Ford Credit repossessed the car and
sold it at an auction for $13,400. The sale at the auction
resulted in the Kennamers having a balance owed on the
purchase price of the car of $4,364, which, pursuant to the
terms of the installment contract, the Kennamers were
responsible for.
On November 2, 2011, Ford Credit sued the Kennamers in
the district court in order to the collect the deficiency,
along with attorney fees, interest, and court costs. The
Kennamers filed an answer and subsequently responded to 18
interrogatory questions and 16 requests for admissions posed
5
1120689
by Ford Credit. On April 10, 2012, Ford Credit filed a motion
for a summary judgment, attaching the Kennamers' responses in
support of the motion. The Kennamers opposed summary judgment
and stated that they intended to file a counterclaim against
Ford Credit and intended to join the dealership as a party and
to file a claim against it. The Kennamers stated that the
amount of the counterclaim and the claim combined would exceed
the jurisdiction of the district court. On July 9, 2012, the
district court entered a summary judgment for Ford Credit and
awarded Ford Credit $4,364 and an attorney fee of $654, along
with court costs. On July 23, 2012, the Kennamers filed a
postjudgment motion seeking to alter, amend, or vacate the
judgment or, in the alternative, a new trial. The
postjudgment motion was denied by operation of law. On August
15, 2012, the Kennamers timely filed an appeal to the circuit
court.
On August 31, 2012, Ford Credit filed a summary-judgment
motion,
attaching
documents
from
the
district-court
action.
On
September 14, 2012,
the
Kennamers filed
a counterclaim against
Ford Credit, alleging fraud, breach of contract, negligence,
wantonness, and intentional infliction of emotional distress.
6
1120689
That same day, the Kennamers moved to serve a complaint on the
dealership, alleging fraud and breach of contract. In their
complaint against the dealership, the Kennamers also alleged
that "if [the Kennamers] are liable to [Ford Credit] on the
claims
presented in [Ford Credit's] complaint, they are
liable
because of the acts and omissions of [the dealership]."
On October 3, 2012, Ford Credit filed a motion to dismiss
the
Kennamers'
counterclaim
on
the
ground
that
the
counterclaim failed to state a claim upon which relief may be
granted. On October 12, 2012, the circuit court denied Ford
Credit's motion to dismiss and granted the Kennamers' motion
to serve the dealership.
On October 26, 2012, Ford Credit filed a motion to compel
arbitration and attached to the motion a copy of the
installment contract. On November 6, 2012, the dealership
filed a motion to dismiss or, in the alternative, to compel
arbitration based on the arbitration agreement between the
dealership and the Kennamers. The dealership attached an
affidavit from its general manager, which provided:
"The
automobile
in
question
was
manufactured
out
of state and delivered into Alabama prior to the
sale to Mr. and Mrs. Kennamer. As part of the
purchase process, the majority of the purchase price
7
1120689
was paid by receipt of a loan from Ford Motor Credit
Co., Inc., a corporation foreign to Alabama, with
such money coming into Alabama from out of state.
"Furthermore, various aspects of the sale were
regulated by federal laws, including, the Federal
Truth-in-Lending Act, the Federal Trade Commission's
Holder in Due Course regulations, the Federal
Odometer Act (the Motor Vehicle Information and Cost
Savings Act), and the Magnuson Moss Warranty Act.
The transaction as a whole substantially involved
and affected interstate commerce."
On December 12, 2012, the Kennamers responded and
attached an affidavit in support of their opposition to both
motions to compel. The Kennamers argued that Ford Credit and
the dealership (as the assignor of the installment contract)
waived their rights to arbitrate because Ford Credit had
sought discovery in the district court, had filed a summary-
judgment motion, and had obtained a judgment against the
Kennamers in the district court. The Kennamers argued that,
in order to avoid the res judicata effect of the district-
court judgment, they had had to appeal that judgment to the
circuit court and had incurred litigation expenses, such as
court costs and attorney fees, in doing so. The Kennamers
also argued that they were required to file their claims
against Ford Credit and the dealership shortly after filing
their appeal to the circuit court in accordance with Rule
8
1120689
13(j), Ala. R. Civ. P. Additionally, the Kennamers argued
1
that the transaction did not involve interstate commerce so as
to mandate arbitration.
On December 14, 2012, the dealership filed a response,
arguing that the transaction involved interstate commerce.
The dealership also argued that it was not a party to the
district-court action and that,
after
being served with notice
of the circuit-court action, it filed an answer and a motion
to dismiss or, in the alternative, a motion to compel
arbitration. The dealership argued that the Kennamers were
not substantially prejudiced by its actions in filing an
answer and a motion to dismiss. That same day, the Kennamers
filed a response to the motions to compel, contending that if
the circuit court compelled arbitration of their claims
against the dealership then there should be one arbitration
proceeding
before
the
American
Arbitration
Association
("AAA")
instead of a separate arbitration proceeding for the
dealership pursuant to the rules of the Better Business Bureau
Rule 13(j), Ala. R. Civ. P., addresses the filing of
1
counterclaims and cross-claims in actions appealed to the
circuit court for a trial de novo.
9
1120689
as provided for in the arbitration agreement between the
Kennamers and the dealership.
On December 21, 2012, the circuit court granted the
motions to compel arbitration and stayed the action pending
confirmation of the outcome of the arbitration. On January
16, 2013, the Kennamers filed a motion to alter, amend, or
vacate the judgment and/or seeking clarification. On January
22, 2013, the dealership filed a response, agreeing to
participate
in a single arbitration proceeding before the
AAA.
On January 28, 2013, the circuit court entered an order
denying the postjudgment motions but clarifying that there
would be one arbitration proceeding before the AAA. On March
11, 2013, the Kennamers filed a notice of appeal.
Standard of Review
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc. v.
Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion to
compel arbitration is analogous to a motion for a
summary judgment. TranSouth Fin. Corp. v. Bell, 739
So. 2d 1110, 1114 (Ala. 1999). The party seeking to
compel arbitration has the burden of proving the
existence of a contract calling for arbitration and
proving that the contract evidences a transaction
affecting interstate commerce. Id. "[A]fter a
motion to compel arbitration has been made and
supported, the burden is on the non-movant to
present evidence that the supposed arbitration
agreement is not valid or does not apply to the
10
1120689
dispute in question." Jim Burke Automotive, Inc. v.
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala.
1995)(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003)(quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
"It is well settled under Alabama law that a
party may waive its right to arbitrate a dispute if
it substantially invokes the litigation process and
thereby substantially prejudices the party opposing
arbitration. Whether a party's participation in an
action amounts to an enforceable waiver of its right
to arbitrate depends on whether the participation
bespeaks an intention to abandon the right in favor
of the judicial process, and, if so, whether the
opposing party would be prejudiced by a subsequent
order requiring it to submit to arbitration. No
rigid rule exists for determining what constitutes
a
waiver
of
the
right
to
arbitrate;
the
determination as to whether there has been a waiver
must, instead, be based on the particular facts of
each case."
Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d
897, 899 (Ala. 1995).
"In order to demonstrate that the right to arbitrate a
dispute has been waived, the party opposing arbitration must
demonstrate both (1) that the party seeking arbitration
substantially invoked the litigation process, and
(2)
that the
party opposing arbitration would be substantially prejudiced
11
1120689
by an order requiring it to submit to arbitration."
SouthTrust Bank v. Bowen, 959 So. 2d 624, 633 (Ala. 2006).
Additionally, "[o]ur cases continue to make it clear that,
because of the strong federal policy favoring arbitration, a
waiver of the right to compel arbitration will not be lightly
inferred, and, therefore, that one seeking to prove waiver has
a heavy burden." Mutual Assurance, Inc. v. Wilson, 716 So. 2d
1160, 1164 (Ala. 1998).
Discussion
The Kennamers presented the following facts in support of
their contention that their transaction with the dealership
and Ford Credit did not involve interstate commerce: (1) the
Kennamers are residents of Alabama; (2) the previous owners of
the car the Kennamers purchased were residents of Alabama; (3)
the Kennamers were buying the car for consumer, not
commercial, purposes; (4) the dealership is located in
Alabama; (5) the car was delivered to the Kennamers in
Alabama; and (6) all the substantial obligations arising out
of the installment contract were to be performed in Alabama.
The Kennamers argue that the dealership and Ford Credit failed
to present sufficient evidence showing that the transaction
12
1120689
involved interstate commerce.
The Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("the
FAA"), "mandates the arbitration of claims encompassed by an
arbitration clause that is contained in a binding contract
that involves interstate commerce." Ex parte Conference
America, Inc., 713 So. 2d 953, 955 (Ala. 1998). "The FAA
'provides for "the enforcement of arbitration agreements
within the full reach of the Commerce Clause."'" Wolff Motor
Co. v. White, 869 So. 2d 1129, 1132 (Ala. 2003)(quoting
Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003),
quoting in turn Perry v. Thomas, 482 U.S. 483, 490 (1987)).
"It is well established that Congress can regulate three
broad categories of activity pursuant to its commerce power:
(1) the use of the channels of interstate commerce; (2) the
instrumentalities of interstate commerce or persons or things
in interstate commerce; and (3) those general activities
having a substantial effect on interstate commerce." Wolff
Motor Co., 869 So. 2d at 1132. Previously, this Court has
recognized the purchase of a used car from a dealer as a
transaction involving interstate commerce. See Dan Wachtel
Ford, Lincoln, Mercury, Inc. v. Modas, 891 So. 2d 287 (Ala.
13
1120689
2004)(holding
that the dealer established that the purchase of
the used car involved interstate commerce where there was
evidence that the car was manufactured outside Alabama, a
credit report was obtained from an out-of-state company, the
buyer purchased an extended warranty from an out-of-state
company, and various aspects of the dealer's business were
regulated by federal law); Serra Toyota, Inc. v. Johnson, 876
So. 2d 1125 (Ala. 2003)(holding that dealer established that
the used-car purchase involved interstate commerce where the
dealer submitted evidence that the car was manufactured
outside Alabama, the purchaser bought an extended warranty
from an out-of-state company, the previous
owner
lived outside
Alabama, and the dealer had purchased the car from an out-of-
state bank).
In the present case, the circuit court had before it the
affidavit from the general manager of the dealership that
stated that the car the Kennamers purchased was manufactured
outside Alabama, that the majority of the purchase price was
financed by Ford Credit, an out-of-state company, and that the
transaction was regulated by several federal laws. Other
information
before the circuit court indicated that a
vehicle-
14
1120689
history report obtained by the dealership at the time the
Kennamers purchased the car was performed by an out-of-state
company. We also note that, after Ford Credit repossessed the
car, it was sold at an out-of-state auction. Accordingly, we
cannot say that the circuit court erred in concluding that
instrumentalities of interstate commerce were involved in the
transaction.
Next, the Kennamers argue that Ford Credit and the
dealership waived their right to arbitration by substantially
invoking the litigation process. Specifically, the Kennamers
argue that Ford Credit waived its right by filing an action in
the district court, by conducting written discovery, and by
obtaining a judgment and causing the Kennamers to appeal to
the circuit court for a trial de novo and to bring their
counterclaim against Ford Credit and their claim against the
dealership. Although the dealership was not a party to the
district-court action, the Kennamers contend that because
"Ford Credit as assignee pursued [the dealership's] claim
through to judgment in the district court, the [dealership] as
assignor must also be deemed to have waived arbitration of
those claims." (Kennamers' brief, p. 33.)
15
1120689
"It is well settled under Alabama law that a
party may waive its right to arbitrate a dispute if
it substantially invokes the litigation process and
thereby substantially prejudices the party opposing
arbitration. Whether a party's participation in an
action amounts to an enforceable waiver of its right
to arbitrate depends on whether the participation
bespeaks of an intention to abandon the right in
favor of the judicial process and, if so, whether
the opposing party would be prejudiced by a
subsequent
order
requiring
it
to
submit
to
arbitration. No rigid rule exists for determining
what constitutes a waiver of the right to arbitrate;
the determination as to whether there has been a
waiver must, instead, be based on the particular
facts of each case."
Companion Life, 670 So. 2d at 899.
"Both substantial invocation of the litigation
process and prejudice must be present to establish
waiver. Ex parte Merrill Lynch, Pierce, Fenner &
Smith, Inc., 494 So. 2d 1 (Ala. 1986). Because of
the strong federal policy applicable to arbitration
proceedings set forth in the Federal Arbitration
Act, 9 U.S.C. § 1 et seq., one seeking to establish
a waiver of arbitration bears a heavy burden.
SouthTrust Bank v. Bowen, 959 So. 2d 624 (Ala.
2006); Mutual Assurance, Inc. v. Wilson, 716 So. 2d
1160 (Ala. 1998)."
Paw Paw's Camper City, Inc. v. Hayman, 973 So. 2d 344, 347
(Ala. 2007).
"'Prejudice to the party opposing arbitration,
not prejudice to the party seeking arbitration, is
determinative of whether a court should deny
arbitration on the basis of waiver.' Price [v.
Drexel Burnham Lambert, Inc.], 791 F.2d [1156,] 1162
[(5th Cir.1986)] (footnote omitted). 'Both delay and
the extent of the moving party's participation in
16
1120689
judicial
proceedings
are
material
factors
in
assessing a plea of prejudice.' Frye [v. Paine,
Webber, Jackson & Curtis, Inc.], 877 F.2d [396,] 399
[(5th Cir.1989)].
"'Prejudice has been found in situations where
the party seeking arbitration allows the opposing
party to undergo the types of litigation expenses
that
arbitration
was
designed
to
alleviate.'
Morewitz v. West of England Ship Owners Mut.
Protection & Indem. Ass'n, 62 F.3d 1356, 1366 (11th
Cir. 1995). 'Sufficient prejudice to infer waiver
might be found, for example, if the party seeking
the stay [for arbitration] took advantage of
judicial discovery procedures not available in
arbitration.' Carcich v. Rederi A/B Nordie, 389 F.2d
692, 696 n. 7 (2d Cir. 1968)."
Hales v. ProEquities, Inc., 885 So. 2d 100, 105–06 (Ala.
2003).
First, we will address the Kennamers' waiver argument as
to Ford Credit. In the district court, Ford Credit pursued
its claim against the Kennamers seeking the deficiency owed on
the loan following the sale of the car at auction. Ford
Credit
sought
limited
discovery,
and,
ultimately,
the
district
court entered a judgment in its favor. Although we recognize
that discovery is limited in a district court and that Ford
Credit sought answers to a small number of interrogatory
requests and requests for admissions to support its summary-
judgment motion, Ford Credit's acts in pursuing its claim
17
1120689
against the Kennamers evinced a desire to resolve the dispute
to judgment in a court of record through litigation rather
than arbitration. The Kennamers have shown that they suffered
prejudice in that they had to pay court costs to appeal the
district court's judgment in favor of Ford Credit, a cost not
associated with arbitration. Also, the Kennamers incurred
legal fees while the case was pending in the district court,
and there was an 11-month delay from the time Ford Credit
filed its action in the district court and the time that it
moved to compel arbitration in the circuit court.
We now turn to the Kennamers' argument that the
dealership is bound by Ford Credit's actions in the district
court because, they argue, the dealership assigned its rights
and liabilities
under
the installment contract to Ford Credit.
In support of its argument, the Kennamers cite authority for
the general proposition that an assignee stands in the shoes
of the assignor. It is well settled that general propositions
of law are not supporting authority for purposes of Rule
28(a)(10), Ala. R. App. P. Allsopp v. Bolding, 86 So. 3d 952
(Ala. 2011).
"This Court will not 'create legal arguments for a
party based on undelineated general propositions
18
1120689
unsupported by authority or argument.' Spradlin v.
Spradlin, 601 So. 2d 76, 79 (Ala. 1992). Further, it
is well settled that '"[w]here an appellant fails to
cite any authority for an argument, this Court may
affirm the judgment as to those issues, for it is
neither this Court's duty nor its function to
perform all the legal research for an appellant."'
Spradlin v. Birmingham Airport Auth., 613 So. 2d
347, 348 (Ala. 1993)(quoting Sea Calm Shipping Co.,
S.A. v. Cooks, 565 So. 2d 212, 216 (Ala. 1990))."
Allsopp, 86 So. 3d at 960.
Even if the Kennamers had properly supported their
argument regarding assignment, it would not support their
contention that the dealership is bound by Ford Credit's
actions in district court. In this case, Ford Credit provided
the
dealership
with financing for used-car purchasers like the
Kennamers. Ford Credit supplied the dealership with blank
retail-installment-contract forms to filled in by the
dealership and the purchaser before the contract is signed.
The dealership then assigns the completed contract to Ford
Credit, and Ford Credit administers and collects the loan from
the purchaser. "An assignment is a contractual transfer of a
right, interest, or claim from one person to another." 6A
C.J.S. Assignments § 1 (2004). "'Unless the assignment is
void or otherwise invalid, [the assignor losses] all right to
control or enforce the terms of the note ....'" Associates of
19
1120689
Selma, Inc. v. Whetstone, 628 So. 2d 578, 580 (Ala.
1993)(quoting 6A C.J.S. Assignments § 96, p. 753 (1975)).
Generally, an assignment extinguishes the right of the
assignor and transfers it to the assignee. DuPont v. Yellow
Cab Co. of Birmingham, Inc., 565 So. 2d 190 (Ala. 1990). The
assignee then stands in the shoes of the assignor and succeeds
to all the rights and remedies of the assignor. Atlantic
Nat'l Trust, LLC v McNamee, 984 So. 2d 375 (Ala. 2007).
In Nissan Motor Acceptance Corp. v. Ross, 703 So. 2d 324,
(Ala. 1997), the purchaser bought a new car from a dealership.
The purchaser and the
dealership
entered into a retail-buyer's
order, which contained an arbitration clause. They also
entered into a retail-sales contract. Nissan became a party
to the retail-sales contract when the dealership assigned it
to Nissan.
The
retail-sales
contract contained an arbitration
clause. Nissan argued that, through the assignment, it
stepped into the shoes of the assignor, the dealership, and
could enforce the arbitration provision. We stated:
"As an assignee, Nissan simply steps into the
shoes of the assignor, Jim Burke, a signatory to the
arbitration agreement. Upchurch v. West, 234 Ala.
604, 609, 176 So. 186, 190 (1937), overruled on
other grounds, Dominex, Inc. v. Key, 456 So. 2d 1047
(Ala. 1984). A valid assignment gives the assignee
20
1120689
the same rights, benefits, and remedies that the
assignor possesses. Id. Accord John D. Calamari &
Joseph M. Perillo, The Law of Contracts, § 18–3 at
633, 634 (2d ed. 1977). Thus, Nissan has the right
to compel arbitration. See, e.g., I.S. Joseph Co. v.
Michigan Sugar Co., 803 F.2d 396, 400 (8th Cir.
1986) (stating that, assuming a valid assignment,
the assignee could enforce an arbitration provision
entered into by the assignor); Chatham Shipping Co.
v. Fertex S.S. Corp., 352 F.2d 291, 294 (2d Cir.
1965) (stating that 'absent contrary expression,
assignment of a contract carries with it a right to
arbitration therein provided'); Gruntal & Co. v.
Steinberg, 843 F. Supp. 1 (D.N.J. 1994) (stating
that 'a successor to or assignee of a contract
containing an arbitration clause may be obligated to
arbitrate pursuant to that arbitration clause');
Banque de Paris et des Pays–Bas v. Amoco Oil Co.,
573 F. Supp. 1464 (S.D.N.Y. 1983) (stating that an
assignee may pursue the claims of the assignor and
may enforce an arbitration provision the assignor
had agreed to)."
703 So. 2d at 326.
In this case, that means because of the dealership's
assignment to Ford Credit, Ford Credit stands in the shoes of
the dealership, and the dealership no longer has any interest
in the contract. Ford Credit can enforce the terms of the
contract in any manner or any forum it chooses, but the
dealership cannot. However, the dealership's assignment to
Ford Credit does not make the dealership bound by Ford
Credit's actions in the district court. Consequently, the
dealership cannot enforce the arbitration clause under the
21
1120689
installment
contract either, because it assigned its right
and
liabilities to Ford Credit. Nevertheless, the dealership had
a separate arbitration agreement with the Kennamers.
The dealership did not participate in the district-court
litigation. The dealership, after being served with the
complaint in the circuit court, filed an answer and a motion
to dismiss or, in the alternative, to compel arbitration.
"'Merely answering on the merits, asserting a
counterclaim (or
cross-claim)
or
participating
in
discovery,
without
more,
will
not constitute waiver.'" Climastor IV, LLC v. Marshall
Constr., LLC, 4 So. 3d 452, 458 (Ala. 2008)(quoting Voyager
Life Ins. Co. v. Hughes, 841 So. 2d 1216, 1219 (Ala. 2001)).
Although the issue is not addressed by the parties, we
recognize that enforcing arbitration of related claims as to
one defendant but not another may lead to inconsistent results
and a lack of judicial economy. The United States Supreme
Court
has recognized that, even though ordering arbitration
as
to fewer than all defendants may result in proceedings in two
forums, the FAA "requires piecemeal resolution when necessary
to give effect to an arbitration agreement." Moses H. Cone
Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19 (1983).
22
1120689
In Moses H. Cone, the hospital had contractually agreed to
arbitrate any disputes it had with Mercury Construction. The
hospital had a dispute with Mercury and an architect with whom
the hospital had not entered into an arbitration agreement.
The Supreme Court recognized that the hospital's related
dispute with the architect could not prevent enforcement of
its valid arbitration agreement with Mercury. The Supreme
Court also recognized that if "the dispute between Mercury and
the Hospital is arbitrable under the [United States
Arbitration] Act [now the FAA], then the Hospital's two
disputes will be resolved separately -- one in arbitration,
and the other (if at all) in state-court litigation." 460
U.S. at 20. The United States Supreme Court did not require
arbitration of the hospital's dispute with the architect in
the absence of an agreement to arbitrate between the two, even
where the two disputes were closely related. Id. Similarly,
2
Arbitration may be compelled under the doctrine of
2
intertwining where arbitrable and nonarbitrable claims are so
closely related that the party to a controversy subject to
arbitration is equitably estopped from denying arbitrability
of the related claim. Jenkins v. Atelier Homes, Inc., 62 So.
3d 504 (Ala. 2010). The intertwining-claims doctrine applies
to claims and not to parties and precludes arbitration only
where there are nonarbitrable claims against a party that are
factually
intertwined
with
arbitrable
claims
against
that
same
23
1120689
Ford Credit's waiver of its right to arbitrate does not
prevent this Court from enforcing the separate arbitration
agreement between the dealership and the Kennamers.
Conclusion
The judgment of the circuit court is affirmed insofar as
it granted the dealership's motion to compel arbitration and
reversed insofar as it granted Ford Credit's motion to compel
arbitration. This cause is remanded for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Stuart, Parker, Murdock, Shaw, Wise, and Bryan, JJ.,
concur.
Main, J., dissents.
party. Also, a nonsignatory can be bound to an arbitration
agreement when the nonsignatory is also a third-party
beneficiary
to
the
contract
containing
the
arbitration
clause.
Edwards v. Costner, 979 So. 2d 757 (Ala. 2007). Neither of
those exceptions is applicable here.
24 | February 28, 2014 |
b89d19f8-07a4-4afd-9fea-2d7160259953 | Johnson Controls, Inc. v. Liberty Mutual Insurance Company | N/A | 1121288 | Alabama | Alabama Supreme Court | Rel: 05/09/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121288
____________________
Johnson Controls, Inc.
v.
Liberty Mutual Insurance Company
Appeal from Randolph Circuit Court
(CV-11-900094)
PARKER, Justice.
Johnson Controls, Inc. ("JCI"), appeals a summary
judgment entered by the Randolph Circuit Court ("the circuit
court") in favor
of
Liberty Mutual Insurance Company ("Liberty
Mutual"). We reverse the judgment and remand the case.
1121288
Facts and Procedural History
This case arises out of a July 13, 2010, contract ("the
contract") between Roanoke Healthcare Authority ("Roanoke
Healthcare"), a public entity, doing business as Randolph
Medical
Center
("the
medical
center"),
and
Batson-Cook
Company
("Batson-Cook"),
a
general
contractor,
to
renovate
the
medical
center, which is located in Roanoke. The contract price was
$1,059,000.
To avoid the unnecessary payment of sales and use taxes,
the contract provided as follows in § 8.6:
"SALES TAX AVOIDANCE: The Owner, [Roanoke
Healthcare,] is owned by the City of Roanoke. It is
exempt by law from the payment of sales/use taxes.
As such it is authorized to and desires to enter
into a purchasing agent agreement with [Batson-Cook]
whereby [Roanoke Healthcare] will purchase all, or
a portion of, the materials, supplies, equipment,
and other items (hereinafter referred to as
'materials') necessary for the performance of this
Contract by [Batson-Cook] and its subcontractors and
thereby save the amount of the sales and use tax
thereon.
"SALES AND USE TAXES ARE INCLUDED IN THE
CONTRACT SUM: The base bid submitted on the proposal
form and the Contract Sum ... INCLUDES the cost of
all required taxes, including sales and use taxes;
therefore, sales and use taxes are included in the
Contract Sum.
"ACTUAL SAVINGS WILL BE DEDUCTED FROM THE
CONTRACT AMOUNT: Prior to Final Payment the amount
2
1121288
of sales and use taxes actually saved shall be
deducted from the Contract amount by change order."
(Capitalization in original.)
Consistent
with
these
provisions, Batson-Cook and Roanoke Healthcare entered into a
purchasing-agent agreement ("the PAA") on July 30, 2010. The
PAA contained the following relevant provisions:
"a) During the prosecution of Project[, the
renovations to the medical center], [Batson-Cook] is
appointed authority to act as [Roanoke Healthcare's]
purchasing agent to bind [Roanoke Healthcare]
contractually for the purchase of tangible personal
property necessary to carry out [Batson-Cook's]
contractual obligations related to Project,
"b) [Batson-Cook] is solely responsible for
pricing and availability of tangible personal
property necessary to carry out [Batson-Cook's]
contractual obligations related to Project,
"c) Title to all materials and supplies
purchased
pursuant
to
such
appointment
shall
immediately vest in [Roanoke Healthcare] at the
point of delivery,
"d) [Batson-Cook] shall notify all vendors and
suppliers of this agency relationship and make it
clear to such vendors and suppliers that the
obligation
for
payment
is
that
of
[Roanoke
Healthcare] and not [Batson-Cook],
"e) All purchase orders and remittance devices
furnished to the vendors shall clearly reflect this
agency relationship,
"....
3
1121288
"i) The net amount paid for tangible personal
property purchased under this agreement shall be
deducted from the total amount that would otherwise
be due from [Roanoke Healthcare] to [Batson-Cook]
under the Project agreement,
"....
"k) This agreement does not apply to tools,
machinery, equipment, materials, supplies, or other
property not incorporated into Project."
The contract falls within the scope of Alabama's "little
Miller Act," § 39-1-1 et seq., Ala. Code 1975, which provides,
in part:
"(a) Any person entering into a contract with an
awarding authority in this state for the prosecution
of any public works shall, before commencing the
work, execute a performance bond, with penalty equal
to 100 percent of the amount of the contract price.
In addition, another bond, payable to the awarding
authority letting the contract, shall be executed in
an amount not less than 50 percent of the contract
price, with the obligation that the contractor or
contractors shall promptly make payments to all
persons supplying labor, materials, or supplies for
or in the prosecution of the work provided in the
contract
and
for
the
payment
of
reasonable
attorneys' fees incurred by successful claimants or
plaintiffs in civil actions on the bond.
"(b) Any person that has furnished labor,
materials, or supplies for or in the prosecution of
a public work and payment has not been made may
institute a civil action upon the payment bond and
have their rights and claims adjudicated in a civil
action and judgment entered thereon. Notwithstanding
the foregoing, a civil action shall not be
instituted on the bond until 45 days after written
4
1121288
notice to the surety of the amount claimed to be due
and the nature of the claim. The civil action shall
be commenced not later than one year from the date
of final settlement of the contract. The giving of
notice by registered or certified mail, postage
prepaid, addressed to the surety at any of its
places of business or offices shall be deemed
sufficient under this section. In the event the
surety or contractor fails to pay the claim in full
within 45 days from the mailing of the notice, then
the person or persons may recover from the
contractor and surety, in addition to the amount of
the claim, a reasonable attorney's fee based on the
result, together with interest on the claim from the
date of the notice."
Pursuant to § 39-1-1(a), on September 1, 2010, Batson-Cook
obtained a payment bond from Liberty Mutual in the amount of
the contract price -- $1,059,000. The payment bond
specifically provided "that beneficiaries or claimants
hereunder shall
be limited to the subcontractors,
and
persons,
firms, and corporations having a direct contract
with [Batson-
Cook] or its subcontractor."
On October 22, 2010, Batson-Cook entered into a
subcontract ("the subcontract") with Hardy Corporation
("Hardy") to perform "mechanical" work required by the
contract; the subcontract price was $329,791.
The
subcontract
specifically called for Hardy "to provide all
material, labor,
supervision, and equipment necessary to complete [the] scope
5
1121288
of work in accordance with the contract documents." On
October 27, 2012, Batson-Cook sent a letter to Hardy informing
it as follows:
"Batson-Cook ... is providing construction
services to Roanoke Healthcare ... in support of the
Renovations
to
[the]
Randolph
Medical
Center
project. As an agent of [Roanoke Healthcare], all
purchases of tangible personal property to be
incorporated into the realty by Batson-Cook ... (and
our subcontractors/vendors) in support of the stated
construction project will be paid directly by
[Roanoke Healthcare], but addressed to Batson-Cook
... who will forward them on to [Roanoke Healthcare]
for payment. [Roanoke Healthcare] payments will be
issued directly to the material supplier. Batson-
Cook ... will be responsible for maintaining the
documentation necessary to support the tax exempt
nature of such purchases for review."
In the course of bidding on the subcontract, Ronnie
Vines, Hardy's project manager for the medical-center
renovation, received a quote from JCI on July 27, 2010, for
equipment and material Hardy would need to complete its
obligations under the subcontract. Vines stated in his
deposition testimony that before he submitted the purchase
order for the equipment and materials that were eventually
furnished by JCI he informed JCI that Roanoke Healthcare would
pay for the equipment and materials directly and that the
invoices should be billed to Roanoke Healthcare but that Hardy
6
1121288
would collect the invoices and transmit them to Batson-Cook,
which would then forward the invoices on to Roanoke Healthcare
for payment. On October 21, 2010, Vines sent Marc Newton, a
JCI employee, an e-mail to which he attached a letter from the
Alabama Department of Revenue ("ADR") stating that Roanoke
Healthcare was a tax-exempt entity. Vines also stated in his
deposition testimony that he never told JCI that Batson-Cook
would be responsible for payment.
On November 4, 2010, Vines signed and submitted a
purchase order on Hardy's letterhead to JCI for equipment and
materials totaling $147,000 per the quote provided by JCI.
The purchase order called for the equipment and materials to
be shipped to the medical center "c/o Batson-Cook Company" and
directed JCI to telephone Hardy 24 hours before delivery. The
purchase order also contained the following notation: "P.O.,
Randolph County Medical Center, c/o Batson-Cook Company."
Vines stated in his deposition testimony that he included this
note because the purchase order was actually on "behalf of
[Roanoke Healthcare]" and the equipment was to be "billed
directly to [it]." Vines also stated that he submitted the
purchase
order on
Hardy's
letterhead because
Roanoke
7
1121288
Healthcare did not provide its own letterhead. The purchase
order
also
contained
a
provision
stating
that
it
"constitute[d] the full understanding of the parties, and the
complete and exclusive statement of the terms of their
agreement." On November 5, 2010, Vines also e-mailed Amy
Carmada, an individual Vines described as JCI's
billing
clerk,
and attached Batson-Cook's October 27, 2010, letter to Hardy
and the letter from ADR showing that Roanoke Healthcare was
exempt from sales and use taxes. In the e-mail, Vines asked
Carmada to read the attached information and to telephone
Vines to discuss the billing method. It is unclear from the
record whether a subsequent conversation took place.
Vines's
deposition
testimony
concerning
JCI's
performance
and the relationship between the subcontract and the purchase
order contained the following:
"[JCI's trial attorney:] Okay. Let's talk about
Hardy's subcontract with Batson-Cook. Would you
agree that the Hardy and Batson-Cook subcontract
included the equipment and the materials that JCI
provided to this project in both the scope of work
and the contract price?
"[Vines:] Yes, the subcontract and the pricing
included all the equipment and material for this
project for our portion of the work, that is
correct.
8
1121288
"[JCI's trial attorney:] And ... the Batson-
Cook/Hardy subcontract scope of work also included
the equipment?
"[Vines:] That is correct.
"[JCI's trial attorney:] And would you agree
with me that at the time you issued the purchase
order to [JCI] that the equipment that [JCI] was to
provide to the project was part of Hardy's scope of
work and included in Hardy's subcontract price?
"[Vines:] That is correct.
"[JCI's trial attorney:] And would you agree
with me that at the time [JCI] delivered the
equipment and materials to the project that it was
part of Hardy's scope of work under the subcontract
and Hardy's subcontract price?
"[Vines:] Yes. At that time, it was still in
the pricing of our subcontract with Batson-Cook.
"[JCI's trial attorney:] And also within the
scope of work of your subcontract with Batson-Cook?
"[Vines:] Yes.
"[JCI's trial attorney:] At the time [JCI]
invoiced for the materials and equipment provided to
the project, would you agree with me that at that
time it was still part of Hardy's scope of work and
Hardy's contract price under its subcontract with
Batson-Cook[?]
"[Vines:] That is correct.
"....
"[JCI's trial attorney:] And were the materials
and equipment provided by [JCI] on this project
accepted by Hardy ...?
9
1121288
"[Vines:] Yes.
"[JCI's trial attorney:] And were the materials
and equipment provided by [JCI] to the project
accepted by Batson-Cook?
"[Vines:] Yes.
"[JCI's trial attorney:] And were the materials
and equipment provided by [JCI] accepted by [Roanoke
Healthcare]?
"[Vines:] Yes.
"[JCI's trial attorney:] And to your knowledge,
w[ere] the materials and equipment provided by [JCI]
incorporated into the project?
"[Vines:] Yes, that is correct."
Richard Copelan, a branch manager for JCI, stated the
following in his affidavit testimony:
"3. During the time period at issue in [this
case], I was the Systems HVAC Branch Manager for
JCI. In this capacity, I regularly review,
negotiate, and approve purchase orders issued to
JCI. I have personal knowledge regarding JCI's
involvement
on
the
[medical-center-renovation]
Project ....
"4. On November 4, 2010, Hardy ... issued [the]
purchase order ... to JCI for equipment to be
provided to the Project.
"5. In negotiating, reviewing and accepting the
Purchase Order, JCI had no communications with
[Roanoke Healthcare].
10
1121288
"6. [Roanoke Healthcare] was not a party to the
Purchase Order issued by Hardy.
"7. The Purchase Order was the only agreement to
which JCI was a party that involved the material and
equipment provided by JCI to the Project.
"8. The Purchase Order was the only agreement to
which JCI was a party that involved payment for the
material and equipment provided by JCI to the
Project.
"9. JCI did not have any agreement with [Roanoke
Healthcare] or any third-party regarding payment for
the equipment and materials furnished by JCI to the
Project.
"10. JCI never agreed to look solely to [Roanoke
Healthcare] for payment of the equipment and
materials furnished by JCI to the Project.
"11. JCI never agreed to waive its rights under
the Payment Bond issued by Liberty Mutual ... for
the Project.
"12. JCI never agreed to waive its rights under
the Alabama 'little Miller Act' as it relates to the
materials and equipment furnished by JCI to the
Project.
"13. JCI never agreed to waive its rights under
the Purchase Order issued by Hardy."
Katherine Lynn, director of the Alabama Building
Commission,
described
in
her
affidavit
testimony
her
experience with contracts similar to the ones entered into in
this case:
11
1121288
"3. It is a very common practice in the State of
Alabama for owners of public projects to make direct
payments to the suppliers of a project's general
contractor[]. This is done as an arrangement to
take advantage of the owner's tax exempt status. In
my experience with public contracts, I believe this
owner paid arrangement occurs in a very high
percentage of the public contracts in Alabama.
Based on the projects that I am aware of it is rare
for a public project to have an arrangement other
than this arrangement where the cost of the
materials is included in the contract amount and the
bonds and [the] owner pays the suppliers.
"4.
The
State
of
Alabama
Building
Commission
...
publishes sample agreements related to this sales
and use tax arrangement.[ ]
1
"5.
Additionally,
the
Alabama
Building
Commission also publishes Guidelines for [Sales] and
Use Tax Savings Arrangements for Public Construction
and Improvement Projects on its website that
addresses this arrangement.
"6. Under these arrangements the general
contractor retains the traditional responsibilities
and liabilities for the materials purchased, except
that the owner must pay vendors directly for
materials purchased by the contract as agent for the
owner in order to realize the sales tax savings."
On January 31, 2011, and again on February 22, 2011, JCI
submitted an invoice to Hardy. The invoice states that it was
billed to "Randolph County Medical Center, c/o Hardy
A sample agreement and a sample contractual provision
1
related
to
sales-and-use-tax-savings
arrangements
published
by
the Alabama Building Commission were attached to a subsequent
affidavit given by Lynn and included in Liberty Mutual's
response to JCI's renewed motion for a summary judgment.
12
1121288
Corporation." The total balance indicated on the invoice is
$147,000, which represents the cost of the equipment and
materials, exclusive of sales tax.
On March 16, 2011, Patricia Kettner, an employee of JCI,
sent an e-mail to Kelly Myers, an employee of Hardy, stating
that JCI's records indicated that the invoices would be paid
directly by Roanoke Healthcare and inquiring whether Kettner
should contact Roanoke Healthcare directly or go
through
Hardy
to discuss payment. Myers replied to Kettner's e-mail by
informing her that Kettner would need to contact Vines and
supplied his contact information; Kettner then forwarded the
e-mails to Vines and asked him to advise her on the status of
the invoice to Roanoke Healthcare or to supply her with the
name and number of a Roanoke Healthcare representative so that
she could inquire about payment of the invoice.
On March 24, 2011, Batson-Cook received written notice
from Roanoke Healthcare that work on the renovation project
had been suspended. On March 30, 2011, Batson-Cook notified
Hardy of the suspension and stated that "[t]he contract has
been suspended by [Roanoke Healthcare] through no fault of
Batson-Cook
...
or
its
subcontractors.
[Roanoke
Healthcare]
is
13
1121288
currently out of funding and has subsequently closed the
facility while seeking a buyer." Liberty Mutual alleged in
its answer that Roanoke Healthcare has failed to pay Batson-
Cook $241,940.51 for work performed pursuant to the contract.
On March 30, 2011, Batson-Cook sent Hardy a change order
stating:
"Roanoke
Healthcare
...
is
exempt
by
Alabama
law
from the payment of sales/use taxes on [its]
purchase of tangible ... property incorporated into
the facility. Batson-Cook acted as a Purchasing
Agent for the facility to utilize the tax exemption
status
of
[Roanoke
Healthcare]
for
material
purchases; therefore, the obligation for payment is
that of [Roanoke Healthcare] and not Batson-Cook.
"This change order shall serve to remove all
material costs for items purchased directly by
[Roanoke Healthcare] along with any associated taxes
related
to
this
purchase
included
in
your
subcontract amount."
Among other things, the change order deducted from the
subcontract the $147,000 in equipment and materials JCI had
furnished for the renovation project and for which it has not
received payment.
In accordance with § 39-1-1(b), JCI notified Liberty
Mutual, Roanoke Healthcare, Batson-Cook, and Hardy by
certified letters dated May 4, 2011, of its claim on the
payment bond. The letters identified Batson-Cook as the
14
1121288
general contractor and Hardy as the debtor. Liberty Mutual
denied the claim.
On November 10, 2011, JCI sued Liberty Mutual, alleging
that JCI is entitled to payment on the payment bond Liberty
Mutual had issued to Batson-Cook pursuant to § 39-1-1(a). On
December 8, 2011, Liberty Mutual filed its answer and denied
liability.
On October 12, 2012, JCI filed a motion for a summary
judgment. Following a hearing on JCI's summary-judgment
motion, held on December 6, 2012, the circuit court issued an
order denying JCI's motion because it determined that genuine
issues of material fact existed.
On November 29, 2012, before the hearing on JCI's motion,
Liberty Mutual responded to JCI's motion by filing a cross-
motion for a summary judgment. In its motion, Liberty Mutual
2
argued:
"A long standing rule of law in Alabama with
respect to payment bonds is that if there is no
right of recovery against the general contractor,
then there is no right of recovery against the
surety on a payment bond. Magic City Paint &
Varnish Co. v. American Surety Co. of New York, 228
Liberty Mutual's cross-motion for a summary judgment was
2
not considered at the December 6, 2012, hearing because of the
proximity of its filing to the hearing date.
15
1121288
Ala. 40[,] 152 So. 42 [(1934)]. In this instant
action, the equipment supplied by JCI for which it
seeks to recover in this lawsuit was outside of the
scope of the contract between the general contractor
and the owner of the project at issue. As such, it
is outside of the scope of the '[w]ork' as defined
in the contract and payment bond at issue. The
equipment supplied by JCI was supplied at the
owner's
request,
directly
to
the
owner.
Accordingly, no liability may be had against the
contractor, and thus, there is no right of recovery
against Liberty [Mutual]."
Liberty Mutual also argued that § 8.6 of the contract "clearly
excludes ... materials, supplies, and equipment" like those
provided by JCI.
On February 14, 2013, JCI filed a brief in opposition to
Liberty Mutual's summary-judgment motion. In its brief, JCI
argued
that
Liberty
Mutual's
summary-judgment
motion
should
be
denied because the circuit court had found that genuine issues
of material fact existed when it considered and denied JCI's
summary-judgment motion. JCI also argued that there was no
evidence to support Liberty Mutual's argument that the
equipment furnished by JCI was outside the scope of the
contract and the payment bond. JCI argued that the evidence
indicated that the equipment and materials furnished by JCI
were included in the scope of work under the contract and in
the price of Hardy's subcontract with Batson-Cook. JCI also
16
1121288
argued that by accepting the purchase order from Hardy, JCI
had entered into a direct contract with Hardy and, therefore,
was entitled to payment from Liberty Mutual because the
payment
bond
defined
beneficiaries
or
claimants
as
"subcontractors, and persons, firms, and corporations having
a direct contract with the principal or its subcontractor."
JCI also noted that the payment bond was issued for the
precise amount of the contract price –- $1,059,000 –- and that
the PAA called for "the net amount paid for tangible personal
property purchased under this agreement [to] be deducted from
the total amount that would otherwise be due from [Roanoke
Healthcare] to [Batson-Cook] under the Project agreement."
(Emphasis added.) JCI argued that, under the terms of the
PAA, payment for the equipment and materials JCI furnished for
the project would be deducted from the amount due under
Roanoke Healthcare's contract with Batson-Cook only upon
actual payment from Roanoke Healthcare to JCI, which
undisputedly has not occurred.
Finally, JCI argued that Liberty Mutual's argument that
the equipment and materials furnished by JCI were outside the
scope of the contract was inconsistent with the fundamental
17
1121288
purpose of Alabama's little Miller Act, which is "to ensure
that a materialman receives full payment for labor or
materials that he supplies to a public works project," SGB
Constr. Servs., Inc. v. Ray Sumlin Constr. Co., 644 So. 2d
892, 895 (Ala. 1994), and "to 'shift the ultimate risk of
nonpayment from workmen and suppliers to the surety.'"
Federal Ins. Co. v. I. Kruger, Inc., 829 So. 2d 732, 736 (Ala.
2002)(quoting trial court's order).
On June 7, 2013, JCI filed a renewed motion for a summary
judgment. In its brief in support of its renewed summary-
judgment motion, JCI made the following argument:
"[A] claimant must satisfy the following four
elements to be entitled to a recovery under the
payment bond: '(1) that materials or labor were
supplied for work on the public project at issue;
(2) that the supplier was not paid for the materials
or labor supplied; (3) that the supplier had a good
faith belief that the materials furnished were for
the
project
in
question;
and
(4)
that
the
jurisdictional requisites [i.e., timely notice and
filing of suit] had been met.' Federal Ins. Co. v.
I. Kruger, Inc., 829 So. 2d 732, 736 (Ala. 2002).
The undisputed facts in this case are sufficient to
satisfy each of the four elements of the analysis
and demonstrate that JCI is entitled to recover
against the Payment Bond issued by Liberty Mutual."
On June 21, 2013, Liberty Mutual filed a brief in
opposition to JCI's renewed summary-judgment motion and
18
1121288
reasserted its argument that the equipment and materials
supplied by JCI were outside the scope of the contract because
Roanoke Healthcare was to issue payment directly to JCI.
Accordingly, Liberty Mutual made the following argument:
"[I]f the labor, materials, or supplies fall outside
of the scope of the work as set forth in the
contract between the general contractor and the
owner, no proper payment bond claim may be made.
Stated another way '[a]ll other questions may
therefore be laid aside, as of course, if liability
be not shown against the contractor, clearly none
can be established against the surety.' Magic City
Paint & Varnish Co.[ v. American Surety Co. of New
York, 228 Ala. 40,] at 44[, 152 So. 42, 44 (1934)];
see also [Hicks, supra]. '["]The threshold issue on
[the] bond is whether the contractor ... is liable
to the subcontractor ... for labor, materials, or
supplies.["]' [Hicks, 674 So. 2d at 547 (quoting
trial court's order)]. '["]The contractor must be
liable for some claim, however, before the surety
can be liable.["]' Id."
On June 26, 2013, the circuit court held a hearing on
both Liberty Mutual's cross-motion for a summary judgment and
JCI's renewed motion for a summary judgment.
On July 23, 2013, the circuit court issued the following
order:
"On June 26, 2013, the court called for hearing
[JCI's] renewed motion for a summary judgment and
[Liberty Mutual's] cross-motion for a summary
judgment. All parties were represented by counsel.
Extensive argument along with copies of various
exhibits to the briefs of both parties were
19
1121288
submitted by counsel. The court heard, reviewed and
considered the same, along with previous submissions
on file and in the record.
"After consideration of all submissions, the
court finds that the equipment and materials at
issue were purchased directly from [JCI] by [Roanoke
Healthcare] and thus were outside of the scope of
the contract between [Roanoke Healthcare] and
[Batson-Cook], the general contractor, who was also
acting
as
the
purchasing
agent
of
[Roanoke
Healthcare]. Since the equipment and materials at
issue were outside the scope of the contract between
[Batson-Cook] and [Roanoke Healthcare], they are not
covered by the payment bond pursuant to the Alabama
Little Miller Act (Ala. Code [1975,] § 39-1-1 et
seq.), which applies only to labor, materials and
supplies for or in prosecution of the work included
in contracts between the owner and the contractor
for public work projects.
"Accordingly, the court hereby finds that there
is no genuine issue of material fact and [Liberty
Mutual] is entitled to judgment as a matter of law
pursuant to Rule 56 of the Alabama Rules of Civil
Procedure and hereby denies [JCI's] renewed motion
for a summary judgment and grants [Liberty Mutual's]
cross-motion for a summary judgment. This resolves
all issues pending before the court; therefore, this
is a final order."
JCI appealed, challenging both the summary judgment in favor
of Liberty Mutual and the denial of its renewed motion for a
summary judgment.
Standard of Review
"'The
standard
of
review
applicable
to
a
summary
judgment is the same as the standard for granting
20
1121288
the motion....' McClendon v. Mountain Top Indoor
Flea Market, Inc., 601 So. 2d 957, 958 (Ala. 1992).
"'A summary judgment is proper when
there is no genuine issue of material fact
and the moving party is entitled to a
judgment as a matter of law. Rule 56(c)(3),
Ala. R. Civ. P. The burden is on the moving
party to make a prima facie showing that
there is no genuine issue of material fact
and that it is entitled to a judgment as a
matter of law. In determining whether the
movant has carried that burden, the court
is to view the evidence in a light most
favorable to the nonmoving party and to
draw all reasonable inferences in favor of
that party. To defeat a properly supported
summary judgment motion, the nonmoving
party must present "substantial evidence"
creating a genuine issue of material fact
-— "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."
Ala. Code 1975, § 12–21–12; West v.
Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989).'
"Capital Alliance Ins. Co. v. Thorough–Clean, Inc.,
639 So. 2d 1349, 1350 (Ala. 1994). Questions of law
are reviewed de novo. Alabama Republican Party v.
McGinley, 893 So. 2d 337, 342 (Ala. 2004)."
Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 935
(Ala. 2006).
Discussion
JCI's claim against Liberty Mutual is based upon its
argument that it is a proper claimant under the payment bond
21
1121288
issued by Liberty Mutual to Batson-Cook pursuant to Alabama's
little Miller Act. As this Court noted in Safeco Insurance
Co. of America v. Graybar Electric Co., 59 So. 3d 649, 655-56
(Ala. 2010):
"[Section] 39–1–1 et seq., Ala. Code 1975, [is]
commonly referred to as Alabama's little Miller Act.
Federal Ins. Co. v. I. Kruger, Inc., 829 So. 2d 732,
734 (Ala. 2002). The Alabama statute is patterned
after the Federal Miller Act, now codified at 40
U.S.C. §§ 3131–3133. 'The construction given to the
federal act has been adopted in Alabama, unless
otherwise noted.' Kruger, 829 So. 2d at 734 n. 1.
Generally, when a person has provided labor or
materials or has supplied services on a private
construction project, the person is entitled under
§ 35–11–210, Ala. Code 1975, the mechanic's or
materialman's lien statute, to file a lien against
the private property and subsequently to foreclose
on the property, if not paid for those services.
However, § 35–11–210 does not apply to public
property. Martin v. Holtville High School Bldg., 226
Ala. 45, 145 So. 491 (1933)(public-school building
was not subject to foreclosure sale under the
predecessor statute to § 35–11–210). The Alabama
Legislature provided a remedy in 1927 when it
codified
specific
provisions
to
ensure
that
materialmen receive full payment for labor or
materials supplied on a public-works project. §
39–1–1. Alabama's statute was patterned after a
federal act enacted in 1894 called the Heard Act.
Ch. 280, 28 Stat. 278 (1894) (since repealed); see
also State v. Southern Sur. Co., 221 Ala. 113, 127
So. 805 (1930) (discussing the essential provisions
of the state and federal payment-bond statutes
existing in 1930). Alabama first amended its
public-works-payment-bond statute in 1935 to pattern
it after the federal act called the Miller Act
(enacted in 1935 to rectify inadequate protections
22
1121288
in the Heard Act). See 40 U.S.C. §§ 3131–3133
(formerly 40 U.S.C. §§ 270a–270d).
"'[T]he
purpose
of
a
payment
bond required
under
the little Miller Act is to "shift the ultimate risk
of nonpayment from workmen and suppliers to the
surety."' Kruger, 829 So. 2d at 736 (quoting
American Sur. Co. v. Hinds, 260 F.2d 366, 368 (10th
Cir. 1958)). 'The purpose of the [little Miller] act
is to provide security for those who furnish labor
and material in performance of government contracts
as a substitute for unavailable lien rights, and is
liberally construed to accomplish this purpose.'
Headley v. Housing Auth. of Prattville, 347 So. 2d
532, 535 (Ala. Civ. App. 1977)."
Under Federal Insurance Co. v. I. Kruger, Inc., supra, a
supplier is entitled to recover under a payment bond issued
pursuant to Alabama's little Miller Act if the supplier
establishes:
"'"(1) that materials or labor were supplied for
work on the public project at issue; (2) that the
supplier was not paid for the materials or labor
supplied; (3) that the supplier had a good faith
belief that the materials furnished were for the
project in question; and (4) that the jurisdictional
requisites had been met."'"
829 So. 2d at 736 (quoting A.G. Gaston Constr. Co. v. Hicks,
674 So. 2d 545, 547 (Ala. Civ. App. 1995), quoting in turn
United States ex rel. Krupp Steel Prods., Inc. v. Aetna Ins.
Co., 831 F.2d 978, 980 (11th Cir. 1987)).
23
1121288
As set forth above, the circuit court concluded in its
final order that the equipment and materials supplied by JCI
were not furnished by JCI for or in prosecution of the public
work included in the contract because, it found, the items
were purchased directly from JCI by Roanoke Healthcare. JCI
argues on appeal that the undisputed facts indicate that the
equipment and materials it supplied were furnished for the
prosecution of the renovation project provided for in the
contract and that JCI is a proper claimant on the payment bond
under the four-part test set forth in Kruger. Accordingly,
JCI argues that the summary judgment in favor of Liberty
Mutual is due to be reversed and that it is entitled to a
summary judgment in its favor. We agree with JCI.
As a threshold matter, the circuit court found that JCI
sold the equipment and materials directly to Roanoke
Healthcare. Although JCI disputes this fact on appeal, it is
immaterial to a determination whether JCI is a proper claimant
under the payment bond. As opposed to the federal Miller Act,
supra, and the little Miller Acts adopted by several of our
sister states, § 39-1-1 is silent as to the issue of privity
24
1121288
of contract. Rather, § 39-1-1(b) focuses exclusively on the
3
intent for which the labor, materials, or supplies are
furnished by using the following broad language: "Any person
that has furnished labor, materials, or supplies for or in the
prosecution of a public work ... may institute a civil action
upon the payment bond ...."
The terms of the payment bond here limit claimants to
those having a direct contract with either the contractor or
a subcontractor. However, when a payment bond is issued to
satisfy the provisions of § 39-1-1, as it was in the present
case, the requirements of the statute will be read into the
bond. See Kruger, 829 So. 2d at 736 ("Where a payment bond
shows on its face that it was executed in compliance with the
[little Miller] Act, a court is authorized to read into the
bond the provisions of the statute and to give the bond the
See 40 U.S.C. § 3133(b)(2) (provisions pertaining to
3
persons having a direct contractual relationship with a
subcontractor); § 13-10-63, Ga. Code Ann. (same); §
255.05(1)(a), Fla. Stat. (mandating that a payment bond cover
all persons defined in § 713.01, Fla. Stat., which defines
"materialman" in subsection (20) as "any person who furnishes
materials
under
contract
to
the
owner,
contractor,
subcontractor, or sub-subcontractor on the site of the
improvement or for direct delivery to the site of the
improvement or, for specially fabricated materials, off the
site of the improvement for the particular improvement, and
who performs no labor in the installation thereof").
25
1121288
form and effect the statute contemplated, regardless of the
contents of the bond."); Water Works, Gas & Sewer Bd. of the
City of Oneonta, Inc. v. P.A. Buchanan Contracting Co., 294
Ala. 402, 405-06, 318 So. 2d 267, 269 (1975)("This court has
held that even when a bond ... is not literally in statutory
form, if it was given 'for the purposes named in the statute
and accepted and acted upon as such,' the statute will be read
into the bond. Royal Indemnity Co. v. Young & Vann Supply
Co., 225 Ala. 591, [594,] 144 So. 532[, 534 (1932)].");
American Cas. Co. of Reading, Pa. v. Devine, 275 Ala. 628,
640, 157 So. 2d 661, 672 (1963)("[T]his court has said that
there was no compulsion on the surety to execute such a bond,
but since the surety did so, knowing the purpose for which the
bond was given and being charged with knowledge of the law
which required the bond, the bond must be construed and
applied as if the parties making it had complied with the law.
Universal Electric Const[r]. Co. of Alabama v. Robbins, 239
Ala. 105, 194 So. 194 [(1940)]. The bond shows on its face
that it was executed in compliance with the statute and the
court is authorized to read into it the provisions of the
statute, 'and give it the form and effect the statute
26
1121288
contemplated, regardless of its contents.' 239 Ala. 109, 194
So. 198. In short the statute is written into the bond.").
Thus, JCI is a proper claimant on the payment bond if it
demonstrates that it is statutorily eligible under the four-
part test set forth in Kruger.
First, under Kruger, JCI must show that the equipment and
materials it furnished "were supplied for work on the public
project at issue." Kruger, 829 So. 2d at 736. As set forth
above, the contract and the PAA obligated Batson-Cook to
procure the tangible personal property necessary for the
completion of Batson-Cook's obligations under the contract.
The purchasing power granted by the PAA was limited to items
Batson-Cook needed to perform its obligations under the
contract. While the renovation project was ongoing, Batson-
Cook entered into a subcontract with Hardy to perform the
mechanical work for the project and "to provide all material,
labor, supervision, and equipment necessary to complete [the]
scope of work in accordance with the contract documents."
Hardy, after being awarded the subcontract and with knowledge
of the existence of the PAA, submitted a purchase order to JCI
for equipment and materials necessary for Hardy's performance
27
1121288
under the subcontract. The purchase order indicates that it
was submitted pursuant to a bid provided by JCI to Hardy
before Roanoke Healthcare awarded the project to Batson-Cook.
The purchase order called for the equipment and materials to
be shipped to the medical center "c/o Batson-Cook Company" and
directed JCI to telephone Hardy 24 hours before delivery. JCI
furnished the equipment and materials to the project site, and
the equipment and materials were accepted and incorporated
into the renovation of the medical center.
Vines's
deposition
testimony
indicates
that
the
equipment
and materials furnished by JCI were included in Hardy's
subcontract with Batson-Cook, both in the scope of work and in
the price of the subcontract, and were incorporated into the
renovation project pursuant to Batson-Cook's contract with
Roanoke
Healthcare.
Vines's deposition testimony
is
consistent with the fact that the amount of the payment bond
equals the exact amount of the contract price, which covered
the cost of Batson-Cook's subcontract with Hardy, including
the cost of the equipment and materials furnished by JCI
pursuant to the purchase order submitted to JCI by Hardy.
Accordingly, JCI has demonstrated that the equipment and
28
1121288
materials it supplied were furnished for work on the
renovation of the medical center called for under the contract
and, therefore, has satisfied the first prong of the Kruger
test.
Additionally, we note that the fact that JCI agreed to
accept payment from Roanoke Healthcare neither precludes a
conclusion that JCI furnished the equipment and materials for
the pubic work nor necessarily removes JCI from the protection
of § 39-1-1, which was enacted "'to provide security for those
who furnish labor and material in performance of government
contracts as a substitute for unavailable lien rights, and is
liberally construed to accomplish this purpose.'" Safeco, 59
So. 3d at 656 (quoting Headley v. Housing Auth. of Prattville,
347 So. 2d 532, 535 (Ala. Civ. App. 1977)). Because JCI would
have lien rights available to it but for the fact that Roanoke
Healthcare is a public entity, we construe § 39-1-1 so as to
effectuate the purpose for which it was enacted.
Second, it is undisputed that JCI has not been paid;
thus, JCI had satisfied the second prong of the Kruger test –-
that it was not paid for the equipment and materials it
furnished for the renovation project.
29
1121288
Third, JCI must show that it had a good-faith belief that
the equipment and materials it furnished were furnished for
the renovation project. As set forth above, the purchase
order indicates that the equipment and materials were ordered
for use in the renovation project. Additionally, e-mails and
telephone conversations between employees of Hardy and JCI
indicate that JCI had knowledge that the equipment and
materials were needed for the renovation project. Moreover,
JCI delivered the equipment and materials to the project site.
Thus, JCI had a good-faith belief that the equipment and
materials were furnished for the project in question;
therefore, the third prong of the Kruger test is satisfied.
Fourth,
JCI
must
show
that
it
satisfied
the
jurisdictional requisites of § 39-1-1(b) before commencing
this action. Section 39-1-1(b) provides that "a civil action
shall not be instituted on the bond until 45 days after
written notice to the surety of the amount claimed to be due
and the nature of the claim." Furthermore, § 39-1-1(b)
provides that "[t]he civil action shall be commenced not later
than one year from the date of final settlement of the
contract." On March 24, 2011, Roanoke Healthcare notified
30
1121288
Batson-Cook that it was suspending the renovation project;
Batson-Cook notified Hardy of the suspension on March 30,
2011. JCI notified Liberty Mutual, Batson-Cook, and Hardy by
letters dated May 4, 2011, that it was making a claim on the
payment bond. JCI then filed this lawsuit on November 10,
2011 –- more than 45 days after giving notice of its claim and
within one year from the suspension of the renovation project.
Thus, JCI has met the jurisdictional requisites to bring a
claim under § 39-1-1(b); therefore, the fourth prong of the
Kruger test is satisfied.
Liberty Mutual cites Magic City Paint & Varnish Co. v.
American Surety Co. of New York, 228 Ala. 40, 152 So. 42
(1934), and Hicks, supra, in support of its argument that the
circuit court's judgment is due to be affirmed because, it
argues, JCI has not demonstrated that Batson-Cook is liable
for the payment of the equipment and materials furnished by
JCI. However, both cases relied upon by Liberty Mutual are
inapposite.
In Magic City, the plaintiff agreed to supply paint to a
bonded contractor for a public-works project. The agreement
allowed for unused paint to be returned for "full credit."
31
1121288
The plaintiff sued the surety for payment for the paint the
plaintiff had delivered for the project. The statute that
governed the payment bond in Magic City was modeled after the
federal Heard Act, as explained in Safeco, supra, rather than
after the federal Miller Act, as is the little Miller Act, the
pertinent statute here. The trial court held that the surety
4
The difference between the Heard Act and the Miller Act
4
was
explained
in
Riley-Stabler
Construction
Co.
v.
Westinghouse Electric Corp., 396 F.2d 274, 276 (5th Cir.
1968):
"The Heard Act specifically provided that bond
coverage extended only to materials 'used' on a
bonded project. The Miller Act deleted that
provision and, as heretofore stated, has been
interpreted to cover materials diverted to other
uses.
"But
irrespective
of
the
historical
context,
and
approaching the issue as an original question, we
are constrained to hold that the statutory words
'for ... the prosecution of the work' encompass the
furnishing of diverted materials as well as
non-diverted ones. The insertion of the preposition,
'for,' in the 1935 Act constitutes a significant
change over the 1927 Act. The legislature is
presumed to have made the change for a purpose. The
phrase, as revised in the 1935 Act, shifts the
inquiry from how or whether the materials were used
to the purpose for which they were supplied. The
natural and ordinary connotation of the phrase as it
now reads is that a bond covers payment of materials
which are used on a bonded project or which are
furnished in the contemplation of being used on that
project whether they are in fact so used or not."
32
1121288
was liable only for the paint that was used. The plaintiff
appealed to this Court, arguing that it was entitled to full
payment under the bond for both the used and the unused paint.
However, this Court found that the record indicated that there
was no liability as between the original contracting parties
because the contractor had a right to return the unused paint
for a full credit. This Court stated that the "[p]laintiff,
in making the sale, accepted a tentative order only, and has
no right to ignore its meaning and effect." Magic City, 228
Ala. at 42, 152 So. at 43. Accordingly, the Court held that
"[a]ll other questions may therefore be laid aside, as of
course, if liability be not shown against the contractor,
clearly none can be established against the surety." 228 Ala.
at 43, 152 So. at 44. In the present case, the finality of
the sale of the equipment and materials furnished by JCI is
not in question. It is undisputed that the equipment and
materials were accepted and incorporated into the renovation
of the medical center and that JCI is entitled to payment.
Magic City, therefore, is inapposite.
Hicks likewise does not support Liberty Mutual's
argument. In Hicks, the Court of Civil Appeals upheld a trial
33
1121288
court's finding that a subcontractor who had agreed with the
general contractor to be paid for "satisfactory performance"
could maintain an action against the bond surety only for work
that met the condition precedent to its payment –-
satisfactory performance. In the present case, it is
undisputed that the equipment and materials furnished by JCI
were satisfactory and that JCI is entitled to payment. Hicks,
therefore, is also inapposite.
JCI has satisfied the four-part test set forth in Kruger;
accordingly, JCI is a proper claimant on the payment bond.
Therefore, the circuit court erred in entering a summary
judgment in favor of Liberty Mutual and denying JCI's summary-
judgment motion.
Conclusion
Based on the foregoing, we reverse the circuit court's
summary judgment in favor of Liberty Mutual and remand the
case for the circuit court to enter a summary judgment for
JCI.
REVERSED AND REMANDED.
Stuart, Bolin, Murdock, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Shaw, J., dissent.
34
1121288
MOORE, Chief Justice (dissenting).
Because Batson-Cook Company ("Batson-Cook") must be
liable to Johnson Controls, Inc. ("JCI"), before Liberty
Mutual Insurance Company ("Liberty Mutual") can be liable to
JCI, I respectfully dissent.
I. The Terms of the Payment Bond Control
The majority opinion fails to address the operative terms
of the payment bond between Batson-Cook and Liberty Mutual
("the bond"). "[S]uretyship is a contractual relationship.
Consequently, we begin our inquiry into the liability of [the
surety] by reviewing the terms of the surety contract itself."
Ex parte Lawyers Sur. Corp., 719 So. 2d 833, 835 (Ala. 1998).
In a suretyship contract, "one person engages to be answerable
for the debt, default, or miscarriage of another. It is an
obligation accessorial to that of the principal debtor: the
debt is due from the principal, and the surety is merely a
guarantor for its payment." Evans v. Keeland, 9 Ala. 42, 46
(1846). The "general principles of contract interpretation
apply with equal force to surety contracts." Fidelity &
Deposit Co. of Maryland v. Jefferson Cnty. Comm'n, 756 F.
Supp. 2d 1329, 1335 (N.D. Ala. 2010) (applying Alabama law).
35
1121288
The bond states that Batson-Cook, as principal, and
Liberty Mutual, as surety, bind themselves for the payment of
$1,059,000
to
Roanoke
Healthcare
Authority
("Roanoke
Healthcare") and all "persons, firms, and corporations" who
furnished labor and materials under the Batson-Cook/Roanoke
Healthcare contract. Liberty Mutual agreed to be liable for
Batson-Cook's unpaid debts if Batson-Cook did not "properly
make payment to all persons, firms, and corporations
furnishing materials for or performing labor in the
prosecution of the WORK provided for in such contract ...."
(Capitalization in original.) Batson-Cook's obligation to
Roanoke Healthcare controls Liberty Mutual's liability.
Liberty Mutual is answerable for Batson-Cook's default, not
Roanoke
Healthcare's
default.
We
must
"enforce
an
unambiguous,
lawful contract, as it is written. ... A court may not make a
new contract for the parties or rewrite their contract under
the guise of construing it." Ex parte Dan Tucker Auto Sales,
Inc., 718 So. 2d 33, 35-36 (Ala. 1998). The majority ignores
the plain language of § 39-1-1, Ala. Code 1975, and rewrites
the surety contract to make Liberty Mutual answerable for
36
1121288
Roanoke Healthcare's debts, in addition to those of the
principal, Batson-Cook.
II. The Proper Claimant Under the Bond
The majority states that the fact that JCI sold equipment
and
materials directly to Roanoke Healthcare "is immaterial
to
a determination whether JCI is a proper claimant under the
payment bond." ___ So. 3d at ___. I disagree. This fact is not
only material but also dispositive of the question whether JCI
is a proper claimant under the bond. "[I]t is of the essence
of such a [suretyship] contract, that there be a valid
obligation of the principal debtor." Evans v. Keeland, 9 Ala.
at 46. "There can be no surety unless there is a principal
primarily liable." City of Birmingham v. Trammell, 267 Ala.
245, 248, 101 So. 2d 259, 262 (1958). "'The threshold issue on
this bond claim is whether the contractor ... is liable to the
subcontractor ... for labor, materials, or supplies.'" A.G.
Gaston Constr. Co. v. Hicks, 674 So. 2d 545, 547 (Ala. Civ.
App. 1995) (quoting the trial court's order).
5
"Inherent in the existence of any surety relationship is
5
the requirement that the principal owe some obligation." 72
C.J.S. Principal and Surety § 18 (2005).
37
1121288
Although the majority relies on the four elements for
recovery on a § 39-1-1 payment bond stated in Federal
Insurance Co. v. I. Kruger, Inc., 829 So. 2d 732 (Ala. 2002),
it overlooks Kruger's statement of the threshold element of
suretyship law –- the liability of the surety to the
principal:
"It is true that if Kruger has no right of
recovery against the principal ... Kruger may not
recover against the surety ... on the payment bond.
... [I]n order to determine whether Kruger is
entitled to recover under the terms of the payment
bond, we must first determine whether Kruger is
entitled
to
recover
under
the
Harbert–Kruger
subcontract."
Kruger, 829 So. 2d at 736-37 (emphasis added). Likewise,
Batson-Cook must be liable to JCI before Liberty Mutual can be
liable to JCI. Because Batson-Cook is not liable to JCI,
neither is Liberty Mutual. "All other questions may therefore
be laid aside, as of course, if liability be not shown against
the contractor, clearly none can be established against the
surety." Magic City Paint & Varnish Co. v. American Sur. Co.
of New York, 228 Ala. 40, 43, 152 So. 42, 44 (1934). Until
today's
decision,
an Alabama surety was "never answerable upon
an undertaking unless his principal is bound thereby."
38
1121288
McKissack v. McClendon, 133 Ala. 558, 562, 32 So. 486, 487
(1902) (Tyson, J., dissenting).
III. Reading the Statute into the Bond
The majority states that "[t]he terms of the payment bond
here limit claimants to those having a direct contract with
either the contractor or a subcontractor." ___ So. 3d at ___.
The bond provides "that beneficiaries or claimants hereunder
shall be limited to the SUBCONTRACTORS, and persons, firms,
and corporations having a direct contract with the PRINCIPAL
or it's [sic] SUBCONTRACTOR." (Capitalization in original.)
The majority continues: "[W]hen a payment bond is issued to
satisfy the provisions of § 39-1-1, as it was in the present
case, the requirements of the statute will be read into the
bond." ___ So. 3d at ___. On its face, Liberty Mutual's bond
does not exclude JCI, which had a direct contract with Hardy,
Batson-Cook's subcontractor. Because the bond facially
complies with § 39-1-1, we have no need to read additional
provisions into the bond. The majority opinion reads an extra-
statutory obligation into the bond, namely, the obligation of
Roanoke Healthcare, as the owner, to make payments. We may not
39
1121288
insert into a bond additional obligations not stated in § 39-
1-1.
IV. The Batson-Cook/Hardy Subcontract
The majority also neglects the terms of the Batson-
Cook/Hardy
subcontract,
which
provides
that
"the
Subcontractor
agrees not to perform any work directly for the Owner ... or
deal directly with the Owner's representatives in connection
with the project, unless otherwise directed in writing by the
Contractor." (Emphasis added.) Batson-Cook directed Hardy to
deal directly with Roanoke Healthcare because
"all purchases of tangible personal property to be
incorporated into the realty by Batson-Cook ... will
be paid directly by [Roanoke Healthcare], but
addressed to Batson-Cook ... who will forward them
on to [Roanoke Healthcare] for payment. [Roanoke
Healthcare] payments will be issued directly to the
material supplier."
The Batson-Cook/Hardy subcontract incorporated the Batson-
Cook/Roanoke Healthcare contract, which states that Roanoke
Healthcare would directly purchase all or a portion of the
materials and equipment. Batson-Cook agreed to serve as a
purchasing agent to bind Roanoke Healthcare contractually for
the purchase of equipment and materials necessary to carry out
Batson-Cook's contractual obligations. The purchasing-agent
40
1121288
agreement provides that "the net amount paid for tangible
personal property purchased under this agreement shall be
deducted from the total amount that would otherwise be due
from [Roanoke Healthcare] to [Batson-Cook] under the project
agreement."
After reviewing these contracts, the trial court found
that
"the equipment and materials at issue were purchased
directly from [JCI] by [Roanoke Healthcare] and thus
were outside of the scope of the contract between
[Roanoke Healthcare] and [Batson-Cook], the general
contractor, who was also acting as the purchasing
agent of [Roanoke Healthcare] for equipment and
materials.
[JCI's]
invoices
also
reflect
the
purchaser being [Roanoke Healthcare]. Since the
equipment and materials at issue were outside the
scope of the contract between [Batson-Cook] and
[Roanoke Healthcare], they are not covered by the
payment bond."
The majority does not give proper deference to the trial
court's order, which was in accord with the "principle of the
common law, that whatever operates as a partial, or total
exoneration of the principal, will necessarily have the same
effect in favor of the surety." State v. Parker, 72 Ala. 181,
184 (1882). "A surety ... may be discharged from its
obligation ... by a discharge of the principal." 17 Am. Jur.
2d Contractors' Bonds § 15 (2004). The purchasing-agent
41
1121288
agreement
partially
discharged
Batson-Cook
from
its
obligation
to make payments to materialmen and "operated to discharge,
not only [Batson-Cook], but also [Liberty Mutual].... The
liability of the principal being adjudged not to exist, the
liability of the sureties falls with its extinguishment."
Parker, 72 Ala. at 184.
JCI "must take notice of the terms and character of the
contract between the owner and the
original
contractor." Selma
Sash, Door & Blind Factory v. Stoddard, 116 Ala. 251, 254, 22
So. 555, 556 (1897). Once JCI had notice of the contract
between Batson-Cook and Roanoke Healthcare, that contract
could not be changed "to the prejudice of any one having a
legal
interest
in
it,
owner,
original
contractor,
subcontractor, or materialman." Cranford Mercantile Co. v.
Wells, 195 Ala. 251, 255, 70 So. 666, 668 (1916). Justice
Joseph Story stated that "the liability of a surety is not to
be extended, by implication, beyond the terms of his
contract." Miller v. Stewart, 22 U.S. (9 Wheat.) 680, 703
(1824). Accordingly, JCI is bound by the contract and
subcontract. Under these documents, JCI agreed
to
seek payment
from Roanoke Healthcare, not from Batson-Cook.
42
1121288
Because JCI agreed that Batson-Cook was not liable to
JCI, JCI has no right to recover from Batson-Cook. Where
"there is no liability shown as between the original
contracting parties, [there can be] of consequence none, of
course, against the surety." Magic City Paint, 228 Ala. at 42,
152 So. at 43. JCI "can recover no greater balance from
[Liberty Mutual] than he can from the principal in the bond."
Royal Indem. Co. v. Young & Vann Supply Co., 225 Ala. 591,
595, 144 So. 532, 535 (1932). The majority overlooks the fact
that "[Batson-Cook's] liability ... is the limit of the
liability of [Liberty Mutual] and a necessary element to
[Liberty Mutual's] liability." American Cas. Co. of Reading,
Pa. v. Devine, 275 Ala. 628, 641, 157 So. 2d 661, 673 (1963).
V. Statutory Construction of § 39-1-1
The majority extends Liberty Mutual's liability and does
so purportedly to further the purposes of § 39-1-1. Although
§ 39-1-1 should be "liberally construed" to accomplish its
purpose of protecting materialmen, Headley v. Housing
Authority of Prattville, 347 So. 2d 532, 535 (Ala. Civ. App.
1977), the purpose of the statute is plainly found in the
language of the statute. See Ex parte State Dep't of Revenue,
43
1121288
683 So. 2d 980, 983 (Ala. 1996) (noting that, "where plain
language is used, the court is bound to interpret that
language to mean exactly what it says"). We must construe the
statute, not create obligations it omits.
The majority never construes subsection (a) of § 39-1-1,
which defines the bonding obligation that provides a cause of
action under subsection (b). The Court's duty is to give
effect to both subsections of § 39-1-1 because "every part of
a statute should, if possible, be upheld and given appropriate
force." State v. Western Union Tel. Co., 196 Ala. 570, 573, 72
So. 99, 100 (1916). "[P]arts of the same statute are in pari
materia and each part is entitled to equal weight." Darks
Dairy, Inc. v. Alabama Dairy Comm'n, 367 So. 2d 1378, 1381
(Ala. 1979).
A materialman may bring "a civil action upon the payment
bond" under § 39-1-1(b). The bond at issue is "the obligation
that the contractor ... shall promptly make payments to all
persons supplying labor, materials, or supplies for or in the
prosecution of the work provided in the contract." § 39-1-1(a)
(emphasis added). The majority ties JCI's claim to its intent
to provide materials for "a public work," but the statute
44
1121288
limits JCI's claim to payment for materials and supplies to
"the work provided in the contract." The Court, however, has
no "liberty to rewrite statutes," Ex parte Carlton, 867 So. 2d
332, 338 (Ala. 2003), and "may not detract from or add to the
statute." Water Works & Sewer Bd. of Selma v. Randolph, 833
So. 2d 604, 607 (Ala. 2002). The majority has rewritten this
statute and has effectively cut § 39-1-1(b) loose from any
moorings to § 39-1-1(a), its companion subsection.
VI. The Purpose of § 39-1-1
The majority makes much of the purpose of § 39-1-1, which
is "'"to provide security for those who furnish labor and
material in performance of government contracts as a
substitute for unavailable lien rights, and [it] is liberally
construed to accomplish this purpose."'" ___ So. 3d at ___
(quoting Safeco Ins. Co. of America v. Graybar Elec. Co., 59
So. 3d 649, 656 (Ala. 2010), quoting in turn Headley v.
Housing Auth. of Prattville, 347 So. 2d at 535). The remedial
purpose of the statute, however, does not justify expanding
the liability of sureties. "[A] court will not enlarge the
scope of a statutory bond beyond the express terms of a
statute ...." 74 Am. Jur. 2d Suretyship § 27 (2012). The
45
1121288
purpose of § 39-1-1, like the parallel federal Miller Act,
"does not justify ignoring plain words of limitation and
imposing wholesale liability on payment bonds." Clifford F.
MacEvoy Co. v. United States, for Use & Benefit of Calvin
Tomkins Co., 322 U.S. 102, 107 (1944). Likewise, "courts are
not justified in writing liability into a Miller Act bond."
Graybar Elec. Co. v. John A. Volpe Constr. Co., 387 F.2d 55,
58 (5th Cir. 1967).
The majority has expanded Liberty Mutual's liability at
the expense of its rights as a surety under Alabama law. See
§ 8-3-1 et. seq., Ala. Code 1975 (stating the rights of a
surety who pays a principal's debts). If the Court requires
Liberty Mutual to pay Roanoke Healthcare's debt to JCI,
Liberty Mutual will not be entitled to reimbursement against
Batson-Cook. "When a surety satisfies the principal's
obligation, it is entitled to reimbursement or restitution
from the principal." SouthTrust Bank of Alabama, N.A. v.
Webb-Stiles Co., 931 So. 2d 706, 712 (Ala. 2005). Liberty
Mutual's "right to indemnity does not arise ... until one
acting as surety satisfies his principal's obligation."
Alabama Kraft Co. v. Southeast Alabama Gas Dist., 569 So. 2d
46
1121288
697, 700 (Ala. 1990) (emphasis added). The majority opinion,
when "followed to its logical conclusion, necessarily results
in imposing a liability upon [Liberty Mutual] never contracted
by [it], and leaving [Liberty Mutual] without a right of
reimbursement from [Batson-Cook]." McKissack, 133 Ala. at
563, 32 So. at 487 (Tyson, J., dissenting). I agree that the
Court should protect materialmen who provide equipment and
material for public-works contracts. However, the majority
opinion would remedy JCI's legal injury by wrongly imposing on
Liberty Mutual the liability for the injury.
VII. Conclusion
Because JCI is not entitled to recover from Batson-Cook,
JCI is not entitled to payment from Liberty Mutual. Therefore,
I would hold that the judgment of the trial court should be
affirmed.
47
1121288
SHAW, Justice (dissenting).
I respectfully dissent.
This case involves an attempt by Johnson Controls, Inc.
("JCI"), to collect payment for certain equipment and
materials it provided to a public-works project designed to
renovate the medical-center facility owned by the Roanoke
Healthcare Authority ("Roanoke Healthcare"), a public entity.
Generally, when a person has provided labor or materials
to a private construction project, that person is entitled,
under Ala. Code 1975, § 35–11–210, to a lien against that
private property. Safeco Ins. Co. of America v. Graybar Elec.
Co., 59 So. 3d 649, 655 (Ala. 2010). Section 35–11–210 does
not apply, however, to public property. Id. Thus, in what is
commonly called Alabama's "little Miller Act," Ala. Code 1975,
§ 39-1-1 et seq., the legislature has required contractors
involved in public-works projects to obtain certain bonds to
protect those who provide labor and materials on those
projects.
Specifically, § 39-1-1(a) requires that any person
entering into a contract with a governmental entity to build
6
Such governmental entities are referred to as "awarding
6
authorities" and are more specifically defined in Ala. Code
48
1121288
any "public works" shall execute what is described in § 39-1-
1(b) as a "payment bond." Such a bond must be "payable to the
awarding authority" and must "be executed in an amount not
less than 50 percent of the contract price." § 39-1-1(a).
The scope of this bond, i.e., what the Code section states
that the bond must cover, is defined as follows: the bond
shall contain "the obligation that the contractor or
contractors shall promptly make payments to all persons
supplying labor, materials, or supplies for or in the
prosecution of the work provided in the contract ...." § 39-
1-1(a).
Section 39-1-1(b) allows persons who have "furnished
labor, materials, or supplies for or in the prosecution of a
public work," but who have not been paid, to file a civil
action. Such an action provides those persons a means to have
adjudicated any rights or claims they might have under the
payment bond: "Any person that has furnished
labor,
materials,
or supplies for or in the prosecution of a public work and
payment has not been made may institute a civil action upon
1975, § 39-2-1(1). There appears no dispute in this case that
Roanoke Healthcare is an "awarding authority."
49
1121288
the payment bond and have their rights and claims adjudicated
in a civil action and judgment entered thereon."
The majority opinion focuses on whether JCI provided
equipment and materials for the public-works project;
specifically, the opinion states that § 39-1-1(b) "focuses
exclusively on the intent" for which the equipment and
materials were provided and quotes the following from § 39-1-
1(b): "'Any person that has furnished labor, materials, or
supplies for or in the prosecution of a public work ... may
institute a civil action upon the payment bond ....'" So.
3d at (omissions in the majority opinion). If that is all
the Code section stated, the majority opinion might have a
point. But the majority omits controlling language. As
quoted fully above, the Code section states: "Any person that
has furnished labor, materials, or supplies for or in the
prosecution of a public work and payment has not been made may
institute a civil action upon the payment bond and have their
rights and claims adjudicated in a civil action and judgment
entered thereon." (Emphasis added.) The action one files
under § 39-1-1(b) is to determine one's rights and claims upon
the payment bond. Such "rights and claims" are spelled out in
§ 39-1-1(a); specifically, as noted above, the payment bond
50
1121288
obligates the contractor to pay persons supplying "labor,
materials, or supplies" for "the work provided in the
contract," not simply for "labor, materials, or supplies"
provided to the public-works project. § 39-1-1(a) (emphasis
added).
7
The majority opinion, by omitting pertinent language,
rewrites the Code section to provide that persons are entitled
to payment under the bond simply because they have provided
"labor, materials, or supplies" to a public-works project in
any way. By focusing on whether the equipment and supplies
are used in the project, and not on whether the equipment and
supplies were used for "the work provided in the contract" for
the project, any expense for the project is covered, even if
the expense is outside the contract. The majority opinion
holds that the contractor's bond must cover everything, even
things beyond the scope of the terms of the contract. This is
not what the Code section states.
Section 39-1-1(b) has broad language allowing "any
7
person" providing materials to a public-works project to file
an action under the "payment bond"; however, it is clear that
it does not allow "any person" to recover under the bond.
Instead, the action determines only the rights and claims of
the plaintiff under that bond.
51
1121288
Under the facts of the instant case, the "work provided
in the contract" between the general contractor, Batson-Cook
Company ("Batson-Cook"), and Roanoke Healthcare called for
Batson-Cook to purchase materials and to provide labor for the
renovation project. However, the contract also recognized
8
that Roanoke Healthcare was a tax-exempt entity that could
purchase materials without paying sales taxes. Thus, to
"avoid" those taxes, the contract indicated that the parties
would enter into what it termed a "Purchasing Agent Agreement"
("PAA"). Roanoke Healthcare would actually purchase "all, or
a portion of," the "materials, supplies, equipment, and other
items" for the project. Batson-Cook would act as Roanoke
Healthcare's "agent" for those purchases. See paragraphs a.
and d. of the PAA, quoted in the main opinion. So. 3d at
. Under the PAA, the cost of items purchased by Roanoke
Healthcare is deducted from the overall total amount due
Batson-Cook under the contract; thus, the purchases made by
Roanoke Healthcare are removed from the "work provided in the
Batson-Cook purchased a payment bond from Liberty Mutual
8
Insurance Company ("Liberty Mutual"). There is evidence in
the record suggesting that Batson-Cook is required to
indemnify Liberty Mutual for any claims made under the payment
bond.
52
1121288
contract." See id., paragraph i. Batson-Cook did not
purchase JCI's equipment and materials (it did not perform
that "work") and was not, and would not be, paid for the
purchase of the equipment and materials (it would not be paid
for that "work"), and the purchase of the JCI equipment and
materials was to be removed from the contract (that "work" was
removed from the contract). Although the JCI equipment and
materials were certainly used for the public-works project, §
39-1-1(a) focuses on "the work provided in the contract," not
all work provided for the public-works project. I cannot
conclude that Roanoke Healthcare's separate purchase of the
JCI equipment and materials was "work provided in the
contract" and was covered by Batson-Cook's payment bond.9
JCI suggests that there is an issue of fact as to whether
9
the purchase was outside the scope of the contract,
specifically, whether JCI understood that it was selling
directly to Roanoke Healthcare or directly to Batson-Cook's
subcontractor, Hardy Corporation ("Hardy"). I disagree that
there is a question of fact regarding to whom JCI sold the
equipment and materials. Numerous items of documentary
evidence and testimony show that the terms of the PAA were
communicated to JCI. Hardy's agent, Ronnie Vines, twice told
JCI that Roanoke Healthcare, and not Batson-Cook or Hardy, was
buying the equipment and materials and that invoices should
show Roanoke Healthcare as the buyer. JCI twice received e-
mails stating this and twice received a letter from the
Alabama Department of Revenue stating that Roanoke Healthcare
was a tax-exempt entity. Further, after the sale, JCI sent
an e-mail to Hardy inquiring as to how to bill Roanoke
53
1121288
JCI also argues that the trial court's decision violates
"public policy" intended by the "little Miller Act," namely,
to "ensure that a materialman receives full payment for labor
or materials that he supplies to a public works project." SGB
Constr. Servs., Inc. v. Ray Sumlin Constr. Co., 644 So. 2d
892, 895 (Ala. 1994). However, the legislature "has the
exclusive domain to formulate public policy in Alabama" and
has done so through the text of § 39-1-1. Boles v. Parris,
952 So. 2d 364, 367 (Ala. 2006). The text of § 39-1-1 does
not provide for JCI under the payment bond.
The majority holds that we should "construe § 39-1-1 so
as to effectuate the purpose for which it was enacted."
So. 3d at . However,
"'"[w]ords used in a statute must be given their
natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is
bound to interpret that language to mean exactly
what it says. If the language of the statute is
unambiguous, then there is no room for judicial
construction and the clearly expressed intent of the
legislature must be given effect."'"
Healthcare. But the most important fact showing that JCI knew
that it was selling the equipment and materials to Roanoke
Healthcare is the fact that JCI charged no sales tax. Who did
JCI think the purchaser was, other than the only tax-exempt
entity in this case? I see no issue of fact.
54
1121288
DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270,
275 (Ala. 1998) (quoting Blue Cross & Blue Shield v. Nielsen,
714 So. 2d 293, 296 (Ala. 1998), quoting in turn IMED Corp. v.
Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)).
We "construe" a statute only when it is ambiguous; if the
statute is unambiguous, then there is no room for the courts
to do anything other than to give effect to the plain language
of the Code section: "When the language of a statute is plain
and unambiguous, as in this case, courts must enforce the
statute as written by giving the words of the statute their
ordinary plain meaning--they must interpret that language to
mean exactly what it says ...." Ex parte T.B., 698 So. 2d
127, 130 (Ala. 1997). Here, the majority opinion fails to
give effect to all the language of § 39-1-1, thus altering the
actual wording of the Code section to achieve a reading in
conformity with its "purpose." The legislature chose the
words of § 39-1-1 to effectuate the purpose it intended; we
cannot change those words to say what we believe the
legislature actually intended to say. To do so would "turn
this Court into a legislative body, and doing that, of course,
would be utterly inconsistent with the doctrine of separation
of powers." DeKalb County, 729 So. 2d at 276.
55
1121288
The statutory scheme set forth by the little Miller Act
protects the property owner from claims by persons who have
supplied "labor, materials, or supplies" but who have not been
paid by the contractor. Thus, the payment bond is "payable
to the awarding authority" and contains the "obligation that
the contractor
or contractors shall promptly make payments" to
those persons. § 39-1-1(a). In this case, the payment bond
was payable to Roanoke Healthcare, and Roanoke Healthcare
could call upon the bond to pay the debts Batson-Cook--the
"contractor"--accumulated for the project but failed to pay.
Here, Batson-Cook did not buy JCI's materials and equipment,
and the price for the materials and equipment was removed from
the contract. Batson-Cook was not to be paid by Roanoke
Healthcare to buy JCI's materials and equipment and is not the
party obligated to pay JCI. The effect of the majority
opinion, however, is that Batson-Cook is now responsible to
pay for materials and equipment Roanoke Healthcare purchased
and, under the contract for the project, for which Batson-Cook
would not be paid in the first place. The majority holds that
the payment bond stands good for the debts of the awarding
authority, even though the Code section calls for the bond to
stand good for the debts of the contractor.
56
1121288
JCI seeks, under § 39-1-1(b), to have its "rights and
claims adjudicated" "upon the payment bond." Because the
purchase of the equipment and materials was not "work provided
in the contract," JCI has no right or claim under the payment
bond. I would affirm the trial court's summary judgment for
Liberty Mutual Insurance Company.
57 | May 9, 2014 |
0f6a70c5-4675-4547-bad4-cc47a1c3654e | Sterne, Agee & Leach, Inc. v. U.S. Bank National Association | N/A | 1120904 | Alabama | Alabama Supreme Court | REL:02/07/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120904
____________________
Ex parte U.S. Bank National Association and U.S. Bancorp
PETITION FOR WRIT OF MANDAMUS
(In re: Sterne, Agee & Leach, Inc.
v.
U.S. Bank National Association and U.S. Bancorp)
(Jefferson Circuit Court, CV-11-1241)
BOLIN, Justice.
U.S.
Bank
National
Association
and
U.S.
Bancorp
(hereinafter collectively referred to as "U.S. Bank") seek a
1120904
writ of mandamus ordering the Jefferson Circuit Court to
dismiss the malicious-prosecution case filed against them by
Sterne, Agee & Leach, Inc. ("Sterne Agee"), that arose out of
a lawsuit prosecuted by U.S. Bank entirely in the State of
Washington.
Facts and Procedural History
In 2002, Sterne Agee, a Delaware corporation with
headquarters in Alabama and offices in Seattle, Washington,
acted as the underwriter in Washington for securities offered
by a Washington business entity. Under the Washington State
Securities Act, Sterne Agee was a "seller" of the securities.
In 2004, in federal district court in Washington, U.S. Bank
sued Sterne Agee, among others, alleging that the defendants
had violated the Washington State Securities Act through a
series of material omissions in the securities offering.
U.S. Bank obtained default judgments or entered into
settlement agreements with all the defendants except Sterne
Agee. In 2006, U.S. Bank's claims against Sterne Agee
proceeded to trial. The trial court granted Sterne Agee's
motion for a judgment as a matter of law. U.S. Bank appealed,
and the United States Court of Appeals for the Ninth Circuit
2
1120904
vacated the federal district court's order and remanded the
case to the federal district court. Following a second trial
in 2009, the federal district court entered a judgment in
favor of Sterne Agee. U.S. Bank appealed, and the Court of
Appeals for the Ninth Circuit affirmed the judgment in 2011.
On July 1, 2011, Sterne Agee sued U.S. Bank in the
Jefferson Circuit Court, alleging malicious prosecution
arising out of the lawsuit prosecuted by U.S. Bank in
Washington. The case was removed to the United States
District Court for the Northern District of Alabama, which
subsequently remanded the case to Jefferson Circuit Court. On
January 31, 2013, U.S. Bank filed a motion to dismiss, arguing
that under Alabama's choice-of-law rules applicable when two
or more jurisdictions have an interest in the outcome of a
dispute, Alabama would apply the law of the state where the
injury occurred. Because this is a malicious-prosecution
action, U.S. Bank argued, the injury was forcing U.S. Bank to
defend an allegedly malicious securities action in Washington
state and the injury thus occurred in Washington state. On
April 11, 2013, the circuit court denied U.S. Bank's motion to
dismiss. On April 16, 2013, U.S. Bank moved the circuit court
3
1120904
to certify its order for a permissive interlocutory appeal
pursuant to Rule 5, Ala. R. App. P. On April 16, 2013, the
circuit court denied the motion. On May 1, 2013, U.S. Bank
petitioned this Court for a writ of mandamus.
Standard of Review
U.S. Bank sought to have the circuit court certify the
conflict-of-law issue for a
permissive
appeal pursuant to Rule
5, Ala. R. App. P. Rule 5 allows for an appeal of an
interlocutory order involving a controlling issue of law as to
which there is substantial ground for difference of opinion
when an immediate appeal would materially advance termination
of the litigation and would avoid protracted and expensive
litigation. This Court has allowed permissive appeals to
address conflict-of-laws situations where the trial court has
certified the issue for permissive appeal under Rule 5. See,
e.g., Precision Gear Co. v. Continental Motors, Inc., [Ms.
1110786, July 12, 2013] So. 3d (Ala. 2013); Fitts v.
Minnesota Min. & Mfg. Co., 581 So. 2d 819 (Ala. 1991).
In the present case, the circuit court refused to certify
the conflict-of-laws issue for a permissive appeal. We
recognize that a certification allowing a party to seek a
4
1120904
permissive appeal under Rule 5(a) is discretionary with the
trial court. Ex parte Burch, 730 So. 2d 143 (Ala. 1999). In
Ex parte Burch, we treated a mandamus petition addressed to a
trial court's denial of a motion in limine as a petition
seeking a permissive appeal. Even though the petitioner in
Burch had not asked the trial court to certify the issue for
permissive appeal, the transcripts from the hearing on the
motion in limine revealed the trial court's belief that this
Court's resolution of the motion in limine was important to
materially advance the litigation. We note that here the
trial court stayed the taking of depositions until this Court
ruled on the mandamus petition.
In Ex parte Liberty National Life Insurance Co., 825 So.
2d 758 (Ala. 2002), three of the eight sitting Justices agreed
that mandamus would lie to direct a trial court to certify an
interlocutory order for permissive review when the
trial court
had refused to do so upon a showing that the court had clearly
exceeded its discretion, a showing not apparent on the face of
the complaint in that case. Two Justices wrote separately to
explain their belief that a Rule 5 certification was entirely
discretionary "in the [trial] judge's opinion," Rule 5(a),
5
1120904
Ala. R. App. P., and that an appellate court could not force
a trial judge to hold any certain opinion. In his special
writing, Justice Harwood wrote that appellate courts should
resist asserting mandamus power to compel certification of an
interlocutory order for permissive appeal. He noted that it
would be a truly rare situation in which it would be
appropriate for this Court to require certification of an
issue of compelling
importance, "comparable at
the
State level
to 'a controlling issue of national significance,'" and he
cited Fernandez-Roque v. Smith, 671 F.2d 426, 431 (11th Cir.
1982), a case that involved deportation, jurisdiction, and a
foreign forum. 825 So. 2d at 768-69 (Harwood, J., concurring
specially). However, U.S. Bank is not seeking mandamus to
compel the
circuit
court to certify the conflict-of-laws issue
for permissive appeal. Instead, U.S. Bank seeks mandamus as
its only remedy to review the conflict-of-laws issue raised in
its motion to dismiss because its certification to seek
permissive appeal has been denied and because this Court and
the Court of Civil Appeals have granted mandamus review in
cases involving conflict-of-laws issues. See Ex parte Exxon
6
1120904
Corp., 725 So. 2d 930 (Ala. 1998), and Batey & Sanders, Inc.
v. Dodd, 755 So. 2d 581 (Ala. Civ. App. 1991), respectively.
In Ex parte Exxon, supra, this Court held that a mandamus
petition is an appropriate method by which to seek review of
a
trial
court's
misapplication
of
conflict-of-laws
analysis
in
a class-action certification. Although the Court in Exxon
recognized the well settled principle that mandamus is a
proper tool by which to challenge certification of a class
action, it also recognized that, in determining whether there
is a common question of law for class-certification purposes,
Alabama will determine the rights of an injured party
according to the law of the state where the injury occurred.
In Batey & Sanders, supra, an employee sued his employer
seeking
worker's
compensation
benefits;
he
also
sought
damages
for an alleged retaliatory discharge for seeking worker's
compensation benefits. The employer had an office in Alabama
and one in Georgia, and it hired the employee to work out of
its Georgia office. The trial court originally dismissed the
employee's retaliatory-discharge claim but later reinstated
it. The employer petitioned this Court for a writ of
mandamus, and we transferred the case to the Court of Civil
7
1120904
Appeals. The Court of Civil Appeals held that under the rule
of lex loci delicti the law of Georgia governed the employee's
tort claim of retaliatory
discharge because his employment had
been terminated in Georgia. The Court of Civil Appeals stated
that, "[b]ecause the wrong complained of occurred in Georgia,
the law of Georgia applies," and it granted the petition and
ordered the trial court to dismiss the retaliatory-discharge
claim because Georgia law does not recognize a cause of action
for retaliatory discharge. 755 So. 2d at 583.
This Court has held that a writ of mandamus is an
appropriate means by which to review the following: subject-
matter jurisdiction, Ex parte Johnson, 715 So. 2d 783 (Ala.
1998);
standing
as
a
component
of
subject-matter
jurisdiction,
Ex parte HealthSouth Corp., 974 So. 2d 288 (Ala. 2007);
nonjusticiability
as
a
component
of
subject-matter
jurisdiction, Ex parte Valloze, [Ms. 1111335, September 27,
2013] So. 3d (Ala. 2013); personal jurisdiction, Ex
parte Duck Boo Int'l Co., 985 So. 2d 900 (Ala. 2007);
immunity, Ex parte Butts, 775 So. 2d 173 (Ala. 2000); failure
to exercise due diligence in identifying,
before
expiration of
the statute of limitations, a fictitiously named defendant as
8
1120904
the party to be sued, Ex parte Chemical Lime of Alabama, Inc.,
916 So. 2d 594 (Ala. 2005); a denial of a motion for a change
of venue when venue has been challenged as improper, Ex parte
Daniels, 941 So. 2d 251 (Ala. 2006); a denial of a motion to
dismiss where the doctrine of forum non conveniens is
applicable, Ex parte Kia Motors America, Inc., 881 So. 2d 396
(Ala. 2003); a refusal to enforce an outbound forum-selection
clause when the issue is presented in a motion to dismiss, Ex
parte Bad Toys Holdings, Inc., 958 So. 2d 852 (Ala. 2006);
class certification, Ex parte Caremark RX, Inc., 956 So. 2d
1117 (Ala. 2006); a motion to dismiss an action based on
abatement, Ex parte J.E. Estes Wood Co., 42 So. 3d 104 (Ala.
2010); the grant of a motion adding a real party in interest,
Ex parte Tyson Foods, Inc., [Ms. 1110931, May 24, 2013]
So. 3d (Ala. 2013); the availability of a jury trial, Ex
parte BancorpSouth Bank, 109 So. 3d 163 (Ala. 2012); a ruling
on a motion to dismiss a counterclaim that was a compulsory
counterclaim in a previous action, Ex parte Cincinnati Ins.
Co., 806 So. 2d 376 (Ala. 2001); rulings on discovery motions
where a privilege is disregarded, when discovery orders the
production of patently irrelevant or duplicative documents
9
1120904
such as to clearly constitute harassment or impose a burden on
the producing party far out of proportion to any benefit that
may be obtained by the requesting party, when the court
imposes a sanction effectively precluding a decision on the
merits or denies discovery going to a party's entire action or
defense so that the outcome is all but determined and the
petitioner would merely be going through the motions of a
trial to obtain an appeal, or when the trial court
impermissibly prevents the petitioner from making a record on
the discovery issue so that the appellate court cannot review
the effect of the trial court's alleged error, Ex parte Ocwen
Fed. Bank, FSB, 872 So. 2d 810 (Ala. 2003); denial of a motion
objecting to the appointment of a special master, Ex parte
Alabama State Pers. Bd., 54 So. 3d 886 (Ala. 2010); grant of
a motion to set aside previous supersedeas bond amount, Ex
parte Mohabbat, 93 So. 3d 79 (Ala. 2012); indefinite stay of
an action, Ex parte American Family Care, Inc., 91 So. 3d 682
(Ala. 2012); a trial court's failure to comply with an
appellate court's instruction on remand, Ex parte Williford,
902 So. 2d 658 (Ala. 2004); ruling on denial of motion to
admit an uncontested will to probate where a finding that the
10
1120904
testator
lacked testamentary capacity was not precluded by
the
appointment of a conservator, Toler v. Murray, 886 So. 2d 76
(Ala. 2004).
Although this list may seem to contradict the nature of
mandamus as an extraordinary writ, we note that the use of
mandamus review has essentially been limited to well
recognized situations where there is a clear legal right in
the petitioner to the order sought; an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
the lack of another adequate remedy; and properly invoked
jurisdiction of the court. Those well recognized situations
include making sure that an action is brought in the correct
court
(e.g., subject-matter jurisdiction and venue) and by
the
correct parties (e.g., personal jurisdiction and immunity),
reviewing
limited
discovery
rulings
(e.g.,
patently
irrelevant
discovery), and reviewing erroneous decisions by
a
trial court
where there is a compelling reason not to wait for an appeal
(e.g., abatement). Here, the circuit court concluded that
this action could be maintained when it is apparent on the
face of the complaint that there is an obvious conflict-of-
laws issue as to whether Alabama law or Washington state law
11
1120904
applies. It would waste the resources of the court and the
parties, and an appeal after a final judgment would be an
inadequate remedy, where an action would be barred if the law
of another state applied. We mention U.S. Bank's attempt at
a permissive appeal under Rule 5 only to emphasize that
mandamus review is proper and not to indicate that a writ of
mandamus is available in any action where a trial court has
denied certification of an issue for permissive appeal. A
determination of which state's law applies is deserving of
mandamus review when there is a true conflict between the laws
of two states apparent on the face of the complaint and the
application of one state's law over the other would bar the
action from proceeding.
It is well settled that
"[m]andamus is a drastic and extraordinary writ
that will be issued only when 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 AmSouth
Bank, N.A., 589 So. 2d 715 (Ala. 1991); Ex parte
Day, 584 So. 2d 493 (Ala. 1991)."
Ex parte United Serv. Stations, Inc., 628 So. 2d 501, 503
(Ala. 1993).
12
1120904
In the present case, we reiterate that it is apparent on
the face of Stern Agee's complaint that there is a conflict-
of-laws issue. The complaint alleges malicious prosecution
based on a civil action brought by U.S. Bank in Washington
state. Stern Agee sets out in detail the course of the
Washington action. Stern Agee, in its complaint, recognizes
that there is a conflict-of-laws issue and contends that
Alabama law applies to the exclusion of Washington law because
Alabama is the forum state, because Alabama applies the rule
of lex loci delicti, and because Stern Agee's injury occurred
in Alabama. In filing a motion to dismiss and subsequently
seeking permission to appeal and then filing a petition for a
writ of mandamus, U.S. Bank contends that, under the rule of
lex loci delicti, Washington law should apply to Stern Agee's
malicious-prosecution claim because, it says, the injury
occurred in Washington. Because U.S. Bank sought permissive
appeal and was denied certification for permissive appeal by
the circuit court, a petition for a writ of mandamus is U.S.
Bank's only adequate remedy for the circuit court's denial of
its motion to dismiss based on conflict of laws.
13
1120904
In choosing to address U.S. Bank's mandamus petition
seeking review of the circuit court's ruling on its motion to
dismiss, we are cognizant that in order for the writ of
mandamus to issue, U.S. Bank must have a "clear legal right"
to the order of dismissal. Although the legal issue before us
has not been definitively settled, this does not mean that
mandamus relief is unavailable. In other words, the mere fact
that a legal issue is debatable does not change the
responsibility of this Court, as a "court of law," to decide
the law and provides no basis for denying relief. We find the
following persuasive:
"The general statement is made: 'That if there
be doubt as to what his legal right may be,
involving the necessity of litigation to settle it,
mandamus must be withheld.' ... It is evident that
this statement is too general. There are many cases
where the right is disputed, and where the ultimate
right depends upon questions of law which may not
have been definitely settled, where the writ will
issue. If the right be made clear by proof ..., and
the case is one where the party is without adequate
remedy[,] mandamus may issue .... Can it be said
... that the remedy will be denied simply because
certain questions of law may arise that are not
clearly and definitely settled?"
2 W.F. Bailey, A Treatise on the Law of Habeas Corpus and
Special Remedies 801 (1913).
One federal court has explained:
14
1120904
"The dissent argues that mandamus lies only to
compel clear, mandatory duties, so that to the
extent we find the state law issue unclear, the
availability of mandamus relief is called into
question. This argument fails, however, for the
limitation of mandamus remedies to refusals to
perform clear, mandatory duties is not intended to
forestall judicial review of difficult legal issues,
but primarily to prohibit intrusion on discretionary
functions."
Georgevich v. Strauss, 772 F.2d 1078, 1093 (3d Cir.
1985)(emphasis added; citation omitted).
The considerable research and reflection provided by the
Oregon Supreme Court in State ex rel. Maizels v. Juba, 254 Or.
323, 460 P.2d 850 (1969), is helpful:
"The issue thus drawn is whether, where there is
no dispute in the facts, mandamus will lie to decide
in a certain way an especially complicated question
of law, the answer to which is in extreme doubt and
the solution of which requires the use of legal
judgment
and
acumen.
The
Oregon
statute
on
mandamus[,] ORS 34.110, is as follows:
"'A writ of mandamus may be issued to
any inferior court, ... to compel the
performance of an act which the law
specially enjoins, as a duty resulting from
an office, ... but though the writ may
require such court, ... to exercise its ...
judgment, or proceed to the discharge of
any of its ... functions, it shall not
control
judicial
discretion.
The
writ
shall
not be issued ... where there is a plain,
speedy and adequate remedy in the ordinary
course of the law.'
15
1120904
"The statements of this court in its decisions
concerning the use of mandamus have been fairly
uniform. Generally, the court has said that when the
facts are not in dispute and there is a clear rule
of law requiring the matter to be decided in a
certain way, mandamus will lie. It has also said
that mandamus will not lie to control the exercise
of discretion or judgment. While, at times, as
previously demonstrated, the court has refused the
use of mandamus because of difficult legal problems
being involved, more frequently it has used the writ
to decide problems where the law was far from clear
and where the exercise of legal judgment was
required for a solution. As an illustration, this
court has often used the writ to decide difficult
questions
of
law
involving
the
adequacy
of
substituted service of summons. State ex rel.
Carroll v. Redding, 245 Or. 81, 418 P.2d 846 (1966);
State ex rel. Pardee v. Latourette, 168 Or. 584, 125
P.2d 750 (1942); State ex rel. Hupp, etc., Corp. v.
Kanzler, 129 Or. 85, 276 P. 273 (1929); State ex
rel. Sullivan v. Tazwell, 123 Or. 326, 262 P. 220
(1927). The cases in which the court has so used
mandamus are not limited to those testing the
adequacy of substituted service of summons. See the
following cases where difficult questions of law
have been decided in the interpretations of statutes
and the constitution: State ex rel. Public Welfare
Commission v. Malheur County Court, 185 Or. 392, 203
P.2d 305, 307 (1949); State ex rel. Pierce v.
Slusher, 119 Or. 141, 248 P. 358 (1926); City of
Astoria v. Cornelius et al., 119 Or. 264, 240 P. 233
(1925); Peterson v. Lewis, 78 Or. 641, 154 P. 101
(1915); Crawford v. School District No. 7, 68 Or.
388, 137 P. 217, 50 L.R.A., N.S., 147 (1913); State
v. Ware, 13 Or. 380, 10 P. 885 (1886).
"It is plain, regardless of what this court has
said to the contrary, that mandamus has repeatedly
been used to require public officers, including
inferior courts, to act in a certain way where the
applicable
law
governing
their
actions
was
16
1120904
legitimately in dispute. There is ample authority
elsewhere that justifies this use of the writ. F.
Ferris, Extraordinary Legal Remedies § 210 (1926),
has the following statement:
"'Notwithstanding
that
courts
will not
grant mandamus to control discretion, the
rule
does
not
apply
to
preliminary
questions of law. It applies only to the
act to be commanded by the writ.* The
character
of
a
purely
preliminary
question,
though judicial, does not test the right to
mandamus because the decision of such a
question is a mere incident leading up to
the main function or act.' (* footnotes
omitted).
"In Poucher v. Teachers' Retirement Board, 130
Misc. 896, 225 N.Y.S. 176, 178-179 (1927), the court
used the following language:
"'The sole question, then, is one of
law, ....'
"'...
(R)espondent
contends
that
mandamus will only lie where there is a
clear legal right, and as an important
question of law is involved, which admits
of a reasonable doubt or controversy, the
petitioner should be relegated to an action
at law against the retirement board. There
is no reason why difficult question[s] of
law
cannot
be
determined
upon
this
application, as well as in an action at
law. The clear legal right referred to in
the cases such as Matter of Whitman, No. 1,
225 N.Y. 1, 121 N.E. 479 [(1918)], means a
right which is inferable as a matter of law
from uncontroverted facts, regardless of
the difficulty of the legal question to be
decided. ...'
17
1120904
"For similar language, also see Stewart v. Wilson
Printing Co., 210 Ala. 624, 627-628, 99 So. 92, 96
(1924); Robinson v. Enking, 58 Idaho 24, 31-32, 69
P.2d 603, 606 (1937); Eberhardt Construction Co. v.
Board of Com'rs of Sedgwick County, 100 Kan. 394,
396, 164 P. 281, 282-283 (1917); Cahill v. Mayor and
City Council of Baltimore, 173 Md. 450, 455, 196 A.
305, 307 (1937); Perkins v. Burks, 336 Mo. 248, 254,
78 S.W.2d 845, 848 (1934); Fooshee v. Martin, 184
Okl. 554, 557, 88 P.2d 900, 903 (1939); State v.
Town Council South Kingstown, 18 R.I. 258, 266, 27
A. 599, 602, 22 L.R.A. 65 (1893). Finally, the
following language is found in 55 C.J.S. Mandamus §
53 (1948):
"'A "clear legal right," within the
meaning of the rule under consideration,
means a right clearly founded in, or
granted by, law;* a right which is
inferable
as
a
matter
of
law
from
uncontroverted facts regardless of the
difficulty of the legal question to be
decided. ...' (* footnote omitted).
"It appears that much of the difficulty in the
case law revolves around the use of the terms
'discretion' and 'judgment'; i.e., in the case of a
judicial
officer,
'judicial
discretion'
as
differentiated from 'judicial judgment' or 'acting
judicially.' They have been confused and used
interchangeably. 'Discretion' refers to the power or
privilege to act unhampered by a legal rule. It
describes a situation where a choice can be made
among several courses of action, any one of which is
legally permissible and not subject to review. In
such a situation mandamus or any other method of
review is inappropriate. The present case does not
pose such a situation. Petitioner either is entitled
to have the warrant quashed and his property
returned or he is not. There is only one legally
permissible answer. The exercise of 'judgment' means
the formation of an opinion concerning something by
18
1120904
exercising one's mind upon it. Some courts,
including this court, have, at times, used the terms
interchangeably and, therefore, have erroneously
said that mandamus will not lie to decide difficult
questions of law because the exercise of judgment,
judicial or official, was necessary for their
solution. State ex rel. Ricco v. Biggs, 198 Or. 413,
422, 255 P.2d 1055, 38 A.L.R.2d 720 (1953); State ex
rel. Coast Holding Co. v. Ekwall, 144 Or. 672, 681,
26 P.2d 52 (1933); and State ex rel. Harvey Malheur
County Court, 54 Or. 255, 258, 101 P. 907, 103 P.
446 (1909).
"It is also apparent that in a mandamus context,
'clear rule of law' and 'clear legal right' have
been used erroneously at times to describe a
situation where there can be no dispute as to the
proper legal theory rather than a situation where a
right is inferable as a matter of law from
uncontroverted facts. See Poucher v. Teachers'
Retirement Board, supra, and 55 C.J.S. Mandamus §
53 (1948). We are now satisfied that in an otherwise
proper case, mandamus may be used to decide disputed
and difficult questions of law."
254 Or. at 327-31, 460 P.2d at 852-53.
This Court has stated:
"There remains for consideration but one
question. It is, abstractly the most important in
the case. It is also the most difficult. It is
whether the secretary of state was under a duty to
erase and expunge the alleged unauthorized entries
from the house journal. That he was under such duty
must be made to clearly appear before the writ of
mandamus will lie against him in respect of it. If
the duty exists, it is purely statutory. The
secretary of state has no duties to perform except
those imposed upon him by the constitution and
statutes of the state. Mandamus is a conservative,
not a creative, remedy. It enforces existing duties,
19
1120904
but does not impose new duties. By it the officer
may be coerced to an act which it was his duty to
perform without it, but to no act as to which he was
under no duty before its issuance. And the duty must
be clear upon the statute. The rule as to the duty
and the right to its performance is variously, and
not always accurately, expressed in the adjudged
cases. The right must be 'certain and positive.'
Beaman v. Board, 42 Miss. 237 [(1868)]. The duty
must be 'clear, and if there be doubt, involving the
necessity for litigation,' the writ will not lie.
Townes v. Nichols, 73 Me. 515 [(1882)]. There must
be 'a specific legal right and a positive duty.'
State v. Burnside, 33 S.C. 276, 11 S.E. 787
[(1890)]. 'Duty must be specifically enjoined by
law.' Freon v. Carriage Co., 42 Ohio St. 30
[(1884)]. Right 'must be clearly established. If
right doubtful, writ will be refused.' Mobile & O.
R. Co. v. People, 132 Ill. 559, 24 N.E. 643
[(1890)]. 'Writ will not issue, where there is a
substantial doubt of respondent's duty.' State v.
Buhler, 90 Mo. 560, 3 S.W. 68 [(1887)]. 'Will not be
awarded when there is a doubt of the relator's right
to the relief sought.' People v. Salomon, 46 Ill.
415 [(1868)] 'Duty must be clearly enjoined by law.'
Draper v. Noteware, 7 Cal. 276 [(1857)]. 'It must be
clearly commanded by law.' Puckett v. White, 22 Tex.
559 [(1858)]. 'When the legal right is doubtful,
writ will be denied.' State v. Appleby, 25 S.C. 100
[(1886)]. Issued when there is a failure to perform
'plain official duty' (Maddox v. Neal, 45 Ark. 121
[(1885)]), not 'when well founded doubt as to the
alleged duty arises' (People v. Johnson, 100 Ill.
537 [(1881)]; People v. Hatch, 33 Ill. 9 [(1839)]).
'Where the validity of a judgment of conviction is
doubtful, writ will not issue to enforce it.' Rex v.
Broderip, 5 Barn. & C. 239; Reg. v. Ray, 44 U.C.Q.B.
17. The act sought to be compelled, must be 'clearly
defined
and
enjoined
by
law.'
Glasscock
v.
Commissioner, 3 Tex. 51 [(1848)]. 'The writ does not
lie to compel a county judge to perform an act which
the law does not specifically enjoin upon him as a
20
1120904
duty resulting from his office.' State v. Napier, 7
Iowa 425 [(1858)]. The duty must be either imposed
upon the officer 'by some express enactment, or
necessarily result from the office he holds.' Pond
v. Parrot, 42 Conn. 13 [(1875)]. Officer must be
'expressly authorized by law' to do the act.
Chisholm v. McGehee, 41 Ala. 192 [(1867)]. 'A clear
specific legal right' to have the act performed must
be shown. 3 Brick. Dig. p. 625.
"As we have said, some of the foregoing
expressions are inaccurate or misleading. A doubt
that may arise in the mind of the court in matter of
law, as to the existence of the duty, will not, as
some of the cases seem to hold, require or justify
the denial of the writ. It is the court's province
and duty to solve all such doubts, and declare the
duty as it finds it to be, after its misgivings as
to the intent and meaning of the statute involved,
or as to any other question of law, have been
eliminated. Substantial doubt as to whether the
facts of the particular case present the conditions
upon which the officer is bound to act may, it would
seem, justify or require a refusal of the writ. Of
course, the doubts of the officer as to his duty are
of no consequence. State v. Tarpen (Ohio) [43 Ohio
St. 311,] 1 N.E. 209 [(1885)]. Again, the duty need
not
be
'specifically
enjoined'
or
'expressly
prescribed'
by
law.
The
true
rule
in
this
connection, we apprehend, is that the duty must be
imposed in terms by the statute, in cases like the
one in hand, or must result therefrom by fair and
reasonable construction or interpretation. It must
appear from the statute in terms or by fair
implication."
State ex rel. Brickman v. Wilson, 123 Ala. 259, 280, 25 So.
482, 488 (1899)(some emphasis added).
21
1120904
In light of the foregoing, we now turn to the legal issue
before us.
Discussion
The principle that governs which state's substantive law
applies to tort claims in a conflict-of-laws analysis is well
settled: "Lex loci delicti has been the rule in Alabama for
almost 100 years. Under this principle, an Alabama court will
determine the substantive rights of
an
injured party according
to the law of the state where the injury occurred." Fitts v.
Minnesota Min. & Mfg. Co., 581 So. 2d at 820. Accordingly,
our review of the denial of the motion to dismiss this
malicious-prosecution action is based upon the principle of
lex loci delicti.
The parties agree that under the principle of lex loci
delicti the governing law is the law of the jurisdiction where
the injury occurred. The parties disagree, however, as to
where an injury occurs
for
purposes of a malicious-prosecution
claim. U.S. Bank argues that the injury in a malicious-
prosecution action occurs in the state where the defense of
the allegedly malicious prosecution occurred. It reasons that
because "injury" is the last element of a cause of action for
22
1120904
any tort, including malicious prosecution, the injury
resulting from malicious prosecution occurs where the last
event necessary to make the actor liable for the alleged tort
takes place. In this case, it argues, the last event
necessary occurred in Washington when the securities action
was terminated in favor of Sterne Agee. Sterne Agee argues
that because the injury suffered in a malicious-prosecution
action is financial, the injury occurs where the financial
harm was felt. In this case, it argues, the financial harm
was felt, and thus the injury occurred, at its corporate
headquarters in Alabama.
Unlike Alabama, Washington follows the "English rule" for
malicious-prosecution claims, which requires a plaintiff to
plead arrest or seizure of property. See Clark v. Baines, 150
Wash. 2d 905, 84 P.3d 245 (2004). Because no arrest or
seizure has occurred in this situation, U.S. Bank argues that,
under Washington law, Sterne Agee cannot state a malicious-
prosecution claim.
For the reasons below, we find that injury in a
malicious-prosecution action occurs in the state where the
allegedly malicious lawsuit was terminated in favor of the
23
1120904
complaining party. Therefore, the principle of lex loci
delicti requires that the law of the state in which the
antecedent lawsuit was litigated governs a claim of malicious
prosecution.
Alabama continues to follow the traditional view of the
Restatement (First) of Conflicts of Law, as discussed in Fitts
v. Minnesota Min. & Mfg. Co., supra, which looks to the lex
loci delicti in tort claims, "in the state where the last
event necessary to make an actor liable for an alleged tort
takes place." Restatement (First) of Conflict of Laws § 377
(1934). This interpretation adheres to the holding of the
seminal lex loci delicti case in Alabama, Alabama Great S.
R.R. v. Carroll, 97 Ala. 126, 11 So. 803 (1892). In Carroll,
the plaintiff resided in Alabama and was employed by an
Alabama corporation as a brakeman on the corporation's
railroad. The plaintiff was injured when a link between two
freight cars broke in Mississippi. However, two employees in
Alabama had failed to inspect the link before the train left
for Mississippi. Although Alabama law recognized a cause of
action for injuries caused by the negligence of fellow
employees,
Mississippi law did not. Following the
traditional
24
1120904
rule, the Alabama Supreme Court applied the law of the place
of the injury (Mississippi), despite the facts that the acts
giving rise to the plaintiff's injuries occurred in Alabama
and that the plaintiff was employed in Alabama. The Court
stated that negligence without injury will not support
recovery.
"Up to the time [this] train passed out of Alabama
no injury had resulted. For all that occurred in
Alabama, therefore, no cause of action whatever
arose. The fact which created the right to sue, the
injury without which confessedly no action would lie
anywhere, transpired in the State of Mississippi. It
was in that State, therefore, necessarily that the
cause of action, if any, arose; and whether a cause
of action arose and existed at all or not must in
all reason be determined by the law which obtained
at the time and place when and where the fact which
is relied upon to justify a recovery transpired."
Carroll, 97 Ala. at 134, 11 So. at 806. Therefore, the place
of injury is in the state where the "fact which created the
right to sue" occurs.
In the present case, the "fact which created the right to
sue" was the termination of the allegedly malicious lawsuit in
favor of Sterne Agee, which occurred in Washington. Thus, the
principle of lex loci delicti requires that Washington law
govern Sterne Agee's malicious-prosecution claim.
25
1120904
We note that in support of its "feel the financial harm"
argument for malicious-prosecution claims, Sterne Agee cites
several decisions from federal district courts, sitting in
Alabama, holding that where the alleged injury is financial,
the location where the financial injury was felt is
determinative. Glass v. Southern Wrecker Sales, 990 F. Supp.
1344 (M.D. Ala. 1998), appears to be the first time a federal
court sitting in Alabama applied the "place where the
financial injury was felt" analysis. In Glass, the purchaser
of a tow truck, who was a resident of Alabama, sued a Georgia
truck dealer alleging fraud after the frame of the tow truck
purchased in Georgia broke while it was being driven in
Alabama. The truck dealer argued that because the alleged
misrepresentations occurred in Georgia, then Georgia law
should apply. The federal court, sitting in diversity,
applied the choice-of-law rules of Alabama, and, because
Alabama applies the rule of lex loci delicti, "it is not the
site of the alleged tortious act that is relevant, but the
site of the injury, or the site of the event that created the
right to sue." 990 F. Supp. at 1347. The court stated:
"In examining other courts' application of the
lex loci delicti rule to fraud claims, the court has
26
1120904
found that courts consistently conclude that the
state where the injury occurred in a fraud claim is
the state in which the plaintiff suffered the
economic impact. See Management Science America,
Inc. v. NCR Corp., 765 F. Supp. 738, 740 (N.D. Ga.
1991)(examining cases from Indiana and Tennessee in
determining that '[f]ederal courts ... consistently
have considered [fraud] to have been committed in
the state where the economic loss occurred and not
where
the
fraudulent
misrepresentations
were
made.'); Steele v. Ellis, 961 F. Supp. 1458 (D. Kan.
1997); Restatement of Conflict of Laws § 377 (1934).
Therefore, the court will look to see in which state
any alleged economic impact was felt."
990 F. Supp. at 1348. The Glass court's holding was limited
to fraud claims, and that court recognized that it was not
relying on Alabama caselaw in concluding that courts applying
the principle of lex loci delicti in fraud claims look to the
state in which the plaintiff suffered the economic impact.
The other decisions cited by Sterne Agee in which federal
courts sitting in Alabama applied the financial-harm analysis
did not concern malicious prosecution and, likewise, did not
rely on Alabama caselaw. See, e.g., Alabama Aircraft Indus.,
Inc. v. Boeing Co., Inc.,(No. 2:11-CV-3577-RDP, March 20,
2013)(N.D. Ala. 2013)(not reported in F. Supp. 2d)(fraud
claim); Chambers v. Cooney, (No. 07-0373-WS-B, Aug. 29,
2007)(S.D. Ala. 2007)(not reported in F. Supp. 2d)(tortious
interference); APR, LLC v American Aircraft Sales, Inc., (No.
27
1120904
3:12cv1019-MHT,
Feb.
19,
2013)(M.D.
Ala.
2013)(not
reported
in
F. Supp. 2d)(fraud and negligence); Reibling v. Themo Credit,
L.L.C. (In re Trinsic, Inc.), (Bankr. No. 07-10324, May 19,
2008)(Bankr. S.D. Ala. 2008)(not reported in B.R.)(fraud and
tortious interference); Renasant Bank v. Park Nat'l Corp.,
(No. 12-0689-WS-C, April 10, 2013)(S.D. Ala. 2013)(not
reported
in
F.
Supp.
2d)(fraud
and
tortious
interference). These cases are distinguishable from the
present case.
For a malicious-prosecution claim, the event creating the
right to sue is not the expenditure of financial resources in
order to defend a lawsuit. Such expenses would be made even if
the antecedent lawsuit was ultimately terminated in favor of
the defendant. It is the determination that such expenses
were required to
defend
an allegedly malicious prosecution (by
termination in favor of the complaining party) that creates
the right to sue. See Barrett Mobile Home Transp., Inc. v.
McGugin, 530 So. 2d 730, 733 (Ala. 1988)(identifying
"termination favorable to the plaintiff" as the last element
required for a cause of action for malicious prosecution to
accrue).
28
1120904
Alabama courts' application of the principle of lex loci
delicti to cases involving the tort of bad-faith failure to
defend a lawsuit are more on point with the present case.
Like malicious prosecution, bad-faith failure to defend is
based on injury resulting from an antecedent lawsuit, and the
injury often involves more than mere financial harm. In
Lifestar Response of Alabama, Inc. v. Admiral Insurance Co.,
17 So. 3d 200 (Ala. 2009), this Court applied Alabama law to
a claim for bad-faith failure to defend a lawsuit filed in
Alabama. In that case, Lifestar, an Alabama corporation with
headquarters in New
York,
sued its insurer alleging negligence
and bad faith based on the insurer’s failure to defend
Lifestar in a lawsuit filed in Alabama that resulted in a $5
million default judgment against it. Although Lifestar
undoubtedly "felt the financial harm" of the alleged failure
to defend in New York, where its headquarters were located and
the state from which it paid the judgment, this Court applied
the principle of lex loci delicti and held that Alabama law
applied because the alleged injury occurred in Alabama.
Similarly, in Twin City Fire Insurance Co. v. Colonial
Life & Accident Insurance Co., 124 F. Supp. 2d 1243 (M.D. Ala.
29
1120904
2000), Colonial Life, a corporation headquartered in South
Carolina, sued its insurer for bad-faith failure to defend a
lawsuit filed in an Alabama state court by one of its
employees, which resulted in Colonial Life's having to pay a
costly settlement. Although Colonial Life surely "felt the
financial harm" at its headquarters in South Carolina, the
District Court for the Middle District of Alabama held that
under the principle of lex loci delicti Alabama law governed:
"Colonial allegedly suffered injury because Defendants failed
to defend Colonial against [the employee’s] claim in
Alabama. Therefore, the court finds that Colonial suffered
injury in Alabama. As a result, Alabama law governs Colonial’s
tort claims." 124 F. Supp. 2d at 1248.
In short, Sterne Agee's reliance on cases involving fraud
and tortious interference in support of its argument is
misplaced, and we decline to apply the "feel the financial
harm"
analysis
to
a
malicious-prosecution
claim.
Like
Lifestar
and Twin City Fire Insurance Co., Sterne Agee’s malicious-
prosecution claim is based on injury allegedly resulting from
an antecedent lawsuit. Accordingly, the principle of lex loci
30
1120904
delicti likewise requires that the governing law come from
Washington, the state of the antecedent lawsuit.
Conclusion
The principle of lex loci delicti requires that the law
of the state in which the antecedent lawsuit was terminated in
favor
of
the
complaining
party
governs
a
malicious-prosecution
claim. Thus, Washington law governs Sterne Agee's claim of
malicious prosecution. Accordingly, U.S. Bank's petition for
writ for mandamus is granted, and the circuit court is ordered
to dismiss Sterne Agee's malicious-prosecution case.
PETITION GRANTED; WRIT ISSUED.
Stuart, Parker, Main, and Wise, JJ., concur.
Shaw and Bryan, JJ., concur specially.
Moore, C.J., and Murdock, J., dissent.
31
1120904
SHAW, Justice (concurring specially).
I concur in the main opinion. I write specially to note
the following.
It is undisputed that this Court has the authority, based
on the Alabama Constitution and statute, to issue any writs
necessary to give general superintendence and control
of
lower
courts. Ala. Const. 1901, Art. VI, § 140; Ala. Code 1975, §
12-2-7(3). As noted in the main opinion, there are numerous
situations in which
this Court exercises authority by
mandamus
to review interlocutory decisions that, if properly
set
aside,
would terminate an action so as to avoid the waste and expense
of further litigation.
The appellate courts of this State have, in the past,
issued writs of mandamus to correct trial courts' decisions on
issues relating to the conflict of laws. Ex parte Exxon
Corp., 725 So. 2d 930 (Ala. 1998), and Batey & Sanders, Inc.
v. Dodd, 755 So. 2d 581 (Ala. Civ. App. 1999). Thus, the
issuance of the writ in the instant case to direct the trial
court on this conflict-of-laws issue treads no new ground.
Here, the correct application of conflict-of-laws
principles requires the utilization of the law of the State of
32
1120904
Washington. That law undisputedly results in the termination
of this litigation. See respondent's answer, at 29-30 (noting
that Washington law "would bar a remedy" in this case). Given
that our determination terminates the litigation in this
action, that this Court has the power to issue writs of
mandamus to supervise the trial courts, and that decisions on
conflict-of-laws issues have been previously decided on
mandamus review, I concur to issue the writ.
33
1120904
BRYAN, Justice (concurring specially).
I write specially to emphasize my belief that mandamus is
appropriate where, as here, "there is an obvious conflict-of-
laws issue," ___ So. 3d at ___, and the application of one
state's laws would completely bar the action. It would be an
inexcusable waste of scarce judicial resources and of the
parties' resources to require a trial and possibly an appeal
when it is clear that, under the doctrine of lex loci delicti,
Washington
law
applies
to
bar
the
malicious-prosecution
action
filed by Sterne, Agee & Leach, Inc. See Fitts v. Minnesota
Min. & Mfg. Co., 581 So. 2d 819, 820 (Ala. 1991) ("Under th[e]
principle [of lex loci delicti], an Alabama court will
determine the substantive rights of an injured
party
according
to the law of the state where the injury occurred.").
34
1120904
MOORE, Chief Justice (dissenting).
I respectfully dissent because I do not believe that U.S.
Bank National Association and U.S. Bancorp have demonstrated
a clear legal right to mandamus relief. I do not see how a
party could have a clear legal right to relief when the issue
presented is one of first impression. Making the alleged legal
right even less clear is the fact that federal courts in
Alabama have held that where, as here, the alleged injury is
financial, jurisdiction is proper where the injury is felt.
Glass v. Southern Wrecker Sales, 990 F. Supp. 1344, 1348 (M.D.
Ala. 1998); APR, LLC v. American Aircraft Sales, Inc., (No.
3:12cv1019-MHT,
Feb.
19,
2013)(M.D.
Ala.
2013)(not
reported
in
F. Supp. 2d); Renasant Bank v. Park Nat'l Corp., (No. 12-0689-
WS-C, April 10, 2013)(S.D. Ala. 2013)(not reported in F. Supp.
2d). The injury here was certainly felt in Alabama. Although
these federal court decisions do not cite Alabama law and are
not binding on this Court, they are evidence indicating that
the legal right to relief in this case is less than clear.
35
1120904
MURDOCK, Justice (dissenting).
Although I fully concur with what I consider to be an
important part of the analysis offered by the main opinion,
for the reasons described below I disagree with other parts of
that analysis and, as a result, respectfully must disagree
with the result reached.
This case addresses a petition for a writ of mandamus
filed by U.S. Bank National Association and U.S. Bancorp
(hereinafter collectively referred to as "U.S. Bank"). In the
portion of the main opinion that discusses the "Standard of
Review," the majority observes:
"In choosing to address U.S. Bank's mandamus
petition seeking review of the circuit court's
ruling on its motion to dismiss, we are cognizant
that in order for a writ of mandamus to issue, U.S.
Bank must have a 'clear legal right' to the order of
dismissal. Although the legal issue before us has
not been definitively settled, this does not mean
that mandamus relief is unavailable. In other
words, the mere fact that a legal issue is debatable
does not change the responsibility of this Court, as
a 'court of law,' to decide the law and provides no
basis for denying relief."
___ So. 3d at ___.
I fully agree with the foregoing statement and the
analysis that follows it. If the issue described in the
above-quoted portion of the main opinion was the only
36
1120904
potential obstacle to the issuance of the writ of mandamus, I
would fully concur in issuing the writ.
In this case, however, there exists a second obstacle to
granting the petition for a writ of mandamus: this is not one
of the types of cases in which this Court allows mandamus
review of an interlocutory trial court decision refusing to
dismiss an action. As this Court has stated:
"'Subject to
certain
narrow
exceptions
..., we have held that, because an
"adequate remedy" exists by way of an
appeal, the denial of a motion to dismiss
or a motion for a summary judgment is not
reviewable
by
petition
for
writ
of
mandamus.'"
Ex parte Kohlberg Kravis Roberts & Co., 78 So. 3d 959, 966
(Ala. 2011) (quoting Ex parte Liberty Nat'l Life Ins. Co., 825
So. 2d 758, 761–62 (Ala. 2002)). The "certain narrow
exceptions" to this general rule include cases in which a
trial court has failed to dismiss a claim or to enter a
summary judgment where the issue is one of subject-matter
jurisdiction,
in
personam
jurisdiction,
immunity,
proper
venue
(whether venue per se or forum non conveniens under our rules
of procedure or a "private" agreement as to venue in the form
of a forum-selection clause), and a failure to substitute a
37
1120904
named party for a fictitiously named party in a timely manner
following the expiration of the applicable statute of
limitations. As we explained in Ex parte DaimlerChrysler
Corp., 952 So. 2d 1082, 1089 n.1 (Ala. 2006):
"Th[e] general rule is not without exceptions.
See, e.g., Ex parte Alloy Wheels[ Int'l, Ltd.], 882
So. 2d [819,] 822 [(Ala. 2003)] ('One of the
exceptions is the denial of a motion grounded on a
claim of lack of personal jurisdiction....'); Ex
parte Rizk, 791 So. 2d 911, 912 (Ala. 2000) ('While
the general rule is that the denial of a motion for
summary judgment is not reviewable, the exception is
that the denial of a motion for summary judgment
grounded on a claim of immunity is reviewable by
petition for writ of mandamus.'); and Ex parte Snow,
764 So. 2d 531, 537 (Ala. 1999) (noting that the
denial of a summary-judgment motion is reviewable by
a petition for a writ of mandamus when the
undisputed evidence shows that the plaintiff failed
to
act
with
due
diligence
in
identifying
fictitiously named defendants). See also [Ex parte]
Integon Corp., 672 So. 2d [497,] 499 [(Ala. 1995)]
(holding that a petition for a writ of mandamus is
the proper method for challenging a forum non
conveniens ruling)."
See also Ex parte Alamo Title Co., [Ms. 1111541, March 15,
2013] __ So. 3d __, __ (Ala. 2013) (Murdock J., concurring
specially) (emphasis omitted) (noting the exceptions for
"immunity,
subject-matter
jurisdiction,
in
personam
jurisdiction,
venue,
and
some
statute-of-limitations
defenses"); Ex parte Flint Constr. Co., 775 So. 2d 805, 808
38
1120904
(Ala. 2000) (noting that the "question of subject-matter
jurisdiction is reviewable by a petition for a writ of
mandamus"); Ex parte Jackson, 780 So. 2d 681, 684 (observing
that "'[t]he fact that a statute of limitations defense is
applicable is not a proper basis for issuing a writ of
mandamus, due to the availability of a remedy by appeal.' [Ex
parte Southland Bank,] 514 So. 2d [954,] 955 [(Ala. 1987)].
... In a narrow class of cases involving fictitious parties
and the relation-back doctrine, this Court has reviewed the
merits of a trial court's denial of a summary-judgment motion
in which a defendant argued that the plaintiff's claim was
barred by the applicable statute of limitations."); and Ex
parte Kia Motors America, Inc., 881 So. 2d 396 (Ala. 2003)
(involving a motion to dismiss based on an outbound forum-
selection clause).
1
In a few cases, we also have permitted mandamus petitions
1
from a denial of a motion to dismiss or a motion for a summary
judgment where a movant has sought to avoid a multiplicity of
litigation.
"The supreme court also has considered petitions for
a writ of mandamus to review orders denying motions
to dismiss based on the compulsory-counterclaim
rule, see Ex parte Cincinnati Ins. Co., 806 So. 2d
376 (Ala. 2001), and on Ala. Code 1975, § 6–5–440,
the abatement statute, see Ex parte J.E. Estes Wood
39
1120904
The present case does not fall within any of the
foregoing exceptions
to the general rule; instead, it
involves
a "choice-of-law" issue. Nonetheless, the main opinion
arrives at the conclusion that mandamus review is, or should
be, available. I disagree.2
Co., 42 So. 3d 104 (Ala. 2010), both of which are
intended to avoid multiplicity of litigation."
Ex parte Ocean Reef Developers II, LLC, 84 So. 3d 900, 905
(Ala. Civ. App. 2011). See also Ex parte LCS Inc., 12 So. 3d
55, 56 (Ala. 2008) ("[A] petition for a writ of mandamus is an
appropriate method by which to seek this Court's review of the
denial of a motion to dismiss predicated on the doctrine of
res judicata."). But see Ex parte Empire Fire & Marine Ins.
Co., 720 So. 2d 893 (Ala. 1998) (holding that an appeal from
a final judgment would be an adequate remedy for the trial
court's erroneous denial of a motion to dismiss a counterclaim
that should have been brought as a compulsory claim in an
earlier action).
In its discussion of the standard of review, the main
opinion also notes several other categories of cases in which
this Court has permitted mandamus relief; however, the cases
cited do not address the denial by the trial court of a motion
to dismiss a claim or for a summary judgment and do not
recognize additional exceptions to the general rule that
interlocutory appellate review of such rulings by
an
appellate
court by way of a petition for a write of mandamus is not
available.
As a preliminary matter, I note the main opinion's
2
observance of the fact that U.S. Bank did elect in this case
to seek a certification by the trial court of a question for
a permissive appeal pursuant to Rule 5, Ala. R. App. P., but
that the trial court denied this request. I do not read this
observation or any other reference to the trial court's denial
40
1120904
The present case involves a question as to which of two
states' law is applicable to the plaintiff's claim. This
Court has never recognized an exception to the general rule
that would permit interlocutory review of a trial court's
denial of a motion to dismiss or for a summary judgment for
cases that turn on the resolution of such a "choice-of-law"
issue. (Clearly, Ex parte Empire Fire & Marine Insurance Co.,
720 So. 2d 893 (Ala. 1998), was not such a case.) In its
discussion of the standard of review, the main opinion cites
one decision from this Court that it contends provides a basis
for such an exception to the general rule: Ex parte Exxon
Corp., 725 So. 2d 930 (Ala. 1998). For the reasons explained
below, I do not agree that Ex parte Exxon stands for this
proposition; in fact, it is clearly distinguishable from the
present case.
of U.S. Bank's attempt to obtain Rule 5 review as suggesting
that, had U.S. Bank elected not to seek a Rule 5
certification, this fact would have barred it from mandamus
review of an issue that otherwise would be appropriate for
such review. This Court has never suggested that the
availability of mandamus review of an issue otherwise
appropriately reviewable by mandamus turns on whether a party
first seeks a discretionary certification of that issue for a
permissive appeal. See Ex parte Alamo Title Co., __ So. 3d at
__ (Murdock, J., concurring specially and joined by Main, J.,
the author of the main opinion).
41
1120904
Put simply, Ex parte Exxon did not involve a trial
court's denial of a motion to dismiss or the denial of a
motion for a summary judgment. It concerned a trial court's
certification of a class action. As the Ex parte Exxon Court
noted: "A mandamus petition is the proper procedural tool to
challenge the certification of a class action." 725 So. 2d at
931. A question of class certification is not before us in
the present case.
Although the main opinion couples its citation to Ex
parte Exxon with a citation to a second case, Batey & Sanders,
Inc. v. Dodd, 755 So. 2d 581 (Ala. Civ. App. 1991), this
latter case was decided by the Court of Civil Appeals, not
this Court. As such, of course, Batey & Sanders is not binding
on this Court. Neither is it persuasive.
Batey & Sanders was a workers' compensation case. The
opinion issued by the Court of Civil Appeals contains no
acknowledgment of the general rule against mandamus review of
the denial of a motion to dismiss or for a summary judgment,
nor did the Court of Civil Appeals provide any explanation as
to why or how it was able to circumvent the general rule in
deciding Batey & Sanders as it did. I suggest that the Court
42
1120904
of Civil Appeals simply overlooked the general rule and that,
accordingly, Batey & Sanders provides no persuasive support
for the result reached in the present case.
A closer look at the exceptions to the general rule
against interlocutory mandamus review of the denial of a
motion to dismiss or for a summary judgment appears to reveal
that they involve questions as to whether the trial court that
has declined to dismiss the action or to enter a summary
judgment is a, or the, proper tribunal to decide the merits of
the claims that will remain for adjudication in the wake of
its decision. Where no court properly can adjudicate the
merits of a claim, or where a claim ought to be, or ought to
have been, tried on its merits in some different tribunal,
mandamus review of the trial court's decision to insist on
adjudicating the merits of the claim has been granted by this
Court. I see no reason to conclude that the time has come to
recognize some additional exception that is not of the same
character.
The question in the present case is, in essence, simply
whether applicable law recognizes the cause of action at
issue. The trial court may err in deciding this question,
43
1120904
just as it may err in deciding an innumerable number of other
legal questions that determine whether an action in a given
case is cognizable or not. By answering the question here, we
place ourselves on a slippery slope. On what principled
basis, for example, do we distinguish between this case and a
case in which a trial court must choose which of two Alabama
statutes is applicable: one of which establishes a cause of
action and one of which does not? On what basis do we grant
mandamus review in this case, but deny mandamus review in a
case in which the manner in which the interpretation of a
single statute, or even a prior case, is dispositive of
whether the plaintiff has a cognizable cause of action? In
all of these circumstances can it not be said that the
defendant is put to the effort and expense of a trial when it
ought not to be? I see no principled distinction between the
present case and any of these examples insofar as the adequacy
of the remedy provided by an appeal following a trial and a
final judgment. If "adequacy" is to be based solely on the
fact that the defendant may have to endure the effort and
expense of a trial when a particular ruling of the trial court
could have ended the litigation, I would submit that we
44
1120904
effectively will have abandoned the general rule against
interlocutory appellate review of orders denying motions to
dismiss or for a summary judgment. In so doing, we will have
abandoned the virtues of a general rule that allows cases to
"develop" before one of the many able trial judges of this
State, with the ensuing possibility of a settlement or other
final disposition in the trial court and instead permit
litigants to appropriate prematurely the limited resources of
this Court and the Court of Civil Appeals in cases where
appellate review might otherwise become unnecessary.
This Court recently made the following statement
regarding the prospect of expanding the number or type of
cases in which we will conduct mandamus review of trial court
decisions regarding discovery:
"'Generally, an appeal of a discovery
order
is
an
adequate
remedy,
notwithstanding
the
fact
that
that
procedure may delay an appellate court's
review of a petitioner's grievance or
impose
on
the
petitioner
additional
expense; our judicial system cannot afford
immediate
mandamus
review
of
every
discovery order.'"
Ex parte Guaranty Pest Control, Inc., 21 So. 3d 1222, 1226
(Ala. 2009) (quoting Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d
45
1120904
810, 813 (Ala. 2003) (footnote omitted)). Nor can our
judicial system afford immediate appellate review of the
multitude of trial court orders denying motions to dismiss or
for a summary judgment founded on an assertion of the failure
of the plaintiff to have alleged a cognizable claim. We must
let the trial courts be the trial courts and review their
decisions as to the merits of cases only in due course.
Based on the foregoing, I respectfully must dissent.
46 | February 7, 2014 |
0de0da0f-daac-4027-90e0-221cda0c9077 | Owners Insurance Company v. Jim Carr Homebuilder, LLC et al. | N/A | 1120764 | Alabama | Alabama Supreme Court | REL: 03/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120764
____________________
Owners Insurance Company
v.
Jim Carr Homebuilder, LLC, et al.
Appeal from Shelby Circuit Court
(CV-09-900247)
On Application for Rehearing
PER CURIAM.
The opinion of September 20, 2013, is withdrawn, and the
following is substituted therefor.
1120764
Owners Insurance Company ("Owners") appeals a judgment
entered by the Shelby Circuit Court declaring that Owners was
obligated to pay an arbitration award entered against Jim Carr
Homebuilder, LLC ("JCH"), under the terms of a commercial
general-liability ("CGL") insurance policy Owners had issued
JCH. We affirm.
I.
In January 2006, Thomas Johnson and Pat Johnson
contracted with JCH, a licensed homebuilder, for the
construction of a new house on Lay Lake in Wilsonville. The
1
Johnsons paid approximately $1.2 million for the design and
construction of the house and took possession of the
substantially finished house in early February 2007. Within
a year, the Johnsons noted several problems with the house
related to water leaking through the roof, walls, and floors,
resulting in water damage to those and other areas of the
house. The Johnsons notified JCH of the problems, and JCH
apparently made some efforts to remedy them; however, the
Johnsons were not satisfied with those efforts, and, on May
JCH acted as the general contractor on the project; it
1
employed
subcontractors
to
perform
all
the
actual
construction
work.
2
1120764
13, 2008, the Johnsons sued JCH, alleging breach of contract,
fraud, and negligence and wantonness.2
The Johnsons' contract with JCH required JCH to maintain
general-liability insurance, and, during the relevant period,
JCH held a CGL policy issued by Owners ("the Owners policy").
After receiving notice of the Johnsons' lawsuit, JCH filed a
claim with Owners requesting that it provide a defense and
indemnification for the Johnsons' claims. On July 21, 2008,
Owners hired counsel to defend JCH while reserving its right
to withdraw the defense if it later determined that the
Johnsons' claims were not covered under the Owners policy.
Subsequently, on September 12, 2008, Owners moved the trial
court to allow it to intervene in the case for the limited
purpose of determining whether there was in fact coverage for
the Johnsons' claims.
On December 19, 2008, the trial court issued an order
declining to rule on Owners' motion to intervene at that time
but inviting Owners to reapply to intervene at "the
appropriate time." On March 23, 2009, Owners instead filed
The Johnsons also named the architectural firm that
2
designed the house as a defendant; however, their claims
against that firm are not relevant to this appeal.
3
1120764
the
instant
declaratory-judgment
action
asking
the
trial
court
to determine whether Owners had a duty to defend and indemnify
JCH with regard to the Johnsons' claims. This action was
assigned to the same trial judge presiding over the Johnsons'
action against JCH, and JCH and the Johnsons thereafter filed
separate answers to Owners' complaint, asserting their own
counterclaims and taking the position that Owners
was
required
to defend and indemnify JCH for the Johnsons' claims.
3
During this same time, the Johnsons' underlying action
against JCH proceeded. On July 30, 2008, JCH, through its
Owners-provided counsel, moved the trial court to compel
arbitration of the Johnsons' claims pursuant to
an
arbitration
provision in the construction contract entered into by the
parties. The trial court granted that motion in the same
December 19, 2008, order in which it had declined to grant
Owners' petition to intervene. The Johnsons thereafter moved
the
trial
court
to
reconsider
its
order
compelling
arbitration, and there was thereafter some delay, presumably
related to the parties' reaching an agreement on the mechanics
In
its
answer,
JCH
also
asserted
additional
counterclaims
3
against new parties,
and
those parties subsequently brought in
additional parties. Those parties and claims, however, are
not relevant to this appeal.
4
1120764
of arbitration. On September 24, 2010, the trial court
entered an order noting that the parties had reached an
agreement regarding arbitration and staying the case pending
completion of the arbitration proceedings. On August 22,
2011, the trial court also stayed the instant case until the
underlying case resolving the Johnsons' claims against
JCH
was
completed.
The Johnsons' case against JCH proceeded to a final
arbitration hearing on March 6, 2012, and, on March 13, 2012,
the arbitrator entered an award in favor of the Johnsons in
the amount of $600,000 based on the following findings:
"a. That flashing was either not installed or
was improperly installed by [JCH's] subcontractor in
certain areas and has subjected other parts of the
completed house to leaks, moisture, water intrusion,
and damage resulting therefrom;
"b. That the mortar and brick used on the house
was not defective, but rather the brick was
improperly prepared for installation by [JCH's]
subcontractor,
which
resulted
in
excessive
absorption of water from the mortar which thereby
damaged the completed mortar and requires its
replacement;
"c. That the damaged mortar has subjected other
parts of the completed house to leaks, moisture,
water intrusion, and damage resulting therefrom;
"d. That sufficient weep holes were not
installed in the brick or else were covered by
5
1120764
mortar by [JCH's] subcontractor, which has subjected
other parts of the completed house to leaks,
moisture, water intrusion, and damage resulting
therefrom;
"e. That certain windows and doors were not
properly installed by [JCH's] subcontractor and have
subjected other parts of the completed house to
leaks,
moisture,
water
intrusion,
and
damage
resulting therefrom;
"f. That certain windows and doors either were
not caulked or were not properly caulked by [JCH's]
subcontractor, which has subjected other parts of
the completed house to leaks, moisture, water
intrusion, and damage resulting therefrom;
"g. That the exposed upper porches on the house
were not properly installed and waterproofed by
[JCH's] subcontractor, subjecting the completed
porch ceilings and areas of the completed dining
room to damage from leaks, moisture and water
intrusion ...;
"h. That part of the roofing was not properly
installed by [JCH's] subcontractor, resulting in a
small hole in the attic through which daylight is
visible and in water damage to the completed roof
decking;
"i. That the completed window sill on the large
'great room' window has suffered visible water
damage from water leaks;
"j. That certain areas of the completed
hardwood floors have suffered visible water damage
from water leaks (to quote [JCH's] expert, even a
'blind monkey' could see this);
"k. That a downstairs bathtub was not properly
installed by [JCH's] subcontractor, resulting in
6
1120764
leaks and resulting water damage to the completed
wood subfloor below ...."
The arbitrator also found that the Johnsons had suffered
"significant mental anguish." The trial court thereafter
entered a judgment in the underlying case consistent with the
arbitrator's award. That judgment was not appealed.
On March 14, 2012, the day after the arbitrator returned
its award in the underlying case, the Johnsons moved for a
summary judgment in Owners' declaratory-judgment action,
asking the trial court to enter a judgment declaring that the
Owners policy did in fact cover the award entered against JCH.
JCH thereafter filed its own summary-judgment motion seeking
the same relief. On April 6, 2012, Owners filed its response
to the summary-judgment motions filed by the Johnsons and JCH
and simultaneously moved the trial court to enter a summary
judgment in its favor. The trial court heard arguments on the
outstanding summary-judgment motions on April 19, 2012, and,
on May 25, 2012, granted the summary-judgment motions filed by
the Johnsons and JCH, stating, in part:
"It is hereby declared that the entire arbitrator
award is covered by the Owners' policy and that
Owners' duty to indemnify its insured is triggered.
This court hereby orders [Owners] to fully indemnify
[JCH] for the arbitrator award plus post-judgment
7
1120764
interest running from the date of the arbitrator
award."
Some additional claims among these and other parties remained
outstanding until March 25, 2013, when the last of those
claims was dismissed, and, on March 26, 2013, Owners filed
this appeal.
II.
We review Owners' arguments on appeal pursuant to the
following standard:
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
8
1120764
III.
Owners argues that the trial court erred by holding that
Owners was required to indemnify JCH for the award entered
against it because, Owners argues, the property damage and
bodily injury (i.e., mental anguish) upon which the award was
based was not the result of an "occurrence" under the Owners
policy and, by its terms, the Owners policy applies only if
"[t]he 'bodily injury' or 'property damage' is caused by an
'occurrence.'" JCH and the Johnsons, however, contend that
the damage to the house is property damage resulting from an
"occurrence," and, they argue, the damage is
therefore covered
by the Owners policy and the judgment of the trial court is
correct.
The Owners policy defines an "occurrence" as "an
accident, including continuous or repeated exposure to
substantially the same general harmful conditions." This
Court has previously considered the issue whether poor
workmanship can lead to an occurrence and has held that, in
each case, it depends "on the nature of the damage" that
results from the faulty workmanship. Town & Country Prop.,
L.L.C. v. Amerisure Ins. Co., 111 So. 3d 699, 705 (Ala. 2011).
9
1120764
We explained this principle in further detail in Town &
Country by comparing two cases involving claims based on
faulty workmanship:
"In [United States Fidelity & Guaranty Co. v.]
Warwick [Development Co., 446 So. 2d 1021 (Ala.
1984)], the purchasers of a newly built house sued
the builder, stating claims of faulty construction
and misrepresentation, after taking possession of
the house and discovering extensive defects in its
construction. The builder then alleged a third-
party claim against its insurer after it sought
coverage for the purchasers' claims pursuant to a
CGL policy, and its request for coverage was denied.
At the conclusion of a trial on all those claims,
the trial court awarded damages to the purchasers
and held that the insurer was required to indemnify
the builder for the purchasers' claims. On appeal,
however, this Court reversed the judgment against
the insurer, stating:
"'The first issue is whether [the
insurer's] policy provided coverage for
alleged
faulty
workmanship
and
noncomplying
materials
in
the
construction
of
plaintiffs' residence when the alleged
damage was confined to the residence
itself. [The insurer] contends that the
policy affords no coverage because (1) no
insurable loss occurred within the policy
period and (2) damages to the work of the
insured attributable to faulty workmanship
are expressly excluded from coverage.
After a review of the record and the policy
involved, we conclude that the trial court
incorrectly held that [the insurer] was
bound under its policy of insurance to [the
builder]. In our view, there was no
"occurrence" within the definition of
"occurrence" found in the pertinent policy
10
1120764
provisions. The policy clearly states that
the company will pay damages for: "A.
bodily injury or B. property damage to
which this insurance applies caused by an
occurrence."
The
[insurer's]
policy
defines "occurrence" as "an accident,
including continuous or repeated exposure
to conditions, which results in bodily
injury or property damage neither expected
nor intended from the standpoint of the
Insured." For a contrary holding under
circumstances
amounting
to
"an
occurrence,"
see Moss v. Champion Ins. Co., 442 So. 2d
26 (Ala. 1983).'
"Warwick, 446 So. 2d at 1023. Thus, Warwick held
that
faulty
workmanship
itself
is
not
an
'occurrence.'
"In Moss [v. Champion Insurance Co., 442 So. 2d
26 (Ala. 1983)], however, a homeowner sued a
contractor she had hired to reroof her house in
order 'to recover for damage she allegedly incurred
due to rain which fell into her attic and ceilings
because, as she claimed, the roof was uncovered much
of the time that the re-roofing job was being
performed.' 442 So. 2d at 26. The contractor's
insurer argued that it was not required to provide
a defense or to pay any judgment against the
contractor because, it argued, the damage was not
the result of an occurrence and was therefore not
covered
under
the
contractor's
CGL
policy.
Following a bench trial limited to deciding the
insurance-coverage issue, the trial court ruled in
the insurer's favor, holding that the damage to the
homeowner's house was not the result of an
occurrence. On appeal, we reversed the trial
court's judgment, stating:
"'That the attempt was made to keep the
roof covered as the work progressed was
established by the testimony of [the
11
1120764
homeowner] herself. That it became
insufficient was not attributable to [the
contractor], who, for aught that appears
from the evidence, did not intend the
damage, and who by his personal efforts
could not have reasonably foreseen the
negligence of his crews in their failure to
follow
his
instructions.
[The
homeowner's]
complaint against him charged him with
negligence (and breach of contract), not
conscious acts made with intent to cause
damage. His instructions establish his
definite steps taken to prevent damage.
And finally, after the "repeated exposure
to conditions," the roof leaked. Thus,
there was an "occurrence" under
the policy,
and the [insurer] is obligated by the terms
of the policy to defend the [homeowner's]
action and perform other duties contracted
for thereunder.'
"Moss, 442 So. 2d at 29. Thus, in Moss we held that
there had been an occurrence for CGL policy purposes
when the contractor's poor workmanship resulted in
not merely a poorly constructed roof but damage to
the plaintiff's attic, interior ceilings, and at
least some furnishings. Reading Moss and Warwick
together, we may conclude that faulty workmanship
itself is not an occurrence but that faulty
workmanship may lead to an occurrence if it subjects
personal property or other parts of the structure to
'continuous or repeated exposure' to some other
'general harmful condition' (e.g., the rain in Moss)
and, as a result of that exposure, personal property
or other parts of the structure are damaged."
111 So. 3d at 705-06.
On appeal, Owners highlights the dichotomy between our
holdings in United States Fidelity & Guaranty Co. v. Warwick
12
1120764
Development Co., 446 So. 2d 1021 (Ala. 1984), and Moss v.
Champion Insurance Co., 442 So. 2d 26 (Ala. 1983), and
emphasizes our statement in Town & Country that "faulty
workmanship may lead to an occurrence if it subjects personal
property or other parts of the structure to 'continuous or
repeated
exposure'
to
some
other
'general
harmful
condition,'"
111 So. 3d at 706, to argue that faulty workmanship performed
as part of a construction or repair project might result in an
"occurrence" only to the extent that that workmanship results
in property damage to real or personal property that is not
part of that construction or repair project. However, in
making that argument Owners asks the term "occurrence" to do
too much. The term "occurrence" is defined in the Owners
policy simply as "an accident, including continuous or
repeated exposure to substantially the same general harmful
conditions." If some portion of the Owners policy seeks to
affect coverage by references to the nature or location of the
property damaged, it is not the provision in the policy for
coverage of occurrences. The policy simply does not define
"occurrence" by reference to such criteria. See, e.g., Lamar
Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 9 (Tex.
13
1120764
2007) ("The CGL policy, however, does not define an
'occurrence' in terms of the ownership or character of the
property damaged by the act or event. Rather, the policy asks
whether the injury was intended or fortuitous, that is,
whether the injury was an accident. ... [N]o logical basis
within the 'occurrence' definition allows for distinguishing
between damage to the insured's work and damage to some third-
party's [work or] property ...."). See also Travelers Indem.
Co. of America v. Moore & Assocs., Inc., 216 S.W.3d 302, 308-
09 (Tenn. 2007); United States Fire Ins. Co. v. J.S.U.B.,
Inc., 979 So. 2d 871, 883 (Fla. 2007) ("[W]e fail to see how
defective work that results in a claim against the contractor
because of injury to a third party or damage to a third
party's property is 'unforeseeable,' while the same defective
work that results in a claim against the contractor because of
damage to the completed project is 'foreseeable.' This
distinction would make the definition of 'occurrence'
dependent on which property was damaged.); 9A Couch on
Insurance § 129:4 (3d ed. 2005)("[W]hat does constitute an
occurrence is an accident caused by or resulting from faulty
workmanship, including damage to any property other than the
14
1120764
work product and damage to the work product other than the
defective workmanship."). Indeed, to read into the term
"occurrence" the limitations urged by Owners would mean that,
in a case like this one, where the insured contractor is
engaged in constructing an entirely new building, or in a case
where the insured contractor is completely renovating a
building,
coverage
for
accidents
resulting
from
some
generally
harmful condition would be illusory. There would be no
portion of the project that, if damaged as a result of
exposure to such a condition arising out of faulty workmanship
of the insured, would be covered under the policy.
To the extent that the passage in Town & Country in which
this Court affirmatively stated that damage to personal
property and "other parts" of the real property may fall
withing the ambit of an "occurrence" lends support to Owners'
interpretation of the term "occurrence," we note that the
essential issue in Warwick, upon which Town & Country was
based, was merely "whether [the insurer's] policy provided
coverage for alleged faulty workmanship and noncomplying
materials." 446 So. 2d at 1023. Reading Warwick and Moss
together, we stated in Town & Country that "we may conclude
15
1120764
that faulty workmanship itself is not an occurrence." 111 So.
3d at 706. This is the essential holding of Town & Country.
In light of the arguments framed in this case, however, we
think it prudent to restate that principle in more precise
terms –– faulty workmanship itself is not "property damage"
"caused by" or "arising out of" an "occurrence." See also
Shane Traylor Cabinetmaker, LLC v. American Express Res. Ins.
Co., 126 So. 3d 163, 172 (Ala. 2013) (Murdock, J., concurring
specially) ("I would state the rule as follows: 'faulty
workmanship itself' is not 'property damage' 'caused by' or
'arising out of' an 'occurrence.' That is, the fact that the
cost of repairing or replacing faulty workmanship itself is
not the intended object of the insurance policy does not
necessarily mean that, in an appropriate case, additional
damage to a contractor's work resulting from faulty
workmanship
might
not
properly
be
considered
'property
damage'
'caused by' or 'arising out of' an 'occurrence.'"). In sum,
the cost of repairing or replacing faulty workmanship is not
the intended object of a CGL policy issued to a builder or
contractor. Accordingly, we conclude that the definition of
16
1120764
the term "occurrence" does not itself exclude from coverage
the property damage alleged in this case.
Our analysis, however, does not end with our discussion
of the term "occurrence" because the Owners policy contains
other provisions that bear on whether JCH and the Johnsons are
entitled to coverage for their losses. The Owners policy,
like other standard CGL policies, was intended to insure the
builder, that is, JCH, from losses resulting from its
negligence while engaged in the process of performing the
construction work for which it was hired. That is, once JCH's
"ongoing operations" with regard to the Johnsons' house came
to an end, it was not the intent of the Owners policy to
insure JCH against claims for damage to the Johnsons' house
arising from exposure to generally harmful conditions made
possible by faulty workmanship previously performed by JCH.
This risk is known as the "completed operations hazard" and,
absent supplemental coverage purchased by the insured, is not
insured against by the standard CGL policy.4
The standard CGL policy referred to in this opinion is
4
the standardized form used in the construction industry and
tracks the language of the 1986 revisions by Insurance
Services Office, Inc.
17
1120764
In manifestation of this latter fact, standard CGL
policies –– including the Owners policy –– include an express
"Your Work" exclusion that specifically addresses the
completed-operations hazard. The parties acknowledge the
applicability of the "Your Work" exclusion in this case,
inasmuch as it is undisputed that JCH's "operations" on the
Johnsons' house were completed at the time of the alleged
occurrences.
The
"Your
Work"
exclusion
specifically
provides:
"This insurance does not apply to:
"....
"l. Damage To Your Work
"'Property damage' to 'your work' arising out
of it or any part of it and included in the
'products-completed operations hazard.'"5
The policy defines "Your work" as meaning:
5
"(1) Work or operations performed by you or on your
behalf; and
"(2) Materials, parts or equipment furnished in
connection with such work or operations."
Unlike some other CGL policies, the Owners policy does not
contain a exception as to work performed "on your behalf" for
work performed on behalf of the insured by subcontractors.
Compare Town & Country, 111 So. 3d at 705.
18
1120764
(Emphasis added.) As the emphasized passage makes clear, in
order for the "Your Work" exclusion to apply, the damage not
only must be to "your work," but also must be "included" in
the "products-completed operations hazard." We
agree
with the
Johnsons' explanation of this exclusion in their brief filed
with this Court:
"The [Owners] policy's 'your work' exclusion
(Exclusion 'l') excludes coverage for, '"Property
damage" to "your work" arising out of it or any part
of it and included in the "products-completed
operations hazard."' In order for the exclusion to
apply, the damage must not only be to 'your work,'
but
it
also
must
be
'included'
in
the
'products-completed operations hazard.'
"What is 'included' in the 'products-completed
operations hazard?' Generally speaking, products
that have left the insured's possession or work that
has been completed are included in the hazard.13
However, the 'products-completed operations hazard'
specifically does not include bodily injury or
property damage arising out of 'products or
operations for which the classification, shown in
the Declarations, states that products-completed
operations are included.'
"So, one must look to the Policy's declarations
to see if damage to the insured's completed work is
covered by the Policy or is excluded. If the
declarations show coverage for 'products-completed
operations,' then the 'your work' exclusion does not
apply. When one looks to the declarations here, one
sees that [JCH] does indeed have coverage of up to
$2,000,000
for
both
'Bodily
Injury
Products/Completed Operations' and 'Property Damage
19
1120764
Products/Completed
Operations'
(a
total
of
$4,000,000). ...
"....
"Simply put, the 'your work' exclusion applies
if and only if the Policy's declarations fail to
show
any
coverage
for
'products-completed
operations.' That is not the case here. Clearly,
Owners' insured bargained and paid for up to a total
of
$4,000,000
in
coverage
for
[its]
'products-completed
operations,'
which
nullifies
and
renders inapplicable the 'your work' exclusion here.
"....
"According to Owners, the Johnsons' home and
every component of the home is the 'work' of [JCH],
and therefore the 'your work' exclusion bars
coverage
under
every
conceivable
set
of
circumstances –– and despite the fact that the
Policy's declarations provide $4,000,000
in coverage
for bodily injury and property damage arising out of
the insured's 'products' and 'completed operations.'
If Owners' interpretation is correct, then Owners is
guilty of issuing illusory coverage.
____________
" '"Completed operations" provisions refer to
13
bodily injury and property damage which occur away
from premises owned by or rented to the insured, and
after the insured has completed work or relinquished
custody of its product.' 9A Couch on Insurance 3d
§ 129:23. The completed operations 'hazard'
basically means (as a default provision) that an
insured is assuming the risk (or 'hazard') related
to his completed operations unless the insured
purchases coverage for his completed operations (as
[JCH] clearly has done here up to the limit of
$4,000,000)."
Johnsons' brief, pp. 47-58.
20
1120764
In its reply brief, Owners essentially concedes that the
Johnsons' argument on this issue is correct when it states:
"Owners agrees with the statement in the
Johnson's brief that:
"'The
completed
operations
"hazard"
basically means (as a default provision)
that an insured is assuming the risk
("hazard")
related
to
his
completed
operations unless the insured purchases
coverage for his completed operations ...'
(Johnson[s'] brief at p. 48, [n.] 13)
(emphasis supplied)."
Owners' reply brief, p. 20 n.4. However, Owners fails to
recognize that JCH did in fact purchase a total of $4 million
in
supplemental
insurance
coverage
for
its
completed
operations. Owners' argument that the "Your Work" exclusion
should nevertheless apply even though this supplemental
coverage was purchased is unavailing. Thus, because there is
no dispute that JCH's "operations" on the Johnsons' house were
completed at the time of the alleged occurrences, that
coverage applies to the Johnsons' claims and, pursuant to the
terms of the Owners policy, Owners must indemnify JCH for the
judgment entered against it.
21
1120764
IV.
Owners initiated an action against JCH and the Johnsons
seeking a judgment declaring that it was not obligated to
indemnify its insured –- JCH –- for any judgment entered
against JCH in the Johnsons' separate action alleging that the
house JCH had constructed for them was poorly built. After a
judgment was entered in favor of the Johnsons in their action
against JCH, the trial court in the declaratory-judgment
action entered a summary judgment holding that Owners was
required to pay the judgment entered against JCH pursuant to
the terms of the Owners policy. For the reasons explained
above, that judgment is now affirmed.
APPLICATION GRANTED; OPINION OF SEPTEMBER 20, 2013,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ.,
concur.
Murdock, J., concurs specially.
Shaw, J., concurs in the result in part and dissents in
part.
22
1120764
MURDOCK, Justice (concurring specially).
I concur in the main opinion. I write separately to
acknowledge
the
argument
presented
by
Owners
Insurance
Company
on appeal that the arbitrator's award fails to distinguish
between damages based on the cost of repairing faulty
workmanship and damages based on the cost of repairing other
damage to the structure. Be that as it may, the trial court,
citing Town & Country Property, L.L.C. v. Amerisure Insurance
Co., 111 So. 3d 699 (Ala. 2011), entered a summary judgment in
favor of Jim Carr Homebuilder, LLC, based on its finding that
the arbitrator's award was supported by evidence relating to
covered damage, i.e., that there was evidence of covered
damage sufficient to account for the award made by the
arbitrator. Owners does not argue that the evidence was
insufficient to support the trial court's assessment of the
damages awarded.
23
1120764
SHAW, Justice (concurring in the result in part and dissenting
in part).
As previous caselaw discussed in the main opinion notes,
commercial general-liability ("CGL") insurance policies like
the one in this case provide coverage for an "occurrence,"
which is defined, in part, as an "accident." As illustrated
in Moss v. Champion Insurance Co., 442 So. 2d 26 (1983), such
an "accident" might be the result of negligence on the part of
the insured or its employees: in Moss, workers removed
shingles from a roof and failed to properly cover the exposed
structure to protect it during rainstorms. The resulting
water damage, this Court held, was an "occurrence" or
"accident" and covered by the policy. Id.
That
said,
our
caselaw
makes
clear
that
faulty
workmanship itself is not "damage" caused by an "occurrence"
or "accident"; thus, the cost to repair or replace faulty
workmanship is not covered by the policy. Town & Country
Prop., L.L.C. v. Amerisure Ins. Co., 111 So. 3d 699, 706 (Ala.
2011). However, damage that is the result of faulty
workmanship on the part of the insured contractor--like water
damage to personal property caused by a leaky, poorly
24
1120764
constructed roof--can constitute an "occurrence." Id. This
concept is consistent with the idea that the purpose of a CGL
policy is to protect the insured contractor from tort
liability, but not to protect it from its own malpractice:
"[A] CGL policy is intended '"to protect an insured from
bearing
financial
responsibility
for
unexpected
and
accidental
damage to people or property"' while a performance bond is
intended '"to insure the contractor against claims for the
cost of repair or replacement of faulty work."'" Town &
Country, 111 So. 3d at 707 (quoting Essex Ins. Co. v. Holder,
372 Ark. 535, 539, 261 S.W.3d 456, 459 (2007) (quoting in turn
Nabholz Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 354
F. Supp. 2d 917, 923 (E.D. Ark. 2005))). There is no coverage
to replace poor work, but there is coverage to repair damage
caused by the poor work.
In the instant case, the work product of the contractor,
Jim Carr Homebuilder, LLC ("JCH"), was a house built for
Thomas Johnson and Pat Johnson. Parts of the house were
faulty--the arbitrator identified improperly installed,
sealed, or waterproofed flashings, windows, doors, porches,
and roofing, and improper mortar and brickwork. All of this
25
1120764
led to water leakage and damage to other parts of the house.
Under Town & Country, the cost to repair and replace the
faulty flashings, windows, doors, porches, roofing, and
brickwork would not be covered as an "occurrence."
Owners Insurance Company ("Owners") contends on appeal
that none of the water damage resulting from JCH's poor work
would be covered as an "occurrence." Specifically, Owners
alleges that an occurrence exists only when
faulty
workmanship
leads to damage to property that was not the insured's
product. In other words, Owners contends that the water
damage in this case is only an "accident" to the extent it
damaged the Johnsons' personal property or anything JCH did
not build; to the extent the water damaged parts of the
structure or items JCH constructed, Owners contends that that
would not be an occurrence or accident. In support of its
argument, Owners cites United States Fidelity & Guaranty Co.
v. Bonitz Insulation Co. of Alabama, 424 So. 2d 569 (Ala.
1982). In Bonitz, a contractor built a roof on a gym. The
roof was not installed in a workmanlike manner and later
leaked water, causing damage to the ceilings, walls, and
flooring, all of which had not been constructed or installed
26
1120764
by the contractor. In holding that the policy covered damage
to the ceilings, walls, and flooring, but not to the faulty
roof, this Court stated:
"If damage to the roof itself were the only
damage claimed by the City of Midfield[, the
property owner], the exclusions would work to deny
Bonitz any coverage under the USF&G policy. The City
of Midfield, however, also claims damage to
ceilings, walls, carpets, and the gym floor. We
think there can be no doubt that, if the occurrence
or accident causes damage to some other property
than the insured's product, the insured's liability
for such damage becomes the liability of the insurer
under the policy."
424 So. 2d at 573.
Owners broadly interprets this language in Bonitz--that
there is coverage only for damage to "other property than the
insured's product"-–to mean that there is no coverage for
damage to any of the insured's product. However, it appears
from the above quotation that the phrase "other property than
the insured's product" was simply contrasting the faulty roof
itself--the only product of the insured in that case--from
anything else that was damaged, because coverage for the roof
was barred by a separate policy exclusion. In other words,
when the Court stated that property "other than" the insured's
product was covered, it was not stating that an insured's
27
1120764
product would never be covered, it was stating only that the
roof was not covered in that case because of an exclusion.
I see nothing explaining why damage to "other property"
caused by faulty workmanship would be an "occurrence," but
damage to the insured's work product caused by faulty
workmanship in some other portion of the project would not be
such an "occurrence." As the main opinion notes: "If some
portion of the Owners policy seeks to affect coverage by
references to the nature or location of the property damaged,
it is not the provision in the policy for coverage of
occurrences. The policy simply does not define 'occurrence'
by reference to such criteria." ___ So. 3d at ___. The
replacement or repair of the faulty workmanship itself is not
covered as an occurrence, but, consistent with prior caselaw,
damage that results from faulty workmanship should be covered
as an occurrence. I concur in the result with the main
opinion's conclusion on this issue.6
Owners also contends on appeal that an exclusion in the
6
policy bars coverage of damage to completed work. The main
opinion notes that the face of the declarations page of the
policy appears to indicate that JCH purchased extra coverage
that would expressly provide an exception to this exclusion.
Owners denies this, but I see no clear explanation as to what
this extra coverage actually does; thus, I do not believe that
Owners has demonstrated that the trial court erred in holding
28
1120764
Owners raises another issue on appeal, however, that the
main opinion fails to address. Specifically, the arbitrator
identified numerous items of both faulty construction as well
as damage that resulted from the faulty construction. In
awarding $600,000 in damages, the arbitrator noted that the
"repair" estimates received into evidence ranged from around
$51,000 to over $600,000. As noted above, the cost to repair
and replace the faulty work itself is not covered as an
"occurrence" even if all resulting damage caused by the faulty
work is covered. Town & Country, 111 So. 3d at 706. In order
to affirm the entire award, this Court would have to arrive at
the seemingly inconceivable conclusion that the arbitrator's
award did not compensate the Johnsons for the numerous items
of faulty work identified in the arbitrator's award.
Owners contends that JCH had the burden at trial of
demonstrating which part of the arbitrator's award was
attributable to the excluded faulty work and which part was
attributable to the damage resulting from the faulty work,
that JCH failed to meet that burden, and that, therefore, a
judgment in its favor is required. Further, Owners notes that
that this coverage supplied an exception to the exclusion.
29
1120764
in Town & Country we remanded the case for a determination
whether any of the subject judgment represented compensation
for property damage resulting from the faulty work, as opposed
to compensation for the faulty work itself, which would not be
covered. I dissent from the failure of the main opinion to
address these issues, and I would remand the cause for the
trial court to determine what portion of the damages award is
attributable to covered "occurrences" and which portion is
not.
30 | March 28, 2014 |
853140ed-b3c0-4b38-93c8-da0d8c043254 | Cruz v. J&W Enterprises, LLC | N/A | 1121423 | Alabama | Alabama Supreme Court | Rel: 03/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1121423
_________________________
Ex parte J&W Enterprises, LLC, and Ezell Coates
PETITION FOR WRIT OF MANDAMUS
(In re: Angel Luis Cruz
v.
J&W Enterprises, LLC, and Ezell Coates)
(Clarke Circuit Court, CV-12-900097)
MAIN, Justice.
J&W Enterprises, LLC ("J&W"), and Ezell Coates are
defendants in an action pending in the Clarke Circuit Court
1121423
brought by the plaintiff, Angel Luis Cruz. J&W and Coates
petition this Court for a writ of mandamus directing the
Clarke Circuit Court to transfer the action to the Mobile
Circuit Court. We deny the petition.
I. Facts and Procedural History
This action arises from a truck accident that occurred on
October 4, 2011, on Interstate 10 in Mobile County. At the
time of the accident, Coates was driving a tractor-trailer rig
owned by J&W, his employer. According to the complaint,
Coates negligently and/or wantonly operated the tractor-
trailer rig, causing it to collide with a tractor-trailer rig
being operated by Cruz. Cruz claims injury as a result of the
accident, but he did not seek any medical treatment in Mobile
County as a result of the accident.
The accident was investigated by the Mobile Police
Department. Cruz is a resident of Brownsville, Texas; Coates
is a resident of Clarke County, Alabama. J&W's principal
place of business is located in Clarke County, Alabama. Other
than Cruz and Coates, there are no known eyewitnesses to the
accident.
On July 23, 2012, Cruz sued J&W and Coates in the Clarke
Circuit Court. Count I alleged a claim of negligence and
2
1121423
wantonness based on Coates's operation of the tractor-trailer
rig; count II asserted a claim against J&W alleging negligent
and/or wanton entrustment of the tractor-trailer rig to
Coates; and count III asserted that J&W had negligently and/or
wantonly hired, retained, or trained Coates.
On August 23, 2012, J&W and Coates moved to transfer the
case from Clarke County to Mobile County. In support of their
motion, J&W and Coates argued that, under § 6-3-21.1, Ala.
Code 1975, Alabama's forum non conveniens statute, the case
was due to be transferred "for the convenience of parties and
witnesses" and "in the interest of justice." Cruz filed an
opposition to the motion for a change of venue and submitted
an affidavit of the investigating police officer, who was
employed by the Mobile Police Department and who testified
that it was not inconvenient for him to travel to Clarke
County to testify in the case. Cruz also submitted an
affidavit stating that because Cruz's lawyer was located in
Clarke County, venue in Clarke County was more convenient for
him. Cruz also noted that both Coates and J&W are located in
Clarke County and thus could not claim inconvenience as to
Clarke County as a forum. Finally, Cruz argued that, because
J&W's place of business is located in Clarke County, the
3
1121423
actions giving rise to its alleged negligent and/or wanton
entrustment,
hiring,
retention,
and
training
likewise
occurred
in Clarke County and, therefore, that the "interest of
justice" prong of the forum non conveniens statute compelled
that the case remain in Clarke County.
On August 13, 2013, following a hearing, the trial court
entered an order denying Coates and J&W's motion to transfer
the case. Coates and J&W timely filed a petition for a writ
of mandamus seeking review of the trial court's order.
II. Standard of Review
We have held that "'[t]he proper method for obtaining
review of a denial of a motion for a change of venue in a
civil action is to petition for the writ of mandamus.'" Ex
parte Southeast Alabama Timber Harvesting, LLC, 94 So. 3d 371,
373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727
So. 2d 788, 789 (Ala. 1998)). Nevertheless, the standard for
obtaining mandamus review before this Court is a high one:
"'A
writ
of
mandamus
is
an
extraordinary remedy, and it will be
"issued only when 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
4
1121423
United Serv. Stations, Inc., 628 So. 2d
501, 503 (Ala. 1993). A writ of mandamus
will issue only in situations where other
relief is unavailable or is inadequate, and
it cannot be used as a substitute for
appeal. Ex parte Drill Parts & Serv. Co.,
590 So. 2d 252 (Ala. 1991).'"
Ex parte Wilson, 854 So. 2d 1106, 1108-09 (Ala. 2002)(quoting
Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894
(Ala. 1998)). Moreover, "[w]e apply the abuse-of-discretion
standard when considering a mandamus petition challenging a
venue ruling, and we will not issue the writ unless the trial
court exercised its discretion in an arbitrary and capricious
manner." Ex parte Brookwood Health Servs., Inc., 781 So. 2d
954, 956-57 (Ala. 2000). "'Our review is ... limited to those
facts that were before the trial court.'" Ex parte Jim Burke
Auto., Inc., 776 So. 2d 118, 120 (Ala. 2000) (quoting Ex parte
National Sec. Ins. Co., 727 So. 2d at 789).
III. Analysis
Coates and J&W argue that the trial court erred in
failing to grant their motion to transfer this case to the
Mobile Circuit Court. There is no dispute that Clarke County
is a proper venue for this case. Coates is a resident of
Clarke County, see § 6-3-2(3), Ala. Code 1975 ("In proceedings
of a legal nature against individuals ... [a]ll ... personal
5
1121423
actions [other than actions for the recovery of land or on
contracts], if the defendant ... has within the state a
permanent residence, may be commenced in the county of such
residence ...."), and J&W's principal office is located in
Clarke County, see § 6-3-7(a)(2), Ala. Code 1975 ("All civil
actions against corporations may be brought ... [i]n the
county of the corporation's principal office in this state
...."). Nevertheless, Alabama's forum non conveniens statute
permits the transfer of a civil action from one appropriate
venue to another appropriate venue "for the convenience of
parties and witnesses, or in the interest of justice." § 6-3-
21.1. The forum non conveniens statute provides, in pertinent
part:
"(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."
§ 6-3-21.1(a), Ala. Code 1975. "'A defendant moving for a
transfer under § 6-3-21.1 has the initial burden of showing
that the transfer is justified, based on the convenience of
the parties and witnesses or based on the interest of
6
1121423
justice.'"
Ex
parte Southeast Alabama Timber Harvesting, LLC,
94 So. 3d at 373 (quoting Ex parte National Sec. Ins. Co., 727
So. 2d at 789).
Coates and J&W argue that the "interest of justice" prong
of § 6–3–21.1 compels a transfer of this action to the Mobile
Circuit Court. We agree that this action might properly have
1
been filed in Mobile County, the county in which the accident
occurred. Nevertheless, "[w]hen venue is appropriate in more
than one county, the plaintiff's choice of venue is generally
given great deference." Ex parte Perfection Siding, Inc., 882
So. 2d 307, 312 (Ala. 2003) (citing Ex parte Bloodsaw, 648 So.
2d 553, 555 (Ala. 1994)). See also Ex parte Yocum, 963 So. 2d
600, 602 (Ala. 2007) ("The trial court should give deference
to the plaintiff's choice of a proper forum."). Thus, we must
now determine whether "the interest of justice" overrides the
deference due the plaintiff's choice of forum. Our inquiry
depends on the facts of the case. Ex parte ADT Sec. Servs.,
Inc., 933 So. 2d 343 (Ala. 2006).
Coates and J&W do not argue in their petition for the
1
writ of mandamus that this action is due to be transferred to
Mobile County for the convenience of the parties and the
witnesses. Thus, the question whether a transfer in this case
is necessary "for the convenience of parties and witnesses" is
not before this Court.
7
1121423
With regard to the "interest of justice" prong of the
forum non conveniens statute, this Court has stated:
"The 'interest of justice' prong of § 6–3–21.1
requires 'the transfer of the action from a county
with little, if any, connection to the action, to
the county with a strong connection to the action.'
Ex parte National Sec. Ins. Co., 727 So. 2d [788,]
790 [(Ala. 1998)]. Therefore, 'in analyzing the
interest-of-justice prong of § 6–3–21.1, this Court
focuses on whether the "nexus" or "connection"
between the plaintiff's action and the original
forum is strong enough to warrant burdening the
plaintiff's forum with the action.' Ex parte First
Tennessee Bank Nat'l Ass'n, 994 So. 2d 906, 911
(Ala. 2008). Additionally, this Court has held that
'litigation should be handled in the forum where the
injury occurred.' Ex parte Fuller, 955 So. 2d 414,
416 (Ala. 2006). Further, in examining whether it
is in the interest of justice to transfer a case, we
consider 'the burden of piling court services and
resources upon the people of a county that is not
affected by the case and ... the interest of the
people of a county to have a case that arises in
their county tried close to public view in their
county.' Ex parte Smiths Water & Sewer Auth., 982
So. 2d 484, 490 (Ala. 2007)."
Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536, 540 (Ala.
2008) (emphasis added).
Coates and J&W contend that Mobile County has a strong
connection to this case, particularly because it is the forum
in which the injury occurred. Indeed, we have stated that,
"[a]lthough it is not a talisman, the fact that the injury
occurred in the proposed transferee county is often assigned
8
1121423
considerable weight in an interest-of-justice analysis." Ex
parte Wachovia Bank, N.A., 77 So. 3d 570, 573-74 (Ala. 2011).
Coates and J&W rely on three recent cases in which this Court
held that the "interest of justice" compelled a change of
venue.
In Ex parte Southeast Alabama Timber Harvesting, LLC,
supra, the plaintiff's vehicle collided with timber that had
fallen from a tractor-trailer rig owned and operated by a
timber-harvesting company. The accident occurred in Lee
County. The plaintiff suffered serious injuries and was
treated in Lee County. Police officers and emergency
personnel from Lee County responded to the accident. The only
known eyewitness to the accident lived and worked in Lee
County. The plaintiff sued the timber-harvesting company and
an employee of the company in Chambers County, the county in
which the
timber-harvesting
company had its principal place of
business. The timber-harvesting company and its employee
moved to transfer the action to Lee County pursuant to the
forum non conveniens statute. The Chambers Circuit Court
denied the motion, and the timber-harvesting company and its
employee petitioned this Court for a writ of mandamus. We
held that Chambers County's sole connection with the case –-
9
1121423
the
timber-harvesting
company's
principal
place
of
business
–-
was "weak in comparison to Lee County's connection with the
case." 94 So. 2d at 376. Thus, we concluded that, in the
interest of justice, the case was due to be transferred to Lee
County, and we issued the writ of mandamus directing that the
case be transferred.
In Ex parte Indiana Mills & Manufacturing, Inc., supra,
the widow of an employee of a waste-disposal company who was
killed while driving a garbage truck sued three of her
husband's fellow employees and the manufacturer of the truck.
The suit was filed in Macon County, were one of the defendants
resided and where the waste-disposal company did business.
The accident, however, occurred in Lee County. The defendants
filed a motion to transfer the case to Lee County based on the
doctrine of forum non conveniens. The Macon Circuit Court
denied the motion, and the defendants filed a petition for a
writ of mandamus in this Court. In granting the petition, we
explained:
"We agree that this case certainly has a
connection with Macon County –- ... Conner[, an
individual defendant,] resides there and [the waste-
disposal
company]
conducts
business
there.
Additionally, it is true that none of the parties in
this case actually resides in Lee County. However,
we nevertheless hold that the overall connection
10
1121423
between Macon County and this case is weak and that
the connection between the case and Lee County is
strong.
"First and foremost, the accident occurred in
Lee County. Lee County police and emergency
personnel -– the Opelika Police Department and the
Opelika Fire Department -– responded to the scene
and investigated the accident. Additionally, Gene
Manning, the chief deputy coroner of Lee County,
investigated James's death. He testified in an
affidavit that all the work he performed in
connection with the investigation took place in Lee
County. Additionally Danny Cotney, the assistant
fire chief of the Opelika Fire Department, testified
that the various records and documents generated by
the department are located in Lee County.
"On the other hand, the 'connection' or 'nexus'
with Macon County in this case is weak. No party
but
Conner
resides
or
is
located
there.
Additionally, none of the relevant facts in this
case actually involve Macon County."
10 So. 3d at 540-41 (footnote omitted).
Finally, Coates and J&W cite Ex parte McKenzie Oil Co.,
13 So. 3d 346 (Ala. 2008). In McKenzie, a driver injured in
an automobile accident sued the other driver involved in the
accident, as well as the corporation that operated the
convenience store that had sold that driver alcoholic
beverages several hours before the accident. The action was
filed in Barbour County, where the corporation's headquarters
were located. The defendants moved, based on the doctrine of
forum non conveniens, to transfer the case to Escambia County,
11
1121423
where the accident occurred and where the driver had purchased
the alcoholic beverages. The Barbour Circuit Court denied the
motion, and the defendants filed a petition for a writ of
mandamus. In granting the petition for a writ of mandamus, we
held:
"We agree that McKenzie has 'a connection' with
Barbour County by virtue of the location of its
corporate headquarters. However, we find this
connection to Barbour County to be 'little' and the
connection with Escambia County to be 'strong.' ...
"....
"... [W]e note that virtually none of the events
or circumstances involved in this case occurred in
or relate to Barbour County. Specifically, the
accident giving rise to Franklin's claims and the
alleged tortious conduct by both [the defendant
driver]
and
[the
defendant
convenience-store
operator] took place in Escambia County. Law-
enforcement personnel and medical personnel in
Escambia County investigated the accident and
treated Franklin's injuries. ... [The defendant
driver] resides in Escambia County. For all that
appears, all material events in this case, including
the accident, occurred in Escambia County.
"Given this small nexus and little connection
with the facts of this case to Barbour County and
the strong connection with Escambia County, we hold
that hearing the case in Escambia County 'would more
serve the interest of justice.' ..."
13 So. 3d at 349-50.
In each of the three cases relied upon by Coates and J&W,
this Court held that the case was due to be transferred "from
12
1121423
a county with little, if any, connection to the action, to the
county with a strong connection to the action." Ex parte
Indiana Mills, 10 So. 3d at 540 (quoting Ex parte National
Sec. Ins. Co., 727 So. 2d at 790 (emphasis added)). Our forum
non conveniens analysis has never involved a simple balancing
test weighing each county's connection to an action. Rather,
to compel a change of venue under the "interest of justice"
prong of § 6–3–21.1, the county to which the transfer is
sought must have a "strong" nexus or connection to the
lawsuit, while the county from which the transfer is sought
must have a "weak" or "little" connection to the action. This
inquiry necessarily depends on the facts of each case.
In the present case, the facts before this Court do not
indicate that Mobile County has a particularly strong
connection to this lawsuit. The accident occurred in Mobile
County, and the Mobile Police Department prepared an accident
report, but there the connections to Mobile County cease.
2
Coates and J&W also note that during the accident
2
Coates's truck struck a barrier wall that was owned by a
Mobile-based construction company and that, following the
accident, Coates's truck was towed by a Mobile-based towing
company. The trial court, however, concluded that these facts
were not relevant to this case. Coates and J&W have provided
us with no argument as to how these facts have any relevant
connection to Cruz's lawsuit.
13
1121423
None of the parties lives in Mobile County. Cruz did not
receive treatment for his injuries in Mobile County. Coates
and J&W have not identified any relevant documents that are
located in Mobile County. No eyewitnesses are located in
Mobile County, and the investigating police officer has
testified that he is willing to travel to Clarke County. In
light of the facts before us, Mobile County's nexus to the
action is purely fortuitous -– the place on the interstate
where the
accident
occurred. Although we assign "considerable
weight" to the location where the accident occurred, it is
not, and should not be, the sole consideration for determining
venue under the "interest of justice" prong of § 6–3–21.1.
Nor is Clarke County's connection to the action markedly
weak. Both defendants are located in Clarke County. Coates
is a resident of Clarke County; J&W's place of business is
located in Clarke County. Further, it stands to reason that
documents relevant to Cruz's claims, particularly his claims
of negligent or wanton entrustment, hiring, retention, and
training, are located at J&W's place of business in Clarke
County.
Given the specific facts of this case, we cannot say that
Mobile County has a significantly stronger connection to this
14
1121423
case than does Clarke County so that the interest of justice
will be offended by trial in Clarke County. Accordingly, we
cannot conclude that the trial court exceeded its discretion
in refusing to transfer this action to Mobile County.
IV. Conclusion
Based on the foregoing, we conclude that the trial court
did not exceed its discretion in denying Coates and J&W's
motion for a change of venue based on the "interest of
justice" prong of § 6-3-21.1. Therefore, we deny Coates and
J&W's petition for the writ of mandamus.
PETITION DENIED.
Moore, C.J., and Stuart, Bolin, Parker, Shaw, Wise, and
Bryan, JJ., concur.
Murdock, J., concurs in the result.
15 | March 28, 2014 |
c8d80442-ff77-4fab-be31-670ccc532017 | Daniel Senior Living of Inverness I, LLC v. STV One Nineteen Senior Living, LLC | N/A | 1110588 | Alabama | Alabama Supreme Court | REL: 02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1110588
_________________________
Ex parte STV One Nineteen Senior Living, LLC, d/b/a Somerby
at St. Vincent's One Nineteen
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Daniel Senior Living of Inverness I, LLC, d/b/a
Danberry at Inverness
v.
STV One Nineteen Senior Living, LLC, d/b/a Somerby at St.
Vincent's One Nineteen; State Health Planning and
Development Agency; and Certificate of Need Review Board)
(Montgomery Circuit Court, CV-10-901242;
Court of Civil Appeals, 2100476)
1110588
MURDOCK, Justice.
Daniel Senior Living of Inverness I, LLC, d/b/a Danberry
at Inverness ("Danberry") successfully appealed to the Court
of Civil Appeals from a decision of the Montgomery Circuit
Court affirming the issuance by the State Health Planning and
Development Agency ("SHPDA") of a certificate of need to STV
One
Nineteen
Senior
Living,
LLC,
d/b/a
Somerby
at
St. Vincent's One Nineteen ("Somerby") on an "emergency"
basis. Daniel Sr. Living of Inverness I, LLC v. STV One
Nineteen Sr. Living, LLC, [Ms. 2100476, Feb. 3, 2012] ___
So. 3d ___ (Ala. Civ. App. 2012). This Court granted
Somerby's petition for certiorari review of the decision of
the Court of Civil Appeals. We now affirm that decision.
I. Legal and Factual Background
A. The CON-Review Process Generally
The Alabama Legislature has enacted a statutory scheme to
provide for "health care services and facilities found to be
in the public interest." Section 22-21-261, Ala. Code 1975,
states:
"The Legislature of the State of Alabama
declares that it is the public policy of the State
of Alabama that a certificate of need program be
administered in the state to assure that only those
2
1110588
health care services and facilities found to be in
the public interest shall be offered or developed in
the state. It is the purpose of the Legislature in
enacting this article to prevent the construction of
unnecessary and inappropriate health care facilities
through a system of mandatory reviews of new
institutional health services, as the same are
defined in this article."
To effectuate the aforesaid purpose, the legislature
enacted Article 9, "Control and Regulation of Development of
Certain Health Care Facilities," of Title 22, Chapter 21, of
the Alabama Code, codified at §§ 22-21-260 to 22-21-278, Ala.
Code 1975. Article 9 gives the Statewide Health Coordinating
Council ("SHCC") (see § 22-4-7 and -8, creating the SHCC)
responsibility for preparing and periodically revising the
State Health Plan ("SHP"), a comprehensive catalogue of the
health-care needs of the State. The SHP "provide[s] for the
development of health programs and resources to assure that
quality health services will be available and accessible in a
manner which assures continuity of care, at reasonable costs,
for all residents of the state." Ala. Code 1975,
§ 22-21-260(13). See Ala. Code 1975, § 22-21-260(13) and
(15); Ala. Admin. Code (SHPDA) Rule 410-2-1-.02.
To aid in the administration of the State's health-
planning law, the legislature also created SHPDA, a body
3
1110588
composed of three consumers, three health-care providers, and
three representatives appointed by the governor. Ala. Code
1975, § 22-21-260(14). Under the state-health-planning laws
adopted by our legislature, health-care providers must apply
to SHPDA for a certificate of need (sometimes referred to
herein as a "CON") before offering a new institutional health
service, and that service must be consistent with the SHP.
Ala. Code 1975, §§ 22-21-263(a), -265(a), and -267; Health
Care Auth. of Athens & Limestone Cnty. v. SHCC, 988 So. 2d
574, 578 n.1 (Ala. Civ. App. 2008). Institutional health
services
subject
to
the
CON-application
process
include,
among
many other things, converting long-term-care beds from one
category to another. Ala. Code 1975, § 22-21-263(a)(3); Ala.
Admin. Code (SHPDA) Rule 410-1-4-.01(1)(c)(3)(v).1
In the standard CON-application process, the applicant
must file a letter of intent ("LOI") with SHPDA at least 30
days prior to submitting the CON application. Ala. Admin.
Code (SHPDA) Rule 410-1-7-.05(1). Upon determining that an
application is complete, SHPDA notifies the applicant and
The legislature also has tasked SHPDA with promulgating
1
rules and regulations governing regular and emergency
CON-application procedures. See, e.g., Ala. Code 1975, §§ 22-
21-267, -268, -274, and -275.
4
1110588
"other affected persons," such as competing health-care
providers, of the application and the review schedule. Ala.
Admin. Code (SHPDA) Rule 410-1-7-.08. A mandatory 90-day
"review period" or "review cycle" then begins. Ala. Admin.
Code (SHPDA) Rule 410-1-7-.09. The other affected persons
then have 45 days to submit opposition, if any, to the
application, Ala. Admin. Code (SHPDA) Rule 410-1-7-.13,
and
55
days to request a contested-case hearing on the application.
Ala. Admin. Code (SHPDA) Rule 410-1-7-.15.
The Certificate of Need Review Board ("the CONRB") is
2
required to hold monthly public hearings to review pending
applications. Ala. Admin. Code (SHPDA) Rule 410-1-7-.17. As
was done in this case, the CONRB can "batch" applications
together into the same review cycle for comparative,
competitive consideration; the batched-review cycle takes 180
days. Ala. Admin. Code (SHPDA) Rule 410-1-7-.19.
In the health-care-services regulatory scheme, the terms
2
"SHPDA" and "CONRB" are deemed synonymous and are used
interchangeably. Ala. Admin. Code (SHPDA) Rule 410-1-2-.01.
For ease of understanding, we generally refer to the panel of
individuals that holds hearings on CON applications as the
CONRB, while using the term SHPDA to refer to the agency in
its more general regulatory capacity.
5
1110588
The CONRB is required to issue a final order granting or
denying a CON application within 15 days of the public hearing
at which the application was considered. Ala. Admin. Code
(SHPDA) Rule 410-1-8-.07(1)(a). A party "aggrieved" by a
SHPDA decision may submit a request for reconsideration by the
CONRB of its decision within 15 days of that decision, but it
is not required to request reconsideration before seeking
judicial review. See Ala. Code 1975, § 22-21-275(12); Ala.
Admin. Code (SHPDA) Rule 410-1-8-.09(1) and (3). The
aggrieved party also may, but is not required to, request a
fair hearing within 15 days of what would otherwise become the
CONRB's final decision, with or without first submitting a
motion for reconsideration. Ala. Admin. Code (SHPDA) Rule
410-1-8-.16.
The fair hearing is a de novo review. Ala. Code 1975,
§
22-21-275(14);
Ala.
Admin.
Code
(SHPDA)
Rule
410-1-8-.22(1).
The record of the hearing before the CONRB is part of the
record before the administrative law judge presiding at the
fair hearing and is entitled only to "due consideration" by
the administrative law judge, who is alternately referred to
in the regulations and in SHPDA communications as a fair
6
1110588
hearing officer ("FHO"). Id. The FHO is required to enter a
final order containing findings of fact and conclusions of
law, Ala. Admin. Code (SHPDA) Rule 410-1-8-.24, and that order
"shall be considered the final decision" of SHPDA, § 22-21-
275(14), Ala. Code 1975; Ala. Admin. Code (SHPDA) Rule 410-1-
8-25. The FHO's decision can be appealed to, among other
circuit courts, the Montgomery Circuit Court. Ala. Admin.
Code (SHPDA) Rule 410-1-8-.24.
The process for filing an emergency CON application is
authorized by § 22-21-268, Ala. Code 1975, which provides:
"Any person may apply, either independently and
without notice under Section 22-21-267[ ] or as a
3
part
of
an
application
filed
under
Section
22-21-267, for an emergency certificate of need for
the authorization of capital expenditures made
necessary by unforeseen events which endanger the
health and safety of the patients. Emergency
capital
expenditures
include,
but
are
not
necessarily limited to, emergency expenditures to
maintain quality care, to overcome failure of fixed
equipment, including heating and air conditioning
equipment, elevators, electrical transformers and
switch gear, sterilization equipment, emergency
generators,
water
supply
and
other
utility
connections.
Applications
for
emergency
certificates
of need shall include a description of the work to
be done and/or equipment to be purchased, the cost
thereof, justification for considering the capital
expenditure as being of an emergency nature and such
Section 22-21-267, Ala. Code 1975, concerns the
3
CON-application process.
7
1110588
other information as the SHPDA may require.
Emergency certificates of need issued hereunder
shall be subject to such special limitations and
restrictions as the duration and right of extension
or renewal as may be prescribed in the rules and
regulations adopted by the SHPDA."
Rule 410-1-10-.01, Ala. Admin. Code (SHPDA), governs the
emergency procedure and provides, in pertinent part:
"(1) Any person may apply independently and
without notice for an emergency certificate of need
for the authorization of capital expenditures made
necessary by unforeseen events which endanger the
health and safety of the patients. Emergency
capital
expenditures
include,
but
are
not
necessarily limited to, emergency expenditures to
maintain quality care, overcome failure of fixed
equipment, including heating and air conditioning
equipment, elevators, electrical transformers, and
switch gear, sterilization equipment, emergency
generators,
water
supply
and
other
utility
connections and damage caused by natural or manmade
disaster.
"(a) The applicant must notify the
state agency in writing, describing the
nature of the emergency, the probable
amount of the emergency expenditure and the
anticipated
date
that
the
emergency
expenditure would be obligated. The
applicant must clearly demonstrate that an
emergency exists. "
The
emergency
CON-application
procedure avoids
the
notice
requirements
and
competitive review involved in a standard CON
application. As the parties here (and SHPDA in the Court of
Civil Appeals) state in their briefs, and as is consistent
8
1110588
with the type of emergency expenditures described above,
emergency
applications
are
usually
uncontested.
Corroborative
of this fact is the fact that, prior to this case being
appealed to the Court of Civil Appeals, Alabama's appellate
courts had never had occasion to discuss either § 22-21-268 or
Rule 410-1-10-.01.
B. Facts and Procedural History
On March 25, 2010, the SHCC, in response to Somerby's
request, voted to adjust the SHP to indicate the need for 164
specialty-care assisted-living-facility ("SCALF") beds in
Shelby County. SCALF beds are dedicated to housing memory-
4
impaired patients, such as those suffering from dementia. The
parties agree that such beds require more specialized
personnel and security measures than do assisted-living-
facility ("ALF") beds. On March 31, 2010, then Governor Bob
Riley approved the adjustment to the SHP.
Before the SHCC adjusted it, the SHP had indicated a need
4
for 96 SCALF beds in Shelby County. Evidence submitted to the
SHCC revealed, however, that there were actually 128 SCALF
beds in service in that county when the adjustment was made.
Therefore, the adjustment to the SHP to indicate the need for
164 SCALF beds in Shelby County essentially reflected a need
for an additional 36 SCALF beds above the 128 SCALF beds
already in service.
9
1110588
After the adjustment to the SHP, both Somerby and
Danberry applied for a CON to convert 24 of their existing ALF
beds in Shelby County to SCALF beds. However, on May 28,
2010, the same day that Somerby filed its standard CON
application, Somerby also applied for an emergency CON to
convert 24 of its existing ALF beds in Shelby County to SCALF
beds. Thus, Somerby applied for both a standard CON and an
5
emergency CON in an attempt to convert 24 of its ALF beds to
SCALF beds.
Danberry opposed Somerby's emergency CON application. On
June 16, 2010, the CONRB met to consider Somerby's emergency
CON application. The meeting featured live testimony and
other evidence and argument supporting and opposing Somerby's
emergency application. That same day, the CONRB approved
Somerby's application for an emergency CON by a vote of four
to one. The CONRB issued a final, written decision granting
Somerby the emergency CON on July 1, 2010, slightly more than
a month after Somerby had filed its application.
Somerby had filed a LOI on March 25, 2010, to submit a
5
standard CON.
10
1110588
On
July
8,
2010,
Danberry
filed
a
motion
for
reconsideration, which, because it had been filed only 13 days
in advance of the hearing, was not heard at the July 21 CONRB
meeting. See Ala. Admin. Code (SHPDA) Rule 410-1-8-10; Rule
6
410-1-9-.05. At the next meeting on August 18, 2010, Danberry
stipulated that discussion of the motion was moot because the
motion had been denied by operation of law 30 days after it
was filed. See Ala. Code 1975, § 41-22-17(e). On August 20,
2010, Danberry filed a request for a fair hearing.
The fair hearing was held on September 3, 2010, after
which the FHO entered his order. The FHO concluded that
Somerby's emergency CON application was due to be granted, and
he provided two alternative grounds for his decision. First,
he concluded that Somerby's rights under its emergency CON had
already vested, and that Danberry therefore had lost its right
to a fair hearing. Alternatively, he concluded that Somerby
had provided substantial evidence that its emergency CON
Somerby in its brief and the FHO in its final order state
6
that Danberry filed its motion for reconsideration on July 8,
13 days before the July 21 hearing. Danberry states in its
appellate brief that it filed the motion on July 7. Danberry
does not contest that its motion, though timely as it related
to the CONRB's final decision, was filed too late to be heard
at the July 21 meeting.
11
1110588
application presented an actual emergency within the meaning
of § 22-21-268 and Rule 410-1-10-.01.7
Danberry appealed the FHO's order to the Montgomery
Circuit Court, pursuant to § 41-22-20, Ala. Code 1975. The
circuit court
entered
a judgment affirming SHPDA's decision to
issue Somerby an emergency CON for the 24 SCALF beds.
Danberry then appealed to the Court of Civil Appeals. The
Court of Civil Appeals reversed the circuit court's decision
on the ground that Somerby's application did not present an
emergency within the contemplation of the statute and
regulation. As noted, Somerby petitioned this Court for
certiorari review of the decision of the Court of Civil
Appeals.
II. Standard of Review
Section 41-22-20(k), Ala. Code 1975, states that
"[SHPDA's] order shall be taken as prima facie just and
reasonable and the [reviewing] court shall not substitute its
The FHO addressed the issue whether Somerby's request
7
qualified as an "emergency" under the law because, as his
order explained, "this Fair Hearing Officer feels that the
prudent action is for him to proceed with a ruling in regard
to the Fair Hearing to assist in any way a reviewing Court in
the event a reviewing Court determines that the Fair Hearing
Officer's Granting of the Motion to Strike and Dismiss was due
to be reversed."
12
1110588
judgment for that of [SHPDA] as to the weight of the evidence
on questions of fact." Our review of SHPDA's conclusions of
law and its application of the law to the facts, however, are
de novo. See Ex parte Wilbanks Health Care Servs., Inc., 986
So. 2d 422, 425 (Ala. 2007) (stating, among other things, that
the Alabama Medicaid Agency did not have "unfettered
discretion" to define the term "maintenance").
III. Discussion
A.
At the outset, we note that Somerby has contended that
its CON was fully "vested" prior to Danberry's request for a
fair hearing. Somerby asserts that that vesting prevented
Danberry from challenging the CON issued by the CONRB.
Because Danberry could not challenge the issuance of the CON,
Somerby argues, the Court of Civil Appeals could not, in
effect, revoke the CON based on a determination that there was
not an "emergency."
As a preliminary matter, we note that Somerby contends
that Danberry waived any right to challenge the issuance of
the CON because it failed to make a substantive argument on
the vesting issue to the Court of Civil Appeals. A careful
13
1110588
reading of the circuit court's opinion, however,
reveals
that,
although the circuit court apparently believed that the
vesting of Somerby's CON had occurred in a manner that
truncated
the
administrative-review
process,
the
circuit
court
saw nothing in this vesting that affected Danberry's right to
judicial review of the issuance of the CON. Clearly, the
circuit court conducted that judicial review, noting in the
process that Danberry had complied with § 41-22-21(k).
Moreover, the circuit court's judgment leaves no doubt that
that court did decide the issue of the propriety of the
issuance of the CON on its merits.
Appropriately,
therefore,
Danberry
challenged
the
circuit
court's judgment in its brief to the Court of Civil Appeals by
challenging the circuit court's decision as to the merits of
the CONRB's issuance of an emergency CON. Similarly, the
Court of Civil Appeals addressed the circuit court's judgment
on that basis. Clearly, the Court of Civil Appeals declined
Somerby's invitation to affirm the circuit court's
decision
on
the alternative legal ground that further administrative and,
in turn, judicial challenges to the issuance of its CON had
been foreclosed by the alleged "vesting" of the CON. Like
14
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SHPDA in its brief to the Court of Civil Appeals, the majority
of that court found no reason to discuss the issue. Not even
the dissenting opinion seized upon it as a ground for its
position. Nonetheless, as it is entitled to do, Somerby tries
again in this Court to achieve a discussion of the issue
whether "vesting" should serve as an alternative ground for
upholding the circuit court's judgment. Unlike the Court of
Civil Appeals, we will discuss the issue. We see no waiver of
the issue by Danberry.
As to its merits, Somerby's argument regarding the
alleged "vesting" of its CON is based on a fundamental
misunderstanding of the intent of the applicable statutes and
regulations. This misunderstanding is best reviewed within
the framework of the procedural history of this case.
On July 1, 2010, the CONRB granted the emergency CON to
Somerby. Pursuant to § 22-21-275(12), Danberry then had 15
days to file a request that the CONRB reconsider its decision.
The effect of such a request within the time allowed by the
statute is made clear by the statute:
"Request for reconsideration shall be made in
writing not more than 15 days subsequent to the date
the agency (SHPDA) decision is deemed final and
shall have the effect of holding in abeyance the
15
1110588
final decision and suspending any certificate of
need issued pursuant thereto, subject to the outcome
of the public hearing."
§ 22-21-275(12)(emphasis added). Danberry timely filed its
request for reconsideration within the time allowed by the
statute, specifically, on July 8, 2010. Therefore, pursuant
to the plain language of § 22-21-275(12), the decision of the
CONRB, which would otherwise have been final and upon which
Somerby otherwise could have acted, was "suspended"
subject
to
the outcome of Danberry's request.
The next meeting of the CONRB following Danberry's filing
of its request for reconsideration was on July 21. Under the
applicable regulation, the CONRB will not consider a request
for reconsideration filed less than 15 days before any given
meeting. As a result, the CONRB did not consider Danberry's
request for reconsideration at its July 21 meeting and, as a
consequence, that request was denied by operation of law on
August 7, 30 days after its filing, pursuant to § 41-22-17(e),
Ala. Code 1975. With the denial on August 7 by operation of
law of Danberry's request for reconsideration, Danberry had
the right under the law to request a "fair hearing."
Specifically, as was the case following the initial decision
16
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by the CONRB, Danberry had 15 days from the denial of its
request for reconsideration to request a fair hearing. In
language identical to that prescribing the effect of a request
for reconsideration to the CONRB, the effect of a timely
request for a fair hearing is made clear by the statute:
"The appeal shall be commenced by a request for a
fair hearing by the applicant or any competing
applicant, which request shall be made within 15
days of the date that the decision by the state
agency became final, or in the event of a request
for reconsideration, within 15 days of the date that
the decision of the state agency on reconsideration
became final and shall have the effect of holding in
abeyance the decision and suspending any certificate
of need issued pursuant thereto subject to the
outcome of the fair hearing."
Ala. Code 1975, § 22-21-275(14) (emphasis added). See also
Ala. Admin. Code (SHPDA) Rule 410-1-8-.17 ("The request for
fair hearing shall have the effect of holding in abeyance the
issuance of the Certificate of Need and suspending any
Certificate of Need issued pursuant to SHPDA's decision
subject to the outcome of the fair hearing.").
Danberry timely filed its request for a fair hearing
within the time allowed by the statute, specifically, on
August 20, 2010. Therefore, under the plain language of
§ 22-21-275(14), the denial by operation of law on August 7 of
17
1110588
Danberry's motion for reconsideration, which otherwise would
have made the CONRB's decision final and upon which Somerby
otherwise could have proceeded to act as of August 22, 2010,
was "suspended" on August 20 as a result of Danberry's timely
request for a fair hearing.
Notwithstanding the timely filings by Danberry for
reconsideration and a fair hearing within each of the 15-day
windows described above, Somerby argues that it,
Somerby,
took
unilateral action during the second of those 15-day windows
that deprived Danberry of the right to the completion of the
administrative review that Danberry was in the midst of
pursuing.
Specifically,
Somerby
contends
that,
notwithstanding the apparent intent of § 22-21-275(12) and
(14), § 22-21-270(d), Ala. Code 1975, contemplates that,
8
Section 22-21-270(d) provides:
8
"(d) Upon completion of the construction and
issuance of a certificate of completion or the
receipt of proof of purchase of equipment or
inauguration
of
a
new
health
service,
the
certificate of need shall be vested in and continued
in force and effect as a part of the health care
facility and shall survive changes of control and
changes of ownership of the health care facility
without further certificate of need approval by this
agency."
(Emphasis added.)
18
1110588
simply by acting quickly enough following a CONRB decision in
its favor, a prevailing CON applicant can unilaterally "cut
off" the aggrieved party's rights under those statutes. It is
in
this
regard
that
Somerby
evinces
a
fundamental
misunderstanding of the statutory provisions at issue.
The purpose of § 22-21-270 is to address the duration --
i.e., the "shelf life" -- of a CON. See generally, e.g.,
Roberts Health Care, Inc. v. SHPDA, 698 So. 2d 106, 107 (Ala.
1997) (citing § 22-21-270 and Ala. Admin. Code (SHPDA) Rule
410–1–11–.01., which largely tracks § 22-21-270(a), for the
proposition that a CON generally has a 12–month "duration" and
that SHPDA may extend the life of a CON for an additional
12 months based on certain criteria). It is necessary to
9
establish such a "shelf life" for a number of reasons. Most
fundamentally, the very purpose for issuing "certificates of
need" is to meet "needs" –- existing needs. It was never the
intent of the statutory scheme, therefore, for an applicant to
be able to obtain a CON on the basis of some purportedly
existing need, but then fail to act reasonably promptly on the
Accordingly, § 22-21-270 is aptly titled: "Certificates
9
of need –- Period for which valid; extension of time;
termination; transferability."
19
1110588
issuance of the CON and thereby leave unmet the need for which
the CON was issued. Beyond that, the circumstances that
justify the issuance of a CON so as to allow an applicant to
offer some new service (e.g., population growths and shifts,
available technology, the management and ownership of the
applicant) are subject to change in the years following the
issuance of a CON.
Accordingly, the first sentence of § 22-21-270 states
simply that "[a] certificate of need ... shall be valid for a
period not to exceed 12 months and may be subject to one
extension not to exceed 12 months, provided the criteria for
extension as set forth in the rules and regulations of the
SHPDA are met." (Emphasis added.) Subsection (a) of § 22-21-
270 then goes on to explain that applications for an extension
filed under § 22-21-270 shall be accompanied by a new "filing
fee." Moreover, it goes on to explain how the 12-month life
of a CON is intended to work: "If no obligation has occurred
within such [12-month] period, the certificate of need shall
be considered terminated and shall be null and void." That
is, if the recipient of the CON has not acted upon it within
the 12-month period, the CON simply expires of its own accord.
20
1110588
Without such a provision, nothing would prevent a prevailing
applicant from "sitting on" a CON for years after its
issuance, then attempting to act upon it.
The point of § 22-21-270 is to provide for a natural
expiration of a certificate of need if it is not acted upon
within some defined period after the administrative decision
to issue that certificate has become final, not to override or
truncate the process by which that decision becomes final, a
process clearly prescribed in other portions of the SHPDA
statutes and regulations. All the various provisions of § 22-
21-270 bear this out. We have already noted the language of
the first sentence of § 22-21-270 describing simply the period
during which a CON shall remain "valid." The last sentence of
§ 22-21-270(a) provides that "[s]hould the obligation
[contemplated by the CON] be incurred within [the 12-month
period or an extension thereof], the certificate of need shall
be continued in effect for a period not to exceed one year or
the completion of the construction project, whichever shall be
later, or the inauguration of the service or the actual
purchase of equipment." Subsection (b) explains that
"[f]ailure to commence [a] construction project within the
21
1110588
time period stated in [an applicable] construction contract or
to complete the construction project within the time period
specified in the construction contract, which may be extended
by mutual agreement of the parties ..., shall render the
certificate of need null and void, unless tolled or extended"
pursuant to statute or SHPDA rule or regulation. Moreover,
subsection (c) explains that "[a]pplicants who held valid
certificates of need which were terminated under this section
may file a new application for a certificate pursuant to and
subject to the provisions of this article."
It is in the same vein as these other provisions of § 22-
21-270 that subsection (d) explains what happens to the "life"
of a CON if the provider acts reasonably promptly to begin
meeting the needs for which the CON was issued:
"Upon completion of the construction and issuance of
a certificate of completion or the receipt of proof
of purchase of equipment or inauguration of a new
health service, the certificate of need shall be
vested in and continued in force and effect as a part
of the health care facility and shall survive changes
of control and changes of ownership of the health
care facility without further certificate of need
approval by this agency."
In other words, while the other subsections of § 22-21-270
largely concern themselves with the consequences of persuading
22
1110588
SHPDA to issue a certificate of need and then not acting upon
it, subsection (d) conversely describes the expected and
desired course of events: a certificate of need is issued,
and, within a reasonably prompt time, the holder of the
certificate fulfills its implied promise to provide the new
service, acquire the new equipment, or begin construction of
the new facility, thereby preventing the certificate from
simply expiring from nonuse.
10
The
foregoing
finds yet
further
corroboration
in
provisions of the law that establish the point at which the
"shelf life" of a CON begins to run. Specifically, SHPDA
itself (which, again, has not embraced the vesting argument
crafted by Somerby), measures that shelf life from the point
As noted, one of the factors assessed by SHPDA in
10
deciding whether a CON should be issued to an applicant is the
ownership of that applicant. Accordingly, what it means for
a CON to "vest" is further explained by subsection (e), which
states that "[p]rior to becoming vested under subsection (d),
a certificate of need shall not be transferable, assignable,
or convertible other than to an entity under common ownership
and control."
We also note that, before March 2013, the applicable
wording of § 22-21-270(d) provided merely that "[u]pon
completion of the construction and issuance of a certificate
of completion or the receipt of proof of purchase of
equipment, the certificate of need shall be continued in force
and effect." See Act No. 2012-294, Ala. Acts 2012.
23
1110588
at which all properly requested administrative reviews are
concluded, the administrative decision to issue the CON is
final, and the CON is, in turn, "issued." As noted, § 22-21-
270 starts with the basic premise that, unless the CON is
acted upon, the life of a CON will be 12 months from the date
the CON is "issued." Rule 410-1-8-.08 of the Alabama
Administrative Code adopted by SHPDA specifically explains
when it is that the "issuance" of a CON occurs for purposes of
§ 22-21-270 and, in so doing, confirms what § 22-21-275(12)
and (14) mean by their provisions for the "suspension" of a
CON:
"(1) The executive director of the state agency
shall issue a certificate of need to the applicant
thirty (30)
days
after
the
decision
of
the
Certificate of Need Review Board is deemed final,
unless the issuance of the certificate of need is
suspended
by
the
filing
of
a
request
for
reconsideration pursuant to Sections 410-1-8-.14 and
410-1-8-.15, or request for fair hearing under
Section 410-1-8-.17. The 30 day period may be waived
or extended with the consent of all parties."
(Emphasis added.) In other words, SHPDA itself understands
the provisions of § 22-21-270 to provide for a 12-month (or
longer if extended) life of a CON that will begin at the point
at which any properly requested reconsideration and/or fair
hearing is concluded and the CON is actually "issued"
24
1110588
thereafter. Compare, e.g., Bradbury Mem'l Nursing Home v.
11
Tall Pines Manor Assocs., 485 A.2d 634, 638 (Me. 1984) ("The
Certificate of Need Act, 22 M.R.S.A. § 311, gives 'any person
aggrieved by a final decision of the department' the right to
review in accordance with the Administrative Procedure Act, 5
M.R.S.A. §§ 11001-11008. The Department's decision to issue a
CON is not 'considered final until the Department has taken
final action on a request for reconsideration under section
310.'").
See Ala. Admin. Code (SHPDA) Rule 410-1-11-.01,
11
explaining that a CON is "valid for a period" that runs "from
the date of issuance," and also that that period is tolled
during the pendency of any judicial review of the decision to
issue the CON:
"A Certificate of Need issued under these rules
shall be valid for a period not to exceed twelve
(12) months from the date of issuance, and may be
subject to one extension not to exceed twelve (12)
months, provided the holder of the Certificate of
Need applies in writing for the extension and meets
the extension criteria set out in Chapter 410-1-11
of these rules and regulations. The running of the
duration of the initial twelve (12) month period, or
an extension thereof, shall be tolled from the date
of the filing of a civil action arising under any of
the provisions of Title 22, Chapter 21, Article 9,
Code of Ala. 1975, being §§ 22-21-260 through -278,
or other judicial proceeding until such action is
dismissed from the judicial process."
25
1110588
Not only does the language of the § 22-21-270 itself fail
to support Somerby's position, the understanding of § 22-21-
270 urged upon this Court by Somerby is in direct conflict
with the administrative- and judicial-review processes clearly
prescribed in §§ 22-21-275(12) and (14). We cannot conclude
that it was the legislature's intent to speak out of "one side
of its mouth" in establishing certain rights to administrative
and judicial review within clearly prescribed time limits in
§ 22-21-275 (with no reference to any exceptions created by §
22-21-270), while simultaneously intending to "speak out of
the other side of its mouth" in § 22-21-270(d) (without any
reference to § 22-21-275) so as to allow one side to a dispute
to "rush out" and purchase equipment or sign a construction
contract
and
thereby
unilaterally
thwart
the
clearly
prescribed administrative procedures and deadlines for due
consideration of the merits of an application for a
certificate of need.
12
In addition to, and corroborative of, the foregoing, an
12
interpretation of § 22-21-270(d) of the nature urged by
Somerby would raise due-process concerns. Somerby insists
that, despite Danberry's timely filings, somehow the law
prevented Danberry from challenging Somerby's CON. Such a
possibility, especially the foreclosure of any judicial
review, raises a fundamental due-process problem. Danberry
should not be put in the position of having followed the
26
1110588
As noted, Danberry responded at each step of the
administrative-review process (and the subsequent judicial-
review process) in a timely manner. Somerby does not contend
otherwise.
Instead,
it
takes
the
position
that,
notwithstanding Danberry's timely compliance with every
requirement of the administrative-review process, Somerby's
CON "vested" in the midst of that review process in a manner
that should be understood to "cut off" the continuation and
fulfillment of that process and, as a result, also "cut off"
the right to judicial review. In effect, Somerby takes the
position that its CON vested before Danberry had an
opportunity to challenge it. We reject this position.
B.
We turn now to the primary issue before us, whether the
Court of Civil Appeals correctly concluded that Somerby's
application was not properly considered as an application for
review processes prescribed to it by law and yet for reasons
beyond its control be foreclosed from receiving that review.
See generally Alabama Republican Party v. McGinley, 893 So. 2d
337, 344 (Ala. 2004) (observing that "[t]he hallmarks of
procedural due process are notice and 'the opportunity to be
heard "at a meaningful time and in a meaningful manner"'"
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976),
quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552
(1965))).
27
1110588
a "emergency" CON. We answer this question in the
affirmative, as did the Court of Civil Appeals.
An "emergency" CON is issued as an exception to the
general requirements imposed by the legislature for the
issuance of a standard CON. The statutory provision by which
this exception is created is § 22-21-268, Ala. Code 1975,
which reads as follows:
"Any person may apply, either independently and
without notice under Section 22-21-267 or as a part
of an application filed under Section 22-21-267, for
an
emergency
certificate
of
need
for
the
authorization of capital expenditures made necessary
by unforeseen events which endanger the health and
safety
of
the
patients.
Emergency
capital
expenditures
include,
but
are
not
necessarily
limited
to, emergency expenditures to maintain quality care,
to overcome failure of fixed equipment, including
heating and air conditioning equipment, elevators,
electrical
transformers
and
switch
gear,
sterilization equipment, emergency generators, water
supply and other utility connections. Applications
for emergency certificates of need shall include a
description of the work to be done and/or equipment
to be purchased, the cost thereof, justification for
considering the capital expenditure as being of an
emergency nature and such other information as the
SHPDA may require. Emergency certificates of need
issued hereunder shall be subject to such special
limitations and restrictions as the duration and
right of extension or renewal as may be prescribed in
the rules and regulations adopted by the SHPDA."
(Emphasis added.) Ala. Admin. Code (SHPDA) Rule 41.-1-
10.01(1), reads in all material respects identically to the
28
1110588
statutory language quoted above, except for the addition of
one additional example following the reference to "failure of
fixed equipment," namely, "damage caused by natural or manmade
disaster." (Emphasis added.) Thus, the "emergency" CON has
been made available by statute only for the purpose of
addressing "unforeseen events" that "endanger the health and
safety" of "the patients."
As noted at the outset, the legislature has provided an
extensive statutory scheme for assessing and planning for
circumstances that bear upon the health-care needs of the
public, including, for example, the growth and shifting of
populations and advances in technology. In providing for
"emergency" CONs, however, the legislature makes reference to
"unforeseen events," clearly meaning some event that does not
fall within the ambit of the normal assessment and planning
process. Moreover, it is not all unforseen events that can
justify the issuance of an emergency certificate, but only
those unforseen events that, if left uncorrected, actually
pose a danger to -– "endanger" -– health and safety. Further
still, the danger to be alleviated within the contemplation of
emergency-CON statute is not one to the public generally, but
29
1110588
to what the statute refers to as "the patients," implying a
danger
to
the
applicant's
existing
patients.
This
implication, as well as the general nature of the emergency
circumstances suggested by all the above-emphasized terms, is
borne out by the examples provided by the legislature, which
deal generally with equipment failures, such as failures of
heating
and
air-conditioning
equipment,
elevators,
sterilization equipment, etc. A rule or regulation adopted by
SHPDA further corroborates this understanding by adding to the
list of examples "damage" to an applicant's facilities caused
by a "natural or manmade disaster." Clearly, therefore, the
legislature (as well as SHPDA) contemplated a true "emergency"
as some "event" that by its very nature could not be planned
for and that actually endangers the health or safety of an
applicant's existing patients, rather than some change or
addition to existing plant or services by which a provider
could serve new patients or provide new services.
The statutory language makes clear the legislature's
intent, and that legislative intent makes sense. If fixed
medical equipment suddenly fails, that is an "unforseen event"
that could easily "endanger the health and safety of the
30
1110588
patients." The same is true of "heating and air conditioning
equipment" -- if an air-conditioning unit suddenly fails in
August, the temperatures inside a building could easily rise
to unbearable and clearly dangerous levels. If the "water
supply" of a medical facility is suddenly interrupted or
tainted in some way, or if its "emergency generators" or
"sterilization equipment" suddenly fails, those are clearly
unforeseen events that immediately place at risk the health
and safety of patients at the facility. The addition in the
regulation is of the same ilk: if a tornado tears the roof off
a surgical facility or frozen pipes burst and destroy patient
rooms in a hospital, the health and safety of patients has
been endangered immediately.
In
contrast,
standard
CON-approval
procedures
are
consistent with the normal assessment, planning, and approval
responsibilities prescribed to SHCC and SHPDA, including the
advanced assessments and planning that inform the SHP.
Assessing, planning for, and meeting such needs are not within
the contemplation of the "emergency" provisions at issue here.
Every CON is a certificate that meets a "need." When
unexpected events suddenly put the health or safety of an
31
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applicant's patients at risk, a very different and time-
sensitive circumstance is presented.
The circumstances under which Somerby was granted its CON
do not meet the specific requirements necessary to qualify for
an "emergency" CON. Somerby's application stated that "urgent
CON approval is necessary in order to provide proper care for
dementia related conditions in the northeastern part of Shelby
County." Somerby repeatedly emphasized in its application the
pace of population growth in Shelby County and asserted that
the county's medical-service providers would not be able to
meet the needs of the increasing elderly population with
respect to SCALF services unless the emergency CON was
approved.
The fact that the aging population in a given county is
increasing at a faster pace than in other counties does not
reflect an "unforeseen event" or one that gives rise to an
"emergency" within the meaning of the statutes at issue. The
changing medical needs of a given community are exactly the
type of circumstance that the standard CON-approval process
(in conjunction with petitions to modify the SHP) is designed
to address. Approving an "emergency" CON simply because the
32
1110588
change will allow a medical provider to be prepared for a
projected increase in demand for a particular medical-service
need obliterates any distinction between standard and
emergency CONs.
Even leaving
aside
the
failure of the extant circumstances
to satisfy the "unforeseen" and "emergency" criteria, there is
no "endangerment" here. Somerby did not allege in its
application that it had existing patients who would be denied
immediate and proper medical care without approval of the
emergency CON. Instead, at the CONRB hearing, Somerby offered
testimony only that it was unable to offer SCALF services to
two potential residents. The record establishes that other
13
facilities exist in the area to serve elderly patients with
dementia; the Somerby SCALF beds would merely make such
services more convenient.
14
The president of Somerby, Michael Mays, testified at the
13
fair hearing that, since the approval of the emergency CON,
Somerby had moved four residents into the SCALF beds and that
it had contracts to fill two more beds. Thus, in the midst of
the purported "emergency," 18 of the 24 new SCALF beds were
not receiving immediate use.
Somerby asserts in a footnote in its brief that
14
"[e]vidence at the Fair Hearing showed that Mrs. Day, a former
resident of Somerby who had to move to another facility that
provided SCALF
services, died while waiting for
SCALF
services
at Somerby." Somerby's brief, p. 44 n.19. The testimony at
33
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In short, we agree with the following observation made in
the main opinion of the Court of Civil Appeals:
"In
seeking
an
emergency
CON,
Somerby
essentially relied on the same evidence that it
relied on in its application for a standard,
nonemergency CON. Somerby's application for an
emergency CON was based on evidence indicating that
there is a general need for SCALF beds in Shelby
County, that Somerby could provide services that
would meet this need, and that those services would
be
valuable
and
convenient.
However,
that
application does not demonstrate an emergency as
contemplated
by
§
22-21-268 and
Rule
410-1-10-.01(1).
Somerby's emergency CON application is essentially a
standard CON application disguised as an emergency
CON application."
Daniel Sr. Living of Inverness I, LLC, ___ So. 3d at ___.
the fair hearing from Stephen Day, Mrs. Day's husband,
presents a different picture. Mr. Day testified that he was
a resident of Somerby and that he "chose Somerby because of
its location and the fact that it was designed with different
levels of care including independent living, assisted living,
and proposed memory care unit." He stated that Mrs. Day
originally also was a resident at Somerby, but that she had
Alzheimer's disease, and, because of that, he had moved her
"into the closest memory care facility which is about six
miles away." Mr. Day testified that he visited his wife once
or twice every day at that facility, "[b]ut that much driving
is troubling to me and I would welcome the convenience of just
being able to walk a short distance several times a day" to
see her. (Emphasis added.) Mr. Day added that Mrs. Day had
"recently suffered complications which required her to
move to
a skilled nursing facility 20 miles away." It appears to be
undisputed that sometime after Mr. Day's testimony Mrs. Day
died while in the skilled-nursing facility.
34
1110588
Somerby contends that the Court of Civil Appeals failed
to give due deference to the governing agency's interpretation
of the applicable statute and promulgated regulation. In
support of this argument, Somerby cites an exhibit it
submitted that listed the CONRB's decisions issuing 28
emergency CONs. A review of those decisions reveals that,
although a few of the decisions were substantially analogous
to the examples listed in § 22-21-268, it is undeniable that
the CONRB has granted emergency CONs in several instances that
were not so analogous.
Analogous decisions included the approval of four
additional hemodialysis stations needed to accommodate 27
patients who had been displaced from Talladega Dialysis
because of damage to the roof, HVAC unit, and interior of that
facility caused by a tornado on June 21, 2010; approval for 10
additional hemodialysis stations needed to accommodate
patients who would transfer from Dialysis Clinic, Inc.-Dothan
to Wiregrass Kidney Center because a facility of Dialysis
Clinic, Inc.-Dothan had been destroyed by severe flooding; and
approval of the relocation by Dialysis Clinic, Inc., of 19
35
1110588
hemodialysis stations needed to accommodate 106 patients who
were displaced due to severe flooding in Dothan.
Decisions that were not analogous included, among others:
approval of the acquisition and operation of a linear
accelerator for the University of South Alabama Mitchell
Cancer Institute because it had "demonstrated a substantially
unmet community need for the proposal"; approval of the
relocation of the facility for Tuscaloosa University Dialysis
because of a projected increase in Tuscaloosa County's elderly
population in
coming
years;
and
the
approval
of 10
applications for the relocation of administrative offices for
health-care businesses based on projected increases in the
elderly populations of the counties in which the businesses
were located despite the fact that the decisions acknowledged
that no patient care was being provided at the administrative
offices.
"'The
fundamental
principle
of
statutory
construction is that words in a statute must be given
their plain meaning.' Mobile Infirmary Med. Ctr. v.
Hodgen, 884 So. 2d 801, 814 (Ala. 2003). 'When a
court construes a statute, "[w]ords used in [the]
statute must be given their natural, plain, ordinary,
and commonly understood meaning, and where plain
language is used a court is bound to interpret that
language to mean exactly what it says."' Ex parte
Berryhill, 801 So. 2d 7, 10 (Ala. 2001) (quoting IMED
36
1110588
Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344,
346 (Ala. 1992))."
Trott v. Brinks, Inc., 972 So. 2d 81, 85 (Ala. 2007).
In this instance, the applicable statute dictates that an
"emergency" CON is authorized when "unforeseen events which
endanger the health and safety of the patients" require
capital expenditures by a health-care facility. It is true
that our precedents provide for weight to be given an
administrative interpretation of the statute by the agency
charged with its administration; however, this is true only
"if the interpretation is reasonable." Ex parte State Dep't
of Revenue, 683 So. 2d 980, 983 (Ala. 1996). The majority of
the CONRB's decisions cited by Somerby do not represent
reasonable interpretations of § 22-21-268. Instead, they
simply redefine the nature of what constitutes an "emergency"
under the statute. Those CONRB decisions cannot amend by
practice what the law itself does not permit.
The decision by the CONRB in this case, like previous
decisions approving "emergency" CONs for changes in medical
services that clearly are not of an emergency nature,
contradicts the law. Unlike most of those other decisions,
however, using the emergency-CON process in a situation like
37
1110588
the one presented here also gives an unfair competitive
advantage to the service provider that receives the CON. We
observed above that emergency-CON applications are usually
uncontested. This is not surprising for a true emergency
situation, because the condition to be remedied endangers the
health and life of existing patients at a medical facility,
and the applicant is the only party in a position to address
the emergency and to protect the affected patients -- there
are no competing applicants. In that circumstance, the notice
requirements
that
apply
to
standard-CON
applications
understandably can be bypassed.
In situations like the present case, however, there is no
"emergency" that must be addressed in order to alleviate some
immediate unexpected danger to the health and safety of
Somerby's patients; rather the "emergency" is based on meeting
the health-care needs of a county whose aging population is
growing. It is often the case, as here, that there is more
than one medical facility that would compete for the
opportunity to meet such needs, if given notice and an
opportunity to do so. Granting an emergency CON to one
facility to meet such a broad medical need undermines the
38
1110588
integrity of the review process. Returning to the clear
distinction provided by the law between emergency and standard
CONs prevents applicants from "gaming the system."
The emergency CON issued in the present case, if allowed
to stand, would allow the aforesaid "gaming" to rise to a new
level. As Judge Moore noted in his special concurrence below,
in the oral argument before the Court of Civil Appeals
"counsel for the parties acknowledged that the CONRB had never
in its history issued an emergency CON on the basis that the
State Health Plan had underestimated a need for certain beds
in a particular area." Daniel Sr. Living of Inverness I, LLC,
___ So. 3d at ___ n.5 (Moore, J., concurring specially).
The chairman of the CONRB as much as admitted the need for
today's decision. During the CONRB's hearing on an emergency-
CON application filed by Danberry (after the CONRB's approval
of Somerby's emergency CON) to host the remaining 12 SCALF
beds of the original 36 SCALF beds approved in the SHP, the
chairman stated: "If you wanted to be very technical about
the definition of an emergency, and I admit we have gone
outside that definition a few times, we have, but at what
39
1110588
point do we go back to the purity of what the law says about
what an emergency is?" (Emphasis added.)
The CONRB denied Danberry's application for an emergency
CON on the ground that it did not fit within the definition of
an "emergency" under § 22-21-268. By the same token, it
should have denied Somerby's application for an "emergency"
CON. By upholding the Court of Civil Appeals' decision to
this effect, we hopefully have reached "the point" about which
the chairman inquired.
IV. Conclusion
The Court of Civil Appeals correctly ruled that the CONRB
erred by granting Somerby an emergency CON. We affirm that
court's decision reversing the judgment of the circuit court.
AFFIRMED.
Stuart, Bolin, Parker, Shaw, Main, and Wise, JJ., concur.
Moore, C.J., concurs in part and dissents in part.
Bryan, J., recuses himself.*
*Justice Bryan was a member of the Court of Civil Appeals
when that court considered this case.
40
1110588
MOORE, Chief Justice (concurring in part and dissenting in
part).
I agree with the statement in the main opinion that the
vesting of a certificate of need ("CON") does not "cut off"
the right of an opponent to the CON to judicial review;
otherwise, I dissent.
41 | February 28, 2014 |
0d39381e-7139-493c-a4d5-305b46555f25 | Ex parte Torey Jones. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Torey Jones v. State of Alabama) (Houston Circuit Court: CC-08-1155.60; Criminal Appeals : CR-12-1850). Writ Denied. No Opinion. | N/A | 1130406 | Alabama | Alabama Supreme Court | REL: 02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1130406
____________________
Ex parte Torey Jones
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Torey Jones
v.
State of Alabama)
(Houston Circuit Court, CC-08-1155.60;
Court of Criminal Appeals, CR-12-1850)
MURDOCK, Justice.
1130406
WRIT DENIED. NO OPINION.
Bolin, Main, and Bryan, JJ., concur.
Moore, C.J., concurs specially.
2
1130406
MOORE, Chief Justice (concurring specially).
In 2009, Torey Jones pleaded guilty to attempted murder
and received a 20-year sentence. He filed a Rule 32, Ala. R.
Crim. P., petition in 2013, claiming that he actually had
agreed to a split sentence (five years in prison followed by
five years on probation). See § 15-18-8, Ala. Code 1975. Jones
claimed that had he known he would be sentenced to 20 years
rather than the split sentence, he would not have pleaded
guilty. The trial court summarily dismissed his petition, and
the Court of Criminal Appeals affirmed the dismissal.
Jones did not appeal his 2009 sentence. Thus, we have no
transcript from the trial proceedings to verify his claims.
The record on appeal in this Rule 32 proceeding contains what
appear to be four pages from the original trial proceedings.
In one of those pages the trial judge states: "I will give him
a five-year split, I believe, on a 20, followed by five years'
probation." No transcript of the actual sentencing hearing
(held at a later date) appears in the record on appeal.
Therefore, the ultimate significance of the trial judge's
statement is impossible to discern.
3
1130406
In his Rule 32 petition, Jones stated as a ground for
relief: "Guilty plea was involuntarily given, due
to
erroneous
legal advice." On appeal, however, he argues that he
voluntarily pleaded guilty, understanding that he would
receive a split sentence but that he wrongly was sentenced to
20 years in prison. Whether his attorney or the trial judge
misled him, if at all, is impossible to tell in the absence of
the transcript of the sentencing hearing, which he does not
provide. Although a district attorney is obligated to offer a
freely bargained plea agreement to the court for its
consideration, the trial court itself is not bound by the
agreement. See Ex parte Yarber, 437 So. 2d 1330, 1336 (Ala.
1983); Rule 14.3(b), Ala. R. Crim. P. Furthermore, although
a defendant "would not be precluded from raising, in a timely
filed post-conviction proceeding, the question of the
voluntariness of the guilty plea," Cantu v. State, 660 So. 2d
1026, 1029 (Ala. 1995), Jones's petition, filed four years
after the expiration of the time for filing an appeal of his
sentence, is indeed untimely. Rule 32.2(c), Ala. R. Crim. P.
Insofar as Jones claims that his sentence is illegal, I
note
that
"a
challenge
to
an
illegal
sentence
is
4
1130406
jurisdictional and can be raised at any time." Ginn v. State,
894 So. 2d 793, 796 (Ala. Crim. App. 2004). However, Jones's
20-year sentence for attempted murder, a Class A felony, §
13A-4-2(d)(1), Ala. Code 1975, falls within the statutory
range of punishment for that offense. See § 13A-5-6, Ala. Code
1975.
For the reasons stated, I concur in denying Jones's
petition for a writ of certiorari.
5 | February 28, 2014 |
0edddbf8-45ed-47df-b326-fe1d6e6fe0ee | Beam v. Taylor | N/A | 1120678 | Alabama | Alabama Supreme Court | Rel: 2/14/14
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120678
____________________
Michael D. Beam
v.
Ellen Ann Beam Taylor et al.
Appeal from Chilton Circuit Court
(CV-09-0114)
____________________
1120679
____________________
Michael D. Beam
v.
Ellen Ann Beam Taylor et al.
Appeal from Chilton Circuit Court
(CV-09-0025)
BRYAN, Justice.1
In appeal no. 1120678, Michael D. Beam appeals from
orders
entered
by
the
Chilton
Circuit
Court
in
a
conservatorship proceeding. In appeal no. 1120679, Michael
appeals a will-contest proceeding that is currently pending
in
the Chilton Circuit Court. For the reasons set forth herein,
we dismiss both of Michael's appeals.
Procedural History
On November 18, 2004, Willodene Beam, the wife of James
Troy Beam, and Michael, one of James and Willodene's sons,
were appointed by the Chilton Probate Court as co-guardians
of James and co-conservators of his estate. Before that, the
probate court had appointed Fletcher D. Green as James's
guardian ad litem. In January 2008, Willodene died, and, in
March 2008, Michael was appointed as James's sole guardian and
conservator. On March 31, 2008, at Michael's request, the
Chilton Probate Court appointed Janice Hull to conduct an
This case was assigned to Justice Bryan on November 19,
1
2013.
2
1120678, 1120679
accounting of any and all financial transactions handled by
Michael and Willodene from the date of their appointment on
November 18, 2004, through March 20, 2008. In January 2009,
James died and Fletcher Green, James's guardian ad litem,
filed a motion for a final settlement of the conservatorship.
On February 2, 2009, at Michael's request, the Chilton Probate
Court
ordered
James's
conservatorship
to
employ
the
accounting
firm of Hull & Russell, P.C., to "perform and complete the
final accounting" that was required following James's death.
See § 26-5-7, Ala. Code 1975 (providing that "a final
settlement of the conservatorship must be made" upon the death
of the ward).
On January 26, 2009, James Daniel Beam ("Jim"), another
son of James and Willodene, petitioned the Chilton Probate
Court to probate James's will. On February 18, 2009, Ellen
Ann Beam Taylor and Carol Sue Beam Rickels, James and
Willodene's daughters, filed a will contest, a petition for
appointment of a special administrator ad colligendum, and a
"notice of removal" of the will contest pursuant to § 43-8-
198, Ala. Code 1975. On the same day, the Chilton Probate
2
We note that § 43-8-198 provides for the transfer, as
2
opposed to the removal, of a will contest to the circuit court
3
1120678, 1120679
Court entered
an
order transferring
the
will-contest
proceeding to the Chilton Circuit Court; that action was
assigned case no. CV-09-0025. On May 21, 2009, the Chilton
Circuit Court entered an order appointing David Karn as a
special administrator ad colligendum in the will-contest
proceeding.
In August 2009, Karn filed a motion in the Chilton
Probate Court to remove the conservatorship to the Chilton
Circuit Court. Karn's motion stated that his request was made
pursuant to § 26-2-2, Ala. Code 1975, and he attached an
affidavit stating that he was the administrator
ad
colligendum
for the estate of James Troy Beam and that, in his opinion,
the conservatorship could best be administered in the Chilton
Circuit Court. On August 5, 2009, the Chilton Probate Court
entered an order purporting to "transfer and remove" the
conservatorship action to the Chilton Circuit Court. On
August 27, 2009, the Chilton Probate Court transferred the
conservatorship file to the Chilton Circuit Court, and, on the
same day, the Chilton Circuit Court assigned that action case
no. CV-09-0114. The Chilton Circuit Court ("the circuit
from the probate court.
4
1120678, 1120679
court") immediately ordered Michael "to provide a full
statutory accounting of the conservatorship of James Troy
Beam." On August 31, 2009, at the request of Carol Sue and
Ellen Ann, the circuit court consolidated the conservatorship
action and the will-contest action.
On November 10, 2009, Michael filed in the circuit court
a "Petition for Final Settlement of Conservatorship[;] Claim
by Conservator for Compensation[; and] Claim by Conservator
for Reimbursement." Michael asked the circuit court to accept
Hull's accounting for the period between November 18, 2004,
and March 31, 2008, and to accept the final accounting
3
attached to his petition for the period from March 31, 2008,
through February 28, 2009. Michael requested, among other
things, "fair and just compensation to the Conservator for the
faithful execution of his duties as Conservator"; an award "to
the Conservator of reimbursement for those funds expended by
him individually for benefit of [James] and
[Willodene]
during
the
period
of
the
Conservatorship";
and
"reasonable
compensation for the personal services the Conservator
Although the probate court ordered an accounting for the
3
period ending March 20, 2008, Michael filed an accounting for
the period ending March 31, 2008.
5
1120678, 1120679
performed for the benefit of [James] and [Willodene] during
the period of the Conservatorship."
Jim filed an objection to Michael's petition for final
settlement of the conservatorship estate, arguing (1)
that the
petition did not contain the vouchers required by statute, (2)
that the accounting submitted was "confusing, incomplete, and
fail[ed] to account for all receipts and disbursements of the
Conservator," and (3) that the accounting submitted contained
"claims for compensation and reimbursements ... which are
exorbitant, not supported by vouchers or other records, and on
their face are contradictory of other disbursements asserted
in the accounting." Ellen Ann and Carol Sue also filed an
objection
to
Michael's
final
settlement
of
the
conservatorship
and to Michael's claim for compensation and reimbursement.
They alleged, among other things, that Michael's final
accounting was inconsistent with prior
records he
had
produced
and included numerous cash disbursements for which there was
no explanation. On September 20, 2010, Ellen Ann and Carol
Sue also filed a petition to assess liability against Michael
as the conservator of James's estate.
6
1120678, 1120679
The circuit court conducted an ore tenus hearing on
Michael's petition for final settlement, and the objections
thereto, on August 24, 2011. On February 8, 2012, the circuit
court entered an "Order on Petition for Approval of
Conservator's
Accounting,
Claim
for
Compensation
and
Claim
for
Reimbursement." The circuit court purported to enter a
judgment in favor of James's estate and against Michael in the
amount of $352,205, plus the costs of the proceeding. The
4
circuit court also purported to rule on Michael's request for
compensation and reimbursement of expenses, and it reserved
ruling on a request for attorney fees by Jim, Ellen Ann, and
Carol Sue.
In May 2012, Jim, Ellen Ann, and Carol Sue filed
petitions seeking attorney fees related to their
objections
to
Michael's petition for final settlement. Michael objected to
the requests for attorney fees and filed a "motion to reopen
and reconsider
order on petition for approval
of
conservator's
accounting." On September 25, 2012, the circuit court
conducted a hearing and entered an order denying Michael's
The circuit court also purportedly entered a judgment in
4
favor of James's estate against Western Surety Company, the
surety of Michael's conservator's bond, in the amount of the
$50,000 bond.
7
1120678, 1120679
motion to reopen and reconsider the order "for approval of
conservator's accounting."
On October 2, 2012, the circuit court entered an order
awarding Ellen Ann, Carol Sue, and Jim attorney fees they had
incurred in contesting Michael's final settlement of James's
conservatorship. The attorney for Ellen Ann and Carol Sue was
awarded $25,000; the attorney for Jim was awarded $14,763.87.
The circuit court ordered the administrator ad colligendum to
pay those amounts from the estate in trust to the attorneys.
The circuit court then entered a judgment in favor of James's
estate against Michael in the sum of $39,763.87 to reimburse
the estate for the attorney fees and expenses awarded to Ellen
Ann, Carol Sue, and Jim.
On October 25, 2012, within 30 days of the entry of the
October 2, 2012, order, Michael filed a postjudgment motion
pursuant to Rule 59, Ala. R. Civ. P., challenging, among other
things, the assessment of attorney fees. Michael's motion was
denied by operation of law on January 23, 2013. See Rule 59.1,
Ala. R. Civ. P. On March 5, 2013, within 42 days of the day
his postjudgment motion was denied by operation of law,
Michael filed a notice of appeal in case no. CV-09-0144, the
8
1120678, 1120679
conservatorship proceeding (appeal no. 1120678), as well as
in
case no. CV-09-0025, the will-contest proceeding (appeal no.
1120679). This Court consolidated Michael's appeals on June
10, 2013, for the purpose of writing one opinion.
Jurisdiction
It is well settled that, except in limited circumstances
not applicable here, this Court does not have jurisdiction to
consider an appeal taken from a nonfinal judgment. See, e.g.,
James v. Rane, 8 So. 3d 286, 288 (Ala. 2008)(holding that this
Court is without jurisdiction to hear an appeal from a
nonfinal judgment); and Dzwonkowski v. Sonitrol of Mobile,
Inc., 892 So. 2d 354, 362 (Ala. 2004) ("When it is determined
that an order appealed from is not a final judgment, it is the
duty of the Court to dismiss the appeal ex mero motu."
(internal quotation marks omitted)). It is undisputed that
the circuit court has not entered a final judgment, or even
conducted a trial, in case no. CV-09-0025, the will-contest
proceeding. Because this Court does not have jurisdiction to
consider an appeal taken from a nonfinal judgment, Michael's
9
1120678, 1120679
appeal in case no. 1120679 is due to be dismissed. See James,
8 So. 3d at 288.5
Regarding appeal no. 1120678, Michael's appeal from the
conservatorship
proceeding
(case
no.
CV-09-0114),
we
conclude,
for the reasons set forth herein, that the circuit court never
obtained subject-matter jurisdiction over the conservatorship
proceeding, that the circuit court's orders in case no. CV-09-
0144 are therefore void, and that appeal no. 1120678 is also
due to be dismissed.
"The court of probate from which the appointment of a
conservator is derived has jurisdiction of the settlement,
partial or final, of the accounts of the conservator." § 26-5-
1, Ala. Code 1975. The circuit court purportedly gained
subject-matter
jurisdiction
over
the
conservatorship
proceeding after the probate court granted the administrator
It is possible that Michael filed a notice of appeal in
5
the will-contest proceeding because some of the circuit
court's orders, including the February 8, 2012, order, which
concerned
only
the
conservatorship
proceeding,
were
entered
in
both case no. CV-09-0114 (the conservatorship proceeding) and
case no. CV-09-0025 (the will-contest proceeding). We note
that,
although
the
will-contest
proceeding
and
the
conservatorship proceeding were consolidated in the circuit
court, the will-contest proceeding and the conservatorship
proceeding maintained separate identities and required the
entry of separate judgments. See Ex parte 3M Co., 42 So. 3d
1228, 1231 n.4 (Ala. 2010).
10
1120678, 1120679
ad colligendum's petition to remove the conservatorship,
allegedly pursuant to § 26-2-2, Ala. Code 1975, which provided
the sole basis for the circuit court to obtain jurisdiction
over the pending conservatorship proceeding in this case.
Section 26-2-2 states:
"The
administration
or
conduct
of
any
guardianship or conservatorship of a minor or
incapacitated person may be removed from the probate
court to the circuit court, at any time before the
final settlement thereof by the guardian or
conservator
of
any
such
guardianship
or
conservatorship or guardian ad litem or next friend
of such ward or anyone entitled to support out of
the estate of such ward without assigning any
special equity, and an order of removal must be made
by the court or judge upon the filing of a sworn
petition by any such guardian or conservator or
guardian ad litem or next friend for the ward or
such person entitled to support out of the estate of
such ward, reciting in what capacity the petitioner
acts and that in the opinion of the petitioner such
guardianship or conservatorship can be better
administered in the circuit court than in the
probate court."
This Court has recognized that "a marked similarity
exists between the language of § 26-2-2 and the language of
Ala. Code 1975, § 12-11-41, which governs the removal of the
administration of a decedent's estate from the probate court
to the circuit court." Ex parte Casey, 88 So. 3d 822, 828
11
1120678, 1120679
(Ala. 2012) (plurality opinion). Section 12-11-41, Ala. Code
1975, provides:
"The administration of
any
estate
may
be
removed
from the probate court to the circuit court at any
time before a final settlement thereof, by any heir,
devisee,
legatee,
distributee,
executor,
administrator or administrator with the will annexed
of any such estate, without assigning any special
equity; and an order of removal must be made by the
court, upon the filing of a sworn petition by any
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
of any such estate, reciting that the petitioner is
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
and that, in the opinion of the petitioner, such
estate can be better administered in the circuit
court than in the probate court."
In Casey, this Court held that the circuit court did not
have authority to remove "'the administration or conduct of
[a] guardianship or conservatorship'" pursuant to § 26-2-2
because, at the time the petition for removal was filed in and
granted by the circuit court, the probate court had not yet
"act[ed] upon" the petition for letters of guardianship and
conservatorship
by
creating
a
guardianship
or
conservatorship.
88 So. 3d at 829. We reached that conclusion after comparing
the language of § 26-2-2 and § 12-11-41 and analogizing cases
interpreting
§
12-11-41
that
concluded
that
the
administration
of an estate is subject to removal pursuant to § 12-11-41 only
12
1120678, 1120679
after the probate court "act[s] upon" a petition to administer
an estate. 88 So. 3d at 829 (citing Ex parte Smith, 619 So. 2d
1374, 1376 (Ala. 1993)).
In DuBose v. Weaver, 68 So. 3d 814 (Ala. 2011), this
Court concluded that the circuit court did not obtain subject-
matter jurisdiction over the administration of an estate
pursuant to § 12-11-41 because, at the time the estate
administration was purportedly removed to the circuit court,
the administration of the estate had not yet been initiated in
the probate court and because the circuit court never
"enter[ed] an order
purporting to remove the
administration of
the estate from probate court." 68 So. 3d at 822. In DuBose,
as in the present case, the petition for removal was filed in
and was granted by the probate court, instead of the circuit
court. This Court, in DuBose, stated that "the filing of a
petition for removal in the circuit court and the entry of an
order of removal by that court are prerequisites to that
court's
acquisition
of
jurisdiction
over
the
administration
of
an estate pursuant to § 12-11-41." Id. (final emphasis
original). Thus, we concluded in DuBose that the circuit
court never obtained subject-matter jurisdiction over the
13
1120678, 1120679
administration of the estate, that the judgment entered by the
circuit court was void, and that the appeal was due to be
dismissed.
Because the language from § 26-2-2 mirrors the language
in § 12-11-41, we conclude here, as we did in DuBose, that the
"filing of a petition for removal in the circuit court and the
entry of an order of removal by that court are prerequisites
to that court's acquisition of jurisdiction over" a
conservatorship proceeding under § 26-2-2. DuBose, 68 So. 3d
at 822 (emphasis added) ("'"'Unless expressly authorized
so
to
do, a court has no authority to transfer a cause from itself
to another court, and thereby give the other court possession
of the case to hear and determine it, although the other court
would have had jurisdiction of the cause if it had come to it
by due process.' 21 C.J.S., Courts, § 502, p. 769 ...."'"
(quoting Allen v. Zickos, 37 Ala. App. 361, 364, 68 So. 2d
841, 843 (1953), and citing Ex parte Boykin, 611 So. 2d 322,
326 (Ala. 1992))). This conclusion is consistent with prior
decisions of this Court applying § 26-2-2, which note that the
proper procedure is for the petition for removal to be filed
in and granted by the circuit court. See, e.g., Ex parte
14
1120678, 1120679
Casey, 88 So. 3d at 826-27 (noting that a petition for removal
pursuant to § 26-2-2 was filed in the circuit court and
granted by that court); Fuller v. Jackson, 519 So. 2d 936, 937
(Ala. 1988) (same); and McNairy v. McNairy, 416 So. 2d 735,
735-36 (Ala. 1982) (same). Thus, because in this case a
petition for removal was not filed in the circuit court and
"at no time did the circuit court enter an order purporting to
remove the [conservatorship proceeding] from the probate
court," DuBose, 68 So. 3d at 822, we conclude that the circuit
court never obtained subject-matter jurisdiction over the
conservatorship proceeding.
Furthermore, we note that the petition for removal was
filed by Karn, the administrator ad colligendum of James's
estate, and that Karn does not fall within the category of
persons who may file a petition for removal pursuant to § 26-
2-2 "without assigning any special equity." Section 26-2-2
provides that a petition for removal, without assigning any
special equity, may be filed only by "the guardian or
conservator ... or guardian ad litem or next friend of such
ward or anyone entitled to support out of the estate of such
ward." Karn did not assign any special equity in his petition
15
1120678, 1120679
for removal. He simply stated that, in his opinion, "the
conservatorship can best be administered in the Circuit Court
of Chilton County under the Rules of Civil Procedure." This
Court has held that a petition for removal filed in and
granted by the circuit court was insufficient to convey
subject-matter jurisdiction to the circuit court when the
petitioner did not fall within the category of parties set
forth in § 26-2-2 and no special equity had been assigned in
the petition for removal. See Smith v. Smith, 248 Ala. 49, 51,
26 So. 2d 571, 571 (1946) (holding that the next of kin of a
deceased ward did not have the absolute right to remove the
administration of a guardianship proceeding from the probate
court to the circuit court because the predecessor statute to
§ 26-2-2 did not include next of kin in the list of persons
granted that absolute right). Thus we conclude that Karn's
petition for removal, even if it had been properly filed in
and granted by the circuit court, was insufficient to support
removal of the conservatorship to the circuit court because
Karn did not assign any special equity to support the petition
for removal and he was not included in the list of persons in
16
1120678, 1120679
§ 26-2-2 who
may
petition for
the
removal
of
the
conservatorship proceeding without assigning special equity.
For the foregoing reasons, we conclude that the circuit
court never obtained subject-matter jurisdiction over the
conservatorship proceeding and that the orders entered by the
circuit court in case no. CV-09-0144 are void and therefore
due to be vacated. Because a void order will not support an
appeal, we dismiss appeal no. 1120678 and direct the circuit
court to vacate the orders entered in case no. CV-09-0144. See
Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So. 2d
270, 274 (Ala. 2000). We note that, because the circuit court
never
obtained
jurisdiction
over
the
conservatorship
proceeding, jurisdiction over that proceeding remains in the
probate court.
Conclusion
Based on the foregoing, these appeals are dismissed.
1120678 -- APPEAL DISMISSED.
Stuart, Parker, Shaw, and Wise, JJ., concur.
Bolin and Murdock, JJ., concur specially.
Moore, C.J., dissents.
1120679 -- APPEAL DISMISSED.
Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw,
and Wise, JJ., concur.
17
1120678, 1120679
BOLIN, Justice (concurring specially in case no. 1120678).
I concur fully with main opinion. I write specially to
elaborate on the definition of "remove" as it relates to the
removal of the administration of a conservatorship or
guardianship proceeding from the probate court to the circuit
court, pursuant to § 26-2-2, Ala. Code 1975:
"The
administration
or
conduct
of
any
guardianship or conservatorship of a minor or
incapacitated person may be removed from the probate
court to the circuit court, at any time before the
final settlement thereof by the guardian or
conservator
of
any
such
guardianship
or
conservatorship or guardian ad litem or next friend
of such ward or anyone entitled to support out of
the estate of such ward without assigning any
special equity, and an order of removal must be made
by the court or judge upon the filing of a sworn
petition by any such guardian or conservator or
guardian ad litem or next friend for the ward or
such person entitled to support out of the estate of
such ward, reciting in what capacity the petitioner
acts and that in the opinion of the petitioner such
guardianship or conservatorship can be better
administered in the circuit court than in the
probate court."
(Emphasis added.)
It is important to note that the above statute is located
in Chapter 2 of Title 26, Ala. Code 1975, the main chapter
that provided for the "Appointment of Guardians" before the
enactment of Act No. 87-590, Ala. Acts 1987, which is
18
1120678, 1120679
codified in Chapter 2A of Title 26, and substantially based
upon the Uniform Probate Code, Article V, Parts 1, 2, 3, and
4 (1982 edition), and cited as the Alabama Uniform
Guardianship and Protective Proceedings Act. I further note
that even though § 26-2A-20(3), Ala. Code 1975, the definition
section of the Alabama Uniform Guardianship and Protective
Proceedings Act, § 26-2A-1 et seq., Ala. Code 1975, referred
to above ("the Act") defines "court" as "[a] probate court of
this state," this definition of "court" as being a "probate
court"
applies
only
to
guardianship
and
protective
proceedings
under Chapter 2A. The Act not only did not supersede Chapter
2 but it also made no attempt to include any provision
pertaining to removals addressed by § 26-2-2. Therefore, § 26-
2-2 is not a part of "the Act" and is the only statute
providing for the removal of guardianships or protective
proceedings from the probate court to the circuit court. I
further point out that the Comment to § 26-2A-31, Ala. Code
1975, setting out subject-matter jurisdiction of the Act,
states that "[t]he subject matter jurisdiction described in
this section affects the jurisdiction of the probate court
only insofar as it applies to proceedings under this chapter
19
1120678, 1120679
and it does not purport to otherwise expand the jurisdiction
of probate courts as established in other law." (Emphasis
added.)
Section 12-11-30(4), Ala. Code 1975, provides that the
circuit court exercises a general superintendence over the
probate court, not the other way around. Although the removal
statute does not expressly state that the petition for removal
of the guardianship or conservatorship proceeding be filed in
and ordered by the circuit court, it is apparent from decades
of caselaw that the practice and procedure has been that a
petition for removal is properly filed in, and if appropriate
granted by, the circuit court. See, e.g., Smith v. Smith, 248
Ala. 49, 51, 26 So. 2d 571, 571 (1946)("The proceedings here
complain of an order of the circuit court in equity removing
the administration of the guardianship ... from the probate to
the equity court."); Ex parte Garrison, 260 Ala. 379, 380, 71
So. 2d 33, 35 (1954)("Mrs. J.J. Burnett filed a petition in
the Circuit Court ..., asking for an order transferring the
guardianship ... to the aforesaid equity court. ... [A]n order
was entered [by the Circuit Court] removing the aforesaid
guardianship from the Probate Court to the Circuit Court, in
20
1120678, 1120679
Equity."); Fuller v. Fuller, 519 So. 2d 936, 937 (Ala.
1988)("Fuller ... petitioned the Jefferson Circuit Court to
remove the guardianships ... to the Jefferson Circuit
Court."); Ex parte Coffee Cnty. Dep't of Human Res., 771 So.
2d 485, 486 (Ala. 2000)(noting that "Nichols ... filed ... a
petition to remove the administration of the conservatorship
to the circuit court" and that "[t]he circuit court removed
the case"); and Ex parte Casey, 88 So. 3d 822, 826-27 (Ala.
2012)("Jo Ann filed a 'Petition for Removal/Transfer' in the
circuit court .... [T]he circuit court entered an order
granting [the] petition to remove the guardianship proceeding
from the probate court to the circuit court."); cf., however,
Scott v. Kelley, 745 So. 2d 872 (Ala. 1999), a case in which
the probate judge signed an order removing the case from the
probate court to the circuit court. However, the probate
court's unchallenged removal order in Kelley is an aberration
and a clear deviation from settled law, as can be seen from
the other cited cases.
The above cases, which involve removals pursuant to § 26-
2-2 both before and after the effective date of the Act,
demonstrate that the petition for removal of
a
conservatorship
21
1120678, 1120679
from the probate court to the circuit court has always been
filed in, and relief on such petition, if any, ordered by, the
circuit court. Regarding the Act and its failure to
incorporate § 26-2-2 or a like removal provision, see Ex parte
Casey, 88 So. 3d at 828 n. 5:
"When the Alabama Uniform Guardianship and
Protective Proceedings Act ('[the Act]') was enacted
in 1987, § 26–2–2 was amended to reflect the
terminology used in [the Act]. Compare § 26–2–2,
Ala. Code 1975, as amended, 1987 Ala. Acts, No.
87–590, with Tit. 21, § 26, Ala. Code 1940 (1958
Recomp.) ('The administration or conduct of any
guardianship of a minor or person of unsound mind
may be removed ....;'), the language of which
remained unchanged when Tit. 21, § 26, was first
recodified as § 26–2–2 in 1975."
The American Heritage Dictionary of the English Language
1099 (1969) defines the term "remove" as to "take away."
Clearly, the probate court, under § 26-2-2, does not take the
case away from itself and give it to the circuit court. To do
so would impose upon the probate court itself the illogical
duty of ordering that the "guardianship or
conservatorship
can
better be administered in the circuit court than in the
probate court." Rather, it is the circuit court that takes
jurisdiction of the conservatorship or guardianship from the
probate court, the court of original jurisdiction. See, e.g.,
22
1120678, 1120679
Ex parte Terry, 957 So. 2d 455, 459 (Ala. 2006)(regarding a
petition to remove the administration of an estate from the
probate court to the circuit court, this Court stated that
"the circuit court failed to enter the order necessary to take
jurisdiction of the estate from the probate court" (emphasis
added)).
Accordingly, persons having standing under § 26-2-2 to
remove a conservatorship or guardianship proceeding from the
probate court to the circuit court do so by filing a petition
for removal with the circuit court. The circuit court, if
removal is appropriate, will then order the case removed from
the jurisdiction of the probate court.
23
1120678, 1120679
MURDOCK, Justice (concurring specially in case no. 1120678).
I agree with the conclusion in the main opinion that the
failure of the circuit court to have entered an order of
removal means that the circuit court could not have acquired
jurisdiction over the conservatorship. I write separately to
state that my concurrence with the analysis of the main
opinion should not be read as expressing any view as to
whether, even if the circuit court had entered the order of
removal here, it would have acquired jurisdiction over the
conservatorship. Compare Ala. Code 1975, § 26-2-2 (providing
that the administration of a guardianship or conservatorship
"may be removed from the probate court to the circuit court,
at any time before the final settlement thereof"), with Ala.
Code 1975, § 12-11-41 (providing that the administration of a
decedent's estate "may be removed from the probate court to
the circuit court at any time before a final settlement
thereof"); see also, e.g., Mobbs v. Scott, 233 Ala. 70, 71,
169 So. 698, 699 (1936) (stating, in regard to the precursor
to § 12-11-41: "It is settled that said statute 'does not
contemplate "the ouster of the jurisdiction of the probate
courts, where that court has actually entered upon the
24
1120678, 1120679
exercise of its jurisdiction in and for a final settlement of
estates." ... The words "at any time before a final
settlement," found in the removal act, mean
before
proceedings
for settlement begin, not before they are completed.'"
(citation omitted)).
25
1120678, 1120679
MOORE, Chief Justice (dissenting in case no. 1120678).
I respectfully dissent. For the reasons that follow, I
believe
the
circuit
court
has
subject-matter
jurisdiction
over
this conservatorship.
I. Statutory Construction
The language of § 26-2-2, Ala. Code 1975, does not
expressly
require
that
the
petition
to
remove
the
conservatorship be filed in, and the removal order entered by,
the circuit court. The statute reads:
"[A]n order of removal must be made by the court or
judge upon the filing of a sworn petition by any
such guardian or conservator or guardian ad litem or
next friend for the ward or such person entitled to
support out of the estate of such ward, reciting in
what capacity the petitioner acts and that in the
opinion of the petitioner such guardianship or
conservatorship can be better administered in the
circuit court than in the probate court."
§ 26-2-2, Ala. Code 1975 (emphasis added). The majority's
construction of this statute goes beyond the plain language of
the statute.
The majority opinion states that this Court has
recognized that "'a marked similarity exists between the
language of § 26-2-2 and the language of Ala. Code 1975, §
12-11-41, which governs the removal of the administration of
26
1120678, 1120679
a decedent's estate from the probate court to the circuit
court.'" ___ So. 3d at ___ (quoting Ex parte Casey, 88 So. 3d
822, 828 (Ala. 2012) (plurality opinion)). The similarity of
the language, however, does not require us to read words into
§ 26-2-2. The fundamental rule of statutory construction is
that the court must "ascertain and effectuate" the intent of
the legislature. Darks Dairy, Inc. v. Alabama Dairy Comm'n,
367 So. 2d 1378, 1380 (Ala. 1979). For this task,
"we must look to the entire Act instead of isolated
phrases or clauses; and words are given their plain
and usual meaning. Moreover, just as statutes
dealing with the same subject are in pari materia
and should be construed together, parts of the same
statute are in pari materia and each part is
entitled to equal weight."
367 So. 2d at 1380-81 (citations omitted). Both § 26-2-2 and
§ 12-11-41 provide for the removal of proceedings from the
probate court. However, the statutes are in separate chapters
of the Code, are codified from separate acts, and pertain to
different subjects; they should not be construed together.
Section 12-11-41 provides that "an order of removal must
be made by the court," without indicating which court. Section
12-11-41 is found in Title 12, Chapter 11, Article 2, of the
Code of Alabama 1975, which concerns the jurisdiction of
27
1120678, 1120679
circuit courts. Thus, I agree that the petition for removal of
estates should be filed in, and the petition granted by, the
circuit court.
Section 26-2-2 states that "an order of removal must be
made by the court or judge," without indicating which court,
or which judge. Section 26-2-2 is found in Title 26, Chapter
2, of the Code of Alabama 1975, which lays out procedures for
probate courts, not circuit courts. I conclude that, with
reference to this specific statutory title and chapter, "the
court or the judge" in § 26-2-2 refers to the probate court
and probate judge, not the circuit court.
II. The Nature of Subject-Matter Jurisdiction
The majority opinion concludes "that the circuit court
never
obtained
subject-matter
jurisdiction
over
the
conservatorship proceeding." ___ So. 3d at ___. Both the
probate court and the circuit court have subject-matter
jurisdiction
over
this
conservatorship,
that
is,
"[j]urisdiction over the nature of the case and the type of
relief sought." Black's Law Dictionary 931 (9th ed. 2009).
Subject-matter jurisdiction "concerns a court's power to
decide certain types of cases." Ex parte Seymour, 946 So. 2d
28
1120678, 1120679
536, 538 (Ala. 2006). The probate court has original and
general jurisdiction over conservatorships. See §§ 26-5-1 and
12-13-1(b)(6), Ala. Code 1975. The circuit court is a court of
general jurisdiction, see § 12-1-2, Ala. Code 1975. General
jurisdiction is "[a] court's authority to hear a wide range of
cases, civil or criminal, that arise within its geographic
area." Black's Law Dictionary 929 (9th ed. 2009) (emphasis
added).
The
majority
opinion
has
confused
subject-matter
jurisdiction, which is the power to decide certain types of
cases, with a procedural issue. The circuit court has subject-
matter jurisdiction over this case, regardless of whether the
administrator ad colligendum filed the petition to remove the
conservatorship in the circuit court or in the probate court.
III. Precedent Does Not Support the Majority Opinion
The majority opinion relies upon the plurality opinion of
Ex parte Casey, 88 So. 3d 822, 824 (Ala. 2012). "The
precedential value of the reasoning in a plurality opinion is
questionable at best." Ex parte Discount Foods, Inc., 789 So.
2d 842, 845 (Ala. 2001). The Casey opinion concluded that the
29
1120678, 1120679
circuit court lacked subject-matter jurisdiction to remove a
guardianship from the probate court because
"the probate court ha[d] not entered an order
creating a guardianship or conservatorship for Jo
Ann.
Logically,
because
no
guardianship
or
conservatorship has been created for Jo Ann, there
is
no
'administration
or
conduct'
of
such
guardianship or conservatorship to be removed from
the probate court to the circuit court."
88 So. 3d at 830 (emphasis added). Here, the probate court
created and then began administration of the conservatorship
before ordering it removed to circuit court. Thus, the key
fact in Casey on subject-matter jurisdiction is not present in
this case. This difference, coupled with the limited
precedential value of Casey, makes questionable Casey's
support for the majority opinion.
The majority opinion also relies on DuBose v. Weaver, 68
So. 3d 814, 821 (Ala. 2011). Like the court in Casey, the
probate court in DuBose did not initiate the administration of
an estate. We concluded that the circuit court lacked subject-
matter jurisdiction because "there was no pending estate
administration that [the circuit court] could have removed
from the probate court pursuant to § 12-11-41." 68 So. 3d at
822.
30
1120678, 1120679
The majority opinion relies upon this statement from
DuBose: "'[T]he filing of a petition for removal in the
circuit court and the entry of an order of removal by that
court are prerequisites to that court's acquisition of
jurisdiction over the administration of an estate pursuant to
§ 12-11-41.'" ___ So. 3d at ___ (quoting DuBose, 68 So. 3d at
822). This statement in DuBose was a hypothetical contained in
dicta. The majority opinion applies this dicta and concludes
6
that the circuit court lacks subject-matter jurisdiction
because the administrator filed the petition for removal in
the probate court, which court entered the order of removal.
As explained above, § 12-11-41 requires the petition for
removal of the administration of an estate to be filed in the
circuit court, but § 26-2-2 does not require the same
procedure for the removal of a conservatorship. DuBose thus
gives only questionable support to the majority opinion.
That this statement is dicta is plain from these remarks:
6
"Moreover, even were we to conclude that the administration of
the estate was pending in the probate court when the
Washington
Circuit
Court
purported
to
assume
jurisdiction
over
it, it does not appear that Sullivan's heirs filed their
transfer/removal petition in the circuit court, and at no time
did the circuit court enter an order purporting to remove the
administration of the estate from the probate court." DuBose,
68 So. 3d at 822 (first emphasis added).
31
1120678, 1120679
The majority opinion also cites Smith v. Smith, 248 Ala.
49, 51, 26 So. 2d 571 (1946) (next of kin of deceased ward did
not have an absolute right to removal, in the absence of a
special equity). In Smith, the guardian objected to the next
of kin's petitioning for the removal of a guardianship to the
circuit court. Unlike Smith, the parties here have not
objected to how the conservatorship was removed to the circuit
court. The parties also did not object that the administrator
ad colligendum is not on the list of persons who may petition
for
removal
without
assigning
special
equity.
These
procedural
irregularities under § 26-2-2 do not affect the circuit
court's subject-matter jurisdiction over this case.
VI. Conclusion
For these reasons, I believe this Court has improperly
dismissed the appeal in case no. 1120678 and improperly
ordered the circuit court's orders below vacated.
32 | February 14, 2014 |
3086043d-07ae-4c64-a571-6686d24392b2 | Wehle v. Bradley | N/A | 1101290 | Alabama | Alabama Supreme Court | REL: 03/14/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1101290
____________________
Bonnie Wehle et al.
v.
Thomas H. Bradley III, as co-personal representative
of the estate of Robert G. Wehle, deceased, et al.
Appeal from Bullock Circuit Court
(CV-2007-000022)
MURDOCK, Justice.
Bonnie Wehle, Penny Martin, and Sharon Ann Wehle ("the
daughters") appeal from the Bullock Circuit Court's order on
final settlement of the estate of their father, Robert G.
1101290
Wehle ("the estate"). In this "final order," the circuit
court denied the daughters' claims against Thomas H. Bradley
III, James H. McGowan, and Grady Hartzog, as the co-personal
representatives
of
the
estate
("the
personal
representatives"); the order also denied the daughters'
request that McGowan be removed as a cotrustee of the family
trust created under Robert G. Wehle's will. We affirm in
part, reverse in part, and remand.
I. Facts and Procedural History
This is the second time this case has come before us. In
the previous appeal, Wehle v. Bradley, 49 So. 3d 1203 (Ala.
2010) ("Wehle I"), this Court summarized the facts as follows:
"Robert G. Wehle died on July 12, 2002. His
will
was
admitted
to
probate,
and
letters
testamentary were issued to Bradley, McGowan, and
Hartzog as co-personal representatives of Wehle's
estate. [The letters were issued in August 2002.]
The will created a marital trust for Wehle's wife,
Gatra Wehle, and a family trust for the daughters
and Wehle's granddaughter, Debbie Kloppenberg. The
personal representatives were named as cotrustees of
both the marital trust and the family trust.
"In October 2005, the personal representatives
petitioned the probate court for final settlement of
the estate. They also filed an accounting of their
administration of the estate. The accounting
indicated that the personal representatives had paid
themselves total compensation of $1,964,367.82,
which, they allege, amounts to 5% of the value of
2
1101290
Wehle's estate at the time the petition for final
settlement was filed. The personal representatives
argue that the amount of their fees is consistent
with the statutory allowance for such fees. They
also argue that Wehle told his attorney that he
intended for the personal representatives' fees to
be approximately 5% of the value of his estate.
"The daughters filed an objection to the
accounting, arguing, among other things, that,
pursuant to § 43-2-844(7), Ala. Code 1975, the
personal representatives were required to obtain
prior court approval before compensating themselves
out of the assets of the estate. The daughters also
argued that the amount of the compensation exceeded
the
'reasonable
compensation'
allowed
by
§ 43-2-848(a), Ala. Code 1975.
"In March 2007, Gatra Wehle petitioned to have
the administration of the estate removed to the
circuit court. The petition was granted.
"The personal representatives moved the circuit
court for a partial summary judgment on the
daughters' objections, arguing (1) that the will
authorized the payment of the compensation to the
personal
representatives
without
prior
court
approval, and (2) that the statute of limitations
barred the daughters' claim that the fees of the
personal
representatives
were
excessive.
On
July 17, 2009, the circuit court granted the
personal representatives' motion for a partial
summary judgment, stating:
"'As to the claim that the Personal
Representatives paid fees to themselves
without
obtaining
Court
approval,
the
Court
finds that the terms of the Will expressly
exempt the Personal Representatives from
obtaining Court approval before payment of
their fees. As to the claim that the fees
paid were excessive, it is without factual
3
1101290
dispute that [the daughters] had knowledge
of the amount of these fees more than two
years before they filed their contest of
the fees and thus this claim is time
barred.'
"On July 24, 2009, the daughters appealed to
this Court from the circuit court's judgment
pursuant to § 12-22-4, Ala. Code 1975."
49 So. 3d at 1205-07.
In Wehle I, this Court concluded that "[b]ecause the
payment of compensation to the personal representatives
without prior court approval was not expressly authorized by
Robert G. Wehle's will, the circuit court erred in entering
its partial summary judgment in favor of the personal
representatives." 49 So. 3d at 1209; see also Ala. Code 1975,
§ 43-2-844(7). This Court reversed the circuit court's
judgment and remanded the case on that basis and did not
decide the issue whether the daughters' "claim as to the
excessiveness of the compensation is barred by the statute of
limitations." Id.
On remand, the circuit court held a proceeding at which
evidence was presented ore tenus as to the petition for final
settlement of the estate. Thereafter, the circuit court
entered its final order approving the compensation the
4
1101290
personal
representatives
had
paid
themselves,
i.e.,
$1,964,367.82, as "reasonable compensation" under § 43-2-
848(a), Ala. Code 1975. The order denied the daughters' claim
that the personal representatives should pay interest on the
compensation because they had paid it without prior court
approval. Also, in regard to other issues raised by the
daughters, the order denied the daughters' petition to remove
McGowan as a cotrustee of the family trust, denied the
daughters' request to tax costs pertaining to Wehle I against
the personal representatives, and awarded attorney fees and
costs to the personal representatives in the amount of
$383,437.31 as to their defense against the daughters' claims
on final settlement. The daughters appeal.
1
II. Standard of Review
To the extent the circuit court made factual findings
based on oral testimony, those factual findings are entitled
to deference by this Court under the ore tenus standard of
The circuit court also approved a payment of $20,000 to
1
Hartzog & Company, P.C., for work the daughters alleged Grady
Hartzog also was compensated for as a
personal
representative.
The daughters have not challenged the payment to Hartzog &
Company, P.C.; however, they do include consideration of this
payment
in
connection
with
their
argument
that
the
compensation awarded to Grady Hartzog for his services as a
personal representative was unreasonable.
5
1101290
review. Under that standard, "'we must accept as true the
facts found by the trial court if there is substantial
evidence to support the trial court's findings.'" Allsopp v.
Bolding, 86 So. 3d 952, 959 (Ala. 2011) (quoting Beasley v.
Mellon Fin. Servs. Corp., 569 So. 2d 389, 393 (Ala. 1990)).
This standard is based on a recognition of the trial court's
unique position of being able to evaluate the credibility of
witnesses and to assign weight to their testimony. See, e.g.,
Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 543
(Ala. 1988). The deference owed a trial court under the
ore tenus standard of review, however, does not extend to the
trial court's decisions on questions of law. Appellate review
of questions of law, as well as whether the trial court has
properly applied that law to a given set of facts, is de novo.
See, e.g., Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997).
III. Analysis
A. Reasonableness of the Personal Representatives' Fees
Under Alabama law,
"[a]
personal
representative
is
entitled
to
reasonable compensation for services as may appear
to the court to be fair considering such factors
that may include, but are not limited to, the
novelty
and
difficulty
of
the
administrative
process, the skill requisite to perform the service,
6
1101290
the likelihood that the acceptance of the particular
employment will preclude other employment, the fee
customarily charged in the locality for similar
services, the amount involved and the results
obtained,
the
requirements
imposed
by
the
circumstances and condition of the estate, the
nature and length of the professional relationship
with the decedent, the experience, reputation,
diligence, and ability of the person performing the
services, the liability, financial or otherwise, of
the personal representative, or the risk and
responsibility involved, which shall not exceed two
and one-half percent of the value of all property
received and under the possession and control of the
personal representative and two and one-half percent
of all disbursements."
Ala. Code 1975, § 43-2-848(a). Although the allowance of
compensation for the
personal
representative and the amount of
that compensation are mixed questions of law and fact, our
cases state that decisions as to these issues are largely
within the discretion of the trial judge. See Armstrong v.
Alabama Nat'l Bank of Montgomery, 404 So. 2d 675, 676 (Ala.
1981). The amount of compensation to be allowed under § 43-2-
848(a) "'below or up to the maximum limit prescribed [thereby]
is to be determined according to the circumstances of each
particular case.'" Armstrong, 404 So. 2d at 676 (quoting
Smith v. McNaughton, 378 So. 2d 703, 704-05 (Ala. 1979)). In
determining whether the
trial
court exceeded its discretion as
to a compensation award under § 43-2-848(a), we must consider
7
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the amount of the award "in view of all the circumstances" of
the administration of the estate. Ruttenberg v. Friedman, 97
So. 3d 114, 122 (Ala. 2012); see also, e.g., Armstrong, 404
So. 2d at 676 (discussing the deference owed a determination
of a personal representative's fee made after the trial court
heard ore tenus evidence).
Discussing the predecessor statute to § 43-2-848(a), this
Court in Armstrong explained that the statute
"'(creat[es])a maximum limit to compensation to be
allowed [personal representatives], for the ordinary
services performed by them, and what shall be
allowed, below or up to this limit, is to be
determined according to the circumstances of each
particular case. "The court in making the allowance
is to look to the loss of time, risk and
responsibility, which are demanded .... and which is
actually incurred, and to allow ... such a
reasonable remuneration as a prudent and just man
would, in view of the circumstances, consider a fair
compensation, without, however, being governed by
business charges usually made for like services."
When thus allowed, the compensation is not, and
should not be, but little, if anything, more than
liberal indemnity.'"
404 So. 2d at 676 (quoting Kenan v. Graham, 135 Ala. 585,
595, 33 So. 699, 701 (1902)(internal cite omitted in Kenan)).
The estate was "very large and complex." The estate was
valued at more than $35,000,000 at the time of Robert G.
Wehle's death, and the estate contained some unusual assets,
8
1101290
including competition-trained hunting dogs, partial ownership
interests in thoroughbred horses, and artwork. The estate
also included other business entities owned by Robert G.
Wehle, and his estate plan incorporated multiple trusts. It
is undisputed that Robert G. Wehle chose the personal
representatives because of his longstanding business and
personal relationships with each of them and because of each
personal representative's expertise: McGowan is a lawyer who
practices law in New York, Hartzog is a certified public
accountant who practices accounting in Alabama, and
Bradley
is
an expert in dealings with thoroughbred horses and hunting
dogs. Also, there was evidence indicating that Robert G.
Wehle desired that the personal representatives receive "the
5% maximum" for their services.
As
noted
above,
the
circuit
court
approved
the
compensation
of
$1,964,367.82
the
personal
representatives
had
paid themselves. The total receipts of the estate (assets and
income during administration) through the time of final
settlement were $40,477,724.08; the total disbursements were
$40,452,262.23. Based on the receipts and disbursements, the
maximum fee the circuit court could have awarded the personal
9
1101290
representatives under § 43-2-848(a) was $2,023,249.66. Thus,
2
the compensation award does not exceed the statutory maximum
prescribed in § 43-2-848(a).
The daughters argue that the circuit court exceeded its
discretion in awarding the compensation to the personal
representatives, raising issues as to each of the nine factors
in § 43-2-848(a). We note that the final order includes a
review of each of the § 43-2-848(a) factors, the daughters
arguments as to each of those factors, and a summary as to
some of the evidence the circuit court accepted or rejected as
to each factor. Further, the circuit court noted in the
order:
"In
analyzing these
factors,
the
court
took into
consideration the exhibits provided and agreed upon
by the parties, as well as the testimony of each of
the
Personal
Representatives,
and
the
expert
witnesses who testified for both sides. The court
considered the credibility of the expert witness
testimony, as well as the weight to be afforded to
that testimony, particularly in light of apparent
limitations in the knowledge of the [daughters']
expert, Daniel Markstein, who admitted to having
reviewed
only
a
fraction
of
the
available
We note that the circuit court opined that the personal
2
representatives
were entitled to the statutory maximum, but it
awarded them only what they had paid themselves. Had the
circuit
court
awarded
the
personal
representatives
the
maximum
award it deemed appropriate, they would have received an
additional $58,881.84.
10
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documentation describing the services performed by
the Personal Representatives."
As to the circuit court's consideration of the § 43-2-
848(a) factors, the daughters make the same arguments on
appeal that were rejected or discounted by the circuit court
in light of its consideration of the totality of the evidence
and its credibility determinations. We see no need to discuss
the daughters' arguments in detail because they would be of no
benefit to the bench and bar. The daughters essentially urge
this Court to reweigh the evidence and the circuit court's
balancing of the § 43-2-848(a) factors in a manner that favors
the daughters and that would mandate a lower compensation
award. It is not the role of an appellate court, however, to
reweigh testimony and other evidence or to substitute its
judgment for that of the trial court as to such matters. See,
e.g., Ex parte Blackstock, 47 So. 3d 801, 805 (Ala. 2009).
Based on our review of the evidence presented to the circuit
court, we cannot conclude that the compensation awarded by the
court was without sufficient supporting evidence or that the
circuit court exceeded its discretion in making the award that
it did. See Ruttenberg, supra.
11
1101290
In addition to discussing the § 43-2-848(a) factors, the
daughters
also
argue
that
a
comparison
between
the
compensation awarded in the present case and the compensation
approved for the personal representative in Armstrong v.
Alabama National Bank, supra, demonstrates that the personal
representatives' compensation in the present case was
excessive. The Armstrong Court affirmed a compensation award
of
$304,000
for
a
large,
complex
estate
valued
at
$7,469,273.92. The award in Armstrong was below the statutory
maximum, but the daughters note that the award was equal to
approximately 4.08% percent of the value of the estate. 404
So. 2d at 676. According to the daughters, a similar award in
the present case would have yielded a compensation award of
$1,645,273.22, rather than the $1,964,367.82 awarded by the
circuit court.
We are not persuaded by the daughters' comparison
argument. First, we note that the formula for the maximum fee
award under § 43-2-848(a) is not five percent of the value of
the estate (though it is sometimes referred to in that
manner), but "two and one-half percent of the value of all
property received and under the possession and control of the
personal representative and two and one-half percent of all
12
1101290
disbursements." As noted above, the award in the present case
is less than the maximum, permissible award under § 43-2-
848(a). More importantly, however, as the Armstrong Court
acknowledged, "[t]he award of [personal representative] fees
is largely within the discretion of the trial judge," "'and
what shall be allowed, below or up to [the maximum limit], ...
is to be determined according to the circumstances of each
particular case.'" (Quoting Kenan, 135 Ala. at 595, 30 So. at
701 (emphasis added).) All large, complex estates are not
equal, and this Court did not intend for its holding in
Armstrong to establish a benchmark as to what constitutes a
reasonable
compensation
award
for
a
personal
representative
of
a large, complex estate.
3
Based on the evidence presented to the circuit court and
the arguments made by the daughters, we cannot conclude that
the circuit court exceeded its discretion as to the amount of
compensation
to be awarded the personal representatives in
the
present case.
Indeed, the Armstrong Court stated that, "though we
3
consider the fees awarded to be somewhat high, nevertheless,
under the applicable standard of review, we cannot conclude
that the trial court abused its discretion." 404 So. 2d at
677.
13
1101290
B. Interest on Payments Made Without Prior Court Approval
Section § 43-2-844(7), Ala. Code 1975, provides that
"[u]nless expressly authorized by the will, a personal
representative, only after prior approval of court, may ...
[p]ay compensation of the personal representative." It is
undisputed that the personal representatives paid themselves
compensation before obtaining court approval for that
compensation. The daughters contend that the circuit court
erred
by denying their claim that the personal
representatives
owed the estate interest from the date of the compensation
payments through the date those payments were approved by the
circuit court.
The daughters first note that in contradiction of the
decision in Wehle I, the circuit court concluded in its final
order that Robert G. Wehle's will "expressly allowed advanced
payments to be made to the Personal Representatives."
According to the circuit court, because the will authorized
the payments and because the payments were made in good faith
and upon the advice of counsel, there was no basis for
imposing
an
interest
charge
against
the
personal
representatives. The circuit court quoted several provisions
14
1101290
of the will that it concluded "expressly give[] the Personal
Representatives the right to advance themselves money."
In Wehle I, this Court noted several provisions of Robert
G.
Wehle's will upon which the personal representatives
sought
to rely to justify making compensation payments to themselves
without obtaining court approval. We concluded that these
provisions did "'not satisfy the requirement in [§ 43-2-844]
that there be an "express provision"' authorizing the payment
of such fees without court approval." 49 So. 3d at 1209
(quoting Green v. Estate of Nance, 971 So. 2d 38, 42 (Ala.
Civ. App. 2007)).
As the daughters correctly observe, the circuit court's
conclusion on remand that no prior court approval was
necessary violates the doctrine of the law of the case.
"'Under the doctrine of the "law of the case,"
whatever is once established between the same
parties in the same case continues to be the law of
that case, whether or not correct on general
principles, so long as the facts on which the
decision was predicated continue to be the facts of
the case.' Blumberg v. Touche Ross & Co., 514 So.
2d 922, 924 (Ala. 1987). See also Titan Indem. Co.
v. Riley, 679 So. 2d 701 (Ala. 1996). 'It is well
established that on remand the issues decided by an
appellate court become the 'law of the case,' and
that the trial court must comply with the appellate
court's mandate.' Gray v. Reynolds, 553 So. 2d 79,
81 (Ala. 1989)."
15
1101290
Southern United Fire Ins. Co. v. Purma, 792 So. 2d 1092, 1094
(Ala. 2001). It does not matter that the circuit court in
some instances in its order quoted provisions of the will this
Court did not quote in Wehle I. The personal representatives
could have cited those provisions as authority for the
premature payments in their appeal in Wehle I. They did not
do so. Moreover, whether they did so or not, the issue at
hand -– whether the will contained "express provisions"
authorizing the payment of fees to personal representatives
without prior court approval -– was before this Court and was
decided by this Court in Wehle I.
"'Under the law of the case doctrine, "[a] party
cannot on a second appeal relitigate issues which
were resolved by the Court in the first appeal or
which would have been resolved had they been
properly presented in the first appeal."' Kortum v.
Johnson, 786 N.W.2d 702, 705 (N.D. 2010) (quoting
State ex rel. North Dakota Dep't of Labor v.
Riemers, 779 N.W.2d 649 (N.D. 2010) ...); see also
Judy v. Martin, 381 S.C. 455, 458, 674 S.E.2d 151,
153 (2009) ('Under the law-of-the-case doctrine, a
party is precluded from relitigating, after an
appeal, matters that were either not raised on
appeal, but should have been, or raised on appeal,
but expressly rejected by the appellate court.
C.J.S. Appeal & Error § 991 (2008)....')."
Scrushy v. Tucker, 70 So. 3d 289, 303-04 (Ala. 2011)(emphasis
omitted); see also Schramm v. Spottswood, 109 So. 3d 154, 162
(Ala. 2012) (applying the law-of-the-case doctrine where a
16
1101290
party attempted to "advance a new argument in order to revisit
an issue already decided by the trial court" and affirmed in
a previous appeal).
Notwithstanding the foregoing, this Court did not
expressly determine in Wehle I whether the personal
representatives owed the estate interest for making the
compensation payments to themselves without prior court
approval. As to that issue, the circuit court listed several
other reasons for rejecting the daughters' interest claim.
Among those reasons was the threshold determination that the
daughters' interest claim was barred by the statute of
limitations. The circuit court noted that it is undisputed
that in 2003 the daughters received a copy of the estate-tax
return filed by the personal representatives. That tax return
reflected
compensation
for
the
personal
representatives
in
the
amount of $1,763,459. The daughters did not file any
objection to the payment of compensation until February 20,
2007, when, in response to the personal representatives'
petition for final settlement of the estate, the daughters
filed
their "Objection to Accounting and Application to
Remove
Personal Representatives." As the circuit court noted, the
daughters' objection to the payments was filed over three
17
1101290
years after they allegedly became aware that payments had been
made to the personal representatives. The circuit court found
that the daughters' claim for interest therefore ran afoul of
the two-year limitations period prescribed in § 6-2-38(l),
Ala. Code 1975, which the circuit court found to be applicable
in this case.
4
We reject the circuit court's conclusion that the
daughters' claim for interest was barred by the statute of
limitations prescribed by § 6-2-38(l). The daughters' claim
is based on § 43-2-509, Ala. Code 1975, which states that,
"[i]f any executor or administrator uses any of the funds of
the estate for his own benefit, he is accountable for any
profit made thereon or legal interest." This statute does not
state when the interest must be paid, only that the personal
representative eventually is to be held "accountable" for
such
interest. That is, there is no requirement that the personal
representative must begin paying the prescribed interest
immediately after advancing to himself or herself the fees in
question. Instead, in cases where it is determined that the
In light of our disposition of this issue and the
4
discussion that follows, we do not address the issue whether
the circuit court was correct as to the applicability of the
two-year statute of limitations found in § 6-2-38(l).
18
1101290
statute requires the payment of interest by the personal
representative, that obligation, like any other obligation of
the personal representative, must be ordered by the trial
court as part of the accounting on final settlement of the
estate. See Ala. Code 1975, § 43-2-500 et seq. We therefore
reject the notion that the daughters somehow ran afoul of a
statute
of limitations when, in connection with the
settlement
of the estate, they made a claim for an appropriate
"account[ing] for ... legal interest" alleged by them to be
owed by the personal representatives for the misuse of funds
of the estate during its administration.
The circuit court also concluded that the daughters
"should be equitably estopped from asserting a claim for
interest against the Personal Representatives in this case."
The circuit court erred as to its ruling on equitable estoppel
in at least two respects.
First, in making payments to themselves without obtaining
prior court approval, the personal representatives violated
their statutory duty under § 43-2-844(7). Their "dereliction
in duty" precluded them from using equitable estoppel as a
defense to the daughters' interest claim. As this Court has
explained:
19
1101290
"'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).'
"Pierce v. Hand, Arendall, Bedsole, Greaves &
Johnston, 678 So. 2d 765, 768 (Ala. 1996).
"In
order
for
the
doctrine
of
equitable estoppel
to apply, a party must demonstrate:
"'"(1) That '[t]he person against
whom estoppel is asserted, who
usually must have knowledge of
the facts, communicates something
in a misleading way, either by
words, conduct, or silence, with
the
intention
that
the
communication will be acted on';
"'"(2) That 'the person seeking
to assert estoppel, who lacks
knowledge of the facts, relies
upon [the] communication'; and
"'"(3) That 'the person relying
would be harmed materially if the
actor is later permitted
to
assert a claim inconsistent with
his earlier conduct.'"
"'Lambert v. Mail Handlers Benefit Plan,
682 So. 2d 61, 64 (Ala. 1996), quoting
20
1101290
General
Electric
Credit
Corp.
v.
Strickland
Div. of Rebel Lumber Co., 437 So. 2d 1240,
1243 (Ala. 1983).'
"Allen v. Bennett, 823 So. 2d 679, 685 (Ala. 2001)."
BSI Rentals, Inc. v. Wendt, 893 So. 2d 1184, 1187-88 (Ala.
Civ. App. 2004)(emphasis added).
Second, the circuit court based its conclusion on the
daughters' having received a copy of the estate-tax return.
The estate-tax return, however, described the amount that the
personal
representatives
intended
to
claim
as
compensation
for
their services as of the date of the filing of the return.
The estate-tax return did not indicate whether the personal
representatives had actually paid themselves at the time the
return was filed. Accordingly, the doctrine of equitable
estoppel provides no basis for the circuit court's decision.
Although none of the above-discussed grounds support the
circuit court's decision to deny the daughters an award of
interest in connection with the premature payment by the
personal
representatives
of fees to themselves in violation of
§ 43-2-844(7), the personal representatives have submitted to
this Court a supplemental filing in which they invoke this
Court's recent decision in Ruttenberg v. Friedman, 97 So. 3d
114, 122 (Ala. 2012), a case decided after briefing was
21
1101290
completed in the present case. The personal representatives
argue
that Ruttenberg
supports the circuit court's decision to
deny the daughters' interest claim.
In Ruttenberg, the widow and two of the three children of
the decedent, Harold Ruttenberg, argued that the personal
representatives in that case had "breached their fiduciary
duty by violating § 43-2-844(7)," specifically by paying
themselves $800,000 in compensation without obtaining prior
court approval. 97 So. 3d at 134. When addressing whether
the personal representatives in Ruttenberg had breached their
fiduciary duty by not obtaining court approval before making
compensation payments to themselves, this Court reasoned:
"Section
43-2-844(7),
Ala.
Code
1975,
states,
in
part: 'Unless expressly authorized by the will, a
personal representative, only after prior approval
of court, may ... [p]ay compensation to the personal
representative.' However, in this case, any error
in the prior payment of coexecutors' fees for
ordinary services without prior court approval is
moot. Here, the probate court took evidence and
heard argument about the reasonableness of the
requested fees, considered the statutory factors
applicable to determining a reasonable fee, and
credited the total fee awarded by the amount the
coexecutors
had
previously
paid
themselves.
Specifically,
the
probate
court
awarded
the
coexecutors $1,165,937 in fees for ordinary services
and said: '$800,000 has been properly paid. ...
The remaining $365,937 is due to be paid in equal
shares of $182,968.50.' Therefore, any error was
remedied when the probate court issued its final
22
1101290
award, after taking into consideration the statutory
factors set out in §§ 43-2-848 and -682, Ala. Code
1975, and then crediting the amount the coexecutors
had paid themselves against the total fee awarded to
the coexecutors for ordinary services."
97 So. 3d at 134-35 (emphasis added).
This Court in Ruttenberg did not specifically discuss the
issue whether personal representatives who pay themselves
compensation
without prior court
approval must pay interest to
the estate on such payments. As noted above, § 43-2-844(7)
states that, "[u]nless expressly authorized by the will, a
personal representative, only after prior approval of court,
may ... pay compensation of the personal representative."
(Emphasis added.) Thus, where the will does not authorize the
personal representative to make compensation payments to
himself or herself without prior court approval and the
personal representative makes such payments, he or she
violates § 43-2-844(7) and deprives the estate of funds before
being legally authorized to do so.
Section 43-2-509 provides that a personal representative
who "uses any of the funds of the estate for his own benefit
... is accountable for any profit made thereon or legal
interest." Our courts have long held that, pursuant to § 43-
2-509 or its precursor, a personal representative must pay
23
1101290
interest from the date he or she pays himself or herself
compensation without court approval to the date he or she
obtains court approval for the compensation amount at issue.
See, e.g., McCraw v. Cooper, 218 Ala. 186, 190, 118 So. 333,
337 (1928) (affirming an award of interest against a personal
representative
who
had
paid
himself
compensation
without
prior
approval by the trial court, where the trial court eventually
allowed the compensation, "as to the reasonableness of which
in amount there [was no dispute]"); see also, e.g., Walsh v.
Walsh, 231 Ala. 305, 307-08, 164 So. 822, 824-25 (1935) ("[I]n
the case of Kenan v. Graham, 135 Ala. 585, 33 So. 699
[(1903)], the court held that an executor is not entitled to
anticipate his fees and use the money. If he does so, he is
chargeable with interest for the time the money was thus
appropriated to the date of settlement."). The same legal
principle has been applied to other fiduciaries who were
required to obtain court approval before paying themselves
compensation. See Gordon v. Brunson, 287 Ala. 535, 542-43,
253 So.2d 183, 189 (1971) ("[T]rial court erred in charging
only 4% simple interest on the wards' money wrongfully
advanced by the guardian to himself [for his compensation],
and should have calculated such interest at the rate of 6% per
24
1101290
annum, compounded annually from date of the advance to the
date of the decree ....").
Also, we note that in enacting the Probate Procedure Act,
§ 43-2-830 et seq., Ala. Code 1975, of which § 43-2-844 is a
part,
the
legislature
made
numerous
changes
and
clarifications
regarding probate procedure in Alabama. See Act No. 93-722,
Ala. Acts 1993. The legislature made no change, however, that
would call into question this Court's precedents holding that
a personal representative must pay interest on compensation
payments made by the personal representative to himself or
herself without prior court approval. Indeed, the enactment
of the Probate Procedure Act supports the conclusion that the
legislature did not approve of personal representatives'
paying
themselves
compensation
without
prior
court
approval
in
that the legislature chose to reaffirm the statutory language
at issue in this appeal: "[u]nless expressly authorized by
the will, a personal representative, only after prior
approval of court, may ... [p]ay compensation of the personal
representative." § 43-2-844(7).
Furthermore, in regard to the history behind § 43-2-844,
that section references seven actions of a personal
representative that require "prior court approval." Section
25
1101290
43-2-844 thereby stands in contrast to § 43-2-843, Ala. Code
1975, which authorizes a personal representative to take
numerous actions without prior court approval. In addition,
§ 43-2-843 is substantially a verbatim adoption of § 3-715 of
the Uniform Probate Code, with one glaring exception: Under
§ 3-715 the seven items enumerated in § 43-2-844 are included
in the list of actions a personal representative may take
without obtaining prior court approval. In other words, the
Alabama Legislature clearly acted purposefully in departing
from § 3-715, a proposed uniform law, when it required "prior
court approval" for the actions listed in § 43-2-844.
Because the legislature has clearly indicated its
disapproval of compensation payments made to personal
representatives without prior court approval and because the
legislature has indicated no disapproval of this Court's
precedents requiring payment of interest where compensation
payments are made without such prior approval, we reaffirm the
principle recognized in the above-discussed precedents.
5
In Ruttenberg, we discussed whether the court may, in
5
effect,
"ratify"
such
compensation
payments
when
assessing
the
reasonableness of the personal representatives' compensation.
To read Ruttenberg as addressing the issue of interest would
mean, among other things, that this Court sub silencio
overruled the line of precedents discussed in this opinion and
26
1101290
Based on the foregoing, we conclude that the circuit
court erred by denying the daughters' interest claim.
C. Circuit Court's Failure to Remove McGowan as a Cotrustee
of the Family Trust
The daughters requested that the circuit court remove
McGowan as a cotrustee of the family trust created under
Robert G. Wehle's will. As to that claim, the circuit court's
order states:
"[T]he record is devoid of any reference to such a
claim during the course of the trial. The
[daughters] simply offered no evidence to support a
conclusion that McGowan should not continue to serve
as trustee, as required by the express wishes of the
testator, Robert Wehle. While the [daughters]
question the amount of compensation paid to each of
the Personal Representatives, at no point did the
[daughters] offer any evidence of impropriety with
respect to McGowan's presiding over the Family
Trust. Without evidence suggesting some notion of
impropriety, bad faith, breach of fiduciary duty or
self dealing, there is simply no basis upon which
this Court can entertain such a position. Thus, the
Court finds that the [daughters] have simply failed
to present any evidence, much less sufficient
evidence, justifying removal of Mr. McGowan from his
position as Trustee.
"Despite
failing
to
offer
any
evidence
at
trial,
the [daughters] argue in post-trial briefing that
Mr. McGowan should be removed as a trustee simply
that we have turned § 43-2-844 from a statute disallowing such
payments unless preapproved into a statute allowing such
payments unless subsequently disapproved. We decline to so
read Ruttenberg.
27
1101290
because he is no longer needed to serve in that
role. However, this is an insufficient basis upon
which to remove a trustee. The final Will &
Testament of Robert G. Wehle specifically called for
Mr. McGowan to serve in this capacity. The Court
will not disturb the wishes of the testator simply
based upon the argument that a single trustee rather
than multiple trustees is sufficient to manage the
affairs of the Trust.
"The [daughters] also argue that the trustees
participated in a decision that was detrimental to
the taxation of the trust beneficiaries. However,
the Court will not consider these post-trial
arguments that were never raised at trial. The
trustee was not provided with an opportunity to
defend himself from these claims or provide any
explanation. It is fundamental that a litigation
defendant be informed of the allegations against him
before being required to defend himself. Because
Mr. McGowan was not properly informed of these
allegations nor given an opportunity to defend
himself during the course of the trial of this
matter, those allegations are rejected as improperly
and untimely made and will not be considered. Thus,
the Court finds that there is no basis to remove Mr.
McGowan from his position as trustee over the Family
Trust."
"The removal of a trustee has long been established as a
matter which rests in the sound discretion of the trial court.
Our scope of review is therefore limited to determining
whether the court has abused its discretion." In re Estate of
Amason, 369 So. 2d 786, 789 (Ala. 1979).
The daughters refer us to § 19-3B-706(b), Ala. Code 1975,
which provides that a court may remove a trustee where
28
1101290
"(1) the trustee has committed a serious breach
of trust; [or]
"....
"(3) because of unfitness, unwillingness, or
persistent failure of the trustee to administer the
trust effectively, the court determines that removal
of the trustee best serves the interests of the
beneficiaries."6
The daughters offer two arguments as to why they believe
the circuit court exceeded its discretion in refusing to
remove McGowan as a cotrustee of the family trust. First,
they contend that McGowan's presence as a cotrustee is no
longer desired or needed and adds no value to the management
of the family trust and that he thus should be removed. The
Section 19-3B-706(b) also provides that a trustee may be
6
removed where
"(4)(A) there has been a substantial change of
circumstances or removal is requested by all of the
qualified beneficiaries;
"(B) the court finds that removal of the trustee
best
serves
the
interests
of
all
of
the
beneficiaries and is not inconsistent with a
material purpose of the trust; and
"(C) a suitable co-trustee or successor trustee
is available."
The daughters make no argument as to whether § 19-3B-706(b)(4)
might apply in the present case, and we therefore express no
opinion with respect to that argument.
29
1101290
fact that the daughters may no longer consider McGowan's
services as needed, desired, or valuable to the family trust,
however, is not sufficient to satisfy § 19-3B-706(b)(1) or
(3). Even if those allegations were true, they do not
establish that McGowan committed a serious breach of trust,
that he was unfit to serve as a cotrustee, that he was
unwilling to serve as a cotrustee, or that he had persistently
failed to administer the trust effectively.
Second, the daughters argue that McGowan committed a
serious breach of trust by participating in a decision to
treat all cash received from shares held by the estate in
thoroughbred race horses as income rather than creating a
depreciating reserve. The circuit court noted that the
daughters did not raise this argument until their posttrial
brief; thus, it considered the argument untimely. The
daughters do not respond to the reason the circuit court gave
for rejecting their argument. Instead, they argue on appeal
the merits of the issue, which the circuit court did not
reach, and they provide no legal authority as to the
timeliness ground on which the circuit court relied. Based on
well settled principles of appellate review, we will not
reverse a judgment of a trial court under such circumstances.
30
1101290
See, e.g., Tucker v. Nichols, 431 So. 2d 1263, 1264 (Ala.
1983)(holding that, in order to secure a reversal "the
appellant has an affirmative duty of showing error upon the
record").
D. Award of Attorney Fees to the Personal Representatives
The circuit court awarded the personal representatives
$383,437.31 for attorney fees and costs relating to their
defense of the daughters' claims. Section 43-2-849, Ala. Code
1975, states:
"If any personal representative or person
nominated as personal representative defends or
prosecutes any proceeding in good faith, whether
successful or not, the personal representative is
entitled to receive from the estate necessary
expenses and disbursements, including, but not
limited to, reasonable attorneys' fees incurred."
"An award of attorney's fees is within the trial court's
discretion, subject to correction [only when the court
exceeds] that discretion." Clement v. Merchants Nat'l Bank
of Mobile, 493 So. 2d 1350, 1355 (Ala. 1986).
The
circuit
court
concluded
that
the
personal
representatives
defended
against
the
daughters'
claims
in
good
faith and that the personal representatives were entitled to
31
1101290
attorney fees and costs "from any available funds of the
Estate." The circuit court explained:
7
"In approving this fee request, the Court considered
the criteria established by the Alabama Supreme
Court used for determining the reasonableness of
requested attorney's fees, including the nature of
the employment, the labor required for the discharge
of the services, the time consumed, the professional
experience and reputation of the attorneys, the
weight of their responsibilities, the success
achieved, the reasonableness of the expenses, the
fact that the charges were reasonable hourly
charges, the nature and length of the professional
relationship, the customary fees charged in the
locality, the preclusion from other employment
required by the time spent on this case, and the
time limitations imposed by the circumstances of the
case. See, Vann Schaack v. AmSouth Bank, N.A., 530
So. 2d 740 (Ala. 1988). With that criteria in mind,
there is no question that the fees and costs
requested by the Personal Representatives are
reasonable."
The daughters contend that the circuit court exceeded its
discretion in awarding attorney fees and costs to the personal
representatives because the personal representatives did not
submit any evidence to document the attorney fees and costs
According to the personal representatives, at the time
7
of the hearing on final settlement, they had disbursed the
estate's assets and had no funds with which to pay their claim
for reimbursement of attorney fees and costs. They
nonetheless sought an award of attorney fees and costs so as
to be in a position to reimburse themselves should additional
assets of the estate become available.
32
1101290
for which they were seeking reimbursement. They note that the
claim for fees and costs was awarded solely based on a simple
oral motion from counsel for the personal representatives and
a two-page argument in the personal representatives' post-
hearing brief. The daughters contend that this was not
sufficient to support the award because "[i]t is well settled
that 'the statements of counsel in a pleading or brief are not
evidence.'" Watson v. Whittington Real Estate, LLC, 16 So. 3d
802, 809 (Ala. Civ. App. 2009) (quoting State Dep't of Revenue
v. Wells Fargo Fin. Acceptance Alabama, Inc., 19 So. 3d 892,
897 (Ala. Civ. App. 2008)).
"The determination of whether an attorney fee is
reasonable is within the sound discretion of the trial court
and will not be disturbed on appeal absent an abuse of that
discretion." Ex parte Edwards, 601 So. 2d 82, 85 (Ala. 1992).
As this Court noted in Van Schaack v. AmSouth Bank, N.A., 530
So. 2d 740 (Ala. 1988):
"The complete list of criteria used in the
estimation of the value of an attorney's services
now includes the following: (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
33
1101290
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. Of course, not all of the criteria
will be applicable. 'Indeed, there would hardly
ever be a case where the [determination] of
attorney's fees brought into play every criterion.'
Graddick v. First Farmers & Merchants National Bank
of Troy, 453 So. 2d 1305, 1311 (Ala. 1984)."
530 So. 2d at 749. The "[a]pplicants for an attorney fee bear
the burden of proving their entitlement to an award and
documenting their appropriately expended hours," City of
Birmingham v. Horn, 810 So. 2d 667, 682 (Ala. 2001), and "it
has been generally recognized that the amount of time consumed
should be the first yardstick used by the trial court."
Clements, 493 So. 2d at 1355.
In the present case, the personal representatives claim
that they were entitled to reasonable attorney fees and costs,
but there is no testimony or other evidence in the record
supporting this claim. In particular, there is no evidence as
to "(3) the time consumed [by the attorneys]; (4) the
professional
experience
and
reputation
of
the
attorney[s];
...
(7) the reasonable expenses incurred; ... (9) the nature and
length of [the] professional relationship; (10) the fee
34
1101290
customarily charged in the locality for similar legal
services; (11) the likelihood that a particular employment
may
preclude other employment; [or] (12) the time limitations
imposed by the client or by the circumstances." Van Schaack,
530 So. 2d at 749. In short, the personal representatives
failed
to introduce sufficient evidence to support their
claim
for the reimbursement of attorney fees and costs. See also
City of Birmingham v. Horn, 810 So. 2d at 682 ("[T]he trial
court's order regarding an attorney fee must allow for
meaningful review by articulating the decisions made, the
reasons
supporting those decisions, and the performance of
the
attorney-fee calculation."). The circuit court's award of
attorney fees and costs to the personal representatives is due
to be reversed because the personal representatives failed to
satisfy their burden of proof.
E. Taxing of Costs of the Appeal in Wehle I
In May 2010, the daughters filed a timely motion in the
circuit court asking that court to tax certain costs of the
appeal in Wehle I against the personal representatives. In
8
The
daughters
filed
the
motion
and
supporting
8
documentation within 14 days of the issuance of this Court's
certificate of judgment in Wehle I. See Rule 35(c), Ala. R.
App. P.
35
1101290
support of the motion, the daughters filed an itemized and
verified bill of costs. The circuit court denied the
daughters' motion.
The certificate of judgment issued by this Court in
Wehle I ordered that, "unless otherwise ordered by this Court
or agreed upon by the parties, the costs of this cause are
hereby taxed as provided by Rule 35, Ala. R. App. P."
Rule 35(a), Ala. R. App. P., provides, in pertinent part,
that, "if a judgment is reversed, costs shall be taxed against
the appellee unless otherwise ordered." Also, this Court has
stated:
"'When this Court reverse[s] a trial
court's judgment and awards costs to the
appellant,
the
trial
court
has
no
discretion in awarding costs. Ex parte
Blue Cross & Blue Shield of Alabama, 473
So. 2d 1045 (Ala. 1985). The trial court
must award the appellant those costs of
appeal
that
the
appellant
properly
incurred. Rule 35(a), [Ala.] R. App. P.'"
Kirkley v. United Methodist Church, 765 So. 2d 626, 627-28
(Ala. 1999) (quoting Smith v. Player, 630 So. 2d 400, 401
(Ala. 1993)).
Although the resolution of this issue in favor of the
daughters appears to be straightforward, the personal
representatives argue that in Kirkley, Smith, and other cases
36
1101290
that
have
stated
the
above-quoted
propositions,
the
certificates of judgment expressly stated that the costs of
the appeal were to be taxed against the appellees. In this
instance, they note, the certificate of judgment simply
stated
that costs were to be taxed in accordance with Rule 35, Ala.
R. App. P. The personal representatives contend that the
difference in wording means that the circuit court was free to
"interpret" the appropriate taxation of costs. The personal
representatives' position is patently without merit.
There is no ambiguity in this Court's certificate of
judgment. It states that costs are to be taxed "as provided
by Rule 35, Ala. R. App. P." Rule 35 unequivocally states
that costs are to be taxed against the appellee when a trial
court's judgment is reversed, and this Court has not expressly
ordered
otherwise. Therefore, the circuit court violated
this
Court's mandate in failing to tax the costs of the appeal in
Wehle I against the personal representatives.
IV. Conclusion
We affirm the circuit court's order insofar as the amount
of compensation awarded to the personal representatives and
insofar as it refused to remove McGowan as a cotrustee of the
family trust. We reverse the circuit court's order insofar as
37
1101290
it denied the daughters' interest claims, awarded attorney
fees and costs to the personal representatives, and failed to
tax the costs of the appeal in Wehle I against the personal
representatives.
We once again remand this case to the circuit court for
the purpose of taxing the costs of the appeal in Wehle I
against the personal representatives, for the award of
interest against the personal representatives, and for the
entry of a judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Stuart, Parker, Main, Wise, and Bryan, JJ., concur.
Bolin and Shaw, JJ., concur in the result.
Moore, C.J., concurs in part and dissents in part.
38
1101290
MOORE, Chief Justice (concurring in part and dissenting in
part).
I respectfully dissent from Parts III.B and III.D of the
majority opinion; I concur with the remainder of the opinion.
I do not believe the trial court exceeded its discretion by
awarding
attorney
fees
and
costs
to
the
personal
representatives. In addition, I do not believe the trial court
erred by rejecting the daughters' claim that the personal
representatives should pay interest on the compensation they
had paid themselves without prior court approval.
The majority quotes Ruttenberg v. Friedman, 97 So. 3d
114, 134-35 (Ala. 2012), for the proposition that "'any error
in the prior payment of [a personal representative's] fees for
ordinary services without prior court approval is moot'" once
the court "'issue[s] its final award, after taking into
consideration the statutory factors'" for making such an
award. ___ So. 3d at ___ (emphasis omitted). The Court in
Ruttenberg did not specifically discuss whether personal
representatives who pay themselves compensation from the
estate without prior court approval must, as a consequence,
pay interest on that compensation to the estate. However, by
upholding the "ultimate fee approved by the probate court," 97
39
1101290
So. 3d at 135, and by stating that "any error was remedied
when the probate court issued its final award," 97 So. 3d at
134, Ruttenberg implies that the personal representative in
that case was relieved of any legal consequences he would have
suffered under § 43-2-844(7), Ala. Code 1975, for failing to
obtain court approval before paying himself from the estate.
In other words, not only the payment itself, but also the
interest accrued thereon, became moot. Any attempt to extend
Ruttenberg to the present case must reach the same result: The
issue regarding interest on the compensation the personal
representatives paid themselves from the estate became moot
when the circuit court approved the compensation. If the Court
does not like that result, it must overrule Ruttenberg.
40 | March 14, 2014 |
c934d81f-3e05-4875-ac50-316ac9d7f470 | John Lauriello et al. v. CVS Caremark Corporation et al. | N/A | 1120114, 1120010 | Alabama | Alabama Supreme Court | REL:09/12/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
1120010
_________________________
CVS Caremark Corporation et al.
v.
John Lauriello et al.
_________________________
1120114
_________________________
John Lauriello et al.
v.
CVS Caremark Corporation et al.
Appeals from Jefferson Circuit Court
(CV-03-6630)
1120010; 1120114
SHAW, Justice.
In
case
no.
1120010,
CVS
Caremark
Corporation
("Caremark"); American International Group, Inc.; National
Union Fire Insurance Company of Pittsburgh, PA; AIG Technical
Services, Inc.; and American International Specialty Lines
Insurance
Company
(hereinafter
sometimes
referred
to
collectively as "Caremark and the insurers") appeal from the
trial court's order certifying as a class action the fraud
claims asserted by John Lauriello; James O. Finney, Jr.; Sam
Johnson; and the City of Birmingham Retirement and Relief
System
(hereinafter
sometimes
referred
to
collectively
as
"the
plaintiffs"). In case no. 1120114, the plaintiffs cross-
appeal
from
the
same
class-certification
order,
alleging
that,
though class treatment was appropriate, the trial court erred
in certifying the class as an "opt-out" class pursuant to Rule
23(b)(3), Ala. R. Civ. P., rather than a "mandatory" class
pursuant to Rule 23(b)(1), Ala. R. Civ. P. For the reasons
discussed below, we affirm in both appeals.
Facts and Procedural History
In connection with a 1998 nationwide, securities-fraud
class
action
initiated
against
MedPartners,
Inc.,
a
physician-
2
1120010; 1120114
practice-management/pharmacy-benefits-management corporation
and the predecessor in interest to Caremark ("the 1998
litigation"), the Jefferson Circuit Court certified a class
that included the plaintiffs. Based on the alleged financial
1
distress and limited insurance resources of MedPartners, the
1998 litigation was concluded in 1999 by means of a negotiated
"global settlement," pursuant to which the claims of all class
members were settled for $56 million –- an amount that,
according to the representations of MedPartners, purportedly
exhausted its available insurance coverage. Purportedly
2
based on representations of counsel that MedPartners lacked
the financial means to pay any judgment in excess of the
negotiated settlement and that the settlement amount was thus
the best potential recovery for the class, the trial court,
The 1998 litigation originated from 21 separate suits in
1
state
and
federal
courts
based
on
allegations
that
MedPartners, in connection with a planned merger, made false
and misleading statements to both the public and the
Securities and Exchange Commission concerning its financial
condition and its anticipated performance.
This amount was, according to the class representatives,
2
a bargain, given
the
egregious –- and purportedly indefensible
-- nature of the alleged securities violations. In addition
to the $56 million settlement of the class-based litigation,
the global settlement also included an additional $9 million
payout to settle non-class-based litigation.
3
1120010; 1120114
after a hearing, approved the settlement and entered a
judgment in accordance therewith.
Thereafter,
however,
MedPartners,
now
Caremark,
allegedly
3
disclosed, in unrelated litigation, that it had actually
obtained –- and thus had available during the 1998 litigation
-- an excess-insurance policy providing alleged "unlimited
coverage" with regard to its
potential-damages
exposure in the
1998 litigation -- the existence of which it had purportedly
concealed in negotiating the class settlement. As a result,
in
2003,
Lauriello,
seeking
to
be
named
as
class
representative, again sued Caremark and the insurers in the
Jefferson Circuit Court, pursuant to a class-action complaint
alleging misrepresentation and suppression –- specifically,
that Caremark and the insurers had misrepresented the amount
of insurance coverage available to settle the 1998 litigation
and that they also had suppressed the existence of the
purportedly unlimited excess policy -- on behalf of himself
and all others similarly situated, i.e., the members of the
class certified in the 1998 litigation. Alternatively,
Nothing before this Court suggests that Caremark, as
3
successor in interest to MedPartners, did not assume all of
MedPartners' assets and liabilities.
4
1120010; 1120114
Lauriello sought relief from the judgment pursuant to Rule
60(b), Ala. R. Civ. P. Frank G. McArthur, Bill Greene, and
Virginia Greene, also members of the class certified in the
1998 litigation, filed a separate but substantially similar
action in the Jefferson Circuit Court; their proposed class-
action complaint
asserted
claims
almost identical
to
Lauriello's but named, as additional defendants, plaintiffs'
counsel from the 1998 litigation.
In January 2005, the trial court issued an "Order on
Class Certification," in which it concluded that it was
unnecessary to certify a new class because, pursuant to the
terms of the settlement agreement in the 1998 litigation, it
retained jurisdiction of all matters relating to the
settlement,
including
Lauriello's
newly
asserted
fraud
claims.
Subsequently, Caremark and the insurers simultaneously
appealed the trial court's January 2005 order and filed a
petition for a writ of mandamus seeking relief therefrom. See
Ex parte Caremark RX, Inc., 956 So. 2d 1117 (Ala. 2006).
Also in response to the trial court's order, McArthur,
Bill Greene, and Virginia Greene (hereinafter sometimes
referred to collectively as "the intervenors") sought to
5
1120010; 1120114
intervene in the Lauriello litigation, challenging the
qualifications of both Lauriello and his counsel to represent
the class and specifically adding as defendants in the
complaint in intervention both Lauriello and plaintiffs'
counsel from the 1998 litigation. The trial court denied that
request as untimely; the intervenors appealed.
This Court, in considering the consolidated appeals and
petition for the writ of mandamus, concluded that the petition
for the writ of mandamus was the appropriate avenue by which
to challenge the trial court's order. As a result, we
4
dismissed the direct appeal filed by Caremark and the
insurers. 956 So. 2d at 1119-20. We further granted the
mandamus petition and directed the trial court to vacate the
challenged order on the ground that any action by Lauriello
purportedly filed pursuant to Rule 60(b) was untimely in that
it had not been filed within four months after the judgment
from which Lauriello sought relief as mandated by Rule 60(b).
956 So. 2d at 1124. In addition, we noted that because
Lauriello had added new defendants, namely insurers that had
In reaching this conclusion, we specifically noted that
4
the "the trial court's ... order was not one certifying or
refusing to certify a class...." 956 So. 2d at 1119.
6
1120010; 1120114
not been named in the 1998 litigation, "Lauriello [was] not
seeking merely to
reopen
the settlement
agreement [therein] to
renegotiate the amount of damages payable to the class ...."
956 So. 2d at 1125. Therefore, despite the fact that the
class identified by Lauriello was indisputably identical to
the class certified by the trial court in the 1998 litigation,
we nonetheless concluded that, in order to certify the class
in the new action, Rule 23, Ala. R. Civ. P., and § 6-5-641,
Ala. Code 1975, required the trial court's performance of a
"rigorous analysis" to consider, as to the proposed class
members, "their relationship to the particular claims and
defenses to be asserted in the [new] class action," which the
trial court had clearly failed to evaluate with regard to the
suitability for class treatment. 956 So. 2d at 1125. As to
the intervenors' appeal, we reversed the trial court's order
denying them intervention based on our findings that "none of
the parties [would] be prejudiced by the intervention, ...
justice [might] not be attained if intervention [was] not
allowed, and ... intervention at this stage of the litigation
would not prejudice the ... parties." 956 So. 2d at 1129.
7
1120010; 1120114
Following the release of our opinion, proceedings resumed
in the trial court in accordance with that opinion, including
the trial court's entry of an order deeming the intervenors'
"Class Action Complaint in Intervention" filed. Lauriello
amended
his
class-action complaint to add Finney, Johnson, and
the City of Birmingham Retirement and Relief System ("the
Retirement System") as additional named plaintiffs; the newly
added
plaintiffs
later
moved
to
be
named
as
class
representatives.
Following the defendants' answers to the amended
complaint, the trial court entered an order dismissing with
prejudice "the lawyer defendants" added by the intervenors'
5
complaint in intervention on the ground that the four-year
statute of repose applicable under the Alabama Legal Services
Liability Act, see § 6-5-574, Ala. Code 1975, barred all
claims against them. The trial court certified that judgment
as final pursuant to Rule 54(b), Ala. R. Civ. P., and the
This designation includes the following lawyers and/or
5
firms who served as plaintiffs' counsel in the 1998
litigation: Yearout & Traylor, P.C.; Lowey, Danenberg,
Bemporad, Selinger & Cohen, P.C.; Milberg Weiss & Bershad LLP
(formerly known as Milberg Weiss Bershad & Schulman LLP,
formerly known as Milberg Weiss Bershad Hynes & Lerach LLP);
William S. Lerach; Neil L. Selinger; Steven E. Cauley; Stephen
E. Cauley, P.A.; D'Amato & Lynch; and Richard George.
8
1120010; 1120114
intervenors again timely appealed. The trial court,
thereafter, denied Lauriello's motion seeking to similarly
dismiss the remaining claims asserted against him by the
intervenors' complaint. This Court subsequently affirmed,
without an opinion, the trial court's dismissal of the lawyer
defendants. See McArthur v. Yearout & Traylor, P.C. (No.
1070513, Sept. 12, 2008), 34 So. 3d 737 (2008) (table).
Following our no-opinion affirmance, proceedings again
resumed in the trial court, including the voluntary dismissal
of intervenor Bill Greene as a party and the withdrawal by the
remaining intervenors, McArthur and Virginia Greene, of their
complaint in intervention, including the claims against
Lauriello, and their motion seeking to disqualify Lauriello
and Lauriello's counsel
pursuant
to a "Lead Counsel Agreement"
reached between the two plaintiff groups and their respective
counsel. In addition, Lauriello withdrew his previous
6
request to be appointed a class representative.
McArthur was, in fact, later dismissed on his own motion
6
as a party; therefore, of the three original intervenors, only
Virginia Greene, whose current legal name, according to the
record on appeal, is now Virginia Greene Hoffman, remains a
party.
9
1120010; 1120114
Thereafter,
discovery as
to
the
class-certification issue
commenced. The record reflects numerous discovery-related
disputes, which ultimately necessitated the trial court's
appointment of a special master to oversee the process. The
7
plaintiffs, thereafter, sought certification pursuant to Rule
23(b)(1) and (b)(3), Ala. R. Civ. P. The plaintiffs'
certification request was supported by an accompanying brief
and numerous evidentiary exhibits and was opposed on various
grounds by Caremark and the insurers.
The trial court, as directed by this Court in Ex parte
Caremark,
subsequently
conducted
a
lengthy
class-certification
hearing during which it both heard testimony and received
numerous evidentiary submissions. Following the parties'
further submission of post-hearing briefs, the trial court
issued
an
order
granting
class-action
certification
under
Rule
23(b)(3) based upon its purported rigorous analysis, which
resulted in the following findings:
"Alabama Rule of Civil Procedure 23(a) --
Prerequisites to a Class Action -- states that:
At or around this time, the plaintiffs again amended
7
their class-action complaint to more accurately reflect
Caremark's corporate name as "CVS Caremark Corporation."
10
1120010; 1120114
"'One or more members of a class may sue or
be sued as representative parties on behalf
of all only if (1) the class is so numerous
that
joinder
of
all
members
is
impracticable, (2) there are questions of
law or fact common to the class, (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 protect the interests of the
class.'
"1. Numerosity
"'The test is whether the number of members in
the class is so numerous as to make joinder
impracticable. Ala. R. Civ. P. 23(a)(1); State Farm
Fire & Cas. Co. v. Evans, 956 So. 2d 390 (Ala.
2006).' American Bar Association Survey of State
Class Action Law: Alabama § 5 (database updated Dec.
2011). From the administration of this class's
Fifty Six Million and No/100 ($56,000,000.00) Dollar
settlement in 1999, it is clear there are about
80,000 potential class members, and it is certain
that approximately 18,000 actually filed claims that
were verified and approved. Thus, Plaintiffs have
carried
their
burden
of
proving
numerosity.
Furthermore, Defendants do not dispute the issue.
"2. Commonality
"'Commonality
requires
only
that
there
be
common
questions of law or fact.... [W]here essentially
identical representations are made at different
times to different class members but share a common
thread and are redressable under the same theory of
recovery, the test of commonality may be met.' ABA
Survey, supra, at Alabama § 5. As shown by facts
presented above and the evidence presented to the
Court during the certification hearing, the Court is
convinced that there are common questions of law and
11
1120010; 1120114
fact regarding every class member. Furthermore,
like numerosity, Defendants do not dispute the
issue.
"3. Typicality
"The typicality element is satisfied only if
'the relationship between the injury to the class
representative and the conduct affecting the entire
class of plaintiffs [is] sufficient for the Court to
properly attribute a collective nature to the
challenged conduct.' Warehouse Home Furnishing
Distributors, Inc. v. Whitson, 709 So. 2d 1144, 1149
(Ala. 1997). To meet the typicality requirement,
there must be 'a sufficient nexus ... between the
legal claims of the named class representatives and
those individual class members to warrant class
certification.' Prado-Steiman v. Bush, 221 F.3d
1266, 1278 (11th Cir. 2000).
"The
three
proposed
class
representatives,
James
O. Finney, Jr., Sam Johnson and the City of
Birmingham Retirement and Relief System, have claims
typical of the proposed class as each was a member
of the 1999 Settlement Class.
"Defendants
argue
that
the
typicality
requirement cannot be met on this record because of
the three subclasses -- common stock, TAPS and
tender offer -- which existed in the underlying 1999
Settlement
Class.[ ]
It
is
Defendants'
position
that
8
each of the proposed class representatives is a
The original class included three subclasses of
8
purchasers
of
MedPartners'
securities:
purchasers
of
MedPartners
common
stock
during
the
applicable
period;
persons
who purchased MedPartners 6 ½% Threshold Appreciation Price
Securities ("TAPS") in a September 15, 1997, public offering
or who purchased TAPS thereafter that were traceable to the
public offering; and purchasers who tendered common shares of
Talbert
Medical
Management
Holdings
Corporation
to
MedPartners
in a tender offer.
12
1120010; 1120114
member of the common stock subclass and, therefore,
they do not have claims which are typical of the
TAPS and tender offer subclasses.
"When examining whether these proposed class
representatives present claims typical of the entire
class, it is critical to understand that the parties
are not re-litigating the underlying securities
fraud claims. The claim presented in this action is
for fraud-in-the-settlement. The alleged fraud did
not vary depending on whether one owned common
stock, TAPS or a tender offer. Any alleged fraud
touched all class members identically.
"It is the Court's determination that any
conflicts between the subclasses were resolved in
the 1999 class settlement. The three subclasses,
with representation, and with joint participation of
Defendants, settled all differences in Judge Wynn's
court. The subclasses agreed in 1999 on a formula
that defined how any class action recovery was to be
distributed. All conflicts between the subclasses
have been litigated and resolved.
"Given the 1999 class settlement and the nature
of the allegations in this action, it is this
Court's conclusion that James O. Finney, Jr., Sam
Johnson and the City of Birmingham Retirement and
Relief System present claims typical of the proposed
class."
Applying an identical rationale, the trial court similarly
found that Finney, Johnson, and the Retirement System "are
adequate to represent this class."
In addition, noting that "[a]lthough all parties agree
that proposed class counsel are adequate to prosecute class
actions, the parties disagree on whether these attorneys are
13
1120010; 1120114
competent and/or able to adequately represent this proposed
class," the trial court considered and rejected, in turn, each
challenge by Caremark and the insurers to proposed class
counsel. Ultimately, as to this issue, the trial court
concluded:
"In opposition of proposed class counsel,
Defendants have raised every possible roadblock and
issue to endeavor to influence this Court to find
proposed class counsel inadequate, as such is their
duty. In their endeavor to have proposed class
counsel disqualified, Defendants know full well that
if this Court rules with them on this issue
Defendants will have gained a victory without having
to adjudicate this case before an Alabama jury.
"Litigation
is
combative,
particularly
where
the
damages sought may exceed Three Billion and No/100
($3,000,000,000.00)
Dollars.
These
plaintiff
attorneys [sic] have labored thousands of hours
since 2003 seeking to represent and protect this
proposed
class,
and
have
done
so
without
remuneration for their time and monumental expenses
incurred. Here, adequacy, not perfection, is the
trait that this Court and the Supreme Court are
seeking based upon the statute, the caselaw and
Alabama Rule of Civil Procedure 23. This civil
action spanning into its tenth year is so complex
and replete with filings, depositions and rulings,
it is a virtual certainty that no lawyer and/or law
firm would now invest the time and incur the expense
to represent this class.
"Finally, Alabama Rule of Civil Procedure 1
states that '[the] rules shall be construed and
administered to secure the just, speedy and
inexpensive determination of every action.' Given
this mandate to apply the Alabama Rule of Civil
14
1120010; 1120114
Procedure 23 justly, it is this Court's considered
judgment, as laid out above, that the Hare Wynn,
North and Somerville firms are deemed adequate to
represent this proposed class."
Finally, having concluded that the plaintiffs satisfied
the initial prerequisites to maintaining a class action, as
set out in Rule 23(a), Ala. R. Civ. P., the trial court next
determined
that the plaintiffs had likewise met the
additional
requirement of satisfying Rule 23(b)(3). See, e.g.,
University Fed. Credit Union v. Grayson, 878 So. 2d 280, 286
(Ala. 2003). In reaching that conclusion, the trial court
specifically rejected the objections of Caremark and the
insurers to class certification, i.e., the alleged individual
reliance
of
each
class
member
on
the
purported
misrepresentation and the potential for the necessity of
applying conflicting laws from various states. Noting both
that the conflict-of-law argument raised by Caremark and the
insurers was untimely and that the parties' stipulation of
settlement provided that Alabama law controlled, the trial
court concluded that the only real challenge to Rule 23(b)(3)
certification was the claim by Caremark and the insurers that
issues of individual reliance predominated over common
questions of law and fact.
15
1120010; 1120114
In sum, in consideration of the foregoing findings, the
trial court appointed Finney, Johnson, and the Retirement
System as class representatives; appointed Hare, Wynn, Newell
& Newton; North & Associates; and Somerville, LLC, as class
counsel, and certified a class consisting of the following:
"All Persons who (i) purchased MedPartners, Inc.
('MedPartners') common stock [including, but not
limited
to,
through
open-market
transactions,
mergers or acquisitions in which MedPartners issued
common stock, acquisition through the Company's
Employee Stock Purchase Plan ('ESPP'), and any other
type of transaction in which a person acquired one
or more shares of MedPartners stock in return for
consideration] during the period from October 30,
1996,
through
January
7,
1998,
inclusive
(MedPartners employees who purchased shares through
the ESPP in January 1998 being deemed to have
purchased their shares on December 31, 1997); (ii)
purchased call option contracts on MedPartners
common stock during the period October 30, 1996,
through January 7, 1998, inclusive; (iii) sold put
option contracts on MedPartners common stock during
the period October 30, 1996, through January 7,
1998, inclusive; or (iv) purchased MedPartners
Threshold Appreciation Price Securities ('TAPS') in
the September 15, 1997, offering or thereafter
through January 7, 1998; or (v) tendered shares of
Talbert Medical Management Holdings Corporation to
MedPartners between August 20, 1997, and September
19, 1997 ('The Settlement Class'); excluding all
those members who opted out of the 1999 Class
Settlement."9
The description of the certified class is, excepting the
9
addition of the final phrase excluding members who opted out
of the class certified in the 1998 litigation, identical to
the class certified by the trial court in the 1998 litigation.
16
1120010; 1120114
The parties appeal from the trial court's class-
certification order. See § 6–5–642, Ala. Code 1975 ("A
court's order certifying a class or refusing to certify a
class action shall be appealable in the same manner as a final
order to the appellate court which would otherwise have
jurisdiction over the appeal from a final order in the
action.").
Standard of Review
"'This Court has stated that "class actions may
not be approved lightly and ... the determination of
whether the prerequisites of Rule 23 have been
satisfied
requires
a
'rigorous
analysis.'"'
Mayflower Nat'l Life Ins. Co. v. Thomas, 894 So. 2d
[637] at 641 [(Ala. 2004)] (quoting Ex parte
Citicorp Acceptance Co., 715 So. 2d 199, 203 (Ala.
1997)). 'In reviewing a class-certification order,
this Court looks to see whether the trial court
exceeded its discretion in entering the order;
however, we review de novo the question whether the
trial court applied the correct legal standard in
reaching its decision.' University Fed. Credit
Union v. Grayson, 878 So. 2d 280, 286 (Ala. 2003).
Furthermore,
"'[w]e note that an abuse of discretion in
certifying a class action may be predicated
upon a showing by the party seeking to have
the class-certification order set aside
that "the party seeking class action
certification failed to carry the burden of
producing sufficient evidence to satisfy
the requirements of Rule 23." Ex parte
Green Tree Fin. Corp., 684 So. 2d 1302,
1307 (Ala. 1996). Thus, we must consider
17
1120010; 1120114
the sufficiency of the evidence submitted
by the plaintiff[s]....'
"Compass Bank v. Snow, 823 So. 2d 667, 672 (Ala.
2001). See also Smart Prof'l Photocopy Corp. v.
Childers–Sims, 850 So. 2d 1245, 1249 (Ala. 2002)
(holding that if plaintiffs fail to meet the
evidentiary burden as required by Rule 23, Ala. R.
Civ. P., then the trial court exceeds its discretion
in certifying a class action). If the plaintiffs
here have failed to meet the evidentiary burden as
required by Rule 23, then the trial court exceeded
its discretion in certifying a class action."
Eufaula Hosp. Corp. v. Lawrence, 32 So. 3d 30, 34-35 (Ala.
2009).
Discussion
I. Case No. 1120010
"In order to obtain class certification, the
plaintiffs must establish all the criteria set forth
in Rule 23(a), Ala. R. Civ. P., and at least one of
the criteria set forth in Rule 23(b). University
Federal Credit Union v. Grayson, 878 So. 2d [280] at
286 [(Ala. 2003)]. Rule 23(a) provides:
"'(a) Prerequisites to a Class Action.
One or more members of a class may sue or
be sued as representative parties on behalf
of all only if (1) the class is so numerous
that
joinder
of
all
members
is
impracticable, (2) there are questions of
law or fact common to the class, (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 protect the interests of the
class.'
18
1120010; 1120114
"Rule 23(b) provides, in pertinent part:
"'(b) Class Actions Maintainable. An
action may be maintained as a class action
if the prerequisites of subdivision (a) are
satisfied, and in addition:
"'....
"'(2) the party opposing the
class has acted or refused to act
on grounds generally applicable
to the class, thereby making
appropriate
final
injunctive
relief
or
corresponding
declaratory relief with respect
to the class as a whole; or
"'(3) the court finds 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 other
available methods for the fair
and efficient adjudication of the
controversy.
The
matters
pertinent
to
the
findings
include: (A) the interest of
members
of
the
class
in
individually
controlling
the
prosecution
or
defense
of
separate actions; (B) the extent
and nature of any litigation
concerning
the
controversy
already commenced by or against
members of the class; (C) the
desirability or undesirability of
concentrating the litigation of
the claims in the particular
forum;
(D)
the
difficulties
19
1120010; 1120114
likely to be encountered in the
management of a class action.'"
Lawrence, 32 So. 3d at 35. In the instant case, the trial
court certified the class action under Rule 23(b)(3). On
appeal, Caremark and the insurers present several challenges
to the trial court's class-certification order.
A. Alleged Predomination of Individual Issues
First, Caremark and the insurers contend that the trial
court
exceeded its discretion in certifying the class
pursuant
to Rule 23(b)(3) because, they argue, the individual issues
necessarily attendant to fraud claims predominate and render
class
certification
inappropriate.
More
specifically,
relying
on past decisions of this Court indicating that "fraud claims
are
uniquely unsuited for class treatment," see, e.g.,
Compass
Bank v. Snow, 823 So. 2d 667, 673 (Ala. 2001) (internal
citations and quotation marks omitted), the plaintiffs argue
that each member of the class must be individually questioned
–- purportedly pursuant to the rules applicable in their
various jurisdictions -- regarding the circumstances of that
member's alleged knowledge of and reliance on the alleged
misrepresentations regarding the insurance proceeds available
to
MedPartners. The plaintiffs counter that authorities
cited
20
1120010; 1120114
by Caremark and the insurers are inapposite in that they
"deal[] with individual fraud scenarios," whereas, here, it
was the class itself [–- an 'entity' separate from the
individual members comprising the class –-] that was
defrauded" as a result of the fraud perpetrated on the class's
appointed agent. Plaintiffs' brief, at p. 26.
"As noted above, Rule 23(b)(3) requires a
finding that '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 other available methods for
the
fair
and
efficient
adjudication
of
the
controversy.' This requirement '"tests whether
proposed classes are sufficiently cohesive to
warrant adjudication by representation."' Reynolds
Metals [Co. v. Hill], 825 So. 2d [100] at 104 [(Ala.
2002)] (quoting Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 623, 117 S. Ct. 2231, 138 L. Ed. 2d 689
(1997)). In making this determination, '[c]ourts
examine the substantive law applicable to the claims
and determine whether the plaintiffs presented
sufficient proof that common questions of law or
fact predominate over individual claims.' Voyager
Ins. Cos. v. Whitson, 867 So. 2d 1065, 1071 (Ala.
2003). 'When individual issues predominate over the
common claims, manageability of the action as a
class is not possible.' Voyager Ins., 867 So. 2d at
1077. Therefore, this Court must determine whether
[the plaintiffs] presented sufficient evidence that
common questions of law or fact predominate over
individual issues as to [the plaintiffs' fraud-
based] claims."
Grayson, 878 So. 2d at 286.
21
1120010; 1120114
The parties' counsel acknowledge that they were unable to
find a decision directly on point with the factual
circumstances of the present case, i.e., a decision involving
allegations of a fraud perpetrated on a certified class in
connection with the settlement of the class action in which
that class had previously been certified. Regardless,
however, there are available certain established principles
that guide our resolution of this issue.
First, it is undisputed that both the plaintiffs'
misrepresentation and suppression claims include, as the
plaintiffs contend, a reliance element. See Grayson, supra,
at 286-87, 289 (noting that the elements of a fraud action
necessarily include a demonstration that the plaintiff
reasonably relied on the alleged misrepresentation to his or
her detriment and that the elements of a fraudulent-
suppression claim include a demonstration that the alleged
suppression "induced the plaintiff to act or to refrain from
acting"). See also Regions Bank v. Lee, 905 So. 2d 765, 774
(Ala. 2004) ("The element of a duty to disclose in a
fraudulent-suppression case is analogous to the element of
reliance
in a misrepresentation case." (citing Mack v.
General
22
1120010; 1120114
Motors Acceptance Corp., 169 F.R.D. 671, 677 (M.D. Ala.
1996))).
Additionally, it is true, as this Court has previously
acknowledged, that the reliance element in fraud claims
generally renders such claims unsuitable for class treatment.
See, e.g., Snow, supra. That general principle, however, is
not a hard and fast rule applicable in all fraud cases, as we
have explained:
"We agree with the [In re] Memorex [Security Cases,
61 F.R.D. 88, 98 (N.D. Cal. 1973) (securities-fraud
cases),] court and hold that the issue whether proof
of reliance involves so many individual questions of
fact
that
the
individual
questions
of
fact
predominate should be addressed at the initial stage
of the proceeding.
"As noted above, two other schools of thought
exist as to whether proof of reliance raises too
many individual questions of fact to certify a fraud
action as a class action. One school prohibits the
certification of fraud class actions, and the other
examines the facts of each case according to the
applicable rule of civil procedure.
"Without addressing the issue of class-action
treatment of the issue of reliance, this Court has
affirmed the certification of fraud class actions.
See Warehouse Home Furnishing Distributors, Inc. v.
Whitson, 709 So. 2d 1144 (Ala. 1997); Ex parte Gold
Kist, 646 So. 2d 1339 (Ala. 1994); Harbor Ins. Co.
v. Blackwelder, 554 So. 2d 329 (Ala. 1989).
Significantly, in Harbor Insurance Co., this Court
held that '[w]here plaintiffs allege and prove a
standard claim for fraud based on misrepresentations
with a common thread, as is the case here, their
23
1120010; 1120114
cause is maintainable as a class action.' 554 So. 2d
at 335. But, in Butler v. Audio/Video Affiliates,
Inc., 611 So. 2d 330 (Ala. 1992), this Court
affirmed the denial of certification in a fraud
class action, where the denial was based, in part,
on varying oral representations that created too
many individual issues of reliance and damages.
Butler, 611 So. 2d at 332. The differences in these
cases indicate that this Court has not thus far
adopted
a
blanket
prohibition
against
the
certification of a fraud class action. Therefore,
as with other courts that have addressed the issue,
we must consider whether proof of reliance in this
case involves predominating individual issues of
fact. In so doing, we use the same standard as the
federal courts, i.e., whether there 'was a material
variation in the representations made or in the
kinds or degrees of reliance by the persons to whom
they were addressed.' Advisory Committee Notes to
Rule 23(b)(3) (on 1966 amendments to rules), Fed. R.
Civ. P."
Ex parte Household Retail Servs., Inc., 744 So. 2d 871, 881
(Ala. 1999) (emphasis added).
Further, we have stated:
"'Whether a fraud claim is suitable for class-action
treatment depends on the degree of similarity
between the representations made to the class
members.... Courts have often found that cases
involving written misrepresentations distributed to
all members of the class are suitable for class
treatment.' Ex parte Household Retail Servs., 744
So.
2d
at
877;
see
also
Ex
parte
AmSouth
Bancorporation, 717 So. 2d 357, 365 (Ala. 1998)
('questions of fraud based on documents are more
typically suited for class-action determination').
Grayson argues, and the trial court noted, that the
alleged fraud in this case stems from a common,
uniform 'core' or nucleus of facts, namely, that a
uniform misrepresentation was made to each and every
24
1120010; 1120114
member of the putative class: i.e., that they were
paying a $2.50 'filing fee' when, in fact, nothing
was actually filed with a government agency.
Because this alleged misrepresentation is uniform,
Grayson argues, common issues predominate.
"Even if the alleged misrepresentations in a
fraud case are uniform or have a 'common core,' the
action may still be unsuited for class-action
treatment if the degree of reliance varies among the
persons to whom the representations were made. See
Alfa Life Ins. Corp. v. Hughes, 861 So. 2d 1088,
1097 (Ala. 2003) ('Even if numerous representations
have a "common core," an action may still be
unsuited for class-action treatment if material
variations exist in the representations or if the
degree of reliance varies among the persons to whom
the representations were made.' (emphasis added));
see also Committee Comments, Rule 23(b)(3), Fed. R.
Civ. P. ('although having some common core, a fraud
case may be unsuited for treatment as a class action
if
there
was
material
variation
in
the
representations made or in the kinds or degrees of
reliance
by
the
persons
to
whom
they
were
addressed'). In Hughes, an insurance policyholder
alleged that his insurer, Alfa Life Insurance
Corporation,
had
made
certain
fraudulent
misrepresentations to him and to members of a class
of policyholders. Hughes, 861 So. 2d at 1098. This
Court stated:
"'Even if we were to find that the
misrepresentations the Alfa agents made to
the plaintiff policyholders were uniform,
the
issue
of
each
class
member's
"reasonable
reliance"
precludes
class
c e r t i f i c a t i o n
o f
t h e
fraudulent-misrepresentation claim. See
Foremost Ins. Co. v. Parham, 693 So. 2d 409
(Ala. 1997). The plaintiff policyholders
contend that there was common reliance by
the class members and that "[e]veryone
acted the same." Plaintiff policyholders'
25
1120010; 1120114
brief, p. 62 n. 22. The trial court agreed
and concluded that because of the objective
"reasonable
reliance"
standard,
individualized inquiries would not be
necessary. However, a determination of
each class member's reliance would require
individualized inquiry as to whether that
reliance was reasonable "'based on all of
the
circumstances
surrounding
[the]
transaction,
including
the
mental
capacity,
educational
background,
relative
sophistication,
and
bargaining
power
of
the
parties.'" Reynolds Metals [Co. v. Hill],
825 So. 2d [100] at 108 [(Ala. 2002)]
(quoting Foremost Insurance, 693 So. 2d at
421)).'
"861 So. 2d at 1100. See also Voyager Ins. [Cos. v.
Whitson], 867 So. 2d [1065] at 1070 [(Ala. 2003)]
(recognizing that the plaintiff's failure to prove
whether
class
members
had
relied
on
misrepresentations
or
omissions
made
class
certification inappropriate)."
Grayson, 878 So. 2d at 287-88 (first emphasis added). Thus,
as Caremark and the insurers argue, "a fraud claim is not
certifiable as a class action when individual reliance is an
issue." Lee, 905 So. 2d at 775 (emphasis added).
Here, however, the class-based fraud claim rests upon the
purported representation by the defendants and/or their
representatives
to counsel for the original class certified in
the 1998 litigation to induce counsel to accept a reduced
settlement offer on behalf of the entire class. Thus, the
alleged misrepresentation was uniform and the class members'
26
1120010; 1120114
individual
reliance irrelevant.
See Ex parte
Household Retail
Servs., 744 So. 2d at 877 ("Courts have often found that cases
involving written misrepresentations distributed to all
members of the class are suitable for class treatment.");
Grainger v. State Sec. Life Ins. Co., 547 F.2d 303, 307 (5th
Cir. 1977) ("[T]he key concept in determining the propriety of
class action treatment is the existence or nonexistence of
material variations in the alleged misrepresentations.").
This fact distinguishes the present case from the authorities
cited by Caremark and the insurers, in which a finding of
liability
is
necessarily
dependent
upon
varying
communications
to individual class members and the class members' varying
reliance on those communications. Compare Ex parte Household
Retail Servs., 744 So. 2d at 878-79 (concluding that the trial
court erred in certifying a fraud claim for class treatment
when the evidence demonstrated that oral representations made
to the class members were not standardized but, instead, that
the class members had dealt with different salespersons
employed by different dealers); Compass Bank v. Snow, 823 So.
2d at 674-76 (concluding that the plaintiff customers failed
to
satisfy the predominance requirement of Rule 23(b)(3), Ala.
R. Civ. P., as to their fraudulent-suppression claim when
27
1120010; 1120114
individual issues regarding each customer's knowledge of the
posting order used by the bank defendant and the extent to
which
each customer relied on that knowledge predominated
over
common issues); Reynolds Metals Co. v. Hill, 825 So. 2d 100
(Ala. 2002) (holding, despite the alleged uniform nature of
the oral representation, that evidence disputing common
reliance by the plaintiff employees on that representation
demonstrated
that
individualized
issues
necessarily
predominated); Alfa Life Ins. Corp. v. Hughes, 861 So. 2d
1088, 1100 (Ala. 2003) (reversing the trial court's class
certification of a fraudulent-suppression claim on the ground
that, even assuming the alleged misrepresentations were
uniform, "a determination of each class member's reliance
would require individualized inquiry as to whether that
reliance was reasonable '"based on all of the circumstances
surrounding [the] transaction, including the mental capacity,
educational
background,
relative
sophistication,
and
bargaining power of the parties"'" (quoting Reynolds Metals,
825 So. 2d at 108)); Voyager Ins. Cos. v. Whitson, 867 So. 2d
1065, 1074 (Ala. 2003) (affirming the trial court's denial of
class treatment as to fraud-based claims when the record
failed to establish "whether the customers relied on varying
28
1120010; 1120114
representations made by the sales representatives instead of
on the alleged nondisclosure or ... whether the information
allegedly not disclosed would have made a difference ....");
Grayson, 878 So. 2d at 288-89 (vacating the trial court's
certification order on the ground that the evidence
demonstrated material variations in individual class members'
reliance on alleged misrepresentation); Lee, 905 So. 2d at
775-76 (holding, despite the collective nature of the duty
owed by the bank to bondholders and the collective nature of
the bondholders' remedy, that individual issues nonetheless
predominated, as "the trial court would have to determine
whether the individual bondholders received notice of the
occurrence of an event of default, if a majority of the
bondholders would have agreed to take action upon notice of
the default ... and what specific action they would have
elected to take").
Under the present circumstances, we find persuasive the
following rationale:
"[In] In re Baldwin-United Corp. Litig. [122 F.R.D.
424, 426-27 (S.D.N.Y. 1986) ], a class of investors
10
Because the Alabama Rules of Civil Procedure were
10
patterned after the Federal Rules of Civil Procedure, cases
construing the federal rules are considered authority in
29
1120010; 1120114
asserting federal securities, RICO, and state law
claims against broker-dealers and a promotional
corporation in a fraud action was certified despite
the defendants' contention that the core issues in
the plaintiffs' complaint turned on largely oral
rather than written representation or on nonuniform
documents that would require greater investigation
and analysis of individual facts than class
treatment would allow:
"'This Court disagrees. The nub of
plaintiffs'
claims
is
that
material
information was withheld from the entire
putative class in each action, either by
written
or
oral
communication.
[Essentially, this is a course-of-conduct
case, which as pleaded satisfies the
commonality requirement of Rule 23, Fed. R.
Civ. P.] ... Plaintiffs allege not that the
promotional
materials
themselves
were
uniform, but rather that the information
they contained -- and hence that the
broker-dealers
disseminated
--
was
uniformly
misleading.
...
Liability
in
this
case does not depend on proof of the
individual, face-to-face dealings between
the class members and the registered
representatives of the broker-dealers....
As a result, the relevant questions are
readily susceptible to class-wide proof.'"
4 Herbert B. Newberg & Alba Conte, Newberg on Class Actions
§ 22.15 at 22–46 (3d ed. 1992) (emphasis added; footnotes
omitted). Indeed, we have previously noted that "[w]here
plaintiffs allege and prove a standard claim for fraud based
construing the Alabama rules. Cutler v. Orkin Exterminating
Co., 770 So. 2d 67, 70 n.2 (Ala. 2000).
30
1120010; 1120114
on misrepresentations with a common thread, as is the case
here, their cause is maintainable as a class action." Harbor
Ins. Co. v. Blackwelder, 554 So. 2d 329, 335 (Ala. 1989). See
also Ex parte Household Retail Servs., 744 So. 2d at 877
("Whether a fraud claim is suitable for class-action
treatment
depends
on
the
degree
of
similarity
between
the
representations made to the class members."). Further, there
is nothing to suggest that any of the class members ever
engaged in any type of oral communication with Caremark and
the
insurers and/or any representative thereof; thus, there
is
no danger of the individualized oral misrepresentations that
have rendered the cases relied on by the plaintiffs unsuitable
for class treatment.
Instead, here, the class's fraud claims result from the
fact that the class as a whole –- not each individual member
-- was defrauded. As noted by Professor William B.
Rubenstein, the plaintiffs' retained expert and the current
editor of Newberg on Class Actions, supra –- an authority on
which this Court has often relied -- "[i]n settling the [1998
litigation], the defendants did not negotiate with individual
class members" but, instead, "negotiated solely with the
class's agents and then sought approval of that settlement
31
1120010; 1120114
from the class's fiduciary." Thus, as Professor Rubenstein
further explained:
"[T]he normal problems that plague certification of
fraud cases do not ... apply here for one simple
reason related to the unique nature of this case:
this is a class action lawsuit about a class action
lawsuit, not about a set of individual market
transactions. The nature of the underlying
transaction -- the class action lawsuit -- renders
individual class member reliance irrelevant."
In consideration of the foregoing, we hold that the
evidence supports the trial court's conclusion that the
plaintiffs satisfied the predominance requirement of Rule
23(b)(3) in that the fraud claims present questions of law and
fact that are common to the class and that they are therefore
suitable for trial pursuant to a single adjudication.
Therefore, Caremark and the insurers have failed to
demonstrate that the trial court exceeded its discretion in
certifying the class based on its conclusion that common
issues predominate. See In re Warfarin Sodium Antitrust
11
Litig., 212 F.R.D. 231, 249 (D. Del. 2002), aff'd, 391 F.3d
In making this determination, we express no opinion as
11
to the merits of the newly asserted fraud claims. See
Mayflower Nat'l Life Ins. Co. v. Thomas, 894 So. 2d 637, 641
(Ala. 2004) ("On a motion for class certification, the sole
issue before the trial court is whether the requirements of
Rule 23 have been met ....").
32
1120010; 1120114
516 (3d Cir. 2004) ("The fact that plaintiffs alleged purely
economic harm from a common cause ... further supports
certification of the class."); In re Towers Fin. Corp.
Noteholders Litig., 177 F.R.D. 167, 171 (S.D.N.Y. 1997) ("The
predominance inquiry tests 'whether proposed classes are
sufficiently
cohesive
to
warrant
adjudication
by
representation.' Amchem Prods., Inc. v. Windsor, 521 U.S.
[591] at 621, 117 S.Ct. [2231] at 2249 [(1997)]. As the
Advisory Committee Notes make clear, 'a fraud perpetrated on
numerous persons by the use of similar misrepresentations may
be an appealing situation for a class action....' Fed. R.
Civ. P. 23(b)(3) Advisory Committee's Note; accord, e.g.,
Green v. Wolf, 406 F.2d [291] at 300-01 [(C.A.N.Y. 1968)].").
The unique facts of this case -– the alleged representations
were made to the class's agents (counsel) –- distinguishes
this case from those in which the reliance of individual class
members was at issue. In reaching this conclusion we
specifically reject the importance of the pre-settlement
differences among class members, which Caremark and the
insurers emphasize. Cf. Walco Invs., Inc. v. Thenen, 168
F.R.D. 315, 325 (S.D. Fla. 1996) (noting, in recognizing the
similarity of the common-issue requirement of Rule 23(a)(2)
33
1120010; 1120114
and the predominance requirement of 23(b)(3), that, "[w]hile
it may be true ... that unique defenses will be asserted by
the Defendants in this action, this fact alone is insufficient
to destroy the commonality requirement," because "the
commonality prerequisite does not require that all of the
questions of law and/or fact be common").
B. Class Counsel as Necessary Witnesses
Caremark and the insurers also argue on appeal that
current
class
counsel cannot meet the adequacy requirements
of
Rule 23(a)(4), Ala. R. Civ. P., because, they say, "[c]lass
counsel ... will be necessary witnesses for the defense, and
their testimony will be adverse to the class." Caremark and
the insurers' brief, at p. 63. Therefore, they contend, the
trial court erred in failing to address this particular
challenge in the context of its class-certification order.
The plaintiffs dispute the fact that any of the current class
counsel
are
necessary
witnesses
and
therefore
disqualified,
as
Caremark and the insurers urge. They further contend that,
even if certain lawyers might ultimately be disqualified,
that
disqualification would not necessarily affect the ability of
the disqualified lawyer's firm or remaining counsel to
represent the class.
34
1120010; 1120114
Clearly, the trial court, in its certification order,
made the necessary finding that proposed class counsel were
adequate; however, it specifically declined to make a final
ruling on the issue whether, despite their adequacy, counsel
might be subject to disqualification on the ground that they
might also be necessary witnesses at trial. The trial court's
rationale was that discovery was not complete and that the
issue was, therefore, not ripe for adjudication. We initially
question whether, in the absence of an adverse ruling on the
record below, Caremark and the insurers have adequately
preserved this issue for appellate review; indeed, the record
makes it abundantly clear that the trial court specifically
reserved its ruling on this issue for future consideration in
the event the matter actually proceeds to trial. See, e.g.,
CSX Transp., Inc. v. Day, 613 So. 2d 883, 884 (Ala. 1993)
("[I]t is familiar law that an adverse ruling below is a
prerequisite to appellate review."). Additionally, the
testimony
of
both
parties'
expert
witnesses
at
the
certification hearing indicated that, pursuant to advisory
authority
issued
by
the
Alabama
Bar
Association,
consideration
of disqualification issues during pretrial proceedings is
premature. In fact, Caremark and the insurers' own expert,
35
1120010; 1120114
Professor Tom Morgan, although attempting through his
testimony to remove this case from within the ambit of that
general rule, clearly acknowledged during the certification
hearing that the exclusion of a lawyer as a potential witness
is evaluated, not during pretrial proceedings, but at the time
of trial. In light of that acknowledgment and the failure of
Caremark and the insurers to actually cite any authority
requiring the trial court's consideration of this issue at the
time the class is certified, we find no error in the trial
court's reservation of this issue for future consideration.
C. Past Conduct of Appointed Counsel
Caremark and the insurers next argue that alleged
unethical conduct exhibited by class counsel in connection
with both the 1998 litigation and the present case precludes
their representation of the certified class. Therefore,
according to Caremark and the insurers, the trial court erred
in concluding that appointed counsel's representation would
fairly and adequately protect the interest of the class as
required by Rule 23(a)(4). Specifically, in support of this
12
It is undisputed that the challenge of Caremark and the
12
insurers in this regard is not based on the experience,
ability, or credentials of class counsel, the high level of
which all parties concede.
36
1120010; 1120114
claim, Caremark and the insurers identify the following
instances of alleged disqualifying conduct: the alleged
failure of class counsel to fulfill their fiduciary duty to
class members by ascertaining the fairness of the settlement
concluding the 1998 litigation by means of confirmatory
discovery; the alleged unethical division of class counsel's
fee with their client, Lauriello, in violation of Rule 5.4(a),
Ala. R. Prof. Cond.; the alleged unethical division of class
counsel's fee with their cocounsel in the 1998 litigation, in
violation of Rule 1.5(e), Ala. R. Prof. Cond.; the alleged
unethical representation of Lauriello by class counsel in his
capacity –- at one time, at least –- as both a named plaintiff
and a named defendant in this action, in violation of Rule
1.7(a), Ala. R. Prof. Cond.; and the execution in the present
litigation
of
the
lead-counsel
agreement
between
class
counsel
and counsel for the intervenors.
As Caremark and the insurers note, the trial court's
class-certification order reflects that it considered -– and
ultimately
rejected
pursuant
to
its
rigorous
analysis
-–
each
13
Reliable Money Order, Inc. v. McKnight Sales Co., 704
13
F.3d 489, 498 (7th Cir. 2013) ("So long as the district court
employs the 'rigorous analysis' required by Rule 23, it enjoys
broad leeway in deciding the adequacy of class counsel. See
37
1120010; 1120114
of the inadequacy grounds advanced by Caremark and the
insurers below. Our review of the transcript of the class-
certification hearing reflects that the instances of alleged
misconduct
were
hotly
contested,
with
the
plaintiffs
providing
expert testimony establishing that each of the purported
violations was not, as Caremark and the insurers allege,
actually unethical when considered in the context in which the
conduct occurred.
Moreover, Caremark and the insurers cite no authority
demonstrating that any of the alleged instances of misconduct
automatically disqualifies class counsel from serving in the
present case or renders them, as a matter of law, inadequate.
The record further establishes, despite Caremark and the
insurers' arguments to the contrary, that there was no
evidence before the trial court suggesting the type of
egregious self-dealing and/or dishonesty aimed at class
members, which appears in the authorities on which Caremark
and the insurers rely and which would require a denial of
class certification. Compare Creative Montessori Learning
Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 728 (11th
Cir. 1987) (noting 'adequacy of class representation is
primarily a factual issue').").
38
1120010; 1120114
Ctrs. v. Ashford Gear LLC, 662 F.3d 913, 917 (7th Cir. 2011)
(observing that class counsel's undisputed misconduct in both
obtaining
material
on
the
basis
of
a
promise
of
confidentiality while concealing counsel's true intent and
falsely implying to a potential named plaintiff that there
already was a certified class to which the plaintiff belonged
"demonstrated a lack of integrity that casts serious doubt on
[counsel's] trustworthiness as representatives of the class"
of which they were fiduciaries); In re Mid-Atlantic Toyota
Antitrust Litig., 93 F.R.D. 485, 490 (D.C. Md. 1982) (holding
that an agreement between named plaintiffs and class counsel
was both unethical and prejudicial to unnamed class members in
that, to the extent that counsel agreed to bear ultimate
responsibility for all costs of litigation, counsel acquired
a financial stake in the litigation that was "tantamount to
the unacceptable situation of the attorney being a member of
the class of litigants while serving as class counsel"). See
also Reliable Money Order, Inc. v. McKnight Sales Co., 704
F.3d 489, 498 (7th. Cir. 2013) (noting that "[n]ot any ethical
breach
justifies
the
grave
option
of
denying
class
39
1120010; 1120114
certification"). Therefore, we decline to hold that the
14
trial court exceeded its discretion in approving class
counsel.
D. Alleged Overbreadth of the Certified Class
Finally, Caremark and the insurers contend that the
class, as defined in the trial court's class-certification
order, is "impermissibly broad." Caremark and the insurers'
brief, at p. 88. Specifically, according to Caremark and the
insurers,
the
class
definition
improperly
includes
stockholders who did not opt into participation in the 1998
litigation
and
also
improperly
consolidates
the
three
separate
categories of stockholders identified in the 1998 litigation.
They further note, however, that, although all three of the
class representatives appointed by the trial court did submit
a claim in the 1998 litigation, all three were holders of
MedPartners common stock, i.e., from a single one of the
original three classes included in the 1998 litigation.
Therefore, Caremark and the insurers maintain, the appointed
Further, although not determinative, we do note the
14
absence
of
the
institution
of
disciplinary
proceedings
against
class counsel as a result of the alleged misconduct.
Additionally, the interests of the class may also be
adequately protected by means of the trial court's inherent
supervisory role in class-based litigation.
40
1120010; 1120114
representatives fail to satisfy the adequacy and typicality
requirements of Rule 23 in that they have a purported conflict
as a result of the difference in their interests from those of
other class members. Contrary to this claim, however, the
plaintiffs contend, as the trial court concluded in its
certification
order, that the current fraud claims "are common
to each and every class member" and that the previous
designation of the various classes of shareholders is
irrelevant.
Caremark and the insurers cite authority indicating that
the Rule 23(a)(4) requirement of adequate representation is
unsatisfied when the interests of the named plaintiffs and the
class
members
conflict.
See,
e.g.,
Cutler
v.
Orkin
Exterminating Co., 770 So. 2d 67, 71 (Ala. 2000). However,
although Caremark and the insurers attempt to argue that the
potential weakness of the underlying security-based claims of
certain classes of shareholders may affect the determination
of those shareholders' damages in the present fraud case, we
fail to see the identified danger. Instead, it appears to
this Court that the merits of the underlying claims of each
group in the 1998 litigation are largely irrelevant in that
the present fraud claims were perpetrated on the group as a
41
1120010; 1120114
whole, irrespective of their original, potentially individual
interests. Moreover, as occurred by means of the percentage
distribution in the 1998 litigation, we emphasize the trial
court's ability to fashion any class-based recovery so as to
prevent the excess recovery of any particular group within the
class.
We do agree, however, with the contention of Caremark and
the insurers that the alleged fraud perpetrated by them in
connection with the settlement of the 1998 litigation could
not have damaged those shareholders who had previously opted
out of participation therein and that their inclusion in the
present class would render it impermissibly broad. The trial
court's
certification
order,
however,
as
quoted
above,
appears
to specifically "exclud[e] all [potential class] members who
opted out of the 1999 Class Settlement." Thus, because the
trial court appears to have, on its own directive, limited the
class to actual participants in the prior settlement process,
we also fail to perceive the possibility advanced by Caremark
and the insurers that "[t]he class, as certified, ... includes
individuals who did not submit claims in the 1998 litigation."
Caremark and the insurers' brief, at p. 93. We, therefore,
conclude that the court did not exceed its discretion as to
42
1120010; 1120114
the designation of the class included in its certification
order.
II. Case No. 1120114
The plaintiffs' sole contention in their cross-appeal
from the trial court's class-certification order is that the
trial court exceeded its discretion in also failing to certify
the class, as the plaintiffs had requested, pursuant to Rule
23(b)(1), Ala. R. Civ. P. Although acknowledging, as did the
trial court, the contrary and well established legal
principles demonstrated by this Court's decision in Funliner
of Alabama, L.L.C. v. Pickard, 873 So. 2d 198, 217 (Ala.
2003), in
which
we clearly indicated that "certification under
Rule 23(b)(1)
is
inappropriate when a plaintiff seeks monetary
damages," the plaintiffs contend that "[Rule 23](b)(1) is a
15
better 'fit' to these unique facts" than is Rule 23(b)(3).
Plaintiffs' brief, at p. 65. More specifically, they argue
that the separate legal status afforded the class certified in
the 1998 litigation
makes a mandatory class certified pursuant
See also Ex parte Government Emps. Ins. Co., 729 So. 2d
15
299, 306 (Ala. 1999) ("'Class suits seeking damages
exclusively are prime candidates for Rule 23(b)(3) classes.'"
(quoting 1 H. Newberg & A. Conte, Newberg on Class Actions §
4.08 (3d ed. 1992))).
43
1120010; 1120114
to Rule 23(b)(1) more appropriate than the opt-out class
certified by the trial court pursuant to Rule 23(b)(3).
16
First, we note the plaintiffs' admitted inability to
provide
authority
supporting
the
requested
departure
from
this
Court's established application of either provision of Rule
23(b)(1). Moreover, the plaintiffs similarly fail to
demonstrate
the
potential
danger
of
inconsistent
adjudications
of class members' rights, which they assert exists. See Ex
parte Government Emps. Ins. Co., 729 So. 2d 299, 306-07 (Ala.
1999)
("'"Rule
23(b)(1)(A)
class
actions
involve
those
classes
formed if the prosecution of separate lawsuits would create
the risk of inconsistent adjudications."'" (quoting Ex parte
Holland, 692 So. 2d 811, 815 (Ala. 1997), quoting in turn
Adams v. Robertson, 676 So. 2d 1265, 1269 (Ala. 1995))).
Indeed, we see nothing to suggest the existence of such a risk
in the present matter. Additionally, there is also nothing
suggesting that the present case is a limited-fund case as was
true in the 1998 litigation; therefore there is also no
In support of their claim, the plaintiffs analogize the
16
present situation to one in which individuals, who are
shareholders of the same corporate entity, seek collective
redress: "If a corporation has been defrauded, the law does
not permit each shareholder to file individual fraud claims."
Plaintiffs' brief, at p. 67.
44
1120010; 1120114
indication –- at least in the arguments before us –- that
adjudication of one class member's interest would necessarily
either "be dispositive of the interests of the other members
not parties to the adjudications or substantially impair or
impede their ability to protect their interests." Rule
23(b)(1)(B).
Conclusion
Based on the foregoing, we conclude that the trial court
properly
certified
the
plaintiffs'
claims
for
class
treatment;
that judgment is, therefore, due to be affirmed in all
respects.
1120010 -- AFFIRMED.
Moore, C.J., and Stuart, Parker, Murdock, Main, Wise, and
Bryan, JJ., concur.
1120114 -- AFFIRMED.
Moore, C.J., and Stuart, Parker, Main, Wise, and Bryan,
JJ., concur.
Murdock, J., dissents.
45
1120010; 1120114
MURDOCK, Justice (dissenting in case no. 1120114).
I disagree with the holding in the cross-appeal to the
effect that certification of the class as an "opt-out" class
under Rule 23(b)(3), Ala. R. Civ. P., is appropriate. We hold
in the appeal (case no. 1120010) that individual-reliance
issues are not material (thus justifying class certification
at all) because it was "the class" that was defrauded. That
is, the same misrepresentation was received and relied upon by
the same persons on behalf of all the members of the class.
By the same token, certification under Rule 23(b)(3) is
inappropriate. The claims of the class members in this
unusual case do not vary, and we therefore should not make
possible a multitude of individual lawsuits that all seek to
vindicate the same wrong with the same injury
(proportionally)
to each class member. Such a certification would allow
inconsistent outcomes, even as to the most basic question of
liability. The risk of such inconsistency is a key reason for
certifying a "non-opt-out" class under Rule 23(b)(1), Ala. R.
Civ. P. See, e.g., Ex parte Government Emps. Ins. Co., 729
So. 2d 299, 306 (Ala. 1999) (observing that "'"Rule
23(b)(1)(A) class actions involve those classes formed if the
prosecution of separate lawsuits would create the risk of
46
1120010; 1120114
inconsistent adjudications"'" (quoting Ex parte Holland, 692
So. 2d 811, 815 (Ala. 1997), quoting in turn Adams v.
Robertson, 676 So. 2d 1265, 1269 (Ala. 1995))).
The trial court expressly stated that it felt obligated
in its role as a lower court to follow precedent from this
Court preferring Rule 23(b)(3) "opt-out" certification where
money damages are involved but that it questioned whether this
was the correct approach in this unusual case. With regard to
our precedent, I note that this Court has not instituted a
blanket
prohibition
on
class
certification
under
Rule
23(b)(1)
where monetary relief is sought by the class in question. In
Ryan v. Patterson, 23 So. 3d 12, 20 (Ala. 2009), we noted:
"'[C]lose scrutiny is necessary if money damages are
to be included in any mandatory class in order to
protect the individual interests at stake ....'
Coleman v. General Motors Acceptance Corp., 296 F.3d
443, 448 (6th Cir. 2002). This Court has observed
that '[a]s a general rule, certification of a class
pursuant to Rule 23(b)(2) is improper if the primary
relief sought is money damages,' Compass Bank v.
Snow, 823 So. 2d 667, 678 (Ala. 2001); it is also
true that 'the fact that a Rule 23(b)(1) or (b)(2)
suit may ultimately result in a monetary recovery
from a defendant does not prevent certification
under those subdivisions.' First Alabama Bank of
Montgomery, N.A. v. Martin, 425 So. 2d 415, 423
(Ala. 1982)."
Both the trial court and the main opinion agree that the
situation presented in this case is a novel one. Given the
47
1120010; 1120114
nature and uniqueness of the claims presented, an exception to
our
general policy of not permitting class certification
under
Rule 23(b)(1) for actions seeking monetary relief is both
prudent and permissible. In short, this is a novel case not
governed by any indistinguishable precedent to the contrary;
it therefore stands to reason that we can, indeed must, simply
apply the language and policy underlying Rule 23 to decide
this novel case. Doing so would require a reversal of the
decision of the trial court in the cross-appeal.
48 | September 12, 2014 |
e304302f-e429-4e21-a468-3cb8c738666f | Ware v. Alabama | N/A | 1100963 | Alabama | Alabama Supreme Court | REL: 01/17/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1100963
____________________
Ex parte James Lee Ware
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: James Lee Ware
v.
State of Alabama)
(Tuscaloosa Circuit Court, CC-06-284;
Court of Criminal Appeals, CR-08-1177)
MURDOCK, Justice.
In June 2008, James Lee Ware was convicted of first-
degree rape, see Ala. Code 1975, § 13A-6-61(a)(1), first-
degree burglary, see Ala. Code 1975, § 13A-7-5(a)(1), and
first-degree robbery, see Ala. Code 1975, § 13A-8-41(a)(1).
1100963
Ware was sentenced as an habitual felony offender to three
sentences of life imprisonment, to be served consecutively.
Ware appealed his convictions to the Court of Criminal
Appeals. The Court of Criminal Appeals affirmed the trial
court's judgment. Ware v. State, [Ms. CR-08-1177, March 25,
2011] ___ So. 3d ___ (Ala. Crim. App. 2011).
On appeal to the Court of Criminal Appeals, Ware raised
the following issues, among others, (1) whether the trial
court violated his Sixth Amendment right to confront the
witnesses against him when it admitted a DNA-profile report
1
that was based on the work of laboratory technicians who did
not testify at trial and (2) whether the trial court erred in
denying his motion for a judgment of acquittal on the robbery
and burglary charges because, Ware contends, there was not
sufficient evidence to prove beyond a reasonable doubt that he
"DNA identification" or DNA profiling is
1
"[a] method of scientific identification based
on a person's unique genetic makeup; specif., the
comparison of a person's deoxyribonucleic acid (DNA)
—- a patterned chemical structure of genetic
information —- with the DNA in a biological specimen
(such as blood, tissue, or hair) to determine
whether the person is the source of the specimen.
DNA evidence is used in criminal cases for purposes
such as identifying a victim's remains, linking a
suspect to a crime, and exonerating an innocent
suspect."
Black's Law Dictionary 551 (9th ed. 2009).
2
1100963
was armed with a deadly weapon or a dangerous instrument.
This Court granted certiorari review as to those two issues.
We affirm as to the first issue and reverse as to the second.
I. Facts
On the night of June 8, 1993, L.M., a graduate student
enrolled at the University of Alabama in Tuscaloosa, was
asleep in her bed when she was awakened by a man lying on top
of her and covering her eyes with a towel and a plastic bag.
L.M. testified that, while she was struggling with her
attacker, she "felt, [she] thought, something sharp in [the
attacker's] back pocket." L.M. was forcibly raped two times
and was left blindfolded, with her feet bound with an
electrical extension cord. Money and a ring had been taken
from her house. After the attacker left, L.M. called the
police. L.M. was taken to the hospital, where a rape-kit
analysis was prepared. Other than the rape kit, no physical
2
evidence was obtained from the crime scene that could be used
to identify the rapist.
The case remained unsolved for several years. In 2004
the Alabama Department of Forensic Sciences ("the DFS")
obtained a grant that enabled "cold-case rapes" to be tested
At the hospital, L.M. was examined and swabs were used
2
to take samples of bodily fluids from L.M.'s vagina and mouth.
3
1100963
for the presence of deoxyribonucleic acid ("DNA"), which, if
present, could lead to the identification of the rapist. In
2004, the Tuscaloosa Police Department delivered to the DFS
the rape kits from several unsolved rape cases, including
L.M.'s. Later in 2004, the DFS delivered those rape kits,
including L.M.'s, to Orchid Cellmark Laboratory ("Cellmark")
in Germantown, Maryland.
Cellmark laboratory technicians processed the biological
material taken from swabs in L.M.'s rape kit, tested the DNA
present in that material, and developed a DNA profile of the
male whose semen was found on the vaginal swab. The record
discloses that as
many as six laboratory technicians performed
tests on L.M.'s vaginal swabs. Cellmark prepared a three-page
DNA-profile report containing a summary description of the
tests performed and DNA profiles of L.M. and the as yet
unidentified male donor. Cellmark also prepared a "case file"
or "case folder" documenting (1) each of the steps in the
process, (2) various review checklists, and (3) machine-
generated results in the form of graphs and charts. The DNA-
3
The case file consists of approximately 41 pages that
3
document, step by step, Cellmark's handling of the swabs
contained in the rape kit, the tests that were performed on
the samples, and the results of the tests, most of which are
in the form of machine-generated graphs. The case file also
includes reports generated by the DFS documenting the
collection of the samples from L.M. and the chain of custody.
4
1100963
profile report was based on the data documented in the case
file.
The DNA-profile report and the case file generated by
Cellmark were sent to Angelo DellaManna at the DFS.
DellaManna compared the DNA profile sent to him by Cellmark to
other known DNA profiles contained in the Combined DNA Index
System ("CODIS"), which is a nationwide repository for
DNA-specimen information. See Ala. Code 1975, § 36–18–21(j).
DellaManna testified that the DNA profile received from
Cellmark matched Ware's DNA profile in CODIS.4
Pursuant to routine procedure at the DFS, once the DNA
match was ascertained, the DFS confirmed that the CODIS
profile under Ware's name actually was that of Ware. The DFS
also took a new DNA sample from Ware's cheek and confirmed
that the DNA profile from Ware's cheek sample matched the
CODIS sample as well as the semen profile from the vaginal
swabs taken from L.M.
Ware objected to the admission of any documents prepared
by Cellmark and to any testimony from DellaManna as to what
Cellmark did with respect to L.M.'s rape kit. Ware objected
DellaManna also testified that the Cellmark laboratory
4
technicians properly performed all tests on the biological
material in accordance with the controls and procedures put in
place by the DFS and that there were "no errors in [L.M.'s]
case."
5
1100963
that the use of this evidence violated his Sixth Amendment
right to
confront
and to cross-examine the Cellmark laboratory
technicians who performed the tests that formed the basis for
the DNA-profile report.
The State also presented testimony from Cellmark's
molecular
geneticist,
Jason
E.
Kokoszka,
Ph.D.,
who
supervised
and reviewed the testing and analysis of L.M.'s case and who
signed Cellmark's
DNA-profile
report in L.M.'s case. Kokoszka
testified that L.M.'s case file was kept in the regular course
of business at Cellmark and that he was the custodian of those
records.
Kokoszka testified that the case file reflects "all the
analyses that occurred in L.M.'s case from start to finish,
culminating with the ... review checklists that the person
reporting the case and reviewing the case would fill out to
show what actually occurred inside the case." Kokoszka
further testified that as the reviewer of all the work done in
this case, he had reviewed the "identification of the semen
upon the sample which occurred prior to the DNA testing," and
he had reviewed "all the analyses that were performed to
ensure that they were performed in accordance with [Cellmark's
standard operating procedures] and also ensured that the
conclusions drawn from the data were accurate and appropriate
6
1100963
as well." Kokoszka initialed the review sheets in the case
file to reflect that he had reviewed the case, and he stated
that his personal review meant that the work was performed "in
accordance with the guidelines" that were in place. He stated
that "[t]o [his] knowledge there were no errors that occurred
during the analysis of the case."
During the State's examination of Kokoszka, the DNA-
profile report and the case file were admitted into evidence
over Ware's Confrontation Clause objection. In admitting the
report, the trial court stated:
"I believe that [under] the cases following Crawford
[v. Washington, 541 U.S. 36 (2004),] and Crawford
[itself], the supervisor of the lab work and that
prepared the report, if that person is present to —-
present and subject to cross-examination, Crawford
is satisfied. The Court is going to overrule the
objection."
Other than the DNA evidence, no evidence was presented
that would identify the rapist. Ware contends that the DNA
match was proven to be erroneous by evidence indicating that
he was incarcerated in the Autauga County jail at the time of
the rape. The evidence as to Ware's incarceration is in
dispute. In 1993, Ware was incarcerated in the Autauga
5
County jail and was serving as a jail cook. There was
No documentary evidence was presented; the jail records
5
were allegedly destroyed by a flood several years ago.
7
1100963
evidence presented indicating that while he was incarcerated
Ware was treated as a trusty and was at least occasionally
granted unsupervised leave from the jail. There was also
evidence indicating that Ware allegedly spent some time at an
address four blocks from where L.M. was raped. Thus, the
evidence as to Ware's alibi presented a question for the jury.
II. Confrontation Clause of the Sixth Amendment
A. Standard of Review
"Where an issue presents a pure question of law, ... this
Court’s review is de novo." Ex parte Peraita, 897 So. 2d
1227, 1231 (Ala. 2004). Likewise, a trial court's application
of the law to the facts is reviewed de novo. Ex parte
Jackson, 886 So. 2d 155, 159 (Ala. 2004). See also Stewart v.
State, 990 So. 2d 441, 442 (Ala. Crim. App. 2008) ("Where ...
an appellate court reviews a trial court's conclusion of law
and its application of law to the facts, it applies a de novo
standard of review.").
B. The Court of Criminal Appeals' Decision
Before the Court of Criminal Appeals, Ware contended that
the trial court had violated his Sixth Amendment right to
confront witnesses against him when it admitted into evidence
testimony and reports based on the workproduct of laboratory
technicians who did not testify at the trial. Specifically,
8
1100963
Ware contended that the DNA-profile report and related
evidence is testimonial in nature under the principles set
forth in Crawford v. Washington, 541 U.S. 36 (2004), and
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
The Court of Criminal Appeals concluded that the DNA-
profile report was not "testimonial" because, it reasoned,
(1) the report was not in the form of an affidavit, (2) the
laboratory technicians were not engaged in an accusatory
function, (3) the data entries were "routine," (4) Ware was
not identified as a suspect at the time the tests were
performed, and (5) there was no potential for prosecutorial
abuse under the circumstances of this case.
C. United States Supreme Court Precedent
The Sixth Amendment of the United States Constitution
provides in part that, "[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the
witnesses against him ...." In Ohio v. Roberts, 448 U.S. 56,
66 (1980), the United States Supreme Court held that the
Confrontation Clause does not bar admission of an unavailable
witness's statement against a criminal defendant if the
statement bears "adequate 'indicia of reliability.'"
6
"To meet that test, evidence must either fall within a
6
'firmly rooted hearsay exception' or bear 'particularized
guarantees of trustworthiness.'" Crawford, 541 U.S. at 40
9
1100963
In Crawford, the United States Supreme Court overruled
Roberts,
rejecting
the
"reliability"
standard
and
holding
that
the right to confront witnesses applies to all out-of-court
statements that are "testimonial." 541 U.S. at 68. Although
the Crawford Court did not arrive at a comprehensive
definition of
"testimonial," it noted that "the principal evil
at which the Confrontation Clause was directed was the civil-
law mode of criminal procedure,[ ] and particularly its use of
7
ex parte examinations as evidence against the accused." 541
U.S. at 50.
The Crawford Court described the "core" class of
statements covered by the Confrontation Clause as follows:
"Various formulations of this core class of
'testimonial' statements exist: 'ex parte in-court
testimony or its functional equivalent —- that is,
material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially';
'extrajudicial
statements
contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony, or
confessions'; 'statements that were made under
circumstances which would lead an objective witness
(citing Roberts, 448 U.S. at 66).
The
reference
to
civil-law
mode
of
criminal
procedure
was
7
a reference by the Crawford Court to the ex parte examinations
traditionally
used in the French criminal-law system, that is,
officials would examine suspects and witnesses before trial
and then read the examinations in court in lieu of live
testimony. See Crawford, 541 U.S. at 43-44.
10
1100963
reasonably to believe that the statement would be
available for use at a later trial.'"
541 U.S. at 51—52 (internal citations omitted). Crawford held
that a statement made by the defendant's wife during police
interrogation
was
testimonial
and
subject
to
the
Confrontation
Clause.
Since Crawford, the Supreme Court has released three
decisions addressing the application of the Confrontation
Clause to forensic-testing evidence. In Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), the Supreme Court held
that a sworn certificate of analysis attesting that certain
materials were cocaine was a testimonial statement. The
8
Court in Melendez–Diaz declined to create a forensic-testing
exception, and it rejected the argument that the certificate
at issue there was not testimonial because it was not
"accusatory."
In Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct.
2705 (2011), the Supreme Court held that the Confrontation
Clause applied to an unsworn forensic-laboratory report
Justice Thomas, who provided one of the five votes for
8
the judgment in Melendez-Diaz, authored a concurring opinion
in which he reasoned that the certificate of analysis at issue
was an affidavit and thus fell "'within the core class of
testimonial statements ....'" Melendez-Diaz, 557 U.S. at 329
(Thomas, J., concurring) (quoting White v. Illinois, 502 U.S.
346, 365 (1992)).
11
1100963
certifying the defendant's blood-alcohol level, where the
report was specifically created to serve as evidence in a
criminal proceeding and there was an adequate level of
formalities in the creation of the report.
In Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221
(2012), the United States Supreme Court held, in a plurality
opinion, that the Confrontation Clause was not violated where
9
an expert was allowed to offer an opinion based on a DNA-
profile report prepared by persons who did not testify and who
were not available for cross-examination. Williams involved
a bench trial in which a forensic specialist from the Illinois
State Police laboratory testified that she had matched a DNA
profile prepared by an outside laboratory to a profile of the
defendant prepared by the state's lab. The outside lab's DNA
report was not admitted into evidence, but the testifying
The plurality opinion, authored by Justice Alito,
9
received four votes; a dissenting opinion authored by Justice
Kagan received four votes; Justice Thomas wrote an opinion
concurring in the judgment but "shar[ing] the dissent's view
of the plurality's flawed analysis." Williams, ___ U.S. at
___, 132 S. Ct. at 2255 (Thomas, J., concurring in the
judgment). Justice Breyer
concurred in the plurality opinion,
but wrote separately to request that the case be reargued to
more fully address how the Confrontation Clause applies to
crime-laboratory
reports
and
to
suggest
that
the
Confrontation
Clause does not bar DNA reports from accredited crime
laboratories.
12
1100963
analyst was allowed to refer to the DNA profile as having been
produced from the semen sample taken from the victim.
The plurality opinion concluded that the analyst's
testimony was not barred by the Confrontation Clause for two
independent
reasons,
neither
of
which
received
the
concurrence
of a majority of the Court. First, the plurality concluded
that the expert's testimony was not admitted for the truth of
the matter asserted but was admitted only to provide a basis
for the testifying expert's opinions. Second, the plurality
10
concluded that the DNA-profile report was not testimonial
because its primary purpose was not to accuse the defendant or
to create evidence for use at trial, but "for the purpose of
finding a rapist who was on the loose." Williams, ___ U.S. at
___, 132 S.Ct. at 2228. The Williams plurality also noted the
inherent reliability of DNA-testing protocols and the
difficulties in requiring the prosecution to produce the
analysts who actually did the testing.11
Justice Thomas, in his opinion concurring in the
10
judgment in Williams, disagreed that there was any legitimate
nonhearsay purpose for the analyst's testimony, noting that
"[t]here is no meaningful distinction between disclosing an
out-of-court statement so that the
factfinder
may evaluate the
expert's
opinion
and disclosing that statement for its truth."
Williams, ___ U.S. at ___, 132 S.Ct. at 2257 (Thomas, J.,
concurring in the judgment).
The latter propositions are in tension with Crawford's
11
rejection of the "reliability" standard in Confrontation
13
1100963
Justice Thomas concurred in the judgment in Williams
based on his conclusion that the DNA-profile report "lacked
the requisite 'formality and solemnity' to be considered
'testimonial' for purposes of the Confrontation Clause."
Williams, ___ U.S. at ___, 132 S. Ct. at 2255 (Thomas, J.,
concurring in the judgment). Justice Thomas, however,
"shar[ed] the dissent's view of the plurality's flawed
analysis." Id.
In light of the fractured nature of the decision in
Williams, it is not clear how the United States Supreme Court
will treat forensic reports under the Confrontation Clause.
Justice Kagan concluded her dissenting opinion in Williams as
follows:
"[The]
clear
rule
[of
Confrontation
Clause
precedent] is clear no longer. ... What comes out
of four Justices' desire to limit Melendez-Diaz and
Bullcoming in whatever way possible, combined with
one Justice's one-justice view of those holdings, is
—- to be frank —- who knows what. Those decisions
apparently no longer mean all that they say. Yet no
one can tell in what way or to what extent they are
altered because no proposed limitation commands the
support of a majority."
___ U.S. at ___, 132 S.Ct. at 2277 (Kagan, J., dissenting).
See also United States v. Pablo, 696 F.3d 1280, 1293 (10th
Clause
cases
and with Melendez-Diaz's rejection of a forensic-
testing exception. Nonetheless, the Williams plurality did
not overrule or expressly reject any portion of the holdings
of Crawford, Melendez-Diaz, or Bullcoming.
14
1100963
Cir. 2012) (noting that, in light of the divided opinions in
Williams, admission of forensic reports over a Confrontation
Clause objection "is a nuanced legal issue without clearly
established bright line parameters").
12
D. Analysis
In light of the foregoing, a case can be made for both
sides of the issue whether the DNA-profile report in this case
is "testimonial" under the "holdings" of Melendez–Diaz,
Bullcoming, and Williams. The issue is a challenging one. We
need not resolve it, however, because we agree with the trial
court that, in this case, the Confrontation Clause was
satisfied by the testimony of Kokoszka, a Cellmark employee
who supervised and reviewed the DNA testing and who signed the
DNA-profile report.
In Marks v. United States, 430 U.S. 188, 193 (1977), the
12
Supreme Court stated that "[w]hen a fragmented Court decides
a case and no single rationale explaining the result enjoys
the assent of five Justices, 'the holding of the Court may be
viewed as that position taken by the Members who concurred in
the judgment on the narrowest grounds.'" In Johnson v. Board
of Regents of University of Georgia, 263 F.3d 1234, 1248 n.12
(11th Cir. 2001), the United States Court of Appeals for the
Eleventh Circuit concluded that the "Supreme Court has not
compelled us to find a 'holding' on each issue in each of its
decisions. On the contrary, the Court has indicated that
there may be situations where even the Marks inquiry does not
yield any rule to be treated as binding in future cases."
(Citing Nichols v. United States, 511 U.S. 738, 745-46
(1994).) Given the 4-1-4 split and the nature of the view of
the
Confrontation
Clause
expressed
by
Justice
Thomas,
Williams
may be such a case.
15
1100963
The United States Supreme Court has not squarely
addressed whether the Confrontation Clause requires in-court
testimony from all the analysts who have participated in a set
of forensic tests, but Bullcoming and Williams suggest that
the answer is "no." In Bullcoming, the Supreme Court held:
"[S]urrogate
testimony
[through
the
in-court
testimony of a scientist who did not sign the
certification or perform or observe the test
reported in the certification] does not meet the
constitutional requirement. The accused's right is
to be confronted with the analyst who made the
certification, unless that analyst is unavailable at
trial, and the accused had an opportunity, pretrial,
to cross-examine that particular scientist."
___ U.S. at ___, 131 S. Ct. at 2710.
Justice Sotomayor noted in her special writing in
Bullcoming concurring in part that the analyst who testified
was not "a supervisor, reviewer, or someone else with a
personal, albeit
limited,
connection to the scientific test at
issue." ___ U.S. at ___, 131 S.Ct. at 2722 (Sotomayor, J.,
concurring in part). She also stated that "it would be a
different case if, for example, a supervisor who observed an
analyst conducting a test testified about the results or a
report about such results." Id.
Likewise, the dissenting opinion in Williams suggested
that the dissenters' approach to the Confrontation Clause
16
1100963
would not require testimony from every person who had
participated in the analytical process. The dissent stated:
"But none of our cases -- including this one -- has
presented the question of how many analysts must
testify about a given report. (That may suggest that
in
most
cases
a
lead
analyst
is
readily
identifiable.) The problem in the cases ... is that
no analyst came forward to testify."
Williams, ___ U.S. at ___ n. 4, 132 S.Ct. 2273 n. 4
(Kagan, J., dissenting).
We conclude that Kokoszka's testimony in this case
satisfied the purpose of the Confrontation Clause. Kokoszka
signed the DNA-profile report and initialed each page of
Cellmark's "case file" that was also admitted into evidence.
Kokoszka testified that he was one of the individuals taking
responsibility for the work that resulted in the report and
that he had reviewed each of the analyses undertaken to
determine that they were done according to standard operating
procedures and that the conclusions drawn were accurate and
appropriate. Kokoszka's testimony at trial
provided
Ware with
an opportunity to cross-examine Kokoszka about any potential
errors or defects in the testing and analysis, including
errors committed by other analysts who had worked on the case.
The trial court found that Kokoszka's testimony satisfied the
requirements of the Confrontation Clause. We agree.
17
1100963
Based on the foregoing, we affirm the decision of the
Court of Criminal Appeals to the extent that it affirmed
Ware's conviction for first-degree rape and the life sentence
imposed on that conviction.
III. Sufficiency of the Evidence
A. Standard of Review
"'Appellate courts are limited in reviewing a
trial court's denial of a motion for judgment of
acquittal grounded on insufficiency.' 'The standard
of review in determining sufficiency of evidence is
whether
evidence
existed
at
the
time
[the
defendant's] motion for acquittal was made, from
which the jury could by fair inference find the
[defendant] guilty.' In determining the sufficiency
of the evidence, we view the evidence in the light
most favorable to the State."
Ex parte Burton, 783 So. 2d 887, 890–91 (Ala. 2000) (citations
omitted). In order to find a defendant guilty, the jury must
find that the State proved each and every element of the
offense charged beyond a reasonable doubt. See, e.g.,
Ex parte Brown, 74 So. 3d 1039, 1052 (Ala. 2011); Goodwin v.
State, 728 So. 2d 662, 671 (Ala. Crim. App. 1998) ("'It is
fundamental that in a criminal prosecution the burden is on
the state to prove beyond a reasonable doubt each and every
element of the offense charged.'" (quoting Hall v. State, 607
So. 2d 369, 373 (Ala. Crim. App. 1992))).
18
1100963
B. Analysis
This Court granted certiorari review as to Ware's
assertion that the Court of Criminal Appeals' judgment on his
burglary and robbery convictions conflicted with Thornton v.
State, 883 So. 2d 733, 736-37 (Ala. Crim. App. 2003), which
noted that "'"there must be substantial evidence tending to
prove all the elements of the charge."'" (Quoting Ex parte
Mitchell, 723 So. 2d 14, 15 (Ala. 1998), quoting in turn
H. Maddox, Alabama Rules of Criminal Procedure § 20.1, at 734
(2d ed. 1994).) Actual possession or use of a "deadly
13
weapon" or a "dangerous instrument," as those terms are
defined in the relevant statutes, is an element of both the
robbery and burglary offenses of which Ware was convicted.
Elaborating on the "substantial evidence" requirement,
13
the court in Thornton quoted with approval from this Court's
opinion in Ex parte Mitchell, 723 So. 2d 14 (Ala. 1998):
"'Rule 20.1(a), Ala. R. Crim. P., requires that
a motion for a judgment of acquittal be granted as
to
any
offense
"for
which
the
evidence
is
insufficient to support a finding of guilty beyond
a reasonable doubt." One commentator explains:
"There must be substantial evidence tending to prove
all the elements of the charge, and the burden is on
the State to prove beyond a reasonable doubt that
the crime has been committed and that the defendant
was the person who committed it." H. Maddox,
Alabama Rules of Criminal Procedure § 20.1, at 734
(2d ed. 1994).'"
Thornton, 883 So. 2d at 736-37 (quoting Mitchell, 723 So. 2d
at 15).
19
1100963
Ware contends that L.M.'s testimony —- that she "thought" she
felt "something sharp" in Ware's back pocket —- did not amount
to substantial evidence sufficient to prove beyond a
reasonable doubt that Ware actually was armed with a "deadly
weapon" or a "dangerous instrument" as those terms are
statutorily defined.14
As to the robbery conviction, Ware was charged and
convicted of robbery in the first degree under the following
provisions of § 13A-8-41:
"(a) A person commits the crime of robbery in
the first degree if he violates Section 13A-8-43 and
he:
"(1) Is armed with a deadly weapon or
dangerous instrument ...."
To aid the State in proving the element of being armed with a
deadly weapon or dangerous instrument, the statute provides
that certain conduct by the defendant constitutes prima facie
Justice Shaw seeks to re-frame the question before us,
14
asserting at the outset of his special writing that "[t]he
main opinion holds that a rational juror could not conclude
that a sharp object in the pocket of the pants of a man
committing burglary, robbery, and rape was a deadly weapon."
___ So. 3d at ___ (Shaw, J., concurring in part and dissenting
in part). We do not so hold; the question before us is not
whether a rational juror could have concluded that a sharp
object is a deadly weapon. Instead, as stated, the question
we must, and do, decide is whether there was sufficient
evidence introduced in this case that the object in the pocket
of this man was a "deadly weapon" or "dangerous instrument,"
as those terms specifically are defined in § 13A-1-2(7) and
(5), Ala. Code 1975, respectively.
20
1100963
evidence that the defendant was so armed. Subsection (b)
provides:
"(b) Possession then and there of an article
used or fashioned in a manner to lead any person who
is present reasonably to believe it to be a deadly
weapon or dangerous instrument, or any verbal or
other representation by the defendant that he is
then and there so armed, is prima facie evidence
under subsection (a) of this section that he was so
armed."
(Emphasis added.)
The Code of Alabama defines "deadly weapon" as a "firearm
or anything manifestly designed, made, or adapted for the
purposes of inflicting death or serious physical injury."
§ 13A-1-2(7), Ala. Code 1975 (emphasis added). A "dangerous
15
As Justice Shaw notes, § 13A-1-2(7) also provides that
15
the term "deadly weapon" includes certain types of knives,
including a "switch-blade knife" and a "gravity knife." ___
So. 3d at ___. There is no evidence indicating that, if there
was a sharp object in Ware's back pocket, it was one of those
particular types of knives.
Justice Shaw also observes that "any sharp object can be
'manifestly designed, made, or adapted for the purposes of
inflicting death or serious physical injury.'" ___ So. 3d at
___ (last emphasis in original). This is true, but this is
not the test. If it were, then it would be sufficient that an
assailant have on his or her person a set of car keys, an ink
pen, a pencil, or a even a cellular telephone or a pair of
eye-glasses that could be broken so as to create a sharp edge
or object. Indeed, almost any article of clothing worn by any
defendant in any robbery or assault could be adapted for use
in strangling a victim. It is critical to keep in mind,
therefore, that the legislature had in mind not what "can be
'... adapted for the purposes of inflicting death or serious
physical injury,'" which would mean that almost any robbery
would be an "armed" robbery, but what is "designed, made or
21
1100963
instrument" is defined as "any instrument, article, or
substance which, under the circumstances in which it is used,
attempted to be used, or threatened to be used, is highly
capable of causing death or serious physical injury." § 13A-
1-2(5), Ala. Code 1975 (emphasis added).
Subsection (b) addresses two types of conduct by the
defendant that constitute
prima facie evidence of being armed:
(1) possession of an "article used or fashioned in a manner to
lead a person reasonably to believe it to be a deadly weapon
or dangerous instrument" or (2) a representation by the
defendant that he is so armed.
Ware's indictment alleged that Ware had in his possession
a "knife or other sharp object" at the time the offenses were
committed. No knife or other sharp object was found at the
16
scene or introduced into evidence, and there was no evidence
indicating that L.M. actually saw a knife or similar object.
Nor was there any evidence indicating that Ware made any
adapted" for such purpose, and "manifestly" so. This is
consistent with the legislature's
providing a list of examples
in § 13A-1-2(7) that reads as follows: "a pistol, rifle, or
shotgun; or a switch-blade knife, gravity knife, stiletto,
sword, or dagger; or any billy, black-jack, bludgeon, or metal
knuckles."
There was no allegation in the indictment, and no
16
evidence
introduced
at
trial,
that
Ware
made
any
representation to L.M. that he had in his possession a knife
or other deadly weapon or dangerous instrument.
22
1100963
"verbal or other representation" to L.M. that he was so armed.
The only evidence as to whether Ware was armed was L.M.'s
testimony that, as she was flailing her arms, she "thought"
she felt "something sharp" in Ware's back pocket. Thus, in
the present case, the State sought to meet the requirement for
establishing a prima facie case under § 13A-8-41(b) by proving
that Ware possessed an article that was "used or fashioned in
a manner to lead a person reasonably to believe it to be a
deadly weapon or dangerous instrument."
L.M. did not testify that she saw or felt "a knife," only
that while she "was flailing [her] arms around ... [she] felt,
[she] thought, something sharp in [Ware's] back pocket." L.M.
did not testify as to what, exactly, she thought the
"something sharp" in Ware's pocket was, nor did she provide
any details regarding what she felt (size, approximate shape,
etc.). This testimony, even when viewed in the light most
favorable to the State, is not substantial evidence that would
support a finding beyond a reasonable doubt of the "deadly
weapon" element of the offense of first-degree robbery,
especially when one considers that § 13A-1-2(7) defines a
deadly weapon as that which is "manifestly designed, made, or
adapted" for the purpose of "inflicting death or serious
physical injury." Likewise, this testimony, even when viewed
23
1100963
in the light most favorable to the State, is not substantial
evidence in support of a finding beyond a reasonable doubt
that Ware was
armed with a "dangerous instrument," considering
the definition of this latter term as limiting it to
instruments that, under the circumstances in which they are
"used, attempted to be used, or threatened to be used," are
"highly capable of causing death or serious physical injury."
See § 13A-1-2(5).
17
As for the State's attempt to rely upon the provisions of
§ 13A-8-41(b), proof beyond a reasonable doubt of the
requirements
prescribed
by
that
subsection
requires
not
merely
Justice Shaw cites Ex parte Williams, 780 So. 2d 673
17
(Ala. 2000), for the proposition that, because a can of beans
or peas in that case was considered a "dangerous weapon," we
likewise must consider the "sharp object" L.M. thought she
felt in Ware's back pocket to have been a "deadly weapon" or
"dangerous instrument." ___ So. 3d at ___ n. 21. Ex parte
Williams, however, is distinguishable in relation to the
requirements imposed by the relevant statutes. The Court
explained in Ex parte Williams that "[the victim] said the man
... grabbed some canned 'beans or peas from a shelf' and began
hitting her with the can or cans." 780 So. 2d at 674
(emphasis added). More specifically, the Court accepted the
treatment of the can as a dangerous instrument "used as the
robbery victim says the robber in this case used a can (or
cans) of peas or beans." Id. at 674 (emphasis added). In
contrast, in the present case, there was no evidence
indicating that Ware ever removed from his pocket whatever it
was that L.M. "thought" she felt there and, specifically, no
evidence indicating that it was ever "used" or "manifestly ...
adapted for the purpose of inflicting death or serious
physical injury." See §§ 13A-8-41(b) and 13A-1-2(5) and (7).
24
1100963
that the victim subjectively believed that the defendant
possessed a "deadly weapon" or "dangerous instrument," but
that he or she also "reasonably ... believed" this to be true.
The only evidence in this case of either a "subjective belief"
or a "reasonable belief" that Ware possessed a "deadly weapon"
or a "dangerous instrument," as those terms are defined, is
L.M.'s limited testimony that, as she was flailing about, she
happened to feel, "she thought," "something sharp" in Ware's
back pocket. Such testimony is simply too limited, vague, and
equivocal to support a finding beyond a reasonable doubt of
the "deadly weapon" or "dangerous instrument" element
necessary for a conviction for first-degree armed robbery.18
We conclude that the State did not present sufficient
evidence to support a finding beyond a reasonable doubt of the
"armed" element of first-degree robbery. Accordingly, the
trial court should have granted Ware's motion for an acquittal
on the
first-degree-robbery
charge because one of the elements
of that offense was not proven.
Common experience suggests that there are numerous
18
objects that might feel "sharp" when felt through the pocket
of another person's pants. Although many such items might be
adapted for use as a weapon under certain circumstances, most
of those items would not constitute "deadly weapons" or
"dangerous instrumentalities" as those terms are defined in
the statute.
25
1100963
As to the first-degree-burglary conviction, the version
of § 13A-7-5 in effect at the time of the offense in 1993
included as an element of the offense that the defendant be
armed with a deadly weapon or use or threaten the use of a
dangerous
instrument.
Specifically,
the
applicable
version
of
§ 13A-7-5 provided, in pertinent part:
"(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 dwelling or in immediate
flight therefrom, he or another participant in the
crime:
"(1) Is armed with explosives or a
deadly weapon; or
"....
"(3) Uses or threatens the immediate
use of a dangerous instrument."
(Emphasis added.) Significantly, § 13A-7-5 contained no
analog to the provision in § 13A-8-41(b) regarding conduct
that constitutes prima facie evidence that the defendant was
armed.
To convict Ware of first-degree burglary under the above-
quoted provision, the State was required to prove that he was
armed with a deadly weapon or that he used or threatened the
immediate use of a dangerous instrument. As noted, there was
26
1100963
no evidence indicating that Ware made any threat or used a
knife or similar object.
In
this
case,
the
sufficiency-of-the-evidence
issue
turns
on whether Ware was armed with a "knife or other sharp object"
constituting a deadly weapon. As discussed in connection with
the robbery conviction, the fact that L.M. felt, "she
thought," "something sharp" in Ware's pants pocket is not
sufficient to prove beyond a reasonable doubt that Ware was
armed with a deadly weapon. Only through conjecture or
speculation could one say that an unidentified "sharp" object
was a knife or similar deadly weapon.
We conclude that the State did not present sufficient
evidence to support a finding beyond a reasonable doubt of the
"armed" element of first-degree burglary under the version of
§ 13A-7-5 in effect at the time of the offense. Accordingly,
the trial court should have granted Ware's motion for an
acquittal on the first-degree-burglary charge because one of
the elements of that offense was not proven.19
As to both the robbery and the burglary convictions, the
19
State does not suggest in its brief to this Court what the
"something sharp" that L.M. thought she felt was. The State
does, however, contend that the towel and plastic bag used in
the rape were also "dangerous instrumentalities." Id. That
contention
fails
because Ware's indictment
alleged that he was
armed with a knife or sharp object. Further, the record does
not reflect that Ware used those objects for any purpose other
than covering L.M.'s eyes.
27
1100963
Although the trial court erred in denying Ware's motion
for a judgment of acquittal on the first-degree-robbery and
first-degree-burglary offenses, it appears that the State
presented substantial evidence to support a conviction for a
lesser-included offense to each of the robbery and burglary
charges (third-degree robbery under § 13A-8-43, Ala. Code
1975, and
second-degree
burglary under § 13A-7-6(b), Ala. Code
1975). We therefore find it appropriate to remand the cause
for the trial court to enter judgment as to those lesser-
included offenses and to impose appropriate sentences. See
Ex parte Edwards, 452 So. 2d 508, 510 (Ala. 1984) ("'State and
federal appellate courts have long exercised the power to
reverse a conviction while at the same time ordering the entry
of
judgment
on
a
lesser-included
offense.'"
(quoting
Dickenson
v. Israel, 482 F. Supp. 1223, 1225 (E.D. Wis. 1980))). See
also McMillan v. State, 58 So. 3d 849, 853 (Ala. Crim. App.
2010)
(reversing
conviction
for
first-degree
domestic
violence
because of insufficient evidence that deadly weapon was
involved and remanding case with instructions to enter
conviction on the lesser-included offense of second-degree
domestic violence).
28
1100963
IV. Conclusion
Based on the foregoing, we affirm Ware's conviction and
sentence as to the first-degree-rape charge. As to the first-
degree-burglary and first-degree-robbery charges, we reverse
the decision of the Court of Criminal Appeals and remand the
case for that court to direct the trial court to vacate those
convictions, to enter a judgment convicting Ware of the
applicable lesser-included offense as to each of the robbery
and burglary offenses, and to impose appropriate sentences.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS.
Parker, J., concurs.
Main, J., and Lyons, Special Justice,* concur in part and
concur in the result in part.
Moore, C.J., and Stuart, Bolin, Shaw, and Bryan, JJ.,
concur in part and dissent in part.
Wise, J., recuses herself.
*Retired Associate Justice Champ Lyons, Jr., was
appointed to serve as a Special Justice in regard to this
appeal.
29
1100963
LYONS, Special Justice (concurring in part and concurring in
the result in part).
I concur in the main opinion insofar as it affirms the
judgment of the Court of Criminal Appeals as to James Lee
Ware’s conviction and sentence for rape.
I concur in the result in the main opinion insofar as it
reverses the judgment of the Court of Criminal Appeals as to
Ware’s convictions and sentences for first-degree robbery and
first-degree burglary. The main opinion and Justice Shaw’s
special writing, dissenting from that portion of the main
opinion, focus on the sufficiency of the evidence as to the
state of mind of the victim, L.M., concerning the sharp object
she felt in a back pocket of Ware’s pants. I do not consider
that issue relevant.
In Part III of his petition for the writ of certiorari,
Ware refers to the Court of Criminal Appeals’ applying an
irrelevant statute and notes that there was no evidence
indicating that he threatened L.M. with, fashioned, or used an
object during the commission of the offense and no evidence
indicating that he made any overt act with respect to an
object. Ware’s brief argues that the record is devoid of any
evidence of threatening. Ware’s contentions are accurate.
With respect to first-degree robbery, § 13A-8-41(a), Ala.
Code 1975, provides:
30
1100963
"A person commits the crime of robbery in the first
degree if he violates Section 13A-8-43 and he:
"(1) Is armed with a deadly weapon or
dangerous instrument ...."
Section 13A-8-41(b), Ala. Code 1975, provides:
"(b) Possession then and there of an article
used or fashioned in a manner to lead any person who
is present reasonably to believe it to be a deadly
weapon or dangerous instrument, or any verbal or
other representation by the defendant that he is
then and there so armed, is prima facie evidence
under subsection (a) of this section that he was so
armed."
If Ware had been apprehended at the scene and found to have
had a knife on his person, the requisite element for first-
degree robbery would be satisfied without any inquiry into the
reasonable belief of the victim. Of course, that was not the
case here. The Court of Criminal Appeals relied upon
§ 13A-8-41(b) as the basis for an alternative means of proof
of a deadly weapon or dangerous instrument, thereby making the
victim’s belief relevant. The record reflects that the State
did not rely on § 13A-8-41(b) at trial.
The main opinion’s rationale for reversing the judgment
of the Court of Criminal Appeals on Ware’s robbery and
burglary convictions is the insufficiency of L.M.’s testimony
that she thought she felt something sharp as proof of a
reasonable belief of the presence of a deadly weapon or
dangerous instrument under § 13A-8-41(b). In effect,
31
1100963
according to the main opinion, L.M.’s belief as to the
presence of such an object is simply not reasonable.
Justice
Shaw’s
special
writing,
relying
on
the
alternative means of proof of the existence of a deadly weapon
or dangerous instrument in § 13A-8-41(b), observes:
"[T]he State can also meet its burden of showing
that a defendant was armed with a deadly weapon or
dangerous instrument by presenting evidence that the
perpetrator was in possession 'of an article used or
fashioned in a manner to lead any person who is
present reasonably to believe it to be a deadly
weapon or dangerous instrument ....' § 13A-8-41(b),
Ala. Code 1975."
___ So. 3d at ___ (second emphasis added). Justice Shaw then
bolsters the reasonableness of L.M.’s conclusion as to the
presence of such an article by relying on cases holding that
the victim need not actually see the object –- the deadly
weapon or dangerous instrument -- to conclude that one is
present. I am not persuaded that these cases apply here.
This is so because "used or fashioned" as that phrase appears
in § 13A-8-41(b) requires some conduct on Ware’s part. It is
undisputed that L.M.’s encounter with the sharp object was
initiated by her hand coming in contact with Ware’s back
pocket while he was raping her.
Justice Shaw includes a quote from Lucas v. State, 45
So. 3d 380 (Ala. Crim. App. 2009), that references cases in
which the victim had a reasonable belief concerning the object
32
1100963
or article found to be a deadly weapon or dangerous
instrument, but in all of those cases the defendant was an
actor with respect to the object or article that had
frightened the victim and was not passive with respect to such
object or article, as is the case here. See Dinkins v. State,
584 So. 2d 932 (Ala. Crim. App. 1991), in which the defendant
pointed something at the victim that looked like a gun;
Breedlove v. State, 482 So. 2d 1277 (Ala. Crim. App. 1985), in
which the defendant stuck an object in the victim’s side; and
James v. State, 549 So. 2d 562 (Ala. Crim. App. 1989), in
which the defendant had his hand in his pocket and gestured as
if he had a pistol. In Lucas, the defendant pointed a gun at
the victim that turned out to be a plastic toy. The quote
from Lucas includes a quote from Rice v. State, 620 So. 2d 140
(Ala. Crim. App. 1993), in which the victim saw a small brown
handle protruding from the defendant’s pocket and the
defendant said "don't make me pull this gun out." 620 So. 2d
at 141. The quote from Rice included in Lucas and quoted in
Justice Shaw’s special writing includes the following telling
statement from Breedlove, quoting with approval a Wisconsin
case: "It [the statute] focuses on the 'reaction of the
victim to the threats of the robber.' State v. Hopson, 122
Wis. 2d 395, 362 N.W.2d 166, 169 (1984)." 482 So. 2d at 1281
33
1100963
(emphasis added). In a footnote, Justice Shaw also relies
upon Ex parte Williams, 780 So. 2d 673 (Ala. 2000), in which
the defendant grabbed a can of beans and used it to hit the
defendant. As noted, there is no evidence here of a threat by
Ware involving the sharp object.
Assuming we could apply § 13A-8-41(b) even though it was
not relied upon by the State at trial, the absence of any
conduct by Ware with respect to the article beyond merely
having it on his person precludes application of § 13A-8-
41(b), i.e., the article was not "used or fashioned" in any
manner. I agree with Ware’s contention that the Court of
Criminal Appeals applied an irrelevant statute. I therefore
concur in the result as to the main opinion’s reversal of the
conviction for first-degree robbery.
If the
subjective
belief
of the victim reigns supreme, regardless of lack of activity
of the defendant with respect to the article causing fear that
the article is susceptible to being used or fashioned as a
deadly weapon or dangerous instrument, then § 13A-8-41(b)
would be available where the victim concluded that various
articles on the defendant’s person, such as a belt or a heavy
belt buckle or shoes or boots or a ballpoint pen or shirt
sleeves or a pant leg, might be so used or fashioned. The
scope of § 13A-8-41(b) is then cabined only by the imagination
34
1100963
of the victim, a result not consistent with the text of § 13A-
8-41(b).
Because of the inapplicability of § 13A-8-41(b) to the
robbery conviction, I do not reach the question whether it
could be applied in a prosecution for first-degree burglary,
as is urged by Justice Shaw. I therefore also concur in the
result as to the main opinion’s reversal of the Court of
Criminal Appeals’ affirmance of Ware’s conviction for first-
degree burglary.
Main, J., concurs.
35
1100963
MOORE, Chief Justice (concurring in part and dissenting in
part).
I concur as to the reversal of the Court of Criminal
Appeals' judgment affirming James Lee Ware's burglary and
robbery convictions because the State failed to prove that
Ware was armed with a deadly weapon or that he used or
threatened the immediate use of a dangerous instrument in
committing the offenses with which he was charged.
I dissent as to the affirmance of the Court of Criminal
Appeals'
judgment
affirming
Ware's
conviction
and
sentence
for
the rape charge. I believe the Confrontation Clause of the
Sixth Amendment to the United States Constitution was not
satisfied by the testimony of Jason Kokoszka, Ph.D., the
molecular
geneticist
for
Orchid
Cellmark
Laboratory
("Cellmark").
Kokoszka
supervised
and
reviewed
the
DNA
testing
and signed the DNA-profile reports prepared by Cellmark. He
also kept L.M.'s case file as Cellmark's custodian of records.
The Confrontation Clause guarantees that, "in all
criminal prosecutions, the accused shall enjoy the right ...
to be confronted with the witnesses against him." Amend. VI,
U.S. Constitution (emphasis added). As many as six Cellmark
technicians performed DNA tests on L.M.'s vaginal swabs. The
technicians who performed the DNA tests and prepared the DNA-
profile reports were "the witnesses against [Ware]." The
36
1100963
Confrontation Clause protects the accused's right to confront
the witnesses against him, not the witnesses' supervisor or
reviewer, or the custodian of records. Other than the DNA
evidence, no witnesses or evidence was presented that would
identify the rapist in this case. Under these facts, Ware has
been denied his Sixth Amendment right to cross-examine the
witnesses against him. I respectfully dissent as to that part
of the main opinion that in effect affirms Ware's conviction
for rape.
37
1100963
BOLIN, Justice (concurring in part and dissenting in part).
I concur as to Part II of the main opinion, which
affirms the decision of the Court of Criminal Appeals
upholding James
Lee
Ware's conviction for first-degree rape in
light of a Confrontation Clause challenge. I dissent as to
Part III, which reverses the Court of Criminal Appeals'
judgment on Ware's burglary and robbery convictions, and I
join Justice Shaw's well reasoned dissent concerning the
sufficiency of the evidence as to those two charges.
38
1100963
SHAW, Justice (concurring in part and dissenting in part).
I concur in affirming the decision of the Court of
Criminal Appeals affirming James Lee Ware's first-degree-rape
conviction.
As to that part of the main opinion that reverses the
decision of the Court of Criminal Appeals affirming the first-
degree-robbery
and
first-degree-burglary
convictions,
however,
I dissent. The main opinion holds that a rational juror could
not conclude that a sharp object in the pocket of the pants of
a man committing burglary, robbery, and rape was a deadly
weapon. I disagree.
The issue here concerns the sufficiency of the evidence.
Specifically, Ware claims that the evidence was insufficient
to show that he was armed with a deadly weapon and therefore
insufficient to support his convictions for first-degree
robbery and first-degree burglary.
"'"In determining the sufficiency of the
evidence to sustain a conviction, a reviewing court
must accept as true all evidence introduced by the
State, accord the State all legitimate inferences
therefrom, and consider all evidence in a light most
favorable to the prosecution. Faircloth v. State,
471 So. 2d 485 (Ala. Crim. App. 1984), aff'd, 471
So. 2d 493 (Ala. 1985)." Powe v. State, 597 So. 2d
721, 724 (Ala. 1991). It is not the function of this
Court to decide whether the evidence is believable
beyond a reasonable doubt, Pennington v. State, 421
So. 2d 1361 (Ala. Crim. App. 1982); rather, the
function of this Court is to determine whether there
is legal evidence from which a rational finder of
39
1100963
fact could have, by fair inference, found the
defendant guilty beyond a reasonable doubt. Davis v.
State, 598 So. 2d 1054 (Ala. Crim. App. 1992). Thus,
"[t]he role of appellate courts is not to say what
the facts are. [Their role] is to judge whether the
evidence is legally sufficient to allow submission
of an issue for decision [by] the jury." Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)
(emphasis original).'"
Ex parte Tiller 796 So. 2d 310, 312 (Ala. 2001) (quoting Ex
parte Woodall, 730 So. 2d 652, 658 (Ala. 1998)).
Accepting as true all the evidence introduced by the
State, according the State all legitimate inferences from the
evidence, and considering all the evidence in a light most
favorable to the State, the testimony at trial shows the
following: L.M. awoke sometime during the night with Ware on
top of her, holding a plastic bag over her face. The jury
heard the following testimony from L.M.:
"I was disoriented at first and very confused
about what was going on. And I realized that I was
awake and there was someone on top of me. And he
immediately started trying to push my legs apart and
pulling my -- I had shorts on -- and pulling my
shorts off and my underwear and trying to -- trying
to enter me sexually. And I started crying and
begging -- begging him to stop and to not hurt me.
I was flailing my arms and I felt, I thought,
something sharp in his back pocket, so I started
begging him not to kill me.
"And then he told me to put it in and I was
screaming and crying, no, no. And he tried to go
down and force himself on me orally, and I tried to
keep my legs pushed together and I was begging him
more. And then at some point he did enter me on top
of me ....
40
1100963
"....
"He told me to get up and he moved me over to my
dresser. And tried to put me on top of -- sit me on
top of my dresser and tried to physically enter me
that way but was unable to reach me. And then he
moved me off the dresser and laid me on top of my
bed face down and then he entered me vaginally that
way."
(Emphasis added.) Ware tied up L.M. and blindfolded her while
he raped her, and he retied her legs when he was done. L.M.
testified:
"He told me -- or he turned me over on my back
and retied my legs and told me not to move and be
quiet and then he left the bedroom. I heard him
leave the bedroom and I was trying to hear what was
going on. I heard him move around in my house. I
wasn't sure where he was and I was panicking because
I was afraid he was going to come back and hurt me,
kill me."
Ware stole various items from L.M.'s home, including jewelry
and her underwear.
To be convicted of first-degree robbery, the defendant
must be "armed with a deadly weapon or dangerous instrument
...." Ala. Code 1975, § 13A-8-41(a)(1). A "deadly weapon"
includes, but is not limited to, "a pistol, rifle, or shotgun;
or a switch-blade knife, gravity knife, stiletto, sword, or
dagger; or any billy, black-jack, bludgeon, or metal
knuckles." Ala. Code 1975, § 13A-1-2(7). The Code section
does not limit the definition to items that are weapons per se
but includes items fashioned to be used as a weapon: "anything
41
1100963
manifestly designed, made, or adapted for the purposes of
inflicting death or serious physical injury." Id. A sharp
object might not be a knife, but any sharp object can be
"manifestly designed, made, or adapted for the purposes of
inflicting death or serious physical injury." (Emphasis
added.)
This Court does not "decide whether the evidence is
believable beyond a reasonable doubt," Ex parte Woodall, 730
So. 2d 652, 658 (Ala. 1998) (citing Pennington v. State, 421
So. 2d 1361 (Ala. Crim. App. 1982)); instead, it looks here to
see whether there was sufficient evidence from which the jury
could conclude -- viewing all the evidence -- that the sharp
object in Ware's pocket was a deadly weapon.
I believe that the jury could legitimately infer from the
evidence that a sharp object -- when found in the possession
of a man committing the acts described above -- is a deadly
weapon. Ware broke into L.M.'s house at night while she was
asleep, covered her eyes, tied her up, and raped her, even
while she struggled against him and begged for her life. L.M.
told the jury that the sharp object caused her to believe that
Ware was going to hurt or kill her ("so I started begging him
not to kill me"). The jury in this case might have concluded
that a sharp object in the pocket of a random person on the
42
1100963
street might be one of "numerous objects" that are not deadly
weapons. But we are not reviewing such a hypothetical
scenario -- we are reviewing the evidence in the context
presented in this case. A rational juror could conclude
beyond a reasonable doubt that a sharp object was a deadly
weapon when it was found in the possession of a man intent on
rape, robbery, and burglary -- a man who broke into a home at
night, who blindfolded and tied his victim, and who ignored
her struggling and pleading and raped her. A juror could
readily, easily, and beyond a reasonable doubt believe that a
sharp object -- when in the possession of a man who planned
and executed these acts -- was a deadly weapon. It would
certainly not be irrational for a juror to so conclude.
The main opinion, however, appears to take the position
that the sharp object could have been one of "numerous
objects" that were not weapons. So. 3d at n. 18. But
to "accord the State all legitimate inferences" from the
evidence requires
me
to accept the jury's legitimate inference
that the sharp object was a weapon and forbids me from
accepting the alternate inference that it was not. Therefore,
I believe the evidence was sufficient under § 13A-8-41(a).
Under the first-degree-robbery Code section, the State
can also meet its burden of showing that a defendant was armed
43
1100963
with a deadly weapon or dangerous instrument by presenting
evidence that the perpetrator was in possession "of an article
used or fashioned in a manner to lead any person who is
present reasonably to believe it to be a deadly weapon or
dangerous instrument ...." § 13A-8-41(b), Ala. Code 1975.
That evidence is "prima facie evidence under subsection (a) of
this section that he was so armed." Id. This argument was
raised by the State on appeal to the Court of Criminal Appeals
and was relied on by that court. Ware, in his application for
rehearing to that court, did not challenge the use of this
Code section to affirm his conviction.
Because § 13A-8-41(b)
20
is addressed by the main opinion, I will address it as an
alternate means of affirming the Court of Criminal Appeals'
judgment.
When
it
comes
to
determining
whether
one
could
"reasonably believe" under § 13A-8-41(b) that an article is a
deadly weapon, the appellate courts look to the victim's
subjective perception:
"In determining whether there is sufficient
evidence to support a conviction for robbery in the
first degree, we look to the victim's perceptions:
Instead, Ware argued that the evidence was insufficient
20
to prove the existence of a deadly weapon under that Code
section.
44
1100963
"'In a prosecution for first degree
robbery, the robbery victim does not
actually have to see a weapon to establish
the element of force; his or her reasonable
belief that the robber is armed is
sufficient. Dinkins v. State, 584 So. 2d
932 (Ala. Crim. App. 1991); Breedlove v.
State, 482 So. 2d 1277 (Ala. Crim. App.
1985). The test to determine whether a
person reasonably believes that an object
is a deadly weapon is a "subjective" one.
James v. State, 549 So. 2d 562 (Ala. Crim.
App. 1989). "It focuses on the 'reaction of
the victim to the threats of the robber.'
State v. Hopson, 122 Wis. 2d 395, 362
N.W.2d 166, 169 (1984)." 482 So. 2d at
1281.'"
Lucas v. State, 45 So. 3d 380, 384 (Ala. Crim. App. 2009)
(quoting Rice v. State, 620 So. 2d 140, 141–42 (Ala. Crim.
App. 1993)). The fact that no weapon is seen is no barrier to
proving that the defendant was armed as described in § 13A-8-
41(b): "[U]nder Alabama law, the mere fact that the victim did
not actually see a weapon would not defeat a conviction for
first degree robbery." Breedlove v. State, 482 So. 2d 1277,
1281 (Ala. Crim. App. 1985).
Accepting as true all the evidence introduced by the
State, according the State all legitimate inferences from the
evidence, and considering all the evidence in a light most
favorable to the State, I must conclude that there is
sufficient evidence to show that the victim here reasonably
believed the sharp object in Ware's pants pocket was a deadly
45
1100963
weapon or dangerous instrument. Specifically, L.M. not only
21
felt a sharp object in Ware's pocket but feeling the object
also actually caused her to fear and beg for her life ("so I
started begging him not to kill me"). L.M. feared for her
life because she felt the sharp object in Ware's pocket. I
can reach no conclusion other than that L.M. subjectively
perceived that the sharp object in Ware's pocket was a weapon
he could use to kill her. I reach this conclusion because
that is a "legitimate inference" from her testimony: she felt
a sharp object in Ware's pocket, "so" she believed Ware might
kill her. Certainly, her testimony is sufficient evidence
from which the jury could have concluded the same beyond a
reasonable doubt.
Because the State presented sufficient evidence that,
under § 13A-8-41(a), Ware was armed with a deadly weapon, and
additionally, that L.M. reasonably believed that Ware was
Given that this Court has previously accepted without a
21
technical analysis that a can of beans or peas is a deadly
weapon or dangerous instrument for purposes of proving first-
degree robbery, I see no question whether a sharp object is
considered as such. Ex parte Williams, 780 So. 2d 673, 674
(Ala. 2000) ("In its unpublished memorandum, the Court of
Criminal Appeals stated that a can of vegetables, used as the
robbery victim says the robber in this case used a can (or
cans) of peas or beans, can constitute a 'dangerous weapon,'
within the meaning of that term as it is used in § 13A–8–41.
We agree. We think it unnecessary to further address
Williams's argument that he was not armed with a 'deadly
weapon or dangerous instrument.'").
46
1100963
armed with a deadly weapon under § 13A-8-41(b), I would affirm
the first-degree-robbery conviction. Further, because the
jury found that Ware was armed with a deadly weapon under §
13A-8-41 (either part (a) or (b)), such a finding is
sufficient to show that Ware was armed with a deadly weapon
for purposes of first-degree burglary under Ala. Code 1975, §
13A-7-5, as that Code section existed at the time of the
offense in 1993.
Stuart, Bolin, and Bryan, JJ., concur.
47 | January 17, 2014 |
c7eb6ee8-97e6-4a47-a1c3-74911e72689e | L.B. Whitfield, III Family LLC v. Whitfield et al. | N/A | 1110422 | Alabama | Alabama Supreme Court | REL: 02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1110422
____________________
L.B. Whitfield, III Family LLC
v.
Virginia Ann Whitfield et al.
Appeal from Montgomery Circuit Court
(CV-10-901528)
MURDOCK, Justice.
The L.B. Whitfield, III Family LLC ("the Family LLC")
appeals from a judgment entered by the Montgomery Circuit
Court that ordered the Family LLC to wind up its affairs
following its dissolution on the death of its sole member and
1110422
to return 22 shares of Class A voting stock in Whitfield
Foods, Inc. ("Whitfield Foods"), to Virginia Ann Whitfield,
Almeida Fair Whitfield Strawder, and Valerie Lee Whitfield
Puckett ("the sisters"). We affirm in part and reverse in
part the judgment of the trial court.
I. Facts and Procedural History
L.B. Whitfield III ("L.B.") was the father of the sisters
and of L.B. Whitfield IV ("Louie"). Whitfield Foods is a
1
food-processing and packing company established in 1906 that
has been owned by at least four generations of the Whitfield
family. At the time this action was filed, Louie was vice
president of administration for Whitfield Foods. He had
worked for the company for 20 years and had served on its
board of directors for 10 years.
According to a final order of the Montgomery Circuit
Court issued in 2001 in an action against L.B.'s estate not
directly related to the matter before us, L.B. owned 50% of
the voting stock in Whitfield Foods; his brother, Frank
Whitfield, owned the other 50% of the voting stock. Frank
Whitfield died in the mid-1990s and left his stock in trust to
Louie and the sisters have different mothers.
1
2
1110422
his son. The 2001 order states that after his brother's
death, L.B.
"had concerns about the [dilution] of his voting
stock if it passed to his children in equal shares.
On the advice of the Board of Directors [of
Whitfield Foods,] the L.B. Whitfield, III, Family
L.L.C., was formed in 1998. The purpose of forming
the company was to preserve the voting balance
between his stock and his brother's son's stock."
The parties agree that well before the formation of the
Family LLC, the sisters had come into ownership of a combined
22 shares of Class A voting stock in Whitfield Foods ("the
22 voting shares"). Virginia owned 14 shares, Valerie owned
2
4 shares, and Almeida owned 4 shares. Testimony in the trial
of this action revealed that the sisters obtained 11 of those
shares by virtue of their grandfather giving those 11 shares
to their mother; when L.B. and their mother divorced, the
settlement allotted the shares to the sisters: four to
Valerie Puckett, four to Almeida Strawder, and three to
Virginia Whitfield. Virginia Whitfield separately had
received 11 shares from the grandfather.
It appears that a total of over 2,500 shares of Class A
2
voting stock in Whitfield Foods were issued and outstanding at
all times relative to the dispute before us.
3
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On April 18, 1981, L.B. and the sisters entered into a
stock purchase agreement ("the 1981 agreement") in which the
sisters agreed to give their father, L.B., the 22 voting
shares in exchange for receiving twice as many shares -- 44 --
of Class B nonvoting stock in Whitfield Foods. The 1981
agreement provided that after L.B.'s death, "his heirs,
successors and assigns shall not, without the written consent
of the other, sell any of the twenty-two (22) shares of the
Voting Stock without first offering such shares to the
Sisters." It further provided that after L.B.'s death, within
90 days of "the date ten (10) years after the distribution of
the Voting Stock to the person, trust or other entity entitled
to receive the Voting stock from [L.B.'s] estate," the sisters
would have the right to reacquire the 22 voting shares "by
giving written notice of desire to reacquire the Voting Stock"
and by tendering as consideration the shares of Class B
nonvoting stock the sisters held.
On August 31, 1998, L.B. visited his daughters in
Mississippi and presented them with a handwritten paragraph
appended to the end of a copy of the 1981 agreement ("the 1998
cancellation agreement") that provided as follows: "All of
4
1110422
the undersigned agree that the foregoing stock purchase
agreement dated April 18, 1981 is canceled and is void
effective on this date and no party has any further rights or
obligations herein." The 1998 cancellation agreement bears
the signatures of L.B. and each of the sisters.
On October 7, 1998, L.B. formed the Family LLC. He
3
transferred 1,283.5 shares of Class A voting stock --
including the 22 voting shares -- and 870 shares of Class B
nonvoting stock in Whitfield Foods into the Family LLC.
The articles of organization of the Family LLC provided
that it was formed to, among other purposes, "purchase,
acquire, own, hold, vote, and otherwise deal with stock of
Whitfield Foods, Inc., and such other property to which such
The Alabama Limited Liability Company Act, codified at
3
§ 10-12-1 et seq., Ala. Code 1975, was enacted in 1997 and
became effective on January 1, 1998. It was amended and its
provisions renumbered by Act No. 2009-513, Ala. Acts 2009,
which became effective on January 1, 2011. Act No. 2009-513
renamed the law the Alabama Limited Liability Company Law,
§ 10A-5-1.01 et seq., Ala. Code 1975 ("the LLC Law"). The
trial court in its judgment and the parties in their briefs
cite and quote the provisions of the LLC Law, which became
effective after the events in issue here. The parties agree
that the provisions of law applicable in this case are not
substantively different than the provisions in force when the
events in issue occurred. Where appropriate, however, this
opinion will refer to provisions of the Alabama Limited
Liability Company Act.
5
1110422
stock may at any time be converted or as may become an asset
of the Company," and "to maintain property separate from
member's other assets." The articles of organization
designated L.B. as the sole "initial member" of the Family
LLC, and it named L.B. and Louie as the "managers" of the
Family LLC. The articles of organization stated that "[t]he
managers shall have the sole right to manage and conduct the
business" of the Family LLC.
On the same date on which the Family LLC was formed, L.B.
executed his will. The will made specific bequests of certain
property and provided that the residue of L.B.'s real and
personal property was to be divided in four equal shares to
Louie and each of the sisters.
On August 18, 2000, L.B. died. Louie was appointed
executor of L.B.'s estate in accordance with L.B.'s will.
Louie thereafter took several steps in his roles as executor
of L.B.'s estate and manager of the Family LLC that the Family
LLC contends were part of an effort to continue the Family LLC
in the wake of L.B.'s death. Those actions included:
(1) obtaining an employer-identification number necessary for
a multimember limited liability company; (2) opening a bank
6
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account for the dividends received on the shares of Whitfield
Foods held by the Family LLC; and (3) working with accountants
to establish capital accounts for himself and the sisters.
In 2003, a "Consent and Release" document was mailed to
and signed by all shareholders of stock in Whitfield Foods,
which approved a proposal that dividend payments would be made
only in Class B nonvoting stock. The document identified the
Family LLC as an owner of both Class A and Class B stock in
Whitfield Foods. The sisters received and signed copies of
this document.
On March 15, 2005, the sisters signed a consent to the
settlement of L.B.'s estate, which provided, in part, that
they acknowledged "receipt in full of the property devised to
me under the Will of said decedent" and that they "accept[ed]
service of notice of the filing of the petition for final
settlement." On April 13, 2005, Louie filed a petition for
final settlement of L.B.'s estate, in which Louie listed the
Family LLC as an asset "on hand" in the estate. On July 20,
2005, the Montgomery Circuit Court entered a "Decree on Final
Settlement" of L.B.'s estate, in which it stated that "the
accounting" of assets, receipts, and disbursements proffered
7
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in the petition "was accepted by the Court." In the same
4
order, the circuit court ruled upon a claim by L.B.'s wife at
the time of his death regarding whether she was entitled to a
portion of accumulated property in the estate. The order
describes the dispute over this claim as "[t]he only
substantive issue before the Court on Final Settlement."
Following the closing of the estate-administration
proceedings, Louie and the sisters each began receiving a 25
percent share of the dividends produced from the stock in
Whitfield Foods that had been placed in the Family LCC. Those
distribution checks were deposited in capital accounts that
had been established for each individual. K-1 federal tax
forms were issued with respect to the receipt of those
dividends.
On November 26, 2007, Virginia Whitfield sent an e-mail
to the president of Whitfield Foods in which she stated that
"the A [stock] is in the [Family] LLC." In 2008, Valerie
Puckett telephoned Louie and requested that the Family LLC
loan her $2,000. The Family LLC wired her the money, and
In 2001, L.B.'s wife at the time of his death had had the
4
administration of L.B.'s estate removed to the Montgomery
Circuit Court.
8
1110422
Puckett's next distribution check from the Family LLC was
adjusted down by $2,000 as repayment for the loan.
At one time, at least two of the sisters regularly
attended meetings of Whitfield Foods' board of directors.
Subsequently, the board of directors -- including Louie --
voted to bar the sisters from attending regular board meetings
and to prohibit them from working for Whitfield Foods. After
this vote, the only meeting the sisters were permitted to
attend was the annual meeting of the board.
On May 19, 2010, July 14, 2010, and October 5, 2010, the
sisters wrote letters to Louie requesting that he return the
22 voting shares to the sisters. In those letters, the
sisters expressly based their request upon the 1981 agreement
between L.B. and the sisters. As contemplated by that
agreement, the sisters stated that they would return the
shares of Class B nonvoting stock they had received from their
father in exchange for the 22 voting shares. The letters did
not mention the 1998 cancellation agreement purporting
to void
the 1981 agreement. Louie denied those requests.
On November 30, 2010, a complaint was filed in the
Montgomery Circuit Court in which the Family LLC was named as
9
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the plaintiff. The complaint sought a judgment declaring that
the sisters had no right to reacquire the 22 voting shares
then held by the Family LLC. On December 22, 2010, the
sisters filed an answer, a counterclaim against the Family
LLC, and a third-party complaint against Louie as manager of
the Family LLC. The sisters subsequently dismissed their
third-party complaint against Louie.
The counterclaim contained five counts. First, the
sisters sought a declaration that "the Sisters are entitled to
have their Non-Voting Stock exchanged for Voting Stock,
pursuant to the terms of the [1981] Agreement." Second, the
sisters requested that the trial court enter a preliminary
injunction to keep
"the Family LLC ... from depleting the assets of the
Family LLC, from taking any actions other than that
which is necessary and appropriate to wind up the
affairs of the Family LLC and distribute its assets
and requiring [it] to comply with the [1981]
Agreement by tendering the Voting Stock to the
Sisters according to the Agreement."
Third, the sisters requested an accounting from the Family
LLC. Fourth, the sisters claimed that the Family LLC had
breached the 1981 agreement by "fail[ing] and refus[ing] to
tender or deliver the Sisters' Voting Stock," even though the
10
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sisters had "abided by all of the terms of the [1981]
Agreement and ha[d] tendered their Non-Voting shares as
required by the [1981] Agreement." Finally, the sisters made
a
claim
for
conversion/wrongful
detention
because
"[u]nder
the
terms of the [1981] Agreement, [the] Sisters are entitled to
immediate possession of their shares of Voting Stock," and the
sisters "made a demand for the return of their shares of
Voting Stock but the Family LLC ... ha[s] failed and refused
to tender or deliver the Sisters' Voting Stock." The
complaint did not mention the 1998 cancellation agreement.
On January 21, 2011, the Family LLC filed an answer to
the sisters' counterclaim in which it raised, among other
things, the defenses of res judicata, laches, estoppel, and
waiver. On March 8, 2011, the Family LLC filed an amended
answer in which it pleaded additional defenses to the sisters'
counterclaims.
On April 4, 2011, the sisters filed an amended
counterclaim in which they withdrew the language of the second
count in their original complaint and in its place substituted
a request for a permanent injunction against the Family LLC
"ordering the [Family LLC] to take only those actions which
11
1110422
are necessary and appropriate to wind up the affairs of the
Family LLC and to distribute the Family LLC's assets and
further require the Family LLC to comply with the [1981]
Agreement by tendering the Voting Stock to the Sisters
according to the [1981] Agreement." The request was based on
the allegation that the Family LLC was "dissolved as both a
matter of law and according to the terms of the operating
agreement upon [L.B.'s] death[; therefore,] the
Family
LLC may
take only such actions as are necessary and appropriate under
Code of Alabama § 10-12-39 [now codified at § 10A-5-7.03] to
wind up the affairs of the Family LLC."
Both sides filed motions for a summary judgment, which
the trial court denied. On June 13, 2011, a two-day bench
trial commenced in which the trial court heard testimony from
several witnesses, including Louie and all the sisters. On
August 26, 2011, the trial court entered its "Order and
Judgment" on the matters before it. The trial court concluded
that the Alabama Limited Liability Company Law, § 10A-5-1.01
et seq., Ala. Code 1975 ("the LLC Law"), dictated that the
Family LLC
"was dissolved on August 18, 2000, and its existence
was not thereafter extended by an agreement in
12
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writing of the owners of the financial rights.
Alternatively, the Court finds that the [Family LLC]
was dissolved on July 19, 2005,[ ] and was not then
5
extended by an agreement in writing among all the
owners of the financial rights.
"The Court further finds that the affairs of the
[Family LLC] must be promptly wound up and its
assets distributed. The evidence shows that the only
tasks necessary to accomplish the winding up are for
the LLC, through its manager [Louie], to furnish an
accounting of the monies received and the payments
made since the date of dissolution on August 18,
2000."
The trial court also concluded that "the 1981 Agreement
was voided and cancelled on August 31, 1998." As a
consequence, the trial court ordered that the 22 voting shares
"originally belonging to [the sisters]" be returned to them,
so that Virginia would receive 14 shares, Valerie would
receive 4 shares, and Almeida would receive 4 shares. The
trial court ordered the sisters to return to the Family LLC
the 44 shares of Class B nonvoting stock they had received as
part of the 1981 agreement, and it ordered that those shares
were to be "distributed [to Louie and the sisters] in four
It is unclear, but immaterial, whether the trial court
5
could have used the date July 20, 2005, in this portion of its
judgment, that being the date on which it entered its "Decree
on Final Settlement" of L.B.'s estate, according to the record
before us.
13
1110422
equal shares." The trial court stated that the Family LLC,
"through its manager, shall then cause the transfer of all the
other stock held by the LLC, and any cash on hand, to [the
sisters] and [Louie], in equal shares." The trial court
provided a deadline for the accounting, and it ordered
articles of dissolution to be filed with the Montgomery County
Probate Court.
Subsequently, the Family LLC filed a motion for a new
trial, which the trial court denied. On December 20, 2011,
the Family LLC filed its notice of appeal to this Court.
II. Standard of Review
"'Where evidence is presented to the trial court ore
tenus, a presumption of correctness exists as to the
court's conclusions on issues of fact ....'
American Petroleum Equipment & Constr., Inc. v.
Fancher, 708 So. 2d 129, 132 (Ala. 1997). ...
Under the ore tenus rule of appellate review, this
Court will affirm a trial court's judgment if there
is substantial evidence of record supporting that
judgment. B.D. Nelson Land Dev., Inc. v. Jackson,
663 So. 2d 932, 932 (Ala. 1995).
"The
presumption
of
correctness
accorded
a
trial
court's judgment following a bench trial does not
extend to its decisions on questions of law.
Instead, this Court reviews such rulings on
questions of law de novo. Ex parte Keelboat
Concepts, Inc., 938 So. 2d 922, 925 (Ala. 2005); Ex
parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997)."
14
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Van Hoof v. Van Hoof, 997 So. 2d 278, 286 (Ala. 2007). The
same de novo standard applies to an appellate court's review
of a trial court's application of the law to the facts. See,
e.g., Ex parte Board of Zoning Adjustment of Mobile, 636
So. 2d 415, 417 (Ala. 1994).
III. Analysis
The Family LLC takes issue with the trial court's
conclusion that the Family LLC is dissolved and must wind up
its affairs, and it disagrees with the trial court's
conclusion that the Family LLC must return the 22 voting
shares to the sisters on the ground that the sisters are the
actual owners of that stock. The Family LLC first contends
that several affirmative defenses bar the sisters from
asserting that the Family LLC was dissolved upon L.B.'s death.
The Family LLC then contends that, even if its affirmative
defenses do not bar the sisters' dissolution argument, the
trial court erred in interpreting the LLC Law as effecting a
dissolution of the Family LLC. Finally, the Family LLC
contends that the trial court erred by enforcing the terms of
the 1981 agreement in light of the terms of the 1998
15
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cancellation agreement. We address each of these arguments in
turn.
A. The Affirmative Defenses
As a threshold matter, we note that, in considering the
affirmative defenses asserted by the Family LLC, it is
important to keep in mind the nature of the sisters'
counterclaim with respect to the alleged dissolution of the
Family LLC and the trial court's order in response to that
counterclaim. The Family LLC states that the sisters asserted
"[a] counterclaim seeking the dissolution of the Family LLC."
(Emphasis added.) In point of fact, the sisters' complaint
does not ask the trial court to dissolve the Family LLC; it
seeks an injunction to require the Family LLC to wind up its
affairs in recognition of what they argue is the LLC's
dissolution as a matter of law. Likewise, the trial court did
not order the Family LLC to dissolve; it recognized the Family
LLC as a dissolved company under the law and ordered it to
wind up its affairs.
The first affirmative defense asserted by the Family LLC
is that the sisters' "claim" of dissolution is barred by the
doctrine of res judicata. The Family LLC argues that the
16
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continuation of the Family LLC was adjudicated in the "Decree
of Final Settlement" of L.B.'s estate entered by the
Montgomery Circuit Court on July 20, 2005. This is so, the
Family LLC asserts, because that order approved the
distribution of assets of L.B.'s estate noted in the petition
for final settlement, and Exhibit A to the petition listed the
Family LLC as an asset "on hand." The Family LLC contends
that it therefore continued to exist, with a membership
interest, or a portion of L.B.'s membership interest, in it
being distributed to each of L.B.'s four children upon L.B.'s
death. (As will be discussed in Part III.B of this opinion,
infra, the sisters contend that they and Louie inherited only
"financial rights" in the Family LLC pending the wrapping up
of its affairs following the dissolution that occurred upon
L.B.'s death.) The Family LLC argues that the sisters could
have asserted that the Family LLC was dissolved during the
probate of L.B.'s will, but they did not do so.
In Equity Resources Management, Inc. v. Vinson, 723
So. 2d 634, 635 (Ala. 1998), this Court reviewed the four
elements of the defense of res judicata: "'(1) a prior
judgment on the merits, (2) rendered by a court of competent
17
1110422
jurisdiction, (3) with substantial identity of the parties,
and (4) with the same cause of action presented in both
actions.'" The Family LLC's invocation of the defense of res
judicata fails, at the least, because of the failure of the
fourth element.
The issue presented in the present case, whether the
Family LLC continued its normal existence following L.B.'s
death or whether his death was an act of dissolution leaving
for the Family LLC no proper function other than winding up
its affairs, was a not central or even a peripheral issue in
the probate of L.B.'s estate. The mere listing in the
petition for final settlement of the Family LLC as an asset
"on hand" in the estate did not constitute a determination
that L.B.'s children had acceded to the membership interest in
the Family LLC that L.B. held during his life, as opposed to
each of them merely acceding to a one-fourth interest in the
financial rights that remained upon the extinguishment of
L.B.'s membership interest in the Family LLC at his death.
Thus, the circuit court's entry of its "final decree" provides
no basis for the Family LLC's assertion of the defense of res
judicata as to the issue of its dissolution.
18
1110422
Next, the Family LLC contends that the sisters' "claim"
for dissolution of the Family LLC is barred by the doctrine of
laches. We first note that "[t]he applicability of the
doctrine of laches is 'dependent upon the particular facts and
circumstances' of each case," and that "[t]he
applicability
of
the doctrine is 'committed to the sound discretion of the
trial court.'" Horton v. Kimbrell, 819 So. 2d 601, 606 (Ala.
2001) (quoting Dear v. Peek, 261 Ala. 137, 141, 73 So. 2d 358,
361 (1954), and Wallace v. Hardee's of Oxford, Inc., 874 F.
Supp. 374, 377 (M.D. Ala. 1995)). "[T]he person asserting the
defense of laches [must] show (1) that the claimant delayed in
asserting his or her right, (2) that the delay was
inexcusable, and (3) that the delay caused the person
asserting the defense undue prejudice." Mills v. Dailey, 38
So. 3d 731, 735 (Ala. Civ. App. 2008). The Family LLC
contends that the sisters delayed 10 years in seeking a
declaration of the dissolution of the Family LLC and that this
delay prejudiced the Family LLC.
Again, however, the sisters do not seek in this action to
dissolve the Family LLC. They seek, in effect, merely a
recognition that the Family LLC was dissolved as a matter of
19
1110422
law upon L.B.'s death and an appropriate order requiring the
wrapping up of the affairs of Family LLC in recognition of
that dissolution. In addition to this fact, however, the
Family LLC does not establish that the delay it describes
constituted the kind of change in circumstances
the
invocation
of the doctrine of laches requires.
"'"'Laches, in legal significance, is not
mere delay, but delay that works a
disadvantage to another. So long as
parties are in the same condition, it
matters little whether one presses a right
promptly or slowly, within limits allowed
by law; but when, knowing his rights, he
takes no step to enforce them until the
condition of the other party has, in good
faith, become so changed that he cannot be
restored to his former state, if the right
be
then
enforced,
delay
becomes
inequitable, and operates as estoppel
against the assertion of the right. The
disadvantage
may
come
from
loss
of
evidence, change of title, intervention of
equities, and other causes; but, when a
court sees negligence on one side and
injury therefrom on the other, it is a
ground for denial of relief.' Stiness, J.,
in Chase v. Chase, 20 R.I. 202, 37 A. 804
[(1897)]." 5 Pom. Eq. Jur., § 21.
"'"Laches, as has been well said, does
not, like limitation, grow out of the mere
passage of time, but it is founded upon the
inequity of permitting the claim to be
enforced -- an inequity founded upon some
change in the condition or relation of the
property, or the parties. -- Galliher v.
20
1110422
Cadwell, 145 U.S. 368 [12 S.Ct. 873, 36
L.Ed. 738 (1892)]." First Nat. Bank
[Waller] v. Nelson, 106 Ala. 535, 18 So.
154 [(1895)]. See, also, Wise v. Helms,
252 Ala. 227, 230, 40 So. 2d 700 [(1949)];
Meeks v. Meeks, 251 Ala. 435, 437, 37 So.
2d 914 [(1948)]; Fanning v. Fanning, 210
Ala. 575, 576, 98 So. 804 [(1924)].'"
Sykes v. Sykes, 262 Ala. 277, 281-82, 78 So. 2d 273, 277
(1954) (quoting Hauser v. Foley & Co., 190 Ala. 437, 440-41,
67 So. 252, 253 (1914) (emphasis added)).
No condition between the parties changed between 2000 and
2010 that would make raising the issue of the dissolution of
the Family LLC in 2010 inequitable. The passage of time did
not make it more difficult for the Family LLC to address its
legal existence; if anything, its continued operation
strengthened its claim to legal existence.6
The Family LLC contends that the delay caused prejudice
6
to Louie, not to the Family LLC. Louie was dismissed as a
defendant to the sisters' claims, however, so it is irrelevant
whether the delay prejudiced him. Even if prejudice to Louie
did matter, the Family LLC's claims of prejudice do not
withstand scrutiny.
The Family LLC contends that Louie was prejudiced in not
being able to locate documents that could prove that the
sisters acquiesced to the continuation of the Family LLC and
that he was a member of the LLC. But Louie did not testify
that he had such documents and had lost them; he testified
that he could not find any such document and that he "could
have lost it." (Emphasis added.) He never stated that he had
21
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The
Family
LLC
also
argues
that
the
sisters'
"counterclaim seeking dissolution" should be barred by the
doctrine of equitable estoppel.
"To establish the essential elements of equitable
estoppel, [the proponent] must show the following:
"(1) That '[t]he person against whom
estoppel is asserted, who usually must have
knowledge
of
the
facts,
communicates
something in a misleading way, either by
words, conduct, or silence, with the
intention that the communication will be
acted on;'
"(2) That 'the person seeking to
assert estoppel, who lacks knowledge of the
facts, relies upon [the] communication;'
and
"(3) That 'the person relying would be
harmed materially if the actor is later
permitted to assert a claim inconsistent
with his earlier conduct.'"
seen such a document. The trial court understood Louie's
testimony to mean that no such document existed.
The Family LLC also argues that Louie was prejudiced by
spending 10 years' time and effort managing the Family LLC.
Even according to Louie's own testimony, however, this "work"
did not involve much time at all. It consisted of passing
through the
dividends from Whitfield Foods to shareholders and
having an accountant distribute K-1 tax forms. Thus, the
Family LLC failed to establish that the sisters' delay caused
even Louie to be in any materially different position than he
would have been in had L.B.'s death been recognized by the
parties at the time it occurred as an act of dissolution of
the Family LLC.
22
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Lambert v. Mail Handlers Benefit Plan, 682 So. 2d 61, 64 (Ala.
1996) (quoting General Elec. Credit Corp. v. Strickland Div.
of Rebel Lumber Co., 437 So. 2d 1240, 1243 (Ala. 1983)).
The elements of equitable estoppel are not present in
this case. Among other things, testimony from the sisters
indicates that the sisters were not aware that the Family LLC
was dissolved until they consulted counsel following the
initiation of this litigation by the Family LLC. Thus, the
evidence does not indicate that they had a knowledge of the
facts and intended to mislead the Family LLC. Further, the
evidence does not show that the sisters affirmatively agreed
to the continuance of the Family LLC; thus, they did not
communicate with the Family LLC in a misleading way.
7
Further, it cannot be said that the Family LLC (or Louie)
lacked knowledge of facts in this situation. If anything, the
Family LLC had access to more information than did the
sisters, and the Family LLC and its manager should have been
aware of the law that governed the existence of the Family
LLC. Nor do we see in this case the material harm required
under the third element of equitable estoppel as described
This issue is discussed more fully in Part III.B, infra.
7
23
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above. We conclude, therefore, that equitable estoppel is not
applicable in this case.
Next, the Family LLC contends that the sisters'
"counterclaim seeking dissolution" is barred by the doctrine
of "judicial estoppel."
"'The doctrine of judicial estoppel "applies to
preclude a party from assuming a position in a legal
proceeding
inconsistent
with
one
previously
asserted. Judicial estoppel looks to the connection
between the litigant and the judicial system[,]
while equitable estoppel focuses on the relationship
between the parties to the prior litigation."'
Jinright v. Paulk, 758 So. 2d 553, 555 (Ala. 2000)
(quoting Selma Foundry & Supply Co. v. Peoples Bank
& Trust Co., 598 So. 2d 844, 846 (Ala. 1992),
quoting in turn Oneida Motor Freight, Inc. v. United
Jersey Bank, 848 F.2d 414 (3d Cir. 1988))."
Ex parte First Alabama Bank, 883 So. 2d 1236, 1241 (Ala.
2003).
"[F]or judicial estoppel to apply (1) 'a party's
later position must be "clearly inconsistent" with
its earlier position'; (2) the party must have been
successful in the prior proceeding so that 'judicial
acceptance of an inconsistent position in a later
proceeding would create "the perception that either
the first or second court was misled"' (quoting
Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599
(6th Cir. 1982)); and (3) the party seeking to
assert an inconsistent position must 'derive an
unfair advantage or impose an unfair detriment on
the opposing party if not estopped.' New Hampshire
v. Maine, 532 U.S. [742,] 750-51, 121 S.Ct. 1808
[(2001)]."
24
1110422
Id. at 1244-45.
In contending that the sisters' position is barred by the
doctrine of judicial estoppel, the Family LLC essentially
reargues its res judicata defense by another name, arguing
that the sisters' current position is at odds with the
position they held in the estate proceeding. If anything,
framing this defense in terms of judicial estoppel fails more
readily than the Family LLC's assertion of the defense of
res judicata. The sisters never contended in the estate
proceeding that the Family LLC should continue or that they
were members of the Family LLC. We see no basis for the
assertion of the defense of judicial estoppel.
Finally, the Family LLC contends that the sisters "have
waived their right to seek dissolution" of the Family LLC.
The thrust of this argument is the same as that of the Family
LLC's other affirmative-defense claims, and the argument
suffers from essentially the same deficiencies as do those
claims. Among other things, as has been noted, the sisters do
not "seek dissolution" of the Family LLC in this case but,
instead, ask the trial court to recognize that the Family LLC
was dissolved as a matter of law upon L.B.'s death. We see no
25
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right regarding the dissolution of the LLC that has been
waived by the sisters.
B. Dissolution of the Family LLC
We turn next to the Family LLC's contention that the
trial court erred in concluding that the Family LLC was
dissolved in 2000 upon L.B.'s death. We conclude that the
circuit court correctly reached this conclusion through the
application of certain portions of the LLC Law.
The LLC Law distinguishes between membership in an LLC
and "financial rights" in an LLC. It defines a "member" of an
LLC as "[a] person reflected in the required records of a
limited liability company as the owner of some governance
rights of a membership interest in the limited liability
company." § 10A-5-1.02(7), Ala. Code 1975. "Governance
rights" are defined as "[a]ll a member's rights as a member of
a
limited
liability
company
except
financial
rights,
including
without limitation, the rights to participate in the
management of the limited liability company and to bind the
limited liability company as provided in Section 10A-5-3.03."
§ 10A-5-1.02(5), Ala. Code 1975 (emphasis added). "Financial
rights" are "[r]ights to a. share in profits and losses as
26
1110422
provided
in
Section
10A-5-5.03,
b.
receive
interim
distributions as provided in Section 10A-5-5.04, and c.
receive termination distributions as provided in Section
10A-5-7.05." § 10A-5-1.02(3), Ala. Code 1975.
The Family LLC contends that Louie and the sisters are
members of the Family LLC. In contrast, the sisters contend
that the Family LLC dissolved upon L.B.'s death and that they
and Louie inherited merely the "financial rights" associated
with the membership held by L.B. in the Family LLC before his
death. The sisters contend that they never agreed to become,
and never became, members of the Family LLC. The trial court
agreed with the sisters' position.
8
The articles of organization for the Family LLC list L.B.
as the only "member" of the Family LLC. They list L.B. and
Louie as managers of the LLC. Section 10A-5-6.06, Ala. Code
1975, of the LLC Law provides:
"(b) Subject to contrary provisions in the
operating agreement, or written consent of all
Among other things, the trial court correctly noted that
8
"the statutory scheme clearly envisions that membership in an
LLC must be sought and must be consented to; it does not
provide that people who do not desire to be in business with
each other can be made to do so without their consent." In
this regard, an LLC is similar to a partnership. See
discussion, infra.
27
1110422
members at the time, a person ceases to be a member
upon the occurrence of one or more of the following
events listed in the following subdivision or
paragraphs:
"....
"(3) In the case of a member who is an
individual:
"a. The member dies."
Section 10A-5-7.01, Ala. Code 1975, provides:
"A limited liability company is dissolved and
its affairs shall be wound up upon occurrence of the
first of the following events:
"....
"(3) When there is no remaining
member, unless either of the following
applies:
"a. The holders of all the
financial rights in the limited
liability
company
agree
in
writing, within 90 days after the
cessation of membership of the
last member, to continue the
legal existence and business of
the limited liability company and
to appoint one or more new
members.
"b. The legal existence and
business of the limited liability
company is continued and one or
more new members are appointed in
the
manner
stated
in
the
governing documents."
28
1110422
Obviously, L.B. ceased to be a member of the Family LLC
upon his death on August 18, 2000. The Family LLC does not
contend that anyone else had become a member of the Family LLC
before L.B.'s death.
The Family LLC argues, however, that Louie and the
sisters became members of the LLC as a result of a transfer of
membership interest made by Louie, in his capacity as personal
representative of L.B.'s estate. In support of this position,
the Family LLC relies upon § 10A-5-6.04(a)(1), Ala. Code 1975,
which provides:
"(1) If a member who is an individual
dies
or
if
a
court
of
competent
jurisdiction adjudges a member to be
incompetent to manage the member's person
or
property,
the
member's
personal
representative,
conservator,
legal
representative, heirs, or legatees may
exercise all the member's financial rights
for the purpose of settling the member's
estate
or
administering
the
member's
property, including any power the member
had to transfer the membership interest."
(Emphasis
added.)
The
Family
LLC
contends
that
§ 10A-5-6.04(a)(1) empowered Louie to transfer his father's
membership interest in the Family LLC to himself and his
sisters. The Family LLC argues that this is what Louie did
when he obtained an employer-identification number necessary
29
1110422
for a multimember limited liability company, opened a bank
account for the dividends received on the shares of stock in
Whitfield Foods held by the Family LLC, and worked with
accountants to establish capital accounts for himself and his
sisters.
There are several problems with this argument. To begin
with, it is important to note that § 10A-5-6.04(a)(1) does not
state that the personal representative of the estate of a
member of a limited liability company becomes a member of the
limited liability company upon the member's death; it states
that the personal representative may exercise the financial
rights of the member. As discussed below, it provides for
this exercise for only a limited purpose.
That said, the argument made by the Family LLC
misunderstands the relative roles of the provisions of § 10A-
5-6.04 and those of § 10A-5-7.01(3). The latter provision
addresses the circumstances under which a limited liability
company that "is dissolved" because "there is no remaining
member" may nonetheless remain in existence. Specifically,
§ 10A-5-7.01(3) specifies only two exceptions to the general
rule that the limited liability company "is dissolved" when
30
1110422
there is no remaining member. Again, this section begins by
clearly and affirmatively stating that
"[a] limited liability company is dissolved and
its affairs shall be wound up upon occurrence of the
first of the following events:
"....
(3) When there is no remaining member,
unless either of following applies ...."
Section 10A-5-6.04(a)(1), on the other hand, has a different
purpose. Its concern is with the decedent member's "financial
rights" as and to the extent those rights exist apart from
other aspects of the membership in the limited liability
company previously held by the decedent. Moreover, its
purpose is to allow a personal representative to exercise
those financial rights only "for the purpose of settling the
member's estate or administering the member's property," not
administering or effecting the continued existence of the
limited liability company itself.
Granted, the final clause of § 10A-5-6.04(a)(1) makes
reference to the "power the member had to transfer the
membership interest." This reference,
however, is included in
a conditional clause as a description of one of the powers
held by the personal representative in relation to "the
31
1110422
member's financial rights" only. That is, the clause is
intended simply to explain that the personal representative's
exercise of the member's financial right (again, for the
limited estate-administration purposes emphasized above)
includes the power to transfer those rights if and to the
extent the member had the power during his life to transfer
his or her interests to another. Thus it is that the
commentary to the section under which this provision was
previously codified, § 10-12-34(a)(1), Ala. Code 1975, states
9
that "[t]he personal representative may exercise only the
member's financial rights and does not have a right to
participate
in
management
[of
the
limited
liability
company]."
In short, we are clear to the conclusion that neither
L.B.'s estate nor Louie as the personal representative of
L.B.'s estate nor any transferee or appointee of Louie in his
capacity as the personal representative of the estate became
a "member" of the Family LLC upon L.B.'s death as a result of
or pursuant to any authority granted by the provisions of
§ 10A-5-6.04(a)(1).
The wording of § 10-12-34(a)(1) is identical to that of
9
§ 10A-5-6.04(a)(1).
32
1110422
The Family LLC must prevail, if at all, on its argument
that it continued its normal existence following L.B.'s death
by demonstrating that one of the two exceptions described in
subparagraphs a. and b. of § 10A-5-7.01(3) is applicable.
The Family LLC presents no argument as to subparagraph b. but
does contend that the exception described in subparagraph a.
is applicable.
Subparagraph a. requires that "[t]he holders of all the
financial rights" in the limited liability company agree in
writing to continue the legal existence and business of the
limited liability company and to appoint one or more new
members. The Family LLC contends that this requirement was
met when Louie, as L.B.'s personal representative, probated
L.B.'s will and, during the pendency of L.B.'s estate
proceeding, established a new employer-identification number
for the Family LLC, opened a bank account, and worked with
accountants to establish capital accounts for himself and his
sisters. In those actions, we see no "agree[ment] in writing"
of the nature contemplated by § 10A-5-7.01(3)a. Moreover,
even if those actions somehow did constitute an "agreement in
writing" for purposes of § 10A-5-7.01(3)a., they were
33
1110422
undertaken by Louie only in his capacity as personal
representative, when it was Louie in his individual capacity,
and his sisters, who acceded to the financial rights of L.B.
in the Family LLC under his will and who "all" would have had
to enter into the agreement in order to satisfy the terms of
§ 10A-5-7.01(3)a.10
The Family LLC asserts that the sisters' consent to the
final settlement of L.B.'s estate constituted such a writing,
but, as discussed, the final settlement clearly was not
directed to that purpose. (In addition, all the sisters
testified that they had no idea the final settlement
represented such consent.) Nor did the actions of the sisters
in respect to such matters as accepting dividends generated by
Whitfield Foods constitute an "agreement in writing" as
contemplated by the statute. (For that matter, and even to
the extent those distributions passed through the Family LLC,
the act of accepting such distributions did not justify a
Again, the authority granted a personal representative
10
under § 10A-5-6.04(a)(1) is only for the purpose of allowing
a personal representative to take steps necessary to
"settl[e]
the
member's
estate"
and
"administer[]
the
member's
property,"
not to allow the personal representative to determine whether
the limited liability company continues in its normal
existence and business and, if so, who will be its members.
34
1110422
conclusion that the sisters had acted in a manner explained
only by their consent to becoming members in the LLC, because
they were fully entitled to such distributions based solely on
their status as holders of "financial rights" in the Family
LLC.)
Our understanding of the meaning of the various
provisions of the LLC Law as set forth above is a function of
the plain language used in
those various statutory provisions.
This
understanding,
however,
is fully
buttressed
and
corroborated by the inherent nature of limited liability
companies and by fundamental principles attendant to their
formation and the acquisition of membership status in them.
Such principles require a rejection of the notion embedded
throughout the Family LLC's attempt to interpret those
provisions differently
–-
that somehow the sisters could agree
to the continuation of the Family LLC and/or become members of
it by implication or by Louie's actions rather than their own
actions and consent. The nature of limited liability
companies and the fundamental principles discussed below do
not allow for such possibilities.
35
1110422
In Steele v. Rosenfeld, LLC, 936 So. 2d 488 (Ala. 2005),
this Court discussed whether an individual could become a
member of a limited liability company by implication. The
Steele Court noted that this Court has "'held that a
partnership "is never established by implication or operation
of law,"'" and it concluded that the provisions concerning
limited liability companies "are fully consistent with this
rule" and that there is "no reason to apply a different rule
in the context of a limited liability company. See Ala. Code
1975, § 10-12-8(a) [recodified at § 10A-5-1.06(a)] (providing
that, for statutory purposes, limited liability companies are
generally treated as partnerships)." 936 So. 2d at 495
(quoting Vergos v. Waterman Building P'ship, 613 So. 2d 383,
389 (Ala. 1993), quoting in turn Waters v. Union Bank of
Repton, 370 So. 2d 957, 960 (Ala. 1979)). More specifically,
the Steele Court concluded that, "[u]nder § 10-12-33(a)(1)
[now codified at § 10A-5-6.03], membership accretion must be
'evidenced by a written instrument, dated and signed' by all
the existing members." 936 So. 2d at 495. The law requires
written documentation of consent to membership in a limited
liability company. At least as to the sisters, there is no
36
1110422
evidence in writing indicating that they consented to become
members of the Family LLC. As the trial court concluded, the
Family LLC failed to prove
"that the [sisters] can be forced to be members of
the [Family] LLC and their stock remain in that
entity under their brother's control. The statutory
scheme clearly envisions that membership in an LLC
must be sought and must be consented to; it does not
provide that people who do not desire to be in
business with each other can be made to do so
without their consent."
Because there was no agreement in writing by all the
holders of the financial rights in the Family LLC to continue
the Family LLC's business, the exception to dissolution
prescribed by § 10A-5-7.01(3)a. is not applicable. As the
trial court concluded, the Family LLC "is dissolved and its
affairs shall be wound up." Section 10A-5-7.05, Ala. Code
11
1975, requires that, "[u]pon the winding up of a limited
liability company, the
assets
of the limited liability company
shall be distributed ...." Thus, the trial court also
correctly required the Family LLC to provide an accounting of
The operating agreement of the Family LLC does not
11
purport to provide for any result different than the result
required by the statute, stating that, "[u]pon the occurrence
of a Dissolution Event, the Company shall cease carrying on
its business, except insofar as many be necessary for the
winding up thereof." Operating Agreement, Art. XVI., § 16.2.
37
1110422
its finances and to distribute its assets, specifically, the
stock held by it in Whitfield Foods, in equal shares to L.B.'s
four children.
C. Distribution of the 22 Voting Shares
The Family LLC contends that, even if the trial court was
correct in finding that the Family LLC had dissolved upon
L.B.'s death and in ordering it to wind up its affairs, the
trial court still erred in ordering the Family LLC to
distribute the 22 voting shares solely to the sisters. The
Family LLC argues that the sisters' claims for the return to
them of the 22 voting shares are based upon the 1981
agreement. The Family LLC argues that the evidence at trial
revealed that, effective August 31, 1998, the 1981 agreement
was canceled by the 1998 cancellation agreement so that no
party had any "further obligation" under that agreement. The
Family LLC states that, despite the cancellation of any
further obligations under the 1981 agreement, the trial court
nonetheless "ordered the Family LLC to effectively honor the
'Right to Reacquire The Stock' provision in the canceled Stock
Purchase Agreement and to distribute the 22 Voting Shares to
38
1110422
the [sisters,] who were, in turn, ordered to transfer the
44 shares of non-voting stock into the Family LLC." Id.
It appears that the trial court concluded that the 1998
cancellation agreement constituted a rescission of the 1981
agreement. "When a rescission of a contract occurs ... 'the
proper remedy is to restore all parties to the status quo
ante, and each party should be placed in the position that
party would have occupied had the conveyance not been made.'"
Kellis v. Estate of Schnatz, 983 So. 2d 408, 413 (Ala. Civ.
App. 2007) (quoting Clark v. Wilson, 380 So. 2d 810, 812 (Ala.
1980)). Accordingly, the trial court ordered the sisters to
return the 44 shares of Class B nonvoting stock to the Family
LLC in exchange for receiving the 22 voting shares.
As we noted in the rendition of the facts, the 1998
cancellation agreement provided: "All of the undersigned
agree that the foregoing stock purchase agreement dated April
18, 1981 is canceled and is void effective on this date and no
party has any further rights or obligations herein." The
Family LLC contends that the phrase "no party has any further
rights or obligations" under the 1981 agreement means that the
parties were merely canceling all unperformed obligations
39
1110422
under that agreement, including the "Right to Reacquire the
Stock" provision therein. This would have meant that L.B.
would keep 22 voting shares and the sisters would keep the
44 nonvoting shares.
"It is well settled that parties to a written
contract may by mutual consent and without other
consideration rescind their contract. Watson v.
McGee, 348 So. 2d 461 (Ala. 1977). Whether the
parties rescinded their contract poses a question of
fact to be determined from their intent as clearly
manifested in their words, acts, or conduct.
San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469,
305 So. 2d 374 (1974)."
Henderson v. Winkler, 454 So. 2d 1358, 1361 (Ala. 1984)
(emphasis added). See also San-Ann Serv., Inc. v.
Bedingfield, 293 Ala. 469, 472, 305 So. 2d 374, 377 (1974)
(stating that "a contract may be rescinded or discharged by
acts or conduct of the parties inconsistent with the continued
existence of the contract and mutual assent to abandon a
contract may be inferred from the attendant circumstances and
conduct of the parties" (emphasis added)).
In this case, the parties' "words, acts, [and] conduct"
all support the conclusion that the parties to the 1998
cancellation agreement did not intend to rescind the 1981
agreement in its entirety. First, the words of the 1998
40
1110422
cancellation
agreement
emphasized above are
at
least
consistent with a cancellation not intended to take effect
retroactively, but to be effective only "on this date" going
forward in the sense indicated by the ensuing language
agreeing that the parties were to have no "further rights or
obligations." Indeed, to state that "no party has any further
rights or obligations herein" appears to be an obtuse way, at
best, to say that the parties do in fact have some further
right and obligation, i.e., to receive and tender certain
stock shares between them.
In contrast, the 1981 agreement specifically detailed the
shares of stock to be exchanged, including explaining the
procedure for L.B.'s attorney to transfer the 44 shares of
Class B nonvoting stock to the sisters and providing the
stock-certificate
numbers
representing
those
shares.
There
is
no dispute that the exchange of stock between the parties
occurred in 1981. The 1998 cancellation agreement did not
provide any explanation of how an exchange of stock between
the parties should occur. Indeed, it did not contain even the
simplest expression of the notion that the parties were to
exchange any shares of stock between them. Again, it simply
41
1110422
stated that "no party has any further rights or obligations
herein."
That they would in fact have "no ... further rights or
obligations herein" is what the subsequent "acts and conduct"
of the parties also indicate the parties believed to be true.
The sisters obviously did not, in the wake of their execution
of the 1998 cancellation agreement, receive from their father
a return of the 22 voting shares then held by him. The record
contains no evidence indicating that during this time frame
the sisters raised any objection or made any inquiry of L.B.
concerning an anticipated return to them of the 22 voting
shares. Nor did the sisters during the weeks and months
immediately after the execution of the 1998 cancellation
agreement tender to L.B. the 44 shares of Class B nonvoting
stock held by them.
Instead,
approximately
one
month
after
the
1998
cancellation agreement was executed, L.B. formed the Family
LLC and transferred all the Class A voting stock of Whitfield
Foods in his possession -- including the 22 voting shares --
into the Family LLC. Obviously, this action by L.B. was
inconsistent with an intention to rescind the entire 1981
42
1110422
agreement; in the event of a rescission of the entire
agreement, the 22 voting shares would not have been L.B.'s to
transfer into the Family LLC. In other words, L.B.'s actions
are consistent with an intention simply to void the "Right to
Reacquire the Stock" provision in the 1981 agreement given
that that provision would have interfered with L.B.'s plan to
transfer the 22 voting shares to the Family LLC and keep them
there.
Of course, L.B.'s actions in these respects were
unilateral, and the record indicates that the sisters were not
immediately aware of them. In and of themselves, therefore,
they would not have the import suggested if we assume that it
is not necessary to reconcile the 1998 cancellation agreement
and L.B.'s subsequent actions because he simply
acted
contrary
to the intention expressed in the agreement. Such an
assumption would be more feasible if L.B.'s actions were the
only collateral acts of the parties evidencing their
understanding of the cancellation agreement. They are not.
In addition to the failure of the sisters to act in the
wake of their signing the 1998 cancellation agreement as if
they anticipated a return of the 22 voting shares, certain
43
1110422
actions by the sisters in the years following the execution of
the 1998 cancellation agreement indicate that they did not
understand or treat the 1998 cancellation agreement as a
rescission of the 1981 agreement in its entirety. According
to their own testimony, at least one of the sisters knew in
early 2000, before L.B.'s death, that the 22 voting shares
were held by the Family LLC. By 2007, all the sisters knew
that this was the case. Moreover, two of the sisters had
watched Louie on multiple occasions vote the 22 voting shares
in meetings of the Whitfield Foods' board of directors. The
sisters never raised any objection to these practices or
demanded the return of the 22 voting shares from L.B. or from
Louie until May 19, 2010, when they wrote a letter to Louie.
Further still, even in the May 19, 2010, letter and the
two subsequent letters to the same effect, and in their
counterclaim, the sisters expressly based their right to the
22 voting shares on the "Right to Reacquire the Stock"
provision of 1981 agreement. They did not rely upon the 1998
cancellation agreement.
Likewise, at no time during the 12 years from the date of
the 1998 cancellation agreement to the sisters' first letter
44
1110422
to Louie demanding the return of the 22 voting shares did the
sisters ever attempt to return the 44 Class B nonvoting shares
they had received in exchange for the 22 voting shares. To
the contrary, they regularly accepted the financial benefits
attendant to ownership of those 44 shares.
Applying
the
above-described
principles
regarding
rescission of contracts to the undisputed "words, acts, [and]
conduct" of the parties, we hold that the 1998 cancellation
agreement did not operate to effect a rescission of the 1981
agreement in its entirety. Rather, it simply canceled any
further obligations of the parties under the 1981 agreement.
Accordingly, the trial court erred in ordering the Family LLC
to return the 22 voting shares to only the sisters and
ordering the sisters to return the 44 Class B nonvoting shares
to the Family LLC. Instead, the 22 voting shares are due to
be distributed by the Family LLC in the same manner as the
other shares of stock in Whitfield Foods held by the Family
LLC, i.e., in four equal shares to Louie and each of the
sisters. Likewise, the sisters are not required to return the
44 Class B nonvoting shares to the Family LLC.
45
1110422
IV. Conclusion
We conclude that the trial court erred in ordering the
Family LLC to return the 22 voting shares to only the sisters,
and we reverse that portion of its judgment doing so. The
22 voting shares are due to be distributed in four equal
shares to Louie, Virginia Whitfield, Valerie Puckett, and
Almeida Strawder. We affirm the portion of the trial court's
judgment finding that the Family LLC is dissolved and ordering
that the Family LLC must wind up its affairs, provide an
accounting of its assets, distribute those assets in equal
shares to Louie, Virginia Whitfield, Valerie Puckett, and
Almeida Strawder, and file articles of dissolution in the
office of the judge of probate of Montgomery County. We
remand this case for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Moore, C.J., and Main and Bryan, JJ., concur.
Bolin, J., concurs in the result.
46 | February 28, 2014 |
41c4fe88-3d2b-4050-adec-b011423d27be | Evans v. Evans | 179 So. 2d 320 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 320 (1965)
Robert Julian EVANS
v.
Olivia Rosser EVANS.
6 Div. 222.
Supreme Court of Alabama.
October 21, 1965.
*321 Corretti, Newsom & Rogers, Birmingham, for appellant.
Ling & Bains, Bessemer, for appellee.
COLEMAN, Justice.
The husband appeals from a decree granting to his wife a divorce from the bonds of matrimony and other relief.
The wife had a son, Ricky, sometimes spelled Rickey, by a prior marriage. The testimony indicates that the instant husband adopted Ricky. The parties have two younger children born of the instant marriage.
The court awarded custody of all three children to the wife but gave the husband the right to have the two younger children visit him two weekends each month. As to the oldest child, the decree recites:
The court ordered the husband to pay $25.00 per week, and,
The decree further recites:
The husband complains that the decree is not justified by the evidence because the evidence is insufficient to prove cruelty.
The parties first separated in July, 1964. The wife testified that in May of 1964, the husband, at "1:30 in the morning," started hitting her with "his fist," that he slapped her once, that she went and laid down on the bed, and then he started hitting her again. She testified that in July, 1964, the husband kicked her with his "steel toed work boots on," and pushed her up against the ice box; that "He said he would take his belt and whip me."
The parties separated in July, but went back together before October 4, 1964.
The wife testified that the week before October 4:
She testified that on October 4, the husband said he would kill her father and that the husband called his father to bring a gun; that the husband threatened to kill Ricky if Ricky went to the house of the wife's father.
Apparently, the parties separated October 4, 1964, and have not reunited.
The wife testified that the husband made Ricky "pull his pants off" when he was four and a half years old, and that the husband then whipped Ricky with a "Teamster's Belt," which was 36 inches long, "two or three inches wide, and a half inch thick"; that, after the whipping, Ricky had "bruised places all over his legs and his back, here, where the buckle had cut him on the leg, it was in two or three places." She said the husband had beat Ricky "Five or six times this year," using the "same belt"; that the husband accused Ricky of masturbation;
The husband himself testified:
The husband argues that by returning to live with the husband, after the July separation, the wife condoned the prior cruelty and that the evidence of subsequent cruelty is insufficient.
We do not agree. We think that the husband's conduct in October, in the light of his prior behavior, justified a finding that, from his conduct in October, there was actual violence on the wife's person, attended with danger to her life or health, or reasonable apprehension of such violence as proscribed by the statute, § 22, Title 34, Code 1940.
".... from a consideration of all the evidence, taken ore tenus, we cannot say that the trial court's finding in this respect was plainly and palpably wrong. Burleson v. Burleson, 269 Ala. 637, 640, 114 So. 2d 887; Hodges v. Beardsley, 269 Ala. 280, 284, 112 So. 2d 482; George v. George, 255 Ala. 190, 193, 50 So. 2d 744. The decree is entitled to the same weight as if it were a jury's verdict. Dorsey v. Dorsey, *323 259 Ala. 220, 225, 66 So. 2d 135." Butler v. Butler, 274 Ala. 352, 353, 148 So. 2d 638, 639.
The husband asserts that the court erred in denying him the right to reasonable visitation with Ricky. The husband says that the court must have found that he was fit and proper to have visitation rights with two of the children, "and it is inconceivable that if he was fit and proper to have visitation rights with two of the children that he would not be fit and proper to have the right of reasonable visitation with the third child."
We have outlined the wife's testimony as to the manner in which appellant had treated Ricky. The testimony was ore tenus. If the trial court believed the wife's testimony, we are not persuaded that the court was palpably wrong in reserving all matters pertaining to visitation of the husband with Ricky or in not awarding the husband visitation at that time
The husband says the court erred in enjoining the husband from making threats to the wife's father, because the wife's father was not a party to the suit, no relief was prayed for in favor of the wife's father, and the court did not have jurisdiction of the wife's father.
The husband cites Farrell v. Farrell, 243 Ala. 389, 10 So. 2d 153, where this court affirmed a decree denying relief on a bill to set aside a divorce decree, and Ex parte Kelly, 221 Ala. 339, 128 So. 443, where this court denied certiorari to review a decree in equity. Neither of these cases persuades us that the instant trial court erred in enjoining the husband from threatening the wife's father.
We will not undertake to decide whether making permanent an injunction against making threats to a person, who is not a party, is correct in all suits for divorce under all circumstances. We limit our decision to the points asserted by appellant. As to injunctions pendente lite in divorce cases, see 164 A.L.R. 321.
In Hardin v. Hardin, 277 Ala. 318, 169 So. 2d 762, this court appears to have affirmed a divorce decree wherein the court restrained respondent "from the home of complainant and from interfering with her custody of the children." 277 Ala. 323, 169 So. 2d 766. The decree also enjoined respondent from "molesting or interfering with Plaintiff, her parents, or the children.... at any and all places ...." 277 Ala. 320, 169 So. 2d 763. It does not appear that respondent objected to that feature of the decree.
We are not advised of any statute authorizing a court permanently to enjoin the husband from threatening the wife's parents. A court of equity is the only one which has general jurisdiction in respect to injunctions. Campbell v. State, 242 Ala. 215, 219, 5 So. 2d 466. So far as we are advised, the authority to grant the instant injunction must be found in the general powers of the circuit court, in equity, and the statutory powers of that court to grant divorce, § 20, Title 34; alimony, § 31, Title 34; and custody of children, § 35, Title 34. It seems to us that the legislature intended that the equity court should exercise such of its general powers as may be necessary to make effective the powers expressly granted with respect to divorce.
The bill contained a prayer for general relief. We think that prayer sufficient to justify the injunction granted.
It is true that the wife's father is not a party to this suit, but the husband is a party. The court had jurisdiction of the person of the husband and of the marital status of the parties. We think this jurisdiction of the husband was sufficient to give the court authority to protect and make effective the decree of divorce by restraining the husband from making threats to the father of the wife when she was living with her father and mother.
We do not think enjoining threats against the wife's father is the same as ordering *324 payment of money to one not a party to the suit.
We hold that appellant has not shown that the court erred in enjoining the husband from making such threats.
The husband says the court erred in directing or requiring him to pay the necessary medical expenses, etc. of the two younger children. The husband says:
We do not agree. If the child taking cobalt treatments does not, in appellant's judgment, receive proper treatment, he can so advise the trial court and request appropriate action.
Appellant says the court erred in overruling his objection to evidence going to show an alleged altercation between appellant and the wife's father on an occasion when the wife was not present, because such evidence is not material to any issue in the case.
There is much testimony in this case tending to show threats and quarrels between appellant and the wife's father. While this evidence does not tend to show any act of cruelty threatened or committed by appellant against the wife, the evidence does show the character of appellant's relationship with his father-in-law and sheds light and color on the relationship which existed between appellant and the wife. We are not persuaded that the decree should be reversed for admission of this evidence.
We have limited our statement of the evidence to that favorable to the wife. There is evidence which directly contradicts the evidence for the wife. The trial court saw and heard the witnesses. We are not persuaded that the decree is plainly and palpably wrong.
Application is made to us for allowance to appellee for services of her counsel in representing her on this appeal. Brief filed by her counsel indicates that he has been diligent in protecting the interest of his client. The trial court awarded $200.00 for representing appellee in that court. Taking into account the financial circumstances of appellant as disclosed by the record, we are of opinion that $100.00 is a reasonable allowance for representing appellee on this appeal, and appellee's motion for allowance of attorney's fees is granted in that amount.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | October 21, 1965 |
f6ff7226-e674-43a1-a8d1-026412960be3 | William E. Moseley et al. v. Leona Marie Onderdonk Cook et al. (Appeal from Washington Circuit Court: CV-10-0071). Affirmed. No Opinion. | N/A | 1120887 | Alabama | Alabama Supreme Court | REL: 02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120887
____________________
William E. Moseley et al.
v.
Leona Marie Onderdonk Cook et al.
Appeal from Washington Circuit Court
(CV-10-0071)
STUART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., dissents.
1120887
MOORE, Chief Justice (dissenting).
In my view the Washington Circuit Court improperly
certified its judgment in this case as final and appropriate
for appeal under Rule 54(b), Ala. R. Civ. P. Accordingly, this
Court does not have jurisdiction, and the proper disposition
is to dismiss the appeal.
I. Facts and Procedural History
In December 2005, the Washington Probate Court appointed
William E. Moseley executor of his mother's estate, which
consisted of 2,740 acres of timberland and which was worth
$4.4 million. The mother's will also created trusts for her
four granddaughters and appointed Moseley as trustee of the
trusts. The will granted Moseley discretion in managing the
lands and allowed him to receive compensation for his duties.
Three of the granddaughters removed the administration of the
estate to the circuit court in October 2006. See § 12-11-41,
Ala. Code 1975. In November 2010, the removing granddaughters
filed a complaint seeking Moseley's removal as executor and
trustee and the assessment of damages against him.
On November 14, 2012, the removing granddaughters also
filed a motion asking the circuit court to require Moseley to
repay the estate for any fees he had received without court
2
1120887
approval and to deny him attorney fees for defending the
removal action. At the hearing on November 20, 2012, Moseley
appeared and requested a continuance because he was without a
lawyer. The court refused, noting that Moseley had had several
lawyers in the matter and that on August 22, 2012, the court
had given him 30 days to find an attorney. After asking to be
excused, Moseley left the hearing and did not return. The
court heard the matter without him, found he had violated his
fiduciary duty, and entered an order removing him as executor
of his mother's estate and as trustee of the three
granddaughters' trusts. The court also ordered Moseley to
reimburse the estate for fees and commissions he had received
in the amount of $389,183.21, and disallowed any attorney fees
for defending the removal action.
On November 26, 2012, the circuit court entered a Rule
54(b) order rendering final the judgment on the claims heard
on November 20, 2012. On December 18, 2012, Moseley filed a
postjudgment motion requesting the court to vacate its order
because of its failure to allow him a continuance to hire
counsel. On March 5, 2013, he filed a supplement to the
motion, arguing that the circuit court had improperly tried
the damages issues and thus had denied him a jury trial on
3
1120887
that count. Moseley's answer, however, did not contain a jury
1
demand. The Rule 59(e), Ala. R. Civ. P., motion was denied by
operation of law.
Moseley did not appeal the trial court's order of
November 20, 2012, but only its denial of his Rule 59(e)
motion to vacate the judgment.
II. Analysis
In its order of November 20, 2012, the circuit court
stated that it was trying count one of the complaint to remove
Moseley as executor and count two to remove him as trustee.
"[T]he rest of the case," the court stated during the hearing,
"depending on my ruling, will be severed." The court thus did
not try counts three and four seeking damages and an
accounting. Moseley raises three issues on appeal:
(1)
whether
he was wrongfully denied a continuance to obtain counsel, (2)
whether the court acted beyond its jurisdiction in awarding
reimbursement for fees and commissions when the issue before
the court was limited to Moseley's removal as executor and
A court may permit an amendment to a timely filed Rule
1
59(e) motion, even if made after the 30-day period for filing
the motion. Forester & Jerue, Inc. v. Daniels, 409 So. 2d 830,
831-32 (Ala. 1982).
4
1120887
trustee, and (3) whether the court erred in denying him a
hearing on his Rule 59(e) motion to vacate its order.
I believe that the circuit court acted within its
discretion in denying the continuance and the hearing on the
Rule 59 motion. However, I do not believe we have appellate
jurisdiction to review the circuit court's order requiring
that Moseley reimburse the estate for what he terms "a small
fortune" in fees and commissions.
Rule 54(b) provides that a court may enter a final
judgment on particular claims or against particular parties
even though other claims and other parties remain in the
action. But such a judgment is final only if it "has
completely disposed of one of a number of claims, or one of
multiple parties." Committee Comments on 1973 Adoption
of
Rule
54(b).
The
circuit
court's
adjudication
of
Moseley's
liability
for commissions and fees was only an interim determination. In
ordering that Moseley repay to the estate all moneys he had
paid himself, the court cited McGallagher v. Estate of DeGeer,
934 So. 2d 391 (Ala. Civ. App. 2005). In that case the Court
of Civil Appeals held that an order to remove an executrix
could also include a requirement that she return funds she had
paid herself from the estate. The court reasoned that "the
5
1120887
repayment order was aimed at maintaining the status quo until
the final settlement." Id. at 402.
Although McGallagher approves the issuance of an
ancillary order of repayment in a removal hearing, it does not
provide grounds for certifying such an order as final under
Rule 54(b). Because the repayment order was merely an interim
order subject to modification upon final settlement, it has
not "completely disposed of" the removing granddaughters'
monetary claim against Moseley nor his claims against the
estate. "An order that does not dispose of the entire claim
2
is inherently interlocutory in nature," and thus "was
ineffective to transform [the] ... order into a final
judgment." Tanner v. Alabama Power Co., 617 So. 2d 656, 657
(Ala. 1993). Moseley does not appeal his removal as executor
and trustee but only the repayment portion of the circuit
court's order. Because that part of the removal order, though
formally
certified
for
appeal
under
Rule
54(b),
is
interlocutory, I would not affirm the circuit court's order
In a motion to this Court, Moseley states that he has
2
"valid and substantial claims" still pending against the
estate.
6
1120887
but would instead vacate that portion of the order and dismiss
the appeal as premature.
3
Had this appeal arisen from the probate court
rather than
3
the circuit court, my analysis would be different. This Court
may hear an appeal from an order of the probate court
"removing an executor or administrator." § 12-22-21(3), Ala.
Code 1975. This express statutory authority renders a Rule
54(b)
certification
of
finality
unnecessary.
But
no
comparable
statute provides jurisdiction to hear such an appeal from the
circuit court. (McGallagher was an appeal from the probate
court.) Although this Court has stated that it "has
traditionally treated such orders of the circuit court as
though they were orders of the probate court," Tate v.
Kennedy, 578 So. 2d 1079, 1080 n.2 (Ala. 1991), that statement
cited no authority. See also Eustace v. Browning, 30 So. 3d
445, 449-50 (Ala. Civ. App. 2009) (following Tate); Brown v.
Brown, 21 So. 3d 1, 2-3 (Ala. Civ. App. 2009) (same).
I believe the Tate Court erred in construing a statute
that by its express language applies only to appeals from the
probate court to also encompass appeals from the circuit
court. We are not at liberty to rewrite a statute. "[W]e deem
it inappropriate to engraft by judicial fiat a change the
legislature has apparently not chosen to make." Dale v.
Birmingham News Co., 452 So. 2d 1321, 1323 (Ala. 1984). In
fact, "traditionally" this Court has recognized that an order
of removal of an estate administrator is appealable from the
probate court but not from the circuit court. Brewer v.
Brewer, 250 Ala. 658, 35 So. 2d 557 (1948). Although § 12-22-
4, Ala. Code 1975, provides for an appeal to this Court from
a judgment of the circuit court "on a partial or annual
settlement of an estate of a deceased person," the circuit
court did not partially settle a portion of the estate; it
only entered an interim repayment order.
7 | February 28, 2014 |
862c8efe-6839-4015-9f4e-63357be88f62 | Ex parte T.M. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: T.M. v. M.D.) (DeKalb Juvenile Court: JU-08-117.02; Civil Appeals : 2121005). Writ Denied. No Opinion. | N/A | 1130811 | Alabama | Alabama Supreme Court | REL: 07/03/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
1130811
_________________________
Ex parte T.M.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: T.M.
v.
M.D.)
(DeKalb Juvenile Court, JU-08-117.02;
Court of Civil Appeals, 2121005)
WISE, Justice.
WRIT DENIED. NO OPINION.
1130811
Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,
JJ., concur.
Moore, C.J., dissents.
2
1130811
MOORE, Chief Justice (dissenting).
This petition raises important questions about the
propriety of terminating the parental rights of a natural
father, T.M., to satisfy the desire of the mother's new
husband to adopt the father's child as his own. The natural
father poses no danger to the welfare of his child, whose only
supposed benefit from the termination of his
father's
parental
rights is that the child will be spared from learning of his
true paternity until many years in the future.
Because I believe that the Court of Civil Appeals
seriously erred in affirming the termination of T.M.'s
parental rights, I respectfully dissent from the denial of
T.M.'s petition for a writ of certiorari.
I. Facts and Procedural History
T.M. ("the father") and M.D. ("the mother") began dating
in high school when they were 17 years old. During their
senior year, the mother, who was living with her parents,
became pregnant. The father and the mother concealed the
pregnancy from everyone, including the mother's parents, who
learned one night in September 2007 that the mother needed to
go to the hospital to give birth. In February 2008, the couple
3
1130811
consented to transferring temporary legal custody of
the
child
to the mother's parents. The mother continued to live with her
parents and cared for the child with her parents' help.
A year after the child's birth, the couple broke up.
Although the father had visited the child regularly up to that
point, his visits after the breakup became sporadic. The last
time he saw the child before the termination hearing in July
2013 was on his son's third birthday in September 2010. He
claims that his visits ceased because the mother and her
parents deliberately avoided him and he eventually gave up
trying to see the child. The father's sister provided some
corroboration of this testimony, but the mother and her
parents denied that they had avoided the father. The father's
pastor testified that the father came to him in 2009 and asked
for help in getting to see his son. The father testified that
he hired a lawyer in the fall of 2012 to seek visitation but
that he was unable to effect service on the mother.
In 2010, the father married and started a family. He has
a daughter who is now three years old. In May 2012, the mother
married and moved from her parents' home to live with her
husband and the child, who calls the husband "Daddy." The
4
1130811
father would like his son to know that he is the father and is
willing to have a gradual structured reintroduction to his son
that would not be disorienting to the child. The mother claims
that simply knowing about the father would be emotionally
stressful for the child.
In February 2013, in order to facilitate a stepparent
adoption of the child by her husband, the mother moved the
juvenile court to terminate the father's parental rights. The
father counterclaimed for an order declaring paternity and for
custody. He also sought temporary visitation.
The juvenile court heard testimony from 10 witnesses.
Finding that the father had abandoned his son, a statutory
ground for the termination of parental rights, § 12-15-
319(a)(1), Ala. Code 1975, the juvenile court terminated the
father's parental rights in order, it reasoned, to provide the
child with "stability." The juvenile court did not discuss or
analyze any viable alternatives to termination. The Court of
Civil Appeals affirmed the juvenile court's ruling on the
ground of abandonment and the lack of viable alternatives.
T.M. v. M.D., [Ms. 2121005, April 11, 2014] ___ So. 3d ___
(Ala. Civ. App. 2014). However, the Court of Civil Appeals did
5
1130811
not seriously consider the alternative of maintaining the
status quo and allowing the father visitation.
II. Analysis
"[U]nder Ex parte Beasley, [564 So. 2d 950 (Ala. 1990),]
upon finding that abandonment constitutes a ground for a
termination of parental rights, a trial court must consider
whether viable alternatives to termination exist." Ex parte
J.E., 1 So. 3d 1002, 1013 (Ala. 2008) (Cobb, C.J., concurring
specially). In previous cases in which a custodial parent has
initiated
a
termination-of-parental-rights
proceeding,
appellate courts have been reluctant to affirm the severance
of the parental bond between the child and the noncustodial
parent in the absence of evidence that the noncustodial parent
poses some tangible threat to the child's welfare.
"Since [1987] this court has consistently held that
termination of parental rights is not appropriate in
cases like this one in which the children are safely
residing
with
the
custodial
parent
and
the
continuation of the noncustodial parent's parental
rights does not present any harm to the children."
A.J.H.T. v. K.O.H., 983 So. 2d 394, 406-07 (Ala. Civ. App.
2007) (Moore, J., concurring in part and dissenting in part).
See also Ex parte M.D.C., 39 So. 3d 1117, 1143 n.14 (Ala.
2009) (Murdock, J., dissenting) (noting that cases "come
6
1130811
before the appellate courts of this State in which the record
suggests that an effort to terminate has occurred because of
animosity or spite, out of convenience, or simply to
accommodate a new spouse who wishes to adopt a child"
(emphasis added)).
1
In Ex parte A.S., 73 So. 3d 1223 (Ala. 2011), the mother
was incarcerated, and the grandmother had sole legal custody
of the child. The grandmother petitioned to terminate the
mother's parental rights in order to adopt the child. The
trial court terminated the mother's parental rights, and the
Court of Civil Appeals affirmed the termination. This Court
reversed the Court of Civil Appeals' judgment, holding that
"[t]he grandmother's maintaining custody of the child and
having the ability to determine and supervise the mother's
visitation with the child is a viable alternative to
termination of the mother's parental rights ...." 73 So. 3d at
The concept that a custodial parent may initiate the
1
termination of the parental rights of a noncustodial parent
seems inherently dubious to me. What is the purpose of
terminating the parental rights of the noncustodial parent
when the child is already experiencing permanency with the
custodial parent? See S.D.P. v. U.R.S., 18 So. 3d 936, 944
(Ala. Civ. App. 2009) (Moore, J., concurring specially)
(noting that "[t]he record indicates that the continuation of
the father-child relationship does not currently affect the
stability and permanency of the child in any manner").
7
1130811
1229. In S.M.M. v. R.S.M., 83 So. 3d 572 (Ala. Civ. App.
2011), the father of the child, who had sole custody, sought
to terminate the parental rights of the mother, who had a
prison record. The trial court terminated the mother's
parental rights. The Court of Civil Appeals reversed its
judgment, holding that "[m]aintenance of the status quo and
allowing the mother continued supervised visitation with the
child adequately protects the welfare of the child while
allowing for a beneficial relationship with both parents." 83
So. 3d at 577. The court specifically noted that "no evidence
was offered to suggest that [the mother] posed a physical
threat to the child." Id. at 576.
In this case no evidence was presented indicating that
the father posed a threat of physical harm to the child.
Instead, the mother predicted that the child would experience
emotional conflict by knowing his father while being raised by
the husband. The Court of Civil Appeals considered this
testimony to be clear and convincing evidence that no viable
alternative to the termination of the father's
parental
rights
existed:
"The mother and her witnesses offered testimony in
opposition to the grant of visitation, saying that
8
1130811
visitation would cause the child to experience pain,
a broken heart, and emotional conflict because he
has no knowledge of his biological relationship to
the father and believes that the husband is his
father.
"The evidence was sufficient to support the
juvenile court's finding that no viable alternative
to the termination of the father's parental rights
existed."
T.M., ___ So. 3d at ___. The father argues that "[p]arenting
time or visitation could have been awarded incrementally,
gradually and even supervised if necessary." T.M.'s brief, at
7. The Court of Civil Appeals rejected as unviable the
alternative of "gradual visitation with the child." T.M., ___
So. 3d at ___.
The difference between this case and those cited above in
which the child was residing safely with the custodial parent
and thus "continuation of the noncustodial parent's parental
rights [did] not present any harm to the children," A.J.H.T.,
983 So. 2d at 407, is the presence of a new substitute
"Daddy," who is now married to the mother. This circumstance
supposedly creates a heart-wrenching conflict for the child
that can be remedied only by terminating the parental rights
of the natural father. But what about the emotional impact
upon the child when years later he learns the identity of his
9
1130811
natural father, whose existence has been deliberately
concealed from him?
The mother offered the testimony of a social worker who
had known the mother and the grandparents for many years and
who had recently interviewed the child. When asked if it would
be in the child's best interests for the father's parental
rights to be terminated, he stated: "I don't know all the
factors in the case, so I can't really state that at this
point in time." Cutting the child off from knowledge of his
natural lineage and a relationship with the
father's
immediate
and extended family -- contact that is more likely to nurture
than to harm the child -- seems intuitively detrimental to the
child's sound emotional development. See Ex parte Monroe, 727
So. 2d 104 (Ala. 1999) (reinstating a trial court's judgment
that awarded a change of custody for the purpose of preserving
a child's ties with his extended family).
Even were the child to benefit from having his natural
father erased from his life, that fact would not justify
2
"Termination of parental rights, by abrogating the
2
parent's legal right to visitation, normally forecloses the
child's opportunity to visit or communicate with the parent
until the child reaches the age of majority." D.M. Blair,
Parent-Initiated Termination of Parental Rights: The Ultimate
Weapon in Matrimonial Warfare, 24 Tulsa L.J. 299, 328 (1989)
10
1130811
terminating the father's parental rights. The state may not
terminate a parent's rights simply because a child will
supposedly experience superior nurturing from an adoptive
parent. "[T]hat a more ideal living situation exists for the
children provides no basis for terminating the
parental
rights
of the [father]." S.U. v. Madison Cnty. Dep't of Human Res.,
91 So. 3d 716, 722 (Ala. Civ. App. 1988). "[T]he courts of
this state do not have the power to sever the bonds of blood
relationship merely in order to gain some real or fancied
advantage for a minor child." Griggs v. Barnes, 262 Ala. 357,
362, 78 So. 2d 910, 916 (1955). A trial court, facing similar
facts, stated:
"'[T]he Court does not find that it is in the best
interests of the child to terminate the parental
rights of the biological father merely to delay the
child's knowledge of the truth or to avoid or delay
facing the same in an organized and therapeutic
manner, merely to assist the stepfather in his
desire to become an adoptive father.'"
K.H.M. v. D.L.I., 895 So. 2d 950, 953 (Ala. Civ. App. 2003)
(quoting trial court's order and affirming the trial court's
(footnote omitted).
11
1130811
judgment, with one judge concurring and another concurring in
the result).3
The right of a father and his son to enjoy their unique
natural relationship is fundamental in our law. "The father
and the child share reciprocal fundamental constitutional
rights to association with one another." Meadows v. Meadows,
3 So. 3d 221, 236 (Ala. Civ. App. 2008) (Moore, J., concurring
in the result). The state may sever this bond only if clear
and convincing evidence exists that demonstrates the father's
unfitness.
"The
clear
and
convincing
evidence
must
demonstrate
... that the state has a compelling interest requiring
interference with the rights of the parents and that that
interest is being advanced by the least restrictive means." Ex
parte E.R.G., 73 So. 3d 634, 645 (Ala. 2011). In the
circumstances of this case, in which the child resides in a
secure and nurturing environment with his mother and her
husband, the state has no compelling interest in severing the
natural father's parental rights. Furthermore, even if the
state had an interest in protecting the child from the
In the context of a custody contest between a natural
3
father and a stepfather, the law recognizes a presumption in
favor of the natural parent. Ex parte D.J., 645 So. 2d 303,
305-06 (Ala. 1994).
12
1130811
potential emotional upset
that might attend learning the
truth
about
his conception, alternatives exist that are less drastic
than a permanent severance of the child's filial bond with his
natural father. See Franz v. United States, 707 F.2d 582, 602
(D.C. Cir. 1983) ("Severance of the filial bond ... obviously
cuts deeply into the emotional interests of both parent and
child ...."); Corey L. v. Martin L., 45 N.Y.2d 383, 392, 408
N.Y.S.2d 439, 443, 380 N.E.2d 266, 271 (1978) ("The filial
bond is one of the strongest, yet most delicate, and most
inviolable of all relationships ....").
Although "[a] juvenile court has an imperative duty to
exhaust all viable alternatives before terminating a parent's
parental rights," S.U., 91 So. 3d at 723, in this case the
juvenile court did not consider any alternatives to
termination of the father's parental rights.
"[I]f some less drastic alternative to termination
of
parental
rights
can
be
used
that
will
simultaneously protect the children from parental
harm and preserve the beneficial aspects of the
family relationship, then a juvenile court must
explore whether that alternative can be successfully
employed instead of terminating parental rights."
T.D.K. v. L.A.W., 78 So. 3d 1006, 1011 (Ala. Civ. App. 2011)
(emphasis added). See also Ex parte Beasley, 564 So. 2d 950,
13
1130811
955 (Ala. 1990) (reversing the Court of Civil Appeals'
affirmance of the termination of the parental rights of the
noncustodial parent because the Court of Civil Appeals did not
address
"the issue of whether other alternatives, less drastic
than termination of parental rights, were available to
protect
the best interests of the child").
Maintaining the status quo and allowing the father
visitation on a gradually increasing basis is a viable
alternative to termination of the father's parental rights.
Granting the father visits with his son would preserve the
child's current home environment with the mother and the
husband while allowing both father and child to enjoy their
unique relationship. In short, "the evidence at this time
4
does not rise to a level of being so clear and convincing as
to support termination of the parental rights of the [father],
such action being the last and most extreme disposition
permitted by statute." East v. Meadows, 529 So. 2d 1010, 1012
(Ala. Civ. App. 1988) (emphasis added). See also Beasley, 564
Another alternative to terminating the parental rights
4
of the natural parent as a prelude to adoption is to recognize
the stepparent as a legal custodian of the child. See
Elizabeth J. Aulik, Stepparent Custody: An Alternative to
Stepparent Adoption, 12 U.C. Davis L. Rev. 604 (1979).
14
1130811
So. 2d at 952 ("[A] court should terminate parental rights
only in the most egregious of circumstances.").
III. Conclusion
"The first official action of this nation declared
the foundation of government in these words: 'We
hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain unalienable rights, that among
these are life, liberty, and the pursuit of
happiness.'"
Gulf, Colo. & Santa Fe Ry. v. Ellis, 165 U.S. 150, 159-60
(1897) (quoting the Declaration of Independence ¶ 2 (1776)).5
The Creator has also ordained natural parenthood, "and a
fallible
judge
should
disturb
the
relationship
thus
established
only
where
circumstances
compel
human
intervention." Ex parte Sullivan, 407 So. 2d 559, 563-64 (Ala.
1981) (emphasis added). Because such circumstances are not
present in this case, I dissent from the denial of the
father's petition for a writ of certiorari.
The
United
States
Code,
"the
official
codification
of
the
5
general and permanent laws of the United States," includes the
Declaration of Independence in the section entitled "The
Organic Laws of the United States of America." See Black's Law
Dictionary 1274 (10th ed. 2014) (defining "organic law" as
"[t]he body of laws (as in a constitution) that define and
establish a government").
15 | July 3, 2014 |
f2d60679-fd45-41b5-8896-0bc5b7e210ac | Randy Scott Arnold v. Alabama State Bar (Appeal from the Disciplinary Board of the Alabama State Bar: ASB-09-1848). Affirmed. No Opinion. | N/A | 1120770 | Alabama | Alabama Supreme Court | REL: 02/07/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1120770
_________________________
Randy Scott Arnold
v.
Alabama State Bar
Appeal from the Disciplinary Board of the Alabama State Bar
(ASB-09-1848)
WISE, Justice.
AFFIRMED. NO OPINION.
Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,
JJ., concur.
Moore, C.J., dissents.
1120770
MOORE, Chief Justice (dissenting).
I
respectfully
dissent.
On
March
25,
2009,
the
Disciplinary Board of the Alabama State Bar ("the Bar")
entered an order disciplining attorney Randy
Scott
Arnold.
The
order stated, in part:
"[Arnold] is deemed to be on probation during the
two-year period while restitution is to be made;
failure to perform all of the provisions above shall
constitute a breach of the terms of the plea and of
the probation, and, upon notification by the Bar to
the Disciplinary Hearing Officer, the terms of this
order may be revoked and the charges against
[Arnold] reinstated."
(Emphasis added.) On August 20, 2012, the Bar filed charges
against Arnold for his failure to comply with the 2009 order.
On March 18, 2013, the Bar disbarred Arnold based on those
charges.
By the very terms of the 2009 order, however, Arnold's
failure to comply with the 2009 order could result, at most,
in the revocation of his probation and the reinstatement of
the original charges against him. The Bar should not have
filed a separate disciplinary proceeding based on new,
independent violations for failure to comply with the 2009
order. It appears that the Bar is disregarding the terms of
the 2009 order while holding Arnold accountable for
2
1120770
disregarding the terms of that same order. Therefore, I would
reverse Arnold's disbarment and remand the case for
proceedings consistent with the 2009 order.
3 | February 7, 2014 |
de90f7b0-8d7a-4529-bbbd-c33eeb88cdb8 | Whitney Bank v. Jerry O. Lorant and JOL, LLC (Appeal from Jefferson Circuit Court: CV-12-1120). Affirmed. No Opinion. | N/A | 1121220 | Alabama | Alabama Supreme Court | REL:02/07/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1121220
_________________________
Whitney Bank
v.
Jerry O. Lorant and JOL, LLC
Appeal from Jefferson Circuit Court
(CV-12-1120)
SHAW, Justice.
AFFIRMED. NO OPINION.
Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan,
JJ., concur.
Moore, C.J., dissents.
1121220
MOORE, Chief Justice (dissenting).
I respectfully dissent. Under Florida law, the judgment
domesticated here was final, and the "'validity and effect of
a foreign judgment ... are to be determined by the law of the
state in which [the judgment] was rendered.'" Teng v. Diplomat
Nat'l Bank, 431 So. 2d 1202, 1203 (Ala. 1983)(quoting Morse v.
Morse, 394 So. 2d 950, 951 (Ala. 1981)).
Rather than applying Florida law, the trial court used an
Alabama procedural rule, namely, Rule 54(b), Ala. R. Civ. P.,
to determine that the Florida judgment was a nonfinal
judgment. Although § 6-9-232, Ala. Code 1975, a portion of
1
the Uniform Enforcement of Foreign Judgments Act, provides
that a foreign judgment domesticated in Alabama "is subject to
the same procedures, defenses and proceedings for reopening,
vacating, or staying as a judgment of a circuit court of this
state," the fact remains that a circuit court of this state is
The trial court's order vacating the domesticated
1
judgment stated: "Rule 54(b) of the Alabama Rules of Civil
Procedure requires that a final judgment adjudicate all the
claims, rights and liabilities of all the parties. It further
provides that judgment against less than all parties be
rendered 'only upon an express direction for the entry of
judgment.' The Florida judgment submitted for domestication
provides no such satisfaction of that requirement and
therefore is not final under Alabama law."
2
1121220
bound by its constitutional obligation to afford full faith
and credit to the valid judgments of sister states.
This Court has explained:
"The Constitution of the United States, Article
IV, Section 1, requires that 'full faith and credit
shall be given in each state to the public acts,
records and judicial proceedings of every other
state.' A judgment, therefore, entered by the court
of another state having jurisdiction over the
subject matter and persons is entitled to full faith
and credit in Alabama courts. [Citations omitted.]"
Greene v. Connelly, 628 So. 2d 346, 351 (Ala. 1993), abrogated
on other grounds by Ex parte Full Circle Distribution, L.L.C.,
883 So. 2d 638 (Ala. 2003). "[T]he duty to afford full faith
and credit to judicial proceedings of our sister states ... is
one
consisting
of
both
constitutional
and
statutory
dimensions." Package Exp. Ctr., Inc. v. Maund, 957 So. 2d
1137, 1140 (Ala. Civ. App. 2006)(citing U.S. Const., art. IV,
§ 1, and 28 U.S.C. § 1738). Moreover, "[i]f a judgment of a
2
However, although this issue is not implicated here, a
2
statute of a sister state that is clearly against public
policy in Alabama will not be recognized here. See Pacific
Emp'rs Ins. Co. v. Industrial Accident Comm'n of California,
306 U.S. 493, 501 (1939)("[T]he very nature of the federal
union of states, to which are reserved some attributes of
sovereignty, precludes resort to the full faith and credit
clause as the means for compelling a state to substitute the
statutes of other states for its own statutes dealing with a
subject
matter
concerning
which
it
is
competent
to
legislate."); Monarch Refrigerating Co. v. Faulk, 228 Ala.
3
1121220
sister state is properly authenticated and filed with the
circuit court, ... a presumption arises that the court
rendering that judgment had jurisdiction to do so." Greene,
628 So. 2d at 351 (citing Teng, 431 So. 2d at 1203).
Accordingly, "the party challenging the judgment has the
burden of asserting lack of jurisdiction and producing
evidence to overcome the presumption." Id. The burden, then,
was on Jerry O. Lorant and JOL, LLC, to show that the trial
court lacked jurisdiction, but their argument that the
judgment was nonfinal because it did not dispose of all
parties contradicts Florida law regarding the finality of
judgments.
In Florida, a judgment is final when an order, judgment,
or decree "constitutes an end to the judicial labor in the
cause, and nothing further remains to be done by the court to
effectuate a termination of the cause as between the parties
directly affected." S.L.T. Warehouse Co. v. Webb, 304 So. 2d
97, 99 (Fla. 1974). "That termination occurs when the trial
court loses jurisdiction over the cause upon the expiration of
554, 557, 155 So. 74, 76 (1934)("[I]t is not always
obligatory, either on the ground of comity or duty, that one
state give effect to the judgment of another, when to do so
would result in having its own law overridden.").
4
1121220
the time limits set forth in Florida Rule of Civil Procedure
1.530(b)." Joannou v. Corsini, 543 So. 2d 308, 310 (Fla. Dist.
Ct. App. 1989). Florida law regarding final judgments is
distinguishable from federal and Alabama law regarding final
judgments. Rule 54(b), Fed. R. Civ. P., deals with a judgment
involving multiple claims:
"(b) Judgment on Multiple Claims or Involving
Multiple Parties. When an action presents more than
one claim for relief –- whether as a claim,
counterclaim, crossclaim, or third-party claim –- or
when multiple parties are involved, the court may
direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the
court expressly determines that there is no just
reason for delay. Otherwise, any order or other
decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of
fewer than all the parties does not end the action
as to any of the claims or parties and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties'
rights and liabilities."
Alabama has adopted a similar provision in Rule 54(b), Ala. R.
Civ. P. According to this rule, a judgment that does not
determine all claims presented in an action is not final.
Florida has not adopted such a rule. Hotel Roosevelt Co.
v. City of Jacksonville, 192 So. 2d 334, 338 (Fla. Dist. Ct.
App. 1966)("[T]he Supreme Court of Florida ... has not yet
seen fit to also adopt a counterpart to Rule 54(b), Federal
5
1121220
Rules of Civil Procedure, dealing with judgments upon multiple
claims."); Rule 9.110, Fla. R. App. P. (providing that
"partial final judgments are reviewable either on appeal from
the partial final judgment or on appeal from the final
judgment in the entire case"); Jenson v. Whetstine, 985 So. 2d
1218, 1220 (Fla. Dist. Ct. App. 2008)("[A] partial judgment is
appealable as a final order under Florida Rule of Appellate
Procedure 9.110(k) when the judgment resolves a distinct and
severable cause of action, i.e., the remaining claims do not
arise from a set of common facts or a single transaction.").
Therefore, when a Florida court deals with multiple claims,
the test for the finality of a judgment is whether the
judgment "marks the end of the judicial labor in the case, and
nothing further remains to be done by the court to fully
effectuate a termination of the cause as between the parties
directly affected." Hotel Roosevelt, 192 So. 2d at 338. For
example, the court in Hotel Roosevelt held that an order
dismissing the third-party complaint filed by the City of
Jacksonville was a final judgment and thus appealable, even
though the underlying case remained pending in the circuit
court. Id. Likewise, in 1977, the Florida Supreme Court
6
1121220
considered whether a trial court's order was final and thus
appealable when issues between other parties still
remained
in
the underlying case. State Farm Mut. Auto. Ins. Co. v.
American Hardware Mut. Ins. Co., 345 So. 2d 726, 728 (Fla.
1977). The court determined that when the rights of the
parties directly affected have been fully determined in the
judgment, the judgment is final. Id.
Absent an "express direction for the entry of judgment"
and the "express determination" by the trial court, pursuant
to Rule 54(b), Ala. R. Civ. P., that "there is no just reason
for delay," Alabama does not recognize a judgment as final
when other claims remain pending. In Florida, however, as long
as a judgment has determined the rights of the directly
affected parties, the judgment is considered final.
Lorant and JOL complain that Whitney Bank's evidence
regarding the finality of the Florida judgment was submitted
for the first time on appeal or in the Rule 59(e), Ala. R.
Civ. P., motion to alter, amend, or vacate; in light of
Florida law, however, the only evidence a trial court needs to
determine that the Florida judgment was final is the triple-
7
1121220
certified copy of the Florida judgment that Whitney Bank filed
in the Jefferson Circuit Court.
"If the judgment of a sister state is properly
authenticated and produced at trial, as in the case
at bar, it must be presumed that the court rendering
the judgment had jurisdiction to do so. The burden
is upon the party challenging the judgment to assert
lack of jurisdiction and to produce evidence to
overcome the presumption."
Teng, 431 So. 2d at 1203; see Republic Nat'l Bank of Dallas v.
Howell, 456 So. 2d 58, 59 (Ala. 1984)("[T]he properly
authenticated judgment of the [sister state's] court, that
court having jurisdiction, is conclusive ...."); see also
Stallworth v. Stallworth, 272 Ala. 449, 454, 131 So. 2d 867,
871 (1961)("Since the decree of the [sister state's] court
appears on its face to be a valid and binding decree ..., then
full faith and credit must be given to the decree of the
[sister state]."). Here, Lorant and JOL failed to carry their
burden and to overcome the presumption in favor of the Florida
judgment because they relied on the Alabama Rules of Civil
Procedure, which have no legal effect on the finality of the
Florida judgment. Cf. Canon Fin. Servs., Inc. v. National
Voting Rights Museum & Inst., Inc., 57 So. 3d 766, 769 (Ala.
Civ. App. 2010)("[I]t is readily apparent that the Alabama
8
1121220
court's views concerning the efficacy of service of process in
the underlying action under Alabama law are immaterial to
whether full faith and credit should be extended to the
judgment of the [sister state's] court."). Whitney Bank was
not required to show that the Florida judgment disposed of all
other parties and claims to demonstrate that the judgment was
final, and Whitney Bank did not bear the burden of instructing
the trial court to apply Florida law to determine the validity
of the Florida judgment.
"[W]here the facts before the trial court are essentially
undisputed and the controversy involves questions of law for
the court to consider, the court's judgment carries no
presumption of correctness." Allstate Ins. Co. v.
Skelton,
675
So. 2d 377, 379 (Ala. 1996). "An appellate court may affirm
the judgment of the trial court when the trial court has
reached the right result for the wrong reason. ... However,
this rule should not apply where the 'wrong reason' prevented
a party from properly presenting his case or prejudiced his
rights." Lloyd Noland Found., Inc. v. HealthSouth Corp., 979
So. 2d 784, 796 (Ala. 2007). This Court "'can affirm a
judgment if we disagree with the reasoning of the trial court
9
1121220
in entering the judgment, as long as the judgment itself is
proper.'" Verchot v. General Motors Corp., 812 So. 2d 296, 305
(Ala. 2001) (quoting Progressive Specialty Ins. Co. v.
Hammonds, 551 So. 2d 333, 337 (Ala. 1989)). Here, the trial
court's vacation of the domesticated Florida judgment was not
proper and is not due to be affirmed. Had the trial court
recognized its constitutional and statutory duty to afford
full faith and credit to the Florida judgment, it would have
discovered
that
the
Florida
judgment
was
final,
notwithstanding the arguments made to the trial court by the
parties. Evidence that the Florida judgment did not dispose of
all the defendants was simply immaterial to the determination
whether the judgment was final under Florida law. Therefore,
Whitney Bank timely presented the trial court with evidence
indicating that the Florida judgment was final.
In light of the foregoing, I would reverse the order
vacating the Florida judgment and remand this case for the
trial court to reevaluate the finality of the Florida judgment
according to Florida law in accordance with the doctrine of
full faith and credit.
10 | February 7, 2014 |
47b2ff8e-5d12-4741-95d9-17999e21ac19 | Walker v. City of Birmingham | 181 So. 2d 493 | N/A | Alabama | Alabama Supreme Court | 181 So. 2d 493 (1965)
Ex parte Wyatt Tee Walker et al.
In re Wyatt Tee WALKER et al.
v.
CITY OF BIRMINGHAM.
6 Div. 999.
Supreme Court of Alabama.
December 9, 1965.
Rehearing Denied January 20, 1966.
*495 Arthur D. Shores and Orzell Billingsley, Jr., Birmingham, Norman C. Amaker, Leroy Clark, Jack Greenberg and Constance Baker Motley, New York City, for petitioners.
J. M. Breckenridge and Earl McBee, Birmingham, for respondent.
COLEMAN, Justice.
We review by certiorari convictions of petitioners for criminal contempt for violating a temporary injunction issued by the Circuit Court of Jefferson County, in equity.
On April 10, 1963, the City of Birmingham, a municipal corporation, presented its verified bill of complaint to one of the judges of the Tenth Judicial Circuit. The bill prayed for temporary and permanent injunctions. The judge to whom the bill was presented ordered the temporary injunction to issue upon the City's making bond for $2,500.00. The prescribed bond was filed and injunction issued out of the circuit court and was served on certain of petitioners.
The return of the sheriff shows that a copy of the injunction was personally served on petitioners as follows:
On Martin Luther King, A. D. King, F. L. Shuttlesworth, Wyatt Tee Walker, and Ralph Abernathy on April 11, 1963, at 1:00 a. m.;
On John Thomas Porter on April 12, 1963, at 4:13 p. m.; and
On N. H. Smith, Jr. on April 15, 1963, at 8:35 a. m.
We have not found a return of the sheriff showing service on the other petitioners who were adjudged to be in contempt. Notice to those not personally served is hereinafter discussed.
The injunction recites in part as follows:
On April 11, 12, and 13, 1963, certain meetings were held at which some or all of petitioners were present.
On April 11, 1963, "The Revs. King, Abernathy, and Shuttlesworth were seated *496 at the round table." Several copies of "a news bulletin put out by the Alabama Christians for Human Rights" were brought there by "Rev. Wyatt Tee Walker." After the bulletin was distributed to members of the press, "* * * Rev. Martin Luther King took one copy of it and read verbatim the entire text." The paper he read appears in the record as follows:
"COMPLAINANT'S EXHIBIT 2 "NEWS from
"ALABAMA CHRISTIAN MOVEMENT FOR HUMAN RIGHTS 5051/2 No. 17th Street B'ham, Ala.
*497 "* * * Shuttlesworth read from a typed statement more or less re-affirming what was said in the statement that was read by Rev. King." Shuttlesworth made the statement:
J. Walter Johnson, Jr., reporter for Associated Press, testified:
Elvin Stanton, news director for WSGN Radio, testified that he was present at a meeting on April 11th, and that:
Petitioners did not obtain a permit to march or parade. A march or parade occurred on Friday, April 12, and another march occurred on the streets of Birmingham on Sunday, April 14, 1963.
Willie B. Painter, investigator with Alabama Department of Public Safety, testified that he observed the Friday march, that several of petitioners entered a church, that within several minutes a group came out of the church and began a parade or march in the direction of downtown Birmingham, that:
The witness, Painter, further testified that he was present at a church from 2:30 or 3:00 o'clock in the afternoon of Sunday, April 14, 1963; that he observed the petitioner, Walker, talking to a group "and forming a group of people two or three abreast"; that a group came out of the church and began walking rapidly along the sidewalk; that "this large crowd of people that had gathered outside the church began moving along with them"; that there were several hundred people within this group; that an object struck the windshield of one of the city motors and broke the windshield; that the witness saw a negro man throw a brick which "passed within a close range of one of the police officers there in the street on duty."
James Ware, newspaper photographer, testified that a rock, "About the size of a large grapefruit" hit him on the back of the head and caused a knot which was still sore; that a lot of people were "hollering, apparently at the policemen making the arrests"; that the witness saw only two rocks but heard several more falling around him; that he was concentrating on taking pictures of what was happening; that he identified A. D. King and Wyatt Tee Walker in the picture.
The witness Ware identified four pictures, which were introduced into evidence and are before us. Ware identified the pictures as being pictures which he took of the paraders on Sunday afternoon. The pictures show people walking in and entirely occupying a street from curb to curb on each side and on the sidewalks.
On Monday, April 15, 1963, the City of Birmingham filed petition alleging that respondents had violated the injunction and praying that rule nisi issue to respondents requiring them to show cause why they should not be adjudged and punished for contempt. Rule nisi did issue, hearing was had, and those respondents who have applied *499 for certiorari were adjudged guilty of contempt of the circuit court and committed to the sheriff for five days and fined Fifty dollars each. We review this judgment by certiorari.
On the same Monday, April 15, 1963, respondents filed a motion to dissolve the temporary injunction which had been issued on April 10, 1963.
During the hearing on the charge that petitioners had violated the injunction, the trial court stated the issues presented by the evidence as follows:
Petitioners do not appear to deny the charge that they, or a number of them, did parade or march without a permit contrary to the order temporarily enjoining them "* * * from engaging, sponsoring, inciting or encouraging mass street parades or mass processions or like demonstrations within a permit * * *."
Petitioners, on page 3 of brief, filed in this court July 19, 1963, admit that "After issuance of the injunctive order, petitioners and others continued their participation in these protest demonstrations and accordingly were held in contempt of the injunctive decree." On page 3 of brief petitioners say:
In the light of petitioners' statement in brief, it would be difficult to decide that petitioners did not violate the temporary injunction against engaging in mass street parades without a permit. Petitioners did engage in and incite others to engage in mass street parades and neither petitioners nor anyone else had obtained a permit to parade on the streets of Birmingham.
Petitioners argue that the injunctive order is void and, for that reason, the judgment of contempt is void.
*500 The circuit court, in equity, is a court of general equity jurisdiction and has power to issue injunctions. Section 144 of Constitution of 1901 recites:
§§ 1038 and 1039, Title 7, Code 1940, recite:
Petitioners do not argue that there was any failure to observe procedural requirements in the issuance of the injunction. We discuss later the question of lack of service on some petitioners.
Petitioners rest their case on the proposition that Section 1159 of the General City Code of Birmingham, which regulates street parades, is void because it violates the First and Fourteenth Amendments of the Constitution of the United States, and, therefore, the temporary injunction is void as a prior restraint on the constitutionally protected rights of freedom of speech and assembly.
It is to be remembered that petitioners are charged with violating a temporary injunction. We are not reviewing a denial of a motion to dissolve or discharge a temporary injunction. Petitioners did not file any motion to vacate the temporary injunction until after the Friday and Sunday parades. Instead, petitioners deliberately defied the order of the court and did engage in and incite others to engage in mass street parades without a permit.
The Supreme Court of the United States has said:
"`We regard this argument as unsound. It has been held, it is true, *501 that orders made by a court having no jurisdiction to make them may be disregarded without liability to process for contempt. In re Sawyer, 124 U.S. 200, 8 S. Ct. 482, 31 L. Ed. 402; Ex parte Fisk, 113 U.S. 713, 5 S. Ct. 724, 28 L. Ed. 1117; Ex parte Rowland, 104 U.S. 604, 26 L. Ed. 861. But even if the Circuit Court had no jurisdiction to entertain Johnson's petition, and if this court had no jurisdiction of the appeal, this court, and this court alone, could decide that such was the law. It and it alone necessarily had jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument, and to take the time required for such consideration as it might need. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 387, 4 S. Ct. 510, [514] 28 L. Ed. 462, 465. Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition, just as the state court was bound to refrain from further proceedings until the same time. Rev.Stat. § 766, act of March 3, 1893, c. 226, 27 Stat. 751 * * *. The fact that the petitioner was entitled to argue his case shows what needs no proof, that the law contemplates the possibility of a decision either way, and therefore must provide for it.' 203 U.S. 573, 27 S. Ct. 166, 51 L. Ed. 319.
No useful purpose would be served by further discussion of this point. See concurring opinion of Harlan, J., in In Re Green, 369 U.S. 689, 693, 82 S. Ct. 1114, 8 L. Ed. 2d 198.
We hold that the circuit court had the duty and authority, in the first instance, to determine the validity of the ordinance, and, until the decision of the circuit court is reversed for error by orderly review, either by the circuit court or a higher court, the orders of the circuit court based on its decision are to be respected and disobedience of them is contempt of its lawful authority, to be punished. Howat v. State of Kansas, 258 U.S. 181, 42 S. Ct. 277, 66 L. Ed. 550.
*503 Petitioners Martin Luther King, Jr., Ralph Abernathy, A. D. King, Wyatt Tee Walker, and F. L. Shuttlesworth, are named in the injunction and were served with a copy on April 11, 1963. That they were active in inciting others to parade and actively participated in the parades or marches after they were served with a copy of the injunction is clearly shown by the testimony. Petitioners do not seem to argue in brief to the contrary. As to those five of the petitioners last named the judgment is due to be and is affirmed.
Petitioner Porter was served with a copy of the injunction on April 12, 1963, at 4:13 p. m. There is testimony that with respect to his participation in the parade on Sunday, April 14, 1963, "Rev. Porter stated that he was one of the leaders." There is other testimony that he engaged in the Sunday parade. The judgment against him is affirmed.
The general rule is that one who violates an injunction is guilty of contempt, although he is not a party to the injunction suit, if he has notice or knowledge of the injunction order, and is within the class of persons whose conduct is intended to be restrained, or acts in concert with such a person. See 15 A.L.R. 387, and authorities there cited.
The instant injunction enjoins the named respondents "and all other persons in active concert or participation with the respondents to this action." As to the petitioners who were not named as parties in the bill, or were not served with a copy of the injunction, we come now to consider the evidence going to show their knowledge of the terms of the injunction with respect to parades and the conduct of such petitioners in participating in the parades or marches.
Petitioners Hayes, Smith, and Fisher were not served with a copy of the injunction until after the Sunday march. Each of them participated in the Sunday parade and there is evidence that each of them had knowledge of the injunction prior to that parade. Fisher testified that he attended the Friday and Saturday meetings. He also testified:
The witness Jones, City Detective, referring to Hayes, testified that:
Jones also testified that petitioner Smith stated that he "had knowledge of the injunction" prior to his participation in the Sunday parade.
We think it would require of the trial court an unduly naive credulity to declare that the court erred in concluding that Hayes and Fisher had knowledge that marching on the streets was enjoined and that they knowingly and deliberately violated the injunction by marching or parading *504 on Sunday. As to Hayes and Fisher the judgment against them is affirmed.
As to petitioner Smith we reach a different result. Smith was not a party to the suit and was not served with a copy of the injunction prior to the Sunday March. He was bound, alike with other members of the public, to observe its restrictions when known, to the extent that he must not aid or abet its violation by others, and the power of the court to proceed against one so offending and punish for the contemptuous conduct is inherent and indisputable. Garrigan v. United States, 7 Cir., 163 F. 16, 89 C.C.A. 494, 23 L.R.A.,N.S., 1295. But, in order to convict a person of contempt where he is not a party and has not been served with a copy of the order, it must be shown clearly that he had knowledge of the order for the injunction in such a way that it can be held that he understood it, and with that knowledge committed a wilful violation of the order. Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 8 Cir., 124 F. 736.
There is evidence that Smith "had knowledge" of the injunction and he testified that he had heard about the injunction on the radio, "Maybe Saturday," before the Sunday March. It may well be that Smith was fully advised of the terms of the injunction, but we think a finding to that effect must rest on speculation rather than on a reasonable inference from the testimony. The injunction restrains acts other than parading. Knowledge of other enjoined acts would not be knowledge of the injunction against parading. We hold that it is not clearly shown that Smith had knowledge of the injunction in such a way that it can be held that he understood it and with that knowledge committed a wilful violation of the injunction. The judgment of contempt against Smith is quashed.
We have not found in the record where petitioners Young and Bevel were served with a copy of the injunction. We have not found evidence to show that either of them participated in the march on either Friday or Sunday. We are not persuaded that the evidence sustains the judgment of contempt against them, and as to Young and Bevel the judgment holding them in contempt is quashed.
Affirmed in part.
Quashed in part.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | December 9, 1965 |
3e68cbe5-ffbc-4fce-b8a2-19fe2a754486 | Groton Pacific Carriers, Inc. v. Jackson | N/A | 1120613 | Alabama | Alabama Supreme Court | Rel: 02/14/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1120613
_________________________
Groton Pacific Carriers, Inc., and International Tanker
Management Holding LTD.
v.
Carl Jackson, as personal representative of The Estate of
Carl L. Williams, deceased, and as next friend of Camren
Lamarcus Williams, Jayden Eugene Williams, and Cartez
Labruce Williams, minors; and Edward L. Purdue.
Appeal from Mobile Circuit Court
(CV-08-901674)
MAIN, Justice.
Groton Pacific Carriers, Inc. ("Groton Pacific"), and
International Tanker Management Holding LTD. ("ITM") appeal
1120613
from a judgment in the amount of $4,851,125 entered in favor
of Carl Jackson, as personal representative of the estate of
Carl L. Williams, deceased, and as next friend of Camren
Lamarcus Williams, Jayden Eugene Williams, and Cartez Labruce
Williams, minors; and Edward L. Purdue. We reverse and
remand.
I. Facts and Procedural History
This appeal arises from an accident that occurred on the
Mobile River. Purdue and Williams were working for Mo-Bay
Shipping Services, Inc. ("Mo-Bay"), as line handlers. Mo-Bay
provides line-handling services to vessels docking and
undocking at various terminals in the Port of Mobile. Mo-
Bay's line handlers retrieve the mooring lines from vessels
and secure the lines to shore-side bollards or offshore
mooring dolphins. Although Mo-Bay's line-handling services
1
are typically performed by employees working dockside, its
operation often requires the use of small boats to run out to
retrieve the mooring lines from a vessel and then to transport
and secure the lines to mooring dolphins or shore-side
According to the record, a "bollard" is an iron post
1
firmly fixed in concrete along a wharf, around which to fasten
a ship's mooring lines, and a "mooring dolphin" is an offshore
structure for mooring ships.
2
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bollards. Mo-Bay maintains a small fleet of two-man motorized
17-foot boats for use in its line-handling services.
Purdue and Williams sometimes worked on these line-
handling boats. On June 19, 2008, they were dispatched by Mo-
Bay to meet the MT Glenross, an ocean-going tanker; they were
to use a Mo-Bay boat to transport the Glenross's steel mooring
lines from where the Glenross was anchored to shore-side
bollards located a few hundred yards away. The accident
occurred while Purdue and Williams were handling one of the
Glenross's mooring lines. The mooring line, a steel cable,
was lowered to Purdue and Williams, who secured the line to
the Mo-Bay boat. After the line was secured to the boat,
Williams yelled up for the Glenross's crew to let out more
slack so the boat could pull the line toward shore. Rather
than more line letting out, however, the line began to "heave
in" or retract. As a result of either a mechanical problem
with the ship's winch or improper operation of the winch by
the Glenross's crew, the mooring line continued to be reeled
in, and the boat Williams and Purdue were in, which was
connected to the line, was pulled out of the water and up the
side of the Glenross's hull. Williams and Purdue held onto
3
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the boat as it was lifted from the water. The boat, however,
broke free from the line, fell into the river, and capsized.
Williams and Purdue, who were not wearing life vests, fell
into the water. Purdue was able to climb atop the capsized
boat and was rescued. Williams, who could not swim, drowned.
On October 23, 2008, Purdue and Jackson, as personal
representative of Williams's estate and as next of friend of
Williams's minor children, filed this action in the Mobile
Circuit Court. The complaint named Purdue and Williams's
employer, Mo-Bay, as a defendant. The complaint also named
the Glenross's managers, Groton Pacific and ITM, and its
owner, Cypress Glennross, LLC ("Cypress"), as defendants.
Count one of the complaint alleged that Purdue and
Williams were "Jones Act seamen" and asserted a Jones Act, 46
U.S.C. § 30104, claim against Mo-Bay. The complaint asserted
that Mo-Bay had failed to provide appropriate safety
equipment, including life preservers and safety devices
designed to release an attached mooring line from the line-
handling boat before the boat is picked up from the water.
Count one additionally alleged general maritime-law claims of
negligence and unseaworthiness against Groton Pacific, ITM,
4
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and Cypress. Count one also made an alternative claim that
Purdue and Williams were longshoremen and/or harbor workers
entitled to recover from Groton Pacific, ITM, and Cypress
under the Longshore and Harbor Workers' Compensation
Act
("the
LHWCA"), 33 U.S.C. § 901 et seq.
Count two of the complaint asserted claims under Alabama
law, including a wrongful-death claim. The
complaint conceded
that the claims in count two were made to preserve those
claims "[i]n the unlikely event that the Court should decide
that these claims do not fall within the maritime and
admiralty jurisdiction of the United States." Count two was
voluntarily dismissed before trial.
Mo-Bay denied that Purdue and Williams were Jones Act
"seamen" and moved for a summary judgment, arguing that
Purdue and Williams were instead harbor workers covered by the
LHWCA and thus unable to sue Mo-Bay because harbor workers may
recover only compensation benefits from their employer. In
support of its motion for a summary judgment, Mo-Bay submitted
the affidavit testimony of the president of Mo-Bay, William
Lott. Lott testified regarding the duties of Mo-Bay's line-
handling personnel and also testified specifically regarding
5
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Purdue's and Williams's work for Mo-Bay. Lott testified, in
part:
"4.
Typically, Mo-Bay is contacted by the agent
for an incoming or outgoing vessel and is informed
of how many, at what time and at what location line
handlers are needed for docking or undocking. Mo-
Bay then contacts its line handlers and instructs
them to report to said location at said time in
order to perform the line handling. In some
instances, the line handlers report to Mo-Bay's
office where a van will transport the workers to the
specified dock. ...
"5.
Certain terminals in the Port of Mobile
have positioned some of their mooring bollards, not
on shore, but on top of mooring dolphins located a
short distance from the shore. ... While some of
these dolphins are so near the shore that they could
be accessed by a line handler from shore, the normal
practice is to put two or three line handlers in a
small line handling boat, but then drive out to the
dolphin. ... Once at the dolphin, one of the line
handlers will then climb onto the dolphin while the
other line handlers will receive the ship's lines
and transport them to the dolphin where the lines
are secured to the bollard by the line handler on
the dolphin. ... On this type of job, another Mo-
Bay
crew
of
line
handlers
will
also
be
simultaneously handling lines on the dock.
"6. On each job, whether a particular line
handler is assigned to work with the shore side crew
or with a line handling boat crew is left completely
up to the Mo-Bay management or the men working that
specific job. No line handlers are 'assigned' as
crew members of a line handling boat and each
individual line handler is subject to being put on
the shore or in the line handling boat.
6
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"7.
If required to work from a line handling
boat, on average, and including the travel time from
shore to the vessel and back, line handlers would
spend approximately one to one and one-half hours in
the line handling boat. If, on a particular job, a
line handler was assigned to work from the mooring
dolphin, he would then only spend the travel time in
the boat. These line handlers were never required
to work beyond the confines of The Mobile River or
terminals located along Mobile Bay.
"8.
At no time are any line handlers required
to sleep or eat their meals aboard a line handling
boat. Each line handler is free to return to his
home or desired destination at the completion of
each line handling job. Furthermore, none of the
line handlers are required to have seaman's papers,
a Coast Guard license, or sign any ship's articles.
Finally, none of the line handlers at Mo-Bay are
designated as crew members of any line handling
boat.
"9.
One of Mo-Bay's employees, Edward Purdue,
has been employed with Mo-Bay for approximately
thirteen (13) years. Purdue's years of experience
at Mo-Bay have led to his status as a somewhat
'senior' employee in terms of his experience and
responsibilities. During that time, the majority of
P u r d u e ' s
w o r k
h a s
i n v o l v ed
c r e w
transportation/delivery jobs and on shore mooring
jobs. Purdue typically received instructions from
his shore side supervisors at Mo-Bay as to what
transportation/delivery or line handling jobs he
would need to perform on a given day. On certain
irregular
and
sporadic
occasions,
Purdue
was
required to work a line handling boat on the mooring
dolphin jobs. Whether or not Purdue was needed to
work the line handling boat on a mooring dolphin job
was completely dependent upon the particular needs
that a given terminal or incoming/outgoing vessel
may have or a particular day as well as on what
7
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other available line handlers were available to work
for Mo-Bay on that given day.
"10.
Another line handler for Mo-Bay was
Carl Williams. Carl Williams was a part-time line
handler who began his employment with Mo-Bay on May
7, 2007. From May through December of 2007,
Williams irregularly and sporadically worked shore
side and mooring dolphin line handling jobs for Mo-
Bay. Sometimes he would work completely shore side,
sometimes in a line handling boat and sometimes from
the mooring dolphin. Like Purdue, his work
assignments were based on the particular needs that
a given terminal or incoming/outgoing vessel may
have on a particular day along with the availability
of other line handlers at Mo-Bay. From December 28,
2007 until March 16, 2008, Williams did not work at
all for Mo-Bay. From March 17, 2008 until the date
of this accident, a period of approximately three
(3)
months,
Williams
worked
irregularly
and
sporadically, averaging twelve (12) line handling
jobs per month.
"11.
Typically, Purdue and Williams would
be contacted by a line handling supervisor and would
be instructed on where to report for a job. When
required to work in a line handling boat, they would
then travel to the jobsite, prepare the line
handling boat for the job, launch the line handling
boat, ride in the line handling boat to the vessel
or dolphin, perform the job (which often times
included getting out of the boat and working from a
mooring dolphin or getting out of the boat to reach
an on shore bollard) and then ride in the boat back
to shore.
"12.
Purdue and Williams both received
their instructions from a shore-side dispatch for
Mo-Bay. There was no set schedule by which line
handlers worked from. Their job assignments were
completely based upon the various needs and times
8
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that vessels would arrive into the Port of Mobile
and upon the decisions of Mo-Bay."
Mo-Bay asserted that because Williams's and Purdue's use of
the line-handling boats was only irregular and sporadic, they
did not qualify as "seamen" entitled to bring a Jones Act
claim.
Jackson and Purdue opposed Mo-Bay's summary-judgment
motion and argued that there was a question of fact as to
whether Williams and Purdue were to be properly classified as
"seamen" entitled to bring a Jones Act claim against Mo-Bay or
whether they were to be classified as "harbor workers," whose
sole remedy against
Mo-Bay
was compensation benefits under the
LHWCA. Although Jackson and Purdue conceded that a recovery
under the Jones Act and a recovery under the LHWCA were
mutually exclusive, they contended that they were entitled to
assert both claims in the alternative and allow the jury to
determine under which act they were due recovery. In response
to Mo-Bay's assertion that their work on the boats was
irregular and sporadic, Jackson and Purdue presented evidence
indicating that Williams and Purdue worked regularly on the
line-handling boats. Indeed, they submitted summaries of Mo-
Bay's job tickets that showed that during the year preceding
9
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the accident, Purdue had worked an average of 5 days a week
for Mo-Bay, and had performed 470 line-handling jobs. Of
those 470 jobs, 214 involved use of a line-handling boat. In
other words, 45% of Purdue's line-handling jobs in the year
preceding the accident involved the operation of a line-
handling boat. Although Williams had worked only 98 jobs for
Mo-Bay
in
the
year
preceding
the
accident,
93,
or
approximately 95%, of those jobs involved the use of a boat.
Purdue testified that he normally used the same line-handling
boat. Jackson and Purdue argued that Williams's and Purdue's
regular work on a vessel, which subjected them to the "perils
of sea," raised a question of fact as to whether they were
"seamen" entitled to bring a claim against Mo-Bay under the
Jones Act, thus precluding a summary judgment. The trial
court agreed and denied Mo-Bay's motion for a summary
judgment.
Following
the
denial
of
Mo-Bay's
summary-judgment
motion,
Mo-Bay and its workers' compensation insurer reached a
settlement with Purdue and Jackson for the payment of workers'
compensation benefits. Before the settlement, Jackson and
Purdue
had
filed
a
separate
proceeding
before
an
10
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administrative law judge with the United States Department of
Labor
seeking
LHWCA
workers'
compensation
benefits
from
Mo-Bay
and its workers' compensation insurer. In that proceeding,
Mo-Bay, Purdue, and Jackson stipulated in writing that Purdue
and Williams were harbor workers, subject to "the exclusive
jurisdiction of the [LHWCA] ... for workers' compensation
benefits
determination
for
each
injury/death."
The
settlement
agreement was approved by the administrative law judge by a
formal "Decision and Order Approving Settlement." As a part
of the settlement, Purdue and Jackson agreed to voluntarily
dismiss their Jones Act claim against Mo-Bay and granted Mo-
Bay's insurer a lien over any recovery they might obtain from
Groton Pacific and/or ITM. Groton and ITM were not parties to
the settlement agreement or the administrative proceedings in
the Department of Labor.
Before the trial in this case, Groton Pacific, ITM,
Jackson, and Purdue each filed motions seeking a ruling from
the trial court as to Williams's and Purdue's status as
seamen. The parties agreed that the classification was
2
Groton Pacific and ITM moved for a summary judgment. As
2
part of their motion, Groton Pacific and ITM sought dismissal
of all claims for nonpecuniary damages and punitive damages.
Jackson and Purdue opposed the summary-judgment motion and
11
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important to identifying the types of damages
available should
Jackson and Purdue prevail at trial. Groton Pacific and ITM
argued, in part, that, if Williams and Purdue were classified
as "seamen," as opposed to harbor workers, their claims must
proceed as general maritime-negligence claims, which do not
permit nonpecuniary damages. As Jackson and Purdue explained
in their brief to the trial court:
"It makes a major difference in this case whether
these two workers were Jones Act seamen on the one
hand, or on the other, harbor workers covered by the
[LHWCA]. If the men were Harbor Workers as Mo-Bay
and the workers themselves agree they were, then
they are entitled to claim from the ship (1) non-
pecuniary damage[] such as loss of society, and (2)
punitive damages. But if they were the Jones Act
seamen of Mo-Bay, they are clearly not entitled to
claim non-pecuniary damages, and arguably not
punitive damages, which are major parts of the
claimed damages in this case."
Thus, although Jackson and Purdue had previously argued
in their response to Mo-Bay's summary-judgment motion that
substantial evidence supported Williams's and Purdue's
classification as "seamen," in response to Groton Pacific and
ITM's motion for a summary judgment they argued that they were
due to be classified as harbor workers. Specifically, they
moved for a judgment as a matter of law as to Groton Pacific
and ITM's "Jones Act defense."
12
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argued that the Department of Labor's approval of their
settlement with Mo-Bay for compensation benefits under the
LHWCA constituted a "formal award" of LHWCA benefits that
effected a formal adjudication of their status as harbor
workers. Although the trial court dismissed the state-law
claims and the unseaworthiness claim, it denied
Groton
Pacific
and ITM's motion for a summary judgment on the remaining
claims.
Before trial, the trial court ruled, as a matter of law,
that Williams and Purdue were harbor workers. The trial court
also denied Groton and ITM's request that the jury be
permitted to determine whether Williams and Purdue
were seamen
or harbor workers. Upon finding Williams and Purdue to be
harbor workers, the trial court ruled that the plaintiffs
could recover nonpecuniary damages and punitive damages and
charged the jury accordingly. Finally, the trial court
3
denied Groton Pacific and ITM's request that Mo-Bay, as a
settling tortfeasor, be added to the special-verdict form so
The
trial
court
refused
Groton
Pacific
and
ITM's
proposed
3
charges instructing the jury that punitive damages were not
recoverable
and
limiting
the
recovery
to
nonpecuniary
damages.
13
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that the jury could assess Mo-Bay's percentage of fault for
Williams's and Purdue's injuries.
The case was tried before a jury between December 3-11,
2012. The jury returned a verdict in favor of Jackson and
4
Purdue; it rendered a verdict in favor of Jackson in the
amount of $5,081,000, which included $231,000 for lost wages
and benefits; $300,000 for physical pain and suffering;
$550,000 for mental anguish; $2,250,000 for loss of nurture
for Williams's children, and $1,750,000 in punitive damages,
and in favor of Purdue in the amount of $670,500, which
included $500 for lost wages and benefits; $20,000 for
physical pain and suffering; $250,000 for mental anguish; and
$400,000 in punitive damages. The jury also found Purdue and
Williams guilty of 25% comparative fault. The trial court
then reduced the compensatory damages by 25% and entered the
following judgments:
Carl L. Williams, deceased
Lost wages and benefits:
$173,250
Physical pain and suffering:
$225,000
Mental anguish:
$412,500
Loss of nurture for children:
$1,687,500
Punitive damages:
$1,750,000
Jackson and Purdue never obtained service of process on
4
Cypress, and Cypress was dismissed from the action before
trial.
14
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Total:
$4,248,250
Edward L. Purdue
Lost wages and benefits:
$375
Physical pain and suffering:
$15,000
Mental anguish:
$187,500
Punitive damages:
$400,000
Total:
$602,875
Groton Pacific and ITM filed a posttrial motion seeking
a new trial or, alternatively, a remittitur. In support of
their motion for a new trial, Groton Pacific and ITM argued
that the trial court had erred in failing to find that
Williams and Purdue were seamen or by failing to submit the
seaman-status issue to the jury. Following a hearing, the
trial court denied the motion for new trial or for a
remittitur. Groton Pacific and ITM appeal.
II. Analysis
On appeal, Groton Pacific and ITM argue that the trial
court erred in ruling before trial that Williams and Purdue
were harbor workers. Groton and ITM argue that that ruling
led the trial court into a number of subsequent legal errors,
including incorrectly charging the jury, particularly with
respect to the type of damages available, and refusing to
allow the jury to apportion any fault to Mo-Bay, Williams's
and Purdue's employer. Groton Pacific and ITM further argue
15
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that the trial court erred in submitting punitive and other
nonpecuniary damages to the jury and that the damages awarded
are excessive.
We must first determine whether the trial court correctly
ruled, as a matter of law, that Williams and Purdue were
harbor workers entitled to assert claims against Groton
Pacific and ITM pursuant to 33 U.S.C. § 905(b) of the LHWCA.
Because only a question of law is presented, our review of
this issue is de novo. See Continental Nat'l Indem. Co. v.
Fields, 926 So. 2d 1033, 1035 (Ala. 2005) ("[W]e review de
novo the trial court's interpretation of statutory language
and ... previous caselaw on a controlling question of law.").
The LHWCA was created to establish a compensation scheme
for injured maritime workers. An injured longshoreman or
harbor worker may bring an action under the LHWCA against his
or her employer for workers' compensation benefits, 33 U.S.C.
§ 904, and against an owner or agent of a vessel for
negligence, 33 U.S.C. § 905(b). Under the terms of the LHWCA,
however, a person does not qualify as an "employee" entitled
to bring a claim under the LHWCA if that person is "a master
or member of a crew of any vessel." 33 U.S.C. § 902(3)(G).
16
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The United States Supreme Court has held that the phrase
"master or member of a crew" as used in the LHWCA is merely a
"refinement" of the of the term "seaman" as used in the Jones
Act, 46 U.S.C. § 30104. McDermott Int'l, Inc. v. Wilander,
498 U.S. 337, 348 (1991); Southwest Marine, Inc. v. Gizoni,
502 U.S. 81, 87 (1991). The Jones Act permits a "seaman
injured in the course of employment" to bring suit against his
or her employer. 46 U.S.C. § 30104. Although Jackson and
Purdue do not assert Jones Act claims against Groton Pacific
and ITM, whether Williams and Purdue were "Jones Act seamen"
determines whether their negligence cause of action falls
under the general maritime law, or whether it may be asserted
under § 905(b) of the LHWCA. Thus the seaman-status question
is the critical foundational inquiry in this case.
The parties generally agree that the question of
Williams's and Purdue's status -- seaman versus harbor worker
–- is important in this case because the answer to this
inquiry affects the types of damages available. Without
wading too deeply into the stormy waters of maritime-damages
law, we note that nonpecuniary damages are generally
5
For a full discussion of some of the debates concerning
5
maritime damages, see Attilio Costabel, Waiting for Gaudet:
17
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available to harbor workers injured or killed in territorial
waters. See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573
(1974). On the other hand, general maritime law does not, in
most cases, allow recovery of nonpecuniary damages for the
injury or wrongful death of a seaman. See Miles v. Apex
Marine Corp., 498 U.S. 19 (1990). Thus, a plaintiff's status
must be decided in order to fix what categories of damages the
jury may award.
As the United States Supreme Court has confessed, "[t]he
federal courts have struggled over the years to articulate
generally applicable criteria to distinguish among the many
varieties of maritime workers, often developing detailed
multipronged tests for seaman status." Chandris, Inc. v.
Latsis, 515 U.S. 347, 356 (1995). In Frazier v. Core
Industries, Inc., 39 So. 3d 140 (2009), we detailed the
federal statutory history and caselaw giving rise to the
Supreme Court's current two-pronged test to determine seaman
Charting A Course After Atlantic Sounding Co. v. Townsend, 24
St. Thomas L. Rev. 502 (2013); Thomas Galligan, Jr., Death at
Sea: A Sad Tale of Disaster, Injustice, and Unnecessary Risk,
71 La. L. Rev. 787 (2011); and David Robertson, Punitive
Damages in U.S. Maritime Law: Miles, Baker, and Townsend, 70
La. L. Rev. 463 (2010).
18
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status. That test, articulated by the Supreme Court in
Chandris, provides:
"[T]he essential requirements for seaman status are
twofold. First, ... 'an employee's duties must
"contribut[e] to the function of the vessel or to
the accomplishment of its mission."' ...
"Second, and most important for our purposes
here, a seaman must have a connection to a vessel in
navigation (or to an identifiable group of such
vessels) that is substantial in terms of both its
duration and its nature."
515 U.S. at 368 (citations omitted). Moreover, given the
questions of fact often
involved in determining seaman status,
the inquiry is normally one for a jury. See Wilander, 498
U.S. at 355-56.
"The seaman inquiry is a mixed question of law and
fact, and it often will be inappropriate to take the
question from the jury. Nevertheless, 'summary
judgment or a directed verdict is mandated where the
facts and law will reasonably support only one
conclusion.'"
Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997)
(quoting Wilander, 498 U.S. at 356). See also Chandris, 515
U.S. at 369.
In this case, Groton Pacific and ITM argue that the trial
court incorrectly ruled before trial, as a matter of law, that
Williams and Purdue were harbor workers. They argue that the
19
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undisputed evidence establishes that Williams and Purdue were
"seamen," or at the very least requires that the question of
their status as seamen be submitted to the jury. Jackson and
Purdue concede that the evidence in this case normally would
create a jury issue. They argue, however, that once their
settlement
agreement
for
compensation
benefits
under
the
LHWCA
was approved by order of an administrative law judge, it
became a "formal award" establishing Williams's and Purdue's
harbor-worker status and that that finding was binding on the
trial court.
First, we reject the argument that the settlement
agreement between Jackson, Purdue, and Mo-Bay, approved in a
proceeding before the United States Department of
Labor,
bound
the trial court to a finding that Williams and Purdue were
harbor workers, as a matter of law. In support of their
argument, Jackson and Purdue rely on the case of Sharp v.
Johnson Bros. Corp., 973 F.2d 423, 426 (5th Cir. 1992). In
Sharp, an employee was injured while performing bridge-repair
work. The employee sued his employer under the Jones Act and
filed a claim under the LHWCA. The worker eventually reached
a settlement with his employer with regard to his claim for
20
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compensation under the LHWCA; that settlement was approved by
an administrative law judge of the Department of Labor. The
court in Sharp, citing the holding in Southwest Marine, Inc.
v. Gizoni, 502 U.S. 81, 91 (1991), that an employee who
accepts voluntary payments from his employer under the LHWCA
without a "formal award" is not barred from pursuing a Jones
Act claim against his employer, held that the order approving
the settlement constituted a "formal award" that barred the
employee from pursuing the Jones Act claim against his
employer for the same injuries.
Jackson and Purdue's reliance on Sharp in this case is
misplaced. Sharp stands for the unremarkable principle that
once an employee litigates and reaps the benefits of his LHWCA
compensation claim against his employer, he can not then sue
his employer as a "seaman" seeking a second recovery for the
same injury. 973 F.2d at 427 ("[T]he LHWCA was not intended
to be a 'stepping stone on the way to a jury award.'"). In
this case, however, Groton Pacific and ITM, alleged third-
party tortfeasors, were not parties to the settlement
agreement or to the Department of Justice proceeding, and
Williams's and Purdue's harbor-worker/seaman status is an
21
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element of proof required to recover against Groton Pacific
and ITM under 33 U.S.C. § 905(b). It would be a gross
violation of Groton's and ITM's due-process rights to relieve
Jackson and Purdue of their burden of proof on an element of
their claim and preclude Groton Pacific and ITM from a full
and fair opportunity to contest Williams's and
Purdue's
seaman
status on the basis of a private settlement agreement and
proceeding to which Groton Pacific and ITM were not parties.
See Blonder-Tongue Labs., Inc. v. University of Illinois
Found., 402 U.S. 313, 329 (1971). The holding in Sharp, which
limits an injured maritime employee's
ability to
seek multiple
recoveries from his employer for the same injury under
mutually exclusive statutes, does not support the offensive
application of the collateral-estoppel doctrine urged upon us
by Jackson and Purdue. Accordingly, we hold that the
Department
of
Labor
administrative
law
judge's
order
approving
Jackson's and Purdue's settlement for LHWCA compensation
benefits did not establish, as a matter of law, for purposes
of this case that Williams and Purdue were harbor workers.
Because the Department of Labor proceeding did not
establish Purdue's and Williams's status as a matter of law,
22
1120613
we must apply the two-pronged Chandris test to the facts
before us. The Supreme Court has recognized that meeting the
first prong of the Chandris test is not an overly difficult
task: it need only be established that the maritime employees
"do the ship's work." 515 U.S. at 368. The Supreme Court has
stated that this threshold requirement is "very broad,"
covering "[a]ll who work at sea in the service of a ship."
Id. Applying this "very broad" and inclusive test to the
facts at hand, there is at least evidence indicating that
Williams and Purdue contributed to the function of the line-
handling vessel. Purdue operated the boat and Williams was
serving as deckhand -– they were doing the vessel's work.
The second Chandris prong, however, is a more exacting
test. To meet this requirement, it must be shown that a
maritime employee has "a connection to a vessel in navigation
(or to an identifiable group of such vessels) that is
substantial in terms of both its duration and nature." 515
U.S. at 368.
"The
fundamental
purpose
of
this
substantial
connection requirement is to give full effect to the
remedial scheme created by Congress and to separate
the sea-based maritime employees who are entitled to
Jones Act protection from those land-based workers
who have only a transitory or sporadic connection to
23
1120613
a vessel in navigation, and therefore whose
employment does not regularly expose them to the
perils of the sea."
Id. The Supreme Court has explained that this test is
"fundamentally status based." 515 U.S. at 361. "Land-based
maritime workers do not become seamen because they happen to
be working on board a vessel when they are injured, and seamen
do not lose Jones Act protection when the course of their
service to a vessel takes them ashore." Id. The crux of the
second Chandris prong involves distinguishing land-based from
sea-based
employees
by
examining
the
employee's
activities
and
duties. Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 786
(9th Cir. 2007).
In the present case, there is substantial evidence of
Williams's and Purdue's sea-based job activities, namely the
handling of ships' lines from aboard a 17-foot boat. Purdue's
job
duties
included
operating
the
line-handling
boat;
Williams
served as a deckhand, required to fetch a ship's mooring line
and attach it to their small craft to be pulled to shore. The
question, however, is not only whether Williams and Purdue had
a connection with a vessel or fleet of vessels –- clearly they
did; the question is, rather, whether that connection was so
24
1120613
substantial in duration and nature as to render each of them
a "seaman." Here the evidence in the record is disputed.
Mo-Bay's
president testified that Williams's
and
Purdue's
work in the line-handling boats was "irregular and sporadic."
He testified that the majority of Purdue's duties at Mo-Bay
consisted of shore-side transportation and delivery jobs and
shore-side line-handling duties. He testified that whether
Purdue was needed to work the line-handling boat was
completely dependent upon the particular needs of the day and
what other personnel were available to work. Purdue, on the
other hand, testified that he worked on the line-handling boat
nearly every day, and he produced a summary of job tickets
showing that approximately 45% of the line-handling jobs he
performed involved his use of a Mo-Bay boat.
The job-ticket summary also indicates that when Williams
worked, he nearly always worked a line-handling job that
involved the use of one of Mo-Bay's boats. However, as Mo-
Bay's president testified, Williams was a part-time worker
who
worked only sporadically for Mo-Bay. In the 3 months before
the accident, he worked an average of only 12 jobs per month.
Mo-Bay's president testified that "[s]ometimes he would work
25
1120613
completely shore side, sometimes in a line handling boat and
sometimes from the mooring dolphin." Like Purdue, his work
assignments were based on Mo-Bay's needs for that particular
day.
Mo-Bay's president testified that each line handler would
spend no more than an hour to an hour and a half in the boat.
Purdue and Williams did not sleep or eat their meals on the
boat. They did not have seaman's papers or a Coast Guard
license, nor did they sign any ship's articles. Mo-Bay did
not formally designate Williams or Purdue as members of any
crew.
We conclude that the evidence related to Williams's and
Purdue's seaman status raises a genuine issue of material fact
warranting jury consideration. See Delange v. Dutra Constr.
6
Groton Pacific and ITM argue that the evidence
6
demonstrates that Williams and Purdue were seamen as a matter
of law and cite the "rule of thumb" approved in Chandris, that
"[a] worker who spends less than about 30 percent of his time
in the service of a vessel in navigation should not qualify as
a seaman." 515 U.S. at 371. They argue that the evidence
showing that more than 30% of William's and Purdue's line-
handling jobs involved use of a boat establishes Williams's
and Purdue's seaman status as a matter of law. We disagree.
The 30% rule is "no more than a guideline" to establish who is
not a seaman. Id. The facts in this case, including the
percentage of time Williams and Purdue spent in service of a
vessel in navigation, were sufficiently disputed to present a
jury question.
26
1120613
Co., 183 F.3d 916 (9th Cir. 1999)(holding that whether a barge
worker who occasionally performed work typically done by
deckhands, securing and stowing cargo, handling lines, and
serving as a lookout, was a seaman was a question for jury).
Accordingly, we conclude that the trial court erred in ruling
as a matter of law that Williams and Purdue were harbor
workers.
We reverse the judgment of the trial court and remand the
case for a new trial, which should include the submission for
resolution by the jury of the issue of Williams's and Purdue's
seaman status. Because we are reversing the judgment of the
trial court, we do not address the issues related to the type
and amount of damages awarded by the jury or the issues
related to the verdict form.
III. Conclusion
We reverse the judgment of the trial court and remand the
case for a new trial.
REVERSED AND REMANDED.
Moore, C.J., and Bolin, Murdock, and Bryan, JJ., concur.
27 | February 14, 2014 |
413c08bc-e637-4dbf-9c13-24b9d008e53e | Sanders v. State | 179 So. 2d 35 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 35 (1965)
Riley SANDERS
v.
STATE of Alabama.
6 Div. 130.
Supreme Court of Alabama.
September 30, 1965.
*37 J. Howard McEniry and A. Vincent Brown, Bessemer, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Appellant, Riley Sanders, was tried on an indictment containing two counts. The first count charged him with the murder in the first degree of Thomas B. Marks, and the second count charged him with robbery of the same person.
Sanders was unable to employ counsel, so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed able members of the Jefferson County Bar to represent him.
Before arraignment, Sanders filed a motion "to require the solicitor to furnish to his attorneys any information held by him in the form of purported confessions, statements by witnesses, charts, diagrams, hospital records, court records, notes from the Grand Jury proceedings or other information held by him * * *." This motion was granted by the trial court "only as to all statements, reports, notes, and charts of all witnesses who testified at the preliminary hearing or the Grand Jury against defendant, and of Dorothy Jo Patton whether she testified or not, and alleged confessions of defendant."
Prior to arraignment Sanders filed a motion for a change of venue, which was overruled and denied.
Also, prior to arraignment, Sanders by demurrer challenged the indictment and each count thereof on various grounds. The demurrer was overruled.
Upon arraignment, Sanders pleaded not guilty and not guilty by reason of insanity and not guilty by reason of self-defense. The latter plea was unnecessary, self-defense being covered by the plea of not guilty. See Roberson v. State, 183 Ala. 43, 62 So. 837. The court-appointed attorneys were present at arraignment. Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114.
At the trial, after the State had rested, one of the lawyers for Sanders advised the court that with the consent of the defendant he would like to withdraw the plea of not guilty by reason of insanity. That request was granted by the trial court. Thereupon counsel for Sanders advised the court that "we would like to withdraw the not guilty plea to Count 2 of the indictment and plead guilty thereto." In response to that motion or request, counsel for the State moved "the Court to nol pros Count 2 of the indictment which charges the defendant, Riley Sanders, with robbery." Counsel for Sanders advised the court that "we have no objection to it." The court stated: "All right. I will grant the State's motion and enter a judgment to nol pros Count 2 of the indictment." Such a judgment was entered.
The defendant, Sanders, rested without offering any testimony.
The jury found Sanders guilty of murder in the first degree and imposed the death penalty. Judgment and sentence were in accord with the verdict.
*38 The appeal here is under the automatic appeal law applicable to cases where the death sentence is imposed. Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cum. Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, §§ 382(1) et seq.
The attorneys who represented Sanders in the trial court were appointed to represent him on this appeal. They have filed a brief in his behalf.
In brief filed here on behalf of Sanders it is not contended that the trial court erred in its ruling on the motion to produce. But we will consider the court's action on that motion in view of the fact that § 389, Title 15, Code 1940, makes it the duty of this court to "consider all questions apparent on the record" and to "render such judgment as the law demands." Sanders v. State, 259 Ala. 520, 67 So. 2d 2. If the question reserved is of substance and might have affected the result, it is of no importance that the appellant or his counsel have not argued the question. Wesson v. State, 238 Ala. 399, 191 So. 249.
In arguing the motion to produce to the trial court, counsel referred to "Parsons versus Alabama," to the "Jencks decision," to "18 U.S.C.A. § 3500, The Jencks Act," and to "Brody versus Maryland." No citation was given to any of the court decisions to which reference was made
We assume that "Parsons versus Alabama" is the case of Parsons v. State, 251 Ala. 467, 38 So. 2d 209. In that case we were concerned with the right of a defendant in a state court to obtain certain articles and reports in the possession of a United States attorney or agents of the Federal Bureau of Investigation. We were not there concerned with the right of a defendant in a state court to require the State prosecutor to deliver statements, articles or information in his possession to the defendant for use in the preparation of his defense. See Mabry v. State, 40 Ala.App. 129, 110 So. 2d 250, petition for cert. dismissed, 268 Ala. 660, 110 So. 2d 260; McCullough v. State, 40 Ala.App. 309, 113 So. 2d 905, cert. denied, 269 Ala. 698, 113 So. 2d 912.
The "Jencks decision" to which reference was made by counsel is, no doubt, the case of Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1013, 1 L. Ed. 2d 1103, decided by the Supreme Court of the United States on June 3, 1957, wherein it was held that the defense in a criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. See Palermo v. United States, 360 U.S. 343, 79 S. Ct. 1217, 3 L. Ed. 2d 1287. The decision in Jencks v. United States, supra, brought about the so-called "Jencks Act" (71 Stat. 595, 18 U.S.C. § 3500), apparently designed to clarify and delimit the reach of Jencks.
We do not think the case of Jencks v. United States, supra, or the "Jencks Act" can be said to authorize the relief which Sanders sought in his motion to produce. No constitutional provision was invoked in the Jencks case. The holding there was based on the "standards for the administration of criminal justice in the federal courts." Mabry v. State, supra. It has been said to apply only to federal criminal prosecutions. McKenzie v. State, 236 Md. 597, 204 A.2d 678. The "Jencks Act" by its terms applies to criminal prosecutions brought by the United States.
We assume that counsel intended to cite to the trial court the case of Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, rather than "Brody versus Maryland." The Brady case, supra, dealt with the suppression by the State prosecutor of an extrajudicial statement made by Brady's companion, which Brady's counsel prior to trial had requested the prosecution to allow him to examine. The suppression of the confession or statement was held to be a violation of the due process clause of *39 the Fourteenth Amendment to the Constitution of the United States.
We can see no violation of the rule of the Brady case, supra, in the action of the trial court in refusing to require the State to produce all that was requested by Sanders in his motion to produce. He was not entitled to a mere fishing expedition and the court, in effect, ordered the State to permit counsel for Sanders to see and examine the confessions made by Sanders and documents which would be useful to impeach State witnesses or attack their credibility. We are not called upon to say that Sanders was entitled to all of the relief given him by the trial court. We simply hold that the trial court did not err to a reversal in refusing to award him all of the relief prayed for in his motion to produce.
For an excellent treatment of the discovery rights of defendants in criminal prosecutions see the article by Hon. L. Drew Redden of the Birmingham Bar published in 22 Alabama Lawyer at page 115.
The motion for change of venue was in the form of an affidavit signed by Sanders' attorneys wherein they state, in substance, that Sanders could not get a fair and impartial trial in the "Bessemer Division of Jefferson County, Alabama," because "several newspaper articles have appeared in the Birmingham News and Birmingham Post-Herald and the Bessemer News pertaining to the alleged killing and alleged murder of Thomas B. Marks," and because the alleged killing of Marks created intense excitement and resentment among the citizens of "Bessemer Division, Jefferson County" and that many expressions of malice and hatred had been made by many citizens of Jefferson County, as well as expressions of opinion that Sanders was guilty of the murder. No other affidavit was introduced in support of the motion and no witness was called to give evidence in support thereof.
On the other hand, the State introduced a number of affidavits from prominent citizens who were so circumstanced as to be familiar with the attitude of the citizenry of the political subdivision wherein the case was set for trial toward Sanders and those affidavits refute the averments of the sworn motion for change of venue and contain expressions of opinion of affiants that Sanders could get a fair and impartial trial in the Circuit Court of Jefferson County, Bessemer Division.
On motion for change of venue in a criminal case, defendant has the burden of showing to the reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Tiner v. State, 271 Ala. 254, 122 So. 2d 738, and cases cited. We do not think the defendant, Sanders met that burden. We hold, therefore, that the motion for a change of venue was properly overruled and denied.
We have said that an indictment for murder in compliance with Form 79, § 259, Title 15, Code 1940, is sufficient. Noles v. State, 24 Ala. 672; Aiken v. State, 35 Ala. 399; Duncan v. State, 278 Ala. 145, 176 So. 2d 840.
The first count of the indictment is in substantial compliance with that form and was not subject to the ground of the demurrer which took the point that it charged Sanders with killing Marks with "malice a forethought" rather than with "malice aforethought." The spacing between the letter "a" and the letter "f" was obviously due to the use of a malfunctioning typewriter or the typing was done by an inexperienced typist. That count sufficiently advised Sanders of the decree of homicide with which he was charged. Before an objection because of false grammar, incorrect spelling, or mere clerical error is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt as to the meaning a person *40 of common understanding reading, not for the purpose of finding defects, but to ascertain what is intended to be charged. Grant v. State, 55 Ala. 201; Frazer v. State, 29 Ala.App. 204, 195 So. 287, cert. denied, 239 Ala. 309, 195 So. 290; Sanders v. State, 2 Ala.App. 13, 56 So. 69; Curry v. State, 23 Ala.App. 182, 122 So. 298; Hughes v. State, 92 Tex.Cr.Rep. 650, 245 S.W. 440. See 42 C.J.S. Indictments and Informations § 96.
The indictment was not subject to the grounds of demurrer that took the point that there was a misjoinder of offenses in that murder and robbery "are not the same family or general nature of offenses." In Smelcher v. State, 33 Ala.App. 326, 33 So. 2d 380, it was expressly held that murder in the first degree and robbery may be joined in one indictment in separate counts.
But even if it be conceded that there was a misjoinder, the action of the court in overruling the demurrer to the indictment would be error without injury, since the court entered a nolle prosequi as to the second count, the robbery count, upon motion of the State, in which action counsel for Sanders acquiesced. Barnett v. State, 54 Ala. 579; City of Birmingham v. Edwards, 18 Ala.App. 459, 93 So. 233, cert. denied, 208 Ala. 697, 93 So. 922; Foxx v. State, 26 Ala.App. 146, 154 So. 912; State v. Florian, 355 Mo. 1169, 200 S.W.2d 64; Parish v. State, 145 Tex. Cr.Rep. 117, 165 S.W.2d 748; Wimpling v. State, 171 Md. 362, 189 A. 248. Sanders' claim that his substantial rights suffered by reason of the admission of evidence pertaining to the robbery under the second count is without merit. The nolle prosequi was not entered until after the State had rested, but the evidence which related to the robbery was admissible under the murder count, the murder and robbery constituting one criminal transaction. Parsons v. State, 251 Ala. 467, 38 So. 2d 209; Smarr v. State, 260 Ala. 30, 68 So. 2d 6; Johnson v. State, 272 Ala. 633, 133 So. 2d 53.
On Wednesday, March 11, 1964, around 5:00 P.M., a truck driver found Thomas B. Marks lying on the floor of a building on Third Avenue, in Bessemer, wherein Marks operated his furniture business. The truck driver, who had been sent to Marks' place of business to deliver freight, notified the operator of a store in an adjoining building, who immediately went to the Marks store, where he saw Marks lying on the floor. His head and shoulders were covered with blood. The Bessemer police department was notified immediately and police officers arrived on the scene within a short period of time, as did an ambulance. Marks was carried to Lloyd Nolen Hospital in an unconscious condition. He died in the hospital at about 3:00 A.M. on Friday, March 13, 1964, without regaining consciousness. The doctor who attended Marks testified that a brain injury was the cause of death. He described the injuries on the head of deceased, saying, "* * * He had multiple gash-type wounds, if that description is permissible, with bony fragments being driven down in several different directions in the wounds, which would give the appearance that they had been caused by a blunt object being struck on the head several times." The doctor also testified that when he first examined him Marks was in a state of shock. He was bleeding profusely from multiple head wounds and there was much swelling about his head and face. There was a considerable amount of hair and bony fragments in his wounds and a small piece of wood was "retrieved in the process of cleaning the wounds." Some brain tissue was exuded.
The police officers who were called to the scene of the crime made a search of the deceased's store. They found a claw hammer about ten feet from where Marks was lying on the floor. The hammer appeared to be covered with blood. The officers also found a beer can or beer cans in the building. The door to the safe was open and the cash drawer was empty.
*41 The wife of deceased, who worked in the store keeping books and doing office work, testified that she left the store about 4:30 P.M. on the afternoon of March 11th. She left her husband alive. Just before she departed she checked the cash drawer and it contained approximately $113 in currency and coins. She had also checked the safe and left therein approximately $400 in money and some checks which were in a white envelope. She described other contents of the safe. The safe was unlocked when Mrs. Marks left the store.
On the day of the crime, Sanders was serving a sentence apparently imposed by the Bessemer City Court upon conviction of some relatively minor offense. But he was seen in the Marks store at about 4:35 on that day by a boy who had been sent by his employer to deliver a can of beer to Marks. The delivery boy did not notice anything unusual about Marks or Sanders, who were the only persons present in the building. Marks was sitting behind his desk and Sanders was "standing in front of the little teller window."
The evidence shows that Sanders knew Marks, having worked for the operator of a store located next to Marks' store. Sanders was shown to have been familiar with the Marks store in that his employer on occasions had assigned him to help the boy who worked for Marks.
Dorothy Patton, a friend of Sanders, testified that she met him at about 3:30 P.M. on the afternoon of the crime at the Top Hat Cafe. Sanders had a pistol. They left the cafe and walked to the corner of Third Avenue and Twentieth Street in Bessemer, where Sanders left her. He returned in about thirty minutes with something in his hand. They walked toward the City Jail. When they reached the jail Sanders gave her a brown bag in which he told her there was some money. He told her to carry the bag and its contents to Juanita Johnson at the Top Hat Cafe. On her way to the cafe some of the money fell through a hole in the bag. She then put the money in the bag in a brown box and proceeded on her way to the cafe. When she arrived at the cafe she and Juanita Johnson went to a room over the cafe where some of the contents of the bag were "poured out on top" of a table. Juanita Johnson kept the money but returned to Dorothy Patton a pistol which had been in the bag. Dorothy Patton then left the Top Hat Cafe and carried a bag containing a pistol and a white envelope to the home of a woman referred to both as Delores and Marie Braxton.
Juanita Johnson and the Braxton woman both testified that Dorothy Patton did leave the articles with them as she had stated. Juanita Johnson testified that she wrapped the money in a "head scarf" and locked it in her room. The Braxton woman testified that she put the articles left with her in a suitcase which she put in a closet.
On the morning of March 12, 1964, three police officers and Dorothy Patton went to the Top Hat Cafe. Two of the officers entered the cafe and were accompanied by Juanita Johnson to a room over the cafe where she delivered to the officers a "head scarf" in which money was wrapped. Thereafter a trip was made by one or more of the same police officers to the home of the Braxton woman. One or more of them was admitted by the latter's mother, who shortly thereafter delivered to the officer or officers a brown paper sack which contained a pistol and a white envelope in which were "some checks, some petty cash receipts." The white envelope had written thereon "Marks-Fitzgerald Furniture Co., 1922 Third Avenue, Bessemer, Alabama." Checks and receipts also bore the name of the furniture company.
Early on the afternoon of Thursday, March 12, 1964, after the aforementioned articles had been obtained by the police, Sanders made an oral confession which was immediately followed by a written confession, which was substantially as hereafter summarized.
*42 Shortly after two o'clock on the afternoon of March 11, 1964, he was brought back to the City Jail on a truck with other prisoners. Apparently they had been out on a work detail. Instead of going to his place of confinement, he hid in the "slop pantry" until it was safe for him to leave the jail. After leaving the jail he went to his home, where he got a pistol. He then went to the Top Hat Cafe where he called his "girl friend," Dorothy Jo Patton. Dorothy reached the cafe before 4:00, accompanied by her cousin. Sanders told Dorothy and Juanita Johnson, the operator of the cafe, that he "was going to do something wrong," that he "was going to get me some money so I could get out of jail." Sanders and Dorothy left and walked to the corner of Twentieth Street and Third Avenue in Bessemer. Dorothy remained at the intersection. Sanders proceeded towards the store of the deceased. He observed that the car of Mrs. Marks was not in its usual parking place and he concluded that Marks would be alone in the store, since he knew the colored boy who worked for him left work on Wednesdays at about twelve o'clock. Sanders "thinks" it was about 4:45 P.M. when he entered the store, where he found Marks alone, sitting behind the counter. Sanders began to talk to Marks and asked him for some money for cigarettes. Marks gave Sanders thirty-five cents. While he was talking to Marks the delivery boy brought two cans of beer to Marks. After the delivery boy left the store, Sanders "pulled" his pistol on Marks and told him to put the money in a sack. After telling Sanders, "I hate to see you do this," Marks put into a sack the money that was in his cash drawer. Marks then told Sanders he had broken him. Sanders replied, "* * * all but that in the safe." Marks then took the money from the safe and put it in the sack. The money was in a white envelope. Sanders then tried to "tie him up." Marks shoved Sanders and made a break for the door. Sanders then hit Marks in the head with "the butt of the pistol." After sitting down Marks tried to run again. Then Sanders repeatedly hit Marks on his head with a hammer until Marks "finally passed out." After Marks "passed out" Sanders left the store and returned to Dorothy Patton and told her that he had taken "his money." Sanders gave to Dorothy the sack with "the money and my pistol in it," telling her to take it to Juanita Johnson at the Top Hat Cafe. Sanders and Dorothy walked to the City Jail where they separated. Sanders entered the jail and "turned myself in * * *"
Extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether or not a confession is involuntary and unless it so appears it should not be admitted. Myhand v. State, 259 Ala. 415, 66 So. 2d 544; Phillips v. State, 248 Ala. 510, 28 So. 2d 542; White v. State, 260 Ala. 328, 70 So. 2d 624; Hines v. State, 260 Ala. 668, 72 So. 2d 296; Goldin v. State, 271 Ala. 678, 127 So. 2d 375; Smitherman v. State, 264 Ala. 120, 85 So. 2d 427.
During the examination of the witnesses who heard the confessions made, which examination occurred in the presence of the jury, the State introduced evidence tending to show that no threat was made against Sanders; that he was not physically mistreated; that no reward or hope of reward was offered or held out to him to get him to confess; and that he was told that any statement which he made could be used against him in court. Sanders was not represented by counsel at the time the confessions were made and he was not advised that he had a right to have counsel present. Counsel for Sanders were permitted to examine the witnesses on voir dire but did not call any witness to contradict the testimony of the witnesses offered by the State relative to the voluntariness of the confessions.
Sanders, a Negro, was twenty-two years of age at the time of trial. He could read and write. Apparently he was not married. *43 He lived with one Mary Thomas. They have three children.
As shown above, after the commission of the crime Sanders returned to the Bessemer City Jail, where he had been confined. The record does not show that he was interrogated by officers on the night of the crime, March 11th. It does appear that he may have been questioned early on the morning of March 12th by Detectives Pace and Smith, but the record does not show the length of the questioning or the result thereof. Around seven-thirty on the morning of March 12th he was questioned by Detectives Pace, Smith, Grimes and Hill for about fifteen or twenty minutes in the "Roll Call Room" at the Bessemer Police Headquarters. It was brought out by counsel for Sanders on the cross-examination of Detective Grimes that during that questioning Sanders admitted that he went to the deceased's store on the afternoon of the crime after leaving "his girl friend, Dorothy Jo Patton, down on the corner of Third and 20th"; that the beer delivery boy came in the store. But he said he did not know anything about the injury to Marks. As a result of the cross-examination of Detective Hill it was made to appear that prior to that questioning, no threats were made against Sanders nor any reward or hope of reward offered to get him to make a statement.
As far as this record discloses, Sanders was not questioned again until early on the afternoon of March 12th. On that afternoon he was first questioned in the office of Chief of Police Barron in the presence of the four detectives mentioned above. Sanders was in Chief Barron's office between thirty and forty-five minutes. It was there that Sanders made his oral confession. The four detectives and Sanders went immediately into an adjoining room where Sanders repeated his statement, which was written down by Detective Grimes. Sanders read the instrument which Grimes had written and then signed it. His signature was witnessed by two of the detectives.
It does not appear that during the questioning Sanders was placed under a bright light, nor is there any evidence that the places where the questionings took place contained any high-powered lights or such devices as are sometimes said to be found in a homicide investigating office. He was not required to disrobe, as far as this record discloses. The questioning of Sanders lasted only a short time. There is nothing in the evidence to indicate that the questioning was so severe and continuous as to require the officers to question in relays. It does not appear that Sanders was kept incommunicado or that he was denied food, drink or cigarettes.
We have given careful consideration to the evidence as it relates to the circumstances and conditions existing at the time the confessions introduced by the State were made and we are of the opinion that they were not such as to be inherently coercive or to have deprived Sanders of his free will to choose either to admit his connection with the crime, to deny such connection, or to remain silent.
We think the confessions were admissible under the decisions of the Supreme Court of the United States cited in Phillips v. State, 248 Ala. 510, 28 So. 2d 542.
But shortly prior to the time this case was tried in the court below, the Supreme Court of the United States decided two cases which must be considered: Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, and Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908.
The opening paragraph of the opinion in Escobedo v. State of Illinois, supra, reads:
"The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner's request to consult with his *44 lawyer during the course of an interrogation constitutes a denial of `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 795, 9 L. Ed. 2d 799, and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation." 378 U.S. 479, 84 S. Ct. 1759.
Later on in the opinion the Court said:
The opinion concludes with this sentence:
Although the language of the Escobedo opinion seems to limit the holding of the Court to the facts there present, some courts have not so construed it. We cited a number of the cases which have dealt with Escobedo in our recent case of Duncan v. State, 278 Ala. 145, 176 So. 2d 840, decided on June 30, 1965. Other cases which deal with Escobedo are cited in Lokos v. State, 278 Ala. 586, 179 So. 2d 714, this day decided. We will not further extend this opinion by again referring to the cases which we cited in Duncan v. State, supra, and Lokos v. State, supra.
In this case the predicate laid by the State did not show that a lawyer was present at the time the confessions were made or that Sanders was advised that he was entitled to a lawyer before the confessions were made, and it was brought out on voir dire examination by counsel for Sanders that in fact no lawyer was present at the time the confessions were made and Sanders had not been previously advised that he was entitled to a lawyer.
But unlike Escobedo, the record in this case does not show that at the time the confessions were made Sanders was denied an opportunity to consult with his lawyer. He did not have a lawyer and made no request for a lawyer.
In Duncan v. State we followed those courts which had held that Escobedo is a controlling precedent only in cases where all the factors specified in Escobedo are present.
As we observed in Lokos v. State, supra, we realize that the construction which we have placed on Escobedo is not in accord with that placed on that case by some of the federal courts, including the United States District Court for the Middle District of Alabama (Washington v. Holman, 245 F. Supp. 116, decided July 6, 1965), and the United States Court of Appeals, Fifth Circuit (Clifton v. United States, 341 F.2d 649), and that in not following those courts our opinions and judgments may be voided *45 in view of the present broad scope of the federal writ of habeas corpus. But we are not bound by the decisions of any federal court on federal questions other than the Supreme Court of the United States, and until that court says our construction and application of Escobedo are wrong, we will stand by them despite the likelihood of being, in effect, reversed by the lower federal courts.
We hold that Escobedo does not require a reversal of this case.
We come now to a consideration of the holding in Jackson v. Denno, supra. That case is discussed at length in Duncan v. State, supra, where we said:
We also said in Duncan that we had reached the "inevitable conclusion that the Supreme Court of the United States will not uphold a conviction where the question as to the voluntariness of the confession is presented in the presence of the jury if a request for a hearing outside the presence of the jury is made." (176 So.2d 858)
Here no such request was made. There was no conflict in the testimony as to the voluntariness of the confessions. Sanders did not seek to testify as to the circumstances surrounding the taking of the confessions or to offer any evidence tending to rebut that offered by the State.
We hold that under the circumstances shown by this record Jackson v. Denno, supra, does not require a reversal of the judgment of the trial court here under review.
The confessions were properly admitted.
The State introduced into evidence the pistol shown to have been used by Sanders in his assault upon the deceased, as well as some of the alleged fruits of the robbery. The State also offered testimony concerning some of the items allegedly taken from Marks by Sanders, which items were not introduced in evidence. There was no motion to suppress such evidence on the ground that it was obtained by unreasonable searches or seizures in violation of the Fourth Amendment to the Constitution of the United States made applicable to the States by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933, decided by the Supreme Court of the United States on June 19, 1961. See Duncan v. State, supra. Nor were objections on that ground interposed to the introduction of such evidence at the trial.
We do not consider that the provisions of the automatic appeal statute, supra, which provide that this court may consider any testimony that was seriously prejudicial to the rights of an appellant and may reverse thereon, even though no lawful objection or exception was made thereto, authorizes us to assume the inadmissibility of evidence. For aught appearing in the record before us, the searches and seizures were made under a lawfully issued search warrant.
Federal appellate courts do not seem to apply the federal plain error rule to assertions made on appeal that a judgment should be reversed because evidence was admitted in the trial court which was obtained *46 by an unlawful search or seizure where there was no motion to suppress or objection interposed on that ground at the trial. See Gendron v. United States, 8 Cir., 295 F.2d 897; Robinson v. United States, 8 Cir., 327 F.2d 618.
In disposing of this question in the manner indicated we do not want to be understood as holding that a reversal would result if the record showed that the searches or seizures were made without a search warrant.
None of the articles were taken from the person of Sanders or from places over which he had any control. All of them were taken from places of third persons in the absence of Sanders.
Testimony concerning the fruits of the robbery and the items themselves, taken by police officers from the Top Hat Cafe and from the home of the Braxton woman, were properly admitted in evidence, in our opinion, absent a search warrant, since Sanders did not have possession of or a proprietary interest in the stolen property. United States v. Pete, D.C., 111 F. Supp. 292; United States v. Friedman, D.C., 166 F. Supp. 786; State v. Pokini, 45 Haw. 295, 367 P.2d 499.
Sanders may have had a proprietary interest in the pistol which was taken by the police officers from the home of the Braxton woman, where it had been carried by Dorothy Jo Patton after it was placed in her possession by Sanders. As to whether Sanders was in a position to challenge the admission in evidence of the pistol and the testimony concerning it we need not decide since, as before indicated, we will not assume that the searches or seizures were made unlawfully. See United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59.
Mindful of our duty in cases of this character, we have examined the record for any reversible error, whether pressed upon our attention or not. We have here dealt with all questions which we think call for treatment. We find no reversible error in the record and the cause is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, MERRILL, COLEMAN and HARWOOD, JJ., concur. | September 30, 1965 |
738ff383-2d3d-4177-a95b-a87962bcc239 | White v. White | 180 So. 2d 277 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 277 (1965)
Addie Austell WHITE
v.
John Earnest WHITE.
2 Div. 479.
Supreme Court of Alabama.
November 18, 1965.
*278 Theodore L. Wade and John W. Lapsley, Selma, for appellant.
Pitts & Pitts, Selma, for appellee.
MERRILL, Justice.
Appeal by the wife from a decree granting the husband a divorce on the grounds of cruelty and awarding alimony to appellant in the sum of $40 per month.
The husband filed the bill of complaint charging cruelty and the wife answered, alleging that her husband had abandoned her, had refused to live with or support her; that he did not come into court with clean hands because he has been living in adultery with one Bobbie Sewell, and she denied that he was forced to leave her because of any cruel or inhuman treatment of him.
After hearing the witnesses, the court granted the husband a divorce on the ground of cruelty; ordered him to pay $40 per month alimony; ordered the wife to give the keys to a safety deposit box to her husband and to deliver the papers in the box to the register in chancery; and ordered a lien placed upon a paid-up life insurance policy of $5,000 to guarantee the payment of alimony.
Appellant argues that the court erred in granting the divorce for cruelty; that the adultery of her husband was proven and the bill should have been dismissed; and that the alimony allowance was grossly inadequate.
At the time of the trial, the husband was 73 years of age, his wife 72. They had been married in 1912 and have three adult children. He owned a plantation in Perry County, consisting of 1,037 acres, and about two weeks before their separation on November 15, 1962, he deeded to his wife an undivided one-half interest in the property.
Appellee testified that on November 7, his wife hit him on the head with a piece of wood, that she threatened him and on November 14, "She said that she would take a razor and cut what I had off while I was asleep," and that he was scared and left the next day. He said she had abused him, called him vile names, and that from her acts and conduct, he had reasonable apprehension to believe that if he continued to live with her, that she would commit actual violence on him, attended with danger to his life or health. The wife denied threatening him with a razor, and denied hitting him with a piece of wood, saying, "I just touched him on the arm with it."
There was no direct evidence of adultery on the part of the husband with Bobbie Sewell, although there could have been ample opportunity and there were some suspicious circumstances. The appellee denied that he had ever had sexual intercourse with the Sewell woman.
When a spouse is charged with adultery, the proof must be such as to create more than a suspicion, but be sufficient to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference. Hendrix v. Hendrix, 250 Ala. 309, 34 So. 2d 214, and cases there cited.
The trial court saw and heard the witnesses and we are unable to say that he should have reached the decision that appellee had committed adultery with Bobbie *279 Sewell as a necessary inference from the evidence.
Reverting to appellant's contention that the evidence did not sustain the finding of the trial court, we cannot agree. Actual violence on the part of a spouse is not necessary to constitute legal cruelty. In Atkins v. Atkins, 268 Ala. 428, 108 So. 2d 166, we said:
We think the conclusion reached by the trial court is supported by the Atkins case, Weems v. Weems, 255 Ala. 210, 50 So. 2d 428; George v. George, 255 Ala. 190, 50 So. 2d 744; Carr v. Carr, 171 Ala. 600, 55 So. 96.
The final question raised is the adequacy of the allowance of $40 per month for the wife.
It is undisputed that all appellee owns is the other one-half interest in the plantation, the paid-up insurance policy of $5,000, and $250 worth of stock. He testified that he "was living off of Social Security." He sometimes helped Bobbie Sewell sell produce and sometimes did a little trapping. Appellant had never worked for wages, but she drew $38.71 Social Security.
Title 34, § 31, Code 1940, provides:
This is a judicial, not an arbitrary discretion. Waldrep v. Waldrep, 231 Ala. 390, 165 So. 235. It is proper to consider the husband's earning capacity and income when alimony is awarded under this section. Thomas v. Thomas, 233 Ala. 416, 172 So. 282. We cannot say that the trial court abused that discretion. Authorities supra.
Our decision on each of the three points raised on this appeal have been influenced strongly by the rule that where the evidence was taken orally before the trial judge, his judgment will not be disturbed on appeal unless plainly wrong, since his findings from the evidence have been likened unto the verdict of a jury. Mallory v. Mallory, 272 Ala. 464, 131 So. 2d 703; Spencer v. Spencer, 264 Ala. 196, 86 So. 2d 286. We cannot say that the decree was plainly wrong. Mallory v. Mallory, supra, Sills v. Sills, 246 Ala. 165, 19 So. 2d 521.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | November 18, 1965 |
27fe3d3b-0d09-44f9-9c4b-868bbe8a8b69 | K & D Automotive, Inc. v. The City of Montgomery | N/A | 1121344 | Alabama | Alabama Supreme Court | REL: 02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121344
____________________
K & D Automotive, Inc., and Calvin S. Kendrick
v.
The City of Montgomery et al.
Appeal from Montgomery Circuit Court
(CV-09-900474)
STUART, Justice.
K & D Automotive, Inc. ("K&D"), and Calvin S. Kendrick,
its owner and president, appeal the summary judgment entered
in favor of the City of Montgomery ("the City"); the City's
employees Eddie Hill, Jr., Nathaniel Bracy, and Scott Adams
1121344
(hereinafter referred to collectively with the City as "the
City
defendants");
Tony's
Automotive,
L.L.C.
("Tony's
Automotive"); and Tony's Automotive's owner Tony D.
Brooks
and
manager Ellen F. Brooks (hereinafter referred to collectively
with
Tony's
Automotive
as
"the
Tony's
Automotive
defendants").
We affirm in part and reverse in part.
I.
Since 1991, K&D has operated an automobile-repair
business known as K&D Automotive on leased premises at 3310
Biltmore Avenue in Montgomery; an automobile-repair business,
not always K&D Automotive, has existed at that location since
1974. Beginning some time in 2005 or 2006, inspectors for the
City, including Bracy and Adams, began coming to K&D
Automotive and telling Kendrick that some of the vehicles
parked on-site were considered junk vehicles under municipal
ordinance no. 28-2002 ("the City nuisance ordinance"). The
City nuisance ordinance provides: "It shall be unlawful and
is declared a nuisance for any owner, occupant or person in
control of any property with the City to allow the
accumulation of litter, trash, [or] junk ...." As amended by
2
1121344
ordinance no. 46-2004 in June 2004, "junk" is defined in the
City nuisance ordinance as:
"All vehicle parts, rubber tires, appliances,
dilapidated
furniture,
machinery
equipment,
building
material or other items which are either in a wholly
or partially rusted, wrecked, junked, dismantled or
inoperative condition. A motor vehicle will be
considered inoperative for the purposes of this
section if it cannot be safely operated or if it is
incapable of being moved under its own power or if
it may not be legally operated due to lack of any
legal requirement including an expired license
plate."1
(Emphasis added.) Kendrick asserts in an affidavit filed with
the trial court that he told the inspectors that he was
operating an automobile-repair business and that, for that
reason, there were and would continue to be inoperable
vehicles on the property. When the inspectors requested to
see work orders for the vehicles at K&D Automotive, Kendrick
declined to produce them, stating that they contained private
information that he could not disclose without his customers'
consent.
Kendrick further states in his affidavit that, at all
times relevant to this action, a rotating group of
In 2009, the City nuisance ordinance was replaced by
1
ordinance
no.
34-2009,
which
likewise
prohibits
the
accumulation of "junk" and defines "junk" in a similar manner.
3
1121344
approximately 25 to 35 vehicles that were in need of service
were parked at K&D Automotive. Kendrick acknowledges that
some of those vehicles were in need of major repair and were
inoperable and that some of those vehicles lacked current
license plates for a variety of reasons –– some of the
vehicles were owned by licensed vehicle dealers, some of the
vehicles had been repossessed by banks and/or credit unions,
some of the vehicles had recently been purchased by their
owners, and some of the vehicle owners had removed the license
plates when they dropped off their vehicles for repair.
On March 29, 2007, Bracy sent a form letter to K&D
Automotive notifying the "occupant" that the condition of its
property constituted a public nuisance in violation of the
City nuisance ordinance. A check mark was placed next to
"junk vehicle(s)" in the list of nuisance conditions, and the
"notes" section included a typed note stating: "Junk vehicle
–– all vehicles must be operable, have current tag, and
inflated tires." Although Bracy had specifically identified
six vehicles in his notes that he deemed to be junk vehicles
because they did not have license plates, the letter sent to
K&D Automotive
did not specifically identify any
vehicles
that
4
1121344
were alleged to be junk vehicles. The letter also apprised
2
the property owner that it had until April 8, 2007, to abate
the nuisance or the city council would consider a resolution
formally declaring the nuisance to be a public nuisance and
authorizing the City to take action to abate the nuisance at
a cost to be passed on to the property owner. Moreover, the
letter stated that if the nuisance was not abated by April 8,
the property owner would be assessed a $150 administrative fee
regardless of whether the nuisance was ultimately abated by
K&D or the City and its agents.
On April 9, 2007, Bracy returned to K&D Automotive and
determined that the nuisance had not been abated. This time,
Bracy photographed the six vehicles he had previously noted as
being junk vehicles, as well as an additional vehicle, the
license plate on which was expired. On April 10, 2007, Bracy
sent another letter to K&D Automotive noting that a nuisance
Hill,
the
City's
chief
inspector
at
the
time,
2
subsequently confirmed in a deposition
that,
to
his
knowledge,
abatement notices mailed out because of the presence of junk
vehicles did not specifically identify the vehicles
alleged
to
be junk. See also Ashe v. City of Montgomery, 754 F. Supp. 2d
1311, 1319 (M.D. Ala. 2010) (in which the appellant also
complained that notices mailed to him asserting that he was in
violation of the City nuisance ordinance did not identify the
vehicles alleged to be junk vehicles).
5
1121344
still existed and notifying the property owner that the city
council would consider the matter at its meeting on April 17,
2007, at which time a representative of the property could
appear and state any objections. Like the earlier letter,
this letter provided no information specifying which of the
vehicles at K&D Automotive were alleged to be junk vehicles.
In an affidavit, Kendrick asserts that he retained an
attorney the day before the scheduled city council meeting,
that that attorney subsequently appeared at the meeting and
requested more time to become familiar with the situation, and
that the city council responded to her request by directing
her to speak with Hill, who was also present at the meeting.
Ultimately,
however,
the
city
council
subsequently
approved
at
the meeting resolution no. 103-2007, which formally declared
the nuisances identified on an attached list of 55 properties
to be public nuisances and ordered the abatement of the same.
K&D Automotive was included on the list; its violation was
stated as being "junk vehicle(s)." It appears that there was
no evidence considered by the city council regarding the
particular nuisances alleged to exist on any of the
properties, including K&D Automotive, other than the
list that
6
1121344
was prepared by Hill listing each property and its alleged
violation or violations. Certainly, no evidence was
considered regarding the condition of any particular vehicles
parked at K&D Automotive.
The City subsequently selected Tony's Automotive from its
list of registered nuisance-abatement agents to abate the
nuisances at K&D Automotive. On April 20, 2007, a city
employee made a "vehicle abatement" list that was
subsequently
delivered to Tony's Automotive, which included 12 cars either
without a license plate or with an expired license plate to be
removed from the premises of K&D Automotive. Only 1 of those
12 vehicles had previously been identified by Bracy before he
sent the March 29 or April 10 letters, and 2 of the vehicles
on the list had in fact been brought to K&D Automotive after
the April 17 city council meeting. On April 22, 2007, Tony's
Automotive towed 10 of the vehicles on the list. On April
3
23, 2007, the vehicles were released to K&D after it paid
Tony's Automotive a storage fee of $30 per vehicle. Tony's
Automotive subsequently billed the City $600 for the tows,
and, on May 9, 2007, the City sent K&D Automotive's landlord
The other two vehicles were apparently not on the
3
premises on April 22.
7
1121344
a bill of $750 for the nuisance abatement –– $600 for the
towing charges and a $150 administrative charge. Under the
terms of its lease, K&D was ultimately responsible for, and
did pay, that bill.
After the April 2007 tows, Kendrick and K&D retained a
new attorney who sent Hill a letter objecting to the City's
application of the City nuisance ordinance with regard to
K&D's automobile-repair business. Nevertheless, on July 27,
2007, Adams sent K&D Automotive another nuisance-abatement
letter, substantially identical to the March 29 letter,
identifying the accumulation of "litter, junk, [and] trash"
and "junk vehicles" at K&D Automotive as a public nuisance.
The notes section on this letter stated: "Junk vehicles, auto
parts, trash, debris, open storage. All autos on premises
must have tags and work orders to remain on property." K&D
Automotive was given until August 6, 2007, to abate the
nuisance without having any fees imposed; however, after the
condition was not remedied by that time, Adams sent K&D
Automotive another letter on August 17, 2007, informing it
that the city council would consider the matter at its
8
1121344
September 4, 2007, meeting. No vehicles specifically
identified as junk were listed in either letter.
Kendrick attended the September 4 city council meeting
and spoke with city council president Charles Jinright.
Kendrick asserts in an affidavit that he explained to Jinright
that he could not produce work orders for the vehicles at K&D
Automotive because of a privacy policy printed on the work
orders, and, Kendrick further asserts, Jinright responded by
telling him that the City would not take any further action
until "getting back with [him]." Nevertheless, during the
course of the meeting the city council approved resolution no.
233-2007, formally declaring the nuisances identified on an
attached list of 95 properties to be public nuisances and
ordering their abatement. K&D Automotive was included on the
list; its violation was stated as being "litter, junk, trash;
junk vehicle(s)." No further specific evidence of the alleged
nuisances at K&D Automotive was adduced at the meeting.
Thereafter, a city inspector went to K&D Automotive and
compiled a list of 27 vehicles to be towed to abate the
nuisances on the property; 24 of those vehicles were included
on the list because they either had an expired license plate
9
1121344
or no license plate at all. This list was given to Tony's
4
Automotive, and, in the late evening and early morning hours
of September 8 and 9, 2007, Tony's Automotive removed 28
vehicles from K&D Automotive's lot. Two of the vehicles towed
were not on the abatement list given to Tony's Automotive by
the City and had in fact not been delivered to K&D Automotive
until after the September 4 city council meeting. Kendrick
further asserts that seven of the vehicles towed were owned by
licensed motor-vehicle dealers and two of the vehicles towed
had recently been purchased by their owners and that,
therefore, those vehicles were not legally required to have
license plates. See § 40-12-260(a)(4)(a), Ala. Code 1975
("The new owner of a motor vehicle shall, within 20 calendar
days from the date of vehicle purchase or acquisition, make
application to record the registration of the vehicle by the
transfer to or the purchase of a license plate for the newly
acquired vehicle ...."), and § 40-12-260(a)(4)(c), Ala. Code
1975 ("Licensed motor vehicle dealers shall not be required to
There is no indication in the record that any action was
4
taken by the City to address the alleged presence of litter,
trash, or other junk on the premises.
10
1121344
register vehicles in the name of the dealership for vehicles
held for resale.").
On September 10, 2007, K&D paid Tony's Automotive $1,050
and retrieved the 28 vehicles. Tony's Automotive billed the
City $1,680 for the tows, which bill was approved by Hill and
was paid, and the City then billed K&D Automotive's landlord
$1,830 for the nuisance abatement –– $1,680 for the towing
charges and a $150 administrative charge. K&D has paid all
charges assessed.5
On April 17, 2009, Kendrick and K&D sued the City
defendants and the Tony's Automotive defendants, asserting
claims
alleging
(1)
conspiracy,
(2)
interference
with
business
activities, and (3) defamation. In the context of those
claims, Kendrick and K&D also argued that the City nuisance
ordinance "exceed[ed] the City's police power" and that the
City had violated their due-process rights by the manner in
which it had enforced the ordinance. The City defendants and
It appears from a transcript in the record that Kendrick
5
appeared at a November 6, 2007, city council meeting to again
challenge the City's practice of towing cars claimed to be
nuisances from K&D Automotive; however, it is not clear if
that appearance was made solely in response to the previous
towings or because of the threat of additional towings. In
any event, there is no evidence in the record indicating that
there have been any additional towings since September 2007.
11
1121344
the Tony's Automotive defendants thereafter filed separate
answers denying the substance of Kendrick and K&D's claims,
and the discovery process ensued.
On May 28, 2010, the Tony's Automotive defendants moved
the trial court to dismiss the claims against them, arguing
that the claims were preempted by federal law. That motion
was ultimately denied. On July 7, 2010, Kendrick and K&D
added a fourth count to their complaint alleging that the City
defendants and the Tony's Automotive defendants (hereinafter
referred to collectively as "the defendants") were all
responsible for damage inflicted upon vehicles under K&D's
control by Tony's Automotive while it was towing vehicles from
K&D Automotive.
On March 3, 2011, the City defendants moved for a summary
judgment on Kendrick and K&D's claims against them; the Tony's
Automotive defendants filed their own summary-judgment motion
the next day. In the City defendants' motion, the City
defendants noted that Kendrick and K&D had challenged the
constitutionality of the City nuisance ordinance but
failed
to
serve the attorney general as required by § 6-6-227, Ala. Code
12
1121344
1975. On March 4, 2011, Kendrick and K&D served the attorney
6
general with a copy of the amended complaint, and the attorney
general filed an acceptance with the trial court, waiving "any
further service upon him of any pleadings, discovery and other
matters filed in this cause." Kendrick and K&D thereafter
filed a response to the defendants' motions for summary
judgment as well as their own motion seeking a summary
judgment, which was in turn opposed by the defendants.
On April 16, 2012, the trial court granted a request by
Kendrick and K&D to amend their complaint again to add eight
additional counts, some of which, Kendrick and K&D asserted,
had been inarticulately stated in the original complaint. The
added counts were as follows:
5. The City's definition of "junk" unreasonably
limits the lawful operation of automobile repair
shops and imposes unnecessary and unreasonable
restrictions upon the use of private property;
Section 6-6-227 provides:
6
"In any proceeding which involves the validity of a
municipal ordinance, or franchise, such municipality
shall be made a party and shall be entitled to be
heard; and if the statute, ordinance, or franchise
is alleged to be unconstitutional, the Attorney
General of the state shall also be served with a
copy of the proceeding and be entitled to be heard."
13
1121344
6. The City's policy of selectively enforcing the
nuisance ordinance is unlawful;
7. The City's nuisance ordinance conflicts with
State law that defines a nuisance as "anything that
works hurt, inconvenience or damage to another," §
6-5-120, Ala. Code 1975;
8. The City's nuisance ordinance is not reasonably
designed to abate nuisance inasmuch as it declares
conditions to be nuisances without regard to whether
the condition causes hurt, inconvenience, or damage
to another;
9. The City is wrongfully declaring certain
vehicles without license plates to be unlawful
public nuisances even though such vehicles can
legally be operated on public streets;
10. The City's procedure for declaring a junk
vehicle to be a public nuisance violates property
owners' due-process rights inasmuch as the city
council is not required to and in fact does not hear
any evidence of an alleged junk vehicle's condition
before declaring it to be a public nuisance;
11. The City violates property owners' due-process
rights inasmuch as the city council delegates to
city employees and the chosen abatement agents the
decision of which vehicles are junk and may be
towed; and
12. The City's procedure for abating nuisances does
not comply with state law inasmuch as the procedure
does not require the city to commence a civil action
against property owners.
Both the City defendants and the Tony's Automotive defendants
denied the substance of these new counts.
14
1121344
On January 15, 2013, and January 16, 2013, respectively,
the City defendants
and the Tony's Automotive
defendants
again
moved the trial court to enter summary judgments in their
favor. On April 1, 2013, the trial court entered a partial
summary judgment in their favor, concluding:
"Plaintiffs' complaint and amended complaints
contain numerous counts, the basis of which alleges
the City of Montgomery towed vehicles from [K&D
Automotive] pursuant to city ordinance no. 28-2002.
The ordinance authorizes the City of Montgomery to
abate nuisances upon proper notice to the property
owner and an opportunity to be heard. The
allegations made the basis of all but counts III and
IV of plaintiffs' complaint attack the ordinance
itself and the definition of 'junk' as found in the
ordinance as unconstitutional. However the [United
States District Court for the Middle District of
Alabama] in Ashe v. City of Montgomery, 754 F. Supp.
2d
1311
(M.D.
Ala.
2010),
upheld
the
constitutionality of the ordinance. Therefore,
summary judgment is granted to defendants as to all
claims regarding the legality of the towing of the
vehicles and towing and storage expenses incurred by
plaintiffs as a result thereof.
"As to count III of plaintiffs' complaint
alleging improper contact by City officials with
plaintiffs' customers, plaintiffs have produced no
evidence to support that claim. Therefore, summary
judgment is granted to defendants as to count III.
"As to count IV of plaintiffs' complaint, there
is a genuine issue of material fact as to whether
the vehicles in question were physically damaged
during the towing process. However, there is no
evidence that the individually named defendants were
involved in the physical towing of the vehicles.
15
1121344
Therefore, summary judgment is granted to defendants
Hill, Bracy, Adams, Tony Brooks and Ellen Brooks.
Summary judgment is denied as to defendants City of
Montgomery and Tony's Automotive."
Kendrick and K&D subsequently moved the trial court to vacate
its summary judgment, arguing that Ashe v. City of Montgomery,
754 F. Supp. 2d 1311 (M.D. Ala. 2010), was not determinative
of the issues they had raised in this case; however, their
motion was denied.
On April 29, 2013, the trial court conducted a bench
trial at which it heard testimony and received evidence on
Kendrick and K&D's remaining claim –– that Tony's Automotive
had damaged certain vehicles in the process of towing vehicles
from K&D Automotive. On July 18, 2013, the trial court
entered a judgment holding that the City was not liable for
the damage but ordering Tony's Automotive to pay Kendrick and
K&D $520 on their claim. On August 15, 2013, following this
final judgment, Kendrick and K&D filed their notice of appeal
to this Court.
II.
On appeal, Kendrick and K&D challenge the summary
judgment entered by the trial court in favor of the defendants
with regard to 6 of the 12 claims they had asserted –– counts
16
1121344
5, 7, 8, 9, 10, and 11. We review Kendrick and K&D's
arguments pursuant to the following standard:
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III.
In its order entering a partial summary judgment in favor
of the defendants, the trial court stated that the claims
relevant to this appeal were effectively all challenges to the
constitutionality of the City nuisance ordinance and that the
constitutionality
of
that
ordinance
had
already
been
established by the United States District Court for the Middle
17
1121344
District of Alabama in Ashe. Thus, the trial court reasoned,
summary judgment on those claims was appropriate. Because
Kendrick and K&D argue that Ashe does not dictate the result
in this case, we think it appropriate to begin with a
discussion of that case before considering Kendrick and K&D's
specific arguments related to each of their claims.
In Ashe, the plaintiff James Ashe appealed a summary
judgment that had been entered in favor of the City and Tony's
Automotive on takings and due-process claims Ashe had
asserted
after the City and Tony's Automotive had removed items,
including approximately 10 vehicles, from his property after
the city council declared the vehicles on his property to be
public nuisances under the City nuisance ordinance. 754 F.
7
Supp. 2d at 1312-13. Kendrick and K&D have not asserted a
takings claim, so the federal court's analysis of Ashe's
takings claim is not relevant here, but, with regard to Ashe's
due-process claims, the federal district court stated:
"Ashe
asserts
violations
of
both
his
substantive
and
procedural
due-process
rights
under
the
In fact, the evidence in the record in the instant case
7
indicates that the city council considered the nuisances on
Ashe's property at the same September 4 city council meeting
at which it considered the nuisances on the premises of K&D
Automotive. Ashe, 754 F. Supp. 2d at 1314.
18
1121344
Fourteenth Amendment. The Fourteenth Amendment
ensures that, 'No State shall ... deprive any person
of life, liberty or property, without due process of
law.' U.S. Const. Amend. XIV. The substantive
component of the Due Process Clause recognizes those
'rights that a state may not remove, regardless of
the process, as well as actions that can not be
countenanced, regardless of the appropriateness of
the process.' McKinney v. Pate, 20 F.3d 1550, 1560
n. 15 (11th Cir. 1994) (en banc). However, 'conduct
by a government actor will rise to the level of a
substantive due-process violation only if the act
can be characterized as arbitrary or conscience
shocking in a constitutional sense.' Waddell v.
Hendry Cty. Sheriff's Office, 329 F.3d 1300, 1305
(11th Cir. 2003) (citing Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 125, 112 S.Ct. 1061,
117 L.Ed.2d 261 (1992) ('As a general matter, the
Court has always been reluctant to expand the
concept
of
substantive
due
process
because
guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.')).
Applying this strict standard, the court finds that
Ashe has failed to set forth a valid claim for a
substantive due-process violation. He presents no
evidence that the city engaged in 'conscience
shocking'
behavior
or
that
the
city
acted
arbitrarily. Nor could he. As noted in the
discussion on unconstitutional takings, the city
clearly acted within the scope of its legitimate
police power throughout the abatement process. This
action taken in the service of the general welfare
did
not
constitute
a
substantive
due-process
violation. See Garvie [v. City of Ft. Walton Beach,
Fla.], 366 F.3d [1186,] 1191 [(11th Cir. 2004)]
(government policy is arbitrary only if it lacks a
'substantial relation to the public health, safety,
morals, or general welfare') (quoting Euclid v.
Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114,
71 L.Ed. 303 (1926)). As Ashe has failed to set
forth evidence of arbitrary or conscious-shocking
19
1121344
action in this case, there is no basis for finding
a violation of substantive due process."
754 F. Supp. 2d at 1315-16. The federal district court
rejected Ashe's procedural due-process claim as well, noting
that the City had provided Ashe with proper notice and an
opportunity to be heard before removing the vehicles from his
property. See 754 F. Supp. 2d at 1319 ("[I]n this case, the
evidence demonstrates that the city provided adequate
procedural safeguards to ensure that residents do not suffer
harm to their property without due notice and an opportunity
to be heard."). The federal district court further
specifically
rejected
Ashe's
argument
that
the
notice
provided
by the City was constitutionally inadequate based on the fact
that the notices Ashe received did not identify the specific
vehicles that were subject to abatement, stating: "Ashe's
argument is unavailing. The April 24 notice [sent to him],
which clearly advised that he remove the 'junk vehicle(s)' or
any 'motor vehicles' parked in his yard and undergoing repair,
adequately warned him that he was responsible for moving any
vehicles fitting this specific description." 754 F. Supp. 2d
at 1320.
20
1121344
Thus, it is true that the federal district court in Ashe
upheld the City nuisance ordinance in a constitutional
challenge to its procedures providing for notice and
adjudication
of
public-nuisance
complaints,
holding
that
those
procedures complied with the procedural component of the
Fourteenth Amendment's Due Process Clause. See Ashe, 754 F.
Supp. 2d at 1320-21 ("[T]he question is whether the city's
procedures pass constitutional muster. Overall, as stated,
the procedures
providing for notice and adjudication
of
public
nuisance complaints indicate that Ashe had adequate notice;
furthermore, going so far as to evaluate the city's actual
actions, the court must conclude that Ashe's right to due
process
was
fully respected throughout the
abatement
process."). However, nowhere in Ashe did the federal district
court make a blanket declaration that the City nuisance
ordinance was insulated from any further constitutional
challenge based on the specific facts of a later case. The
facts in this case differ from those in Ashe in some
significant ways, and Kendrick and K&D have
asserted
arguments
based on those facts that were not considered in Ashe. Thus,
although Ashe does bear on some of those arguments, we must
21
1121344
nevertheless consider them because Ashe does not, alone,
resolve this case.
IV.
For convenience, we will consider Kendrick and K&D's
arguments in the order they relate to the counts in their
amended complaint. We first consider Kendrick and K&D's
challenge to the definition of "junk" in the City nuisance
ordinance, which relates to counts 5, 7, and 8 in their
amended complaint. In support of their argument that the
City's definition of "junk" is too unreasonable and overbroad
to pass constitutional muster, Kendrick and K&D rely on Ross
Neely Express, Inc. v. Alabama Department of Environmental
Management, 437 So. 2d 82, 84-85 (Ala. 1983), in which this
Court stated:
"The right to due process is guaranteed to the
citizens of Alabama under the Alabama Constitution
of 1901, Article I, Sections 6 and 13. This
constitutional right to due process applies in civil
actions as well as criminal proceedings. Pike v.
Southern Bell Telephone and Telegraph Co., 263 Ala.
59, 81 So. 2d 254 (1955). The courts have found
that this right is violated when a statute or
regulation
is
unduly
vague,
unreasonable,
or
overbroad. ...
"....
22
1121344
"In reviewing a regulation of a county Board of
Health, this court held that the central issue was
reasonableness. Baldwin County Board of Health v.
Baldwin County Electric Membership Corporation, 355
So. 2d 708 (Ala. 1978). In City of Russellville v.
Vulcan Materials Co., 382 So. 2d 525 (Ala. 1980),
this court said:
"'The validity of a police power
regulation
...
primarily
depends
on
whether,
under
all
the
existing
circumstances,
the
regulation
is
reasonable, and whether it is really
designed to accomplish a purpose properly
falling within the scope of the police
power. Crabtree v. City of Birmingham, 292
Ala. 684, 299 So.2d 282 (1974) ....
Otherwise expressed, the police power may
not be employed to prevent evils of a
remote or highly problematical character.
Nor may its exercise be justified when the
restraint imposed upon the exercise of a
private right is disproportionate to the
amount of evil that will be corrected.
Bolin v. State, 266 Ala. 256, 96 So. 2d
582, conformed to in 39 Ala. App. 161, 96
So. 2d 592 (1957).'
"Statutes
and
regulations
are
void
for
overbreadth if their object is achieved by means
which sweep unnecessarily broadly and thereby invade
the area of protected freedoms. See Zwickler v.
Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444
(1967); Keyishian v. Board of Regents, 385 U.S. 589,
87 S.Ct. 675, 17 L.Ed.2d 629 (1967)."
Kendrick and K&D essentially argue that the City's definition
of "junk," inasmuch as it includes vehicles such as those
towed from K&D Automotive, is arbitrary, unreasonable, and
23
1121344
overbroad because, they say, it bears no relation to the
stated purpose of the City nuisance ordinance. As they
explain in their brief:
"The
City[]
nuisance
ordinance
defines
'junk'
to
include items in an 'inoperative condition' and
defines 'inoperative' motor vehicle to include every
vehicle with a mechanical problem making it
inoperable or unsafe to operate and every vehicle
lacking any legal requirement for operation. In
addition,
City
employees
interpret
the
legal
requirement for operation to mean that every vehicle
must have a tag, even if under state law the vehicle
can be legally operated without a tag.
"K&D's
shop,
and
vehicle
repair
shops
generally,
are designed to repair vehicles that are inoperable
and cannot be safely operated. In addition, K&D is
fortunate enough to have among its customers used
car dealerships, financial institutions, credit
unions, and others who bring recently acquired
and/or repossessed vehicles without tags to K&D's
shop for repairs. Therefore, a substantial
percentage of the vehicles brought to K&D's shop for
repair fall within the City's definition of 'junk.'
If K&D were to limit the vehicles it accepts for
service to those not within the City's definition of
'junk,' K&D could not likely stay in business as a
repair shop.
"The justification that the City urged in the
trial court for having an ordinance that defines
'junk' so broadly is its power to promote the
general welfare, which it argued included the
concept of promoting 'an environment free from
unsightliness and other visual intrusion[s].' In
addition to unsightliness, the nuisance ordinance
itself declares as one of its purposes, potentially
applicable to nuisance vehicles, to eliminate
'breeding grounds and shelter for rats, mice,
24
1121344
snakes, mosquitos and other vermin, insects, and
pests.' However, the definition of 'junk' that the
City has chosen does little to eliminate the evils
of unsightliness and breeding grounds for pests.
That is because the legal and mechanical abilities
of a vehicle to operate do not necessarily affect
its looks or establish anything about the way it is
being maintained. Neat, attractive, well-maintained
vehicles can have mechanical issues that make them
inoperable or unsafe to drive. That a vehicle lacks
a legal requirement for operation does not mean it
is unsightly or a breeding ground for pests.
"All but three of the vehicles towed from K&D's
shop were towed because they lacked current tags,
not because they were unsightly or a pest breeding
ground. None of the cars towed would have met any
reasonable person's definition of junk. Defendant
Hill even described the cars towed on April 22,
2007, as 'all look[ing] to be in perfect condition.'
"Thus, the City's definition of 'junk' does
little or nothing to achieve the City's stated
goals, while significantly impairing plaintiffs'
ability to use their property to operate a vehicle
repair shop. Plaintiffs submit, that makes the
City's
nuisance
ordinance
unreasonable
and
overbroad."
(Citations to record omitted.)
In this same vein, Kendrick and K&D also argue that the
City nuisance ordinance should be voided because state law
defines
a
"nuisance"
as
"anything
that
works
hurt,
inconvenience or damage to another," and, Kendrick and K&D
argue, the City nuisance ordinance declares certain vehicles
to be public nuisances without any regard to whether those
25
1121344
vehicles cause
"hurt, inconvenience, or damage to
another"
and
even if, in the words of Hill (the City's chief inspector at
the time), those vehicles appear to be "in perfect condition."
§ 6-5-120, Ala. Code 1975. See also § 11-45-1, Ala. Code 1975
("Municipal corporations may from time to time adopt
ordinances and resolutions not inconsistent with the laws of
the state to carry into effect or discharge the powers and
duties conferred by the applicable provisions of this title
and any other applicable provisions of law and to provide for
the safety, preserve the health, promote the prosperity, and
improve the morals, order, comfort, and convenience of the
inhabitants of the municipality, and may enforce obedience to
such ordinances." (emphasis added)).8
The defendants' response to these arguments is to argue
9
that all cities are given "the power to prevent injury or
annoyances
from
anything
dangerous
or
offensive
or
unwholesome
and to cause all nuisances to be abated ...." § 11-47-117,
Kendrick and K&D identify § 11-67A-2, Ala. Code 1975, as
8
an example of how a properly tailored nuisance ordinance might
define the term "inoperable motor vehicle."
In their brief, the Tony's Automotive defendants have
9
adopted all the arguments made by the City defendants in their
brief.
26
1121344
Ala. Code 1975. Accordingly, they argue, the City can define
what constitutes a nuisance and the procedure for abating that
nuisance in whatever manner it elects to do so. Clearly,
10
this argument is without merit. As evidenced by both Ashe and
Ross Neely Express, a municipality cannot enact any ordinance
it desires without regard to applicable federal and state
constitutional limitations. Those constitutional limitations
were further explained by this Court in City of Russellville
v. Vulcan Materials Co., 382 So. 2d 525 (Ala. 1980), a similar
case in which a business claimed that an unreasonable and
arbitrary municipal nuisance ordinance, if upheld, would
effectively drive it out of business. We stated then:
The defendants also argue that Kendrick and K&D's
10
challenge to the validity of the City nuisance ordinance is
barred by § 6-6-227, Ala. Code 1975, because, they argue,
Kendrick and K&D served the attorney general with only their
first
amended
complaint
containing
their
fourth
count
alleging
that Tony's Automotive
damaged
certain vehicles in the process
of towing them, and not their original complaint or their
second amended
complaint, which contained
the
counts
challenging the City nuisance ordinance. We disagree. First,
the totality of the evidence indicates that the attorney
general was served with the original complaint when he was
served with the first amended complaint. Second, the waiver
filed by the attorney general after receiving at least one of
the complaints indicated that he waived "any further service
upon him of any pleadings, discovery and other matters filed
in this cause." Kendrick and K&D's second amended complaint
is encompassed by this waiver; they accordingly were under no
obligation to deliver a copy to the attorney general.
27
1121344
"While the courts are reluctant to interfere with
the wide discretion vested in the municipal
authorities in enacting ordinances for the public
welfare, the duty rests upon the courts to determine
their reasonableness, and if an ordinance is found
to be unreasonable and but arbitrary fiat, a court
will not hesitate to perform that duty and strike it
down. Gilchrist Drug Co. v. City of Birmingham, 234
Ala. 204, 174 So. 609, 111 A.L.R. 103 (1937).
Municipal authorities are given the power in this
state to prevent and to abate nuisances, but they
cannot, in the exercise of this power, declare a
perfectly lawful business or trade to be a nuisance
and abate it when the business, trade, or thing is
not in law or in fact a nuisance, or is not carried
on or operated in such manner as to be likely to
become a nuisance. Spear v. Ward, 199 Ala. 105, 74
So. 27 (1917); Reynolds v. Vulcan Materials Company,
279 Ala. 363, 185 So. 2d 386 (1966). A court of
equity may enjoin the enforcement of an unreasonable
or invalid ordinance when the enforcement of the
same would interfere with the conduct of business or
other property rights. City of Birmingham v. Leo A.
Seltzer, Inc., 229 Ala. 675, 159 So. 203 (1935).
"... Cities may not, under the guise of the
police
power,
impose
restrictions
that
are
unnecessary and unreasonable upon the use of private
property or the pursuit of useful activities. Leary
v. Adams, 226 Ala. 472, 147 So. 391 (1933)."
In light of these authorities, the arguments of the parties,
and the facts in the record, we agree with Kendrick and K&D
that the defendants failed to establish that they were
entitled to a summary judgment on counts 5, 7, and 8 asserted
by Kendrick and K&D.
28
1121344
V.
Count 9 in Kendrick and K&D's amended complaint alleges
that City employees are wrongfully interpreting the City
nuisance ordinance in a manner that holds all vehicles without
current license plates to be nuisances subject to abatement
even though this interpretation is contrary to the plain
language of the ordinance, which declares a vehicle to be
"junk" only if it is "inoperative" and specifically defines an
"inoperative" vehicle as one that "cannot be safely operated
or [that] is incapable of being moved under its own power or
[that] may not be legally operated due to lack of any legal
requirement including an expired license plate." (Emphasis
11
added.) Kendrick and K&D argue that several of the vehicles
towed from the premises of K&D Automotive because they did not
have current license plates nevertheless complied with all
Citing Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), the
11
individual defendants have argued
that the summary judgment in
their favor should be upheld on the basis of State-agent
immunity regardless of whatever merit Kendrick and K&D's
arguments might have. However, as evidenced by this argument,
Kendrick and K&D have argued that the individual defendants
were acting under a mistaken interpretation of the law, which
renders State-agent immunity inapplicable. Ex parte Cranman,
792 So. 2d at 405. Based on the evidence in the record and
the claims of Kendrick and K&D, we decline at this time to
affirm the summary judgment in favor of the individual
defendants on the basis of State-agent immunity.
29
1121344
legal requirements for operation either because their owners
had recently purchased them or because they were owned by
licensed motor-vehicle owners. See § 40-12-260(a)(4)(a) and
(c), Ala. Code 1975.
The defendants have made no substantive attempt to rebut
Kendrick and K&D's argument; instead, they merely reassert
their argument that the towings were proper by stating that
Kendrick and K&D should have acquired current license plates
for the vehicles after receiving notice of the nuisance
violations. Setting aside the issue whether Kendrick or K&D
–– who did not own the vehicles in question –– could even have
acquired current license plates for the vehicles, the
defendants' response ignores the fact that the language of the
City
nuisance
ordinance
declares
a
vehicle
to
be
"inoperative," and by extension "junk" and a potential
nuisance, only if the lack of a current license plate renders
the vehicle unlawful to drive. Kendrick and K&D have
presented evidence indicating that at least some of the
vehicles towed from K&D Automotive by Tony's Automotive could
legally be operated in spite of the lack of a current license
30
1121344
plate. In light of that fact, the summary judgment entered on
Kendrick and K&D's ninth count was improper.
We further note that the rationale applied by the Ashe
court when rejecting a similar argument does not apply in this
case. That court stated:
"Finally, Ashe asserts that, regardless of the
process used, the abatement of his vehicles was
unwarranted, as they 'were operable, with [] current
tag[s] and tires, inflated, not parked in the front
yard, and within the exception for sale.' The
records show, and it has been stated repeatedly in
this opinion, that Ashe had a fair opportunity to
contest the declaration of his property as a
nuisance before the proper channels of government.
He did not do so and cannot now seek redress –– and
a second bite of the apple –– before this court.
This challenge is also outside of this court's
purview because it is an argument based on how the
given procedures were followed and not whether those
procedures were constitutionally adequate. Should
Ashe believe that the city incorrectly removed
operable vehicles that were illegally parked, then
he should seek redress in state court. This court,
in considering federal claims, does not sit as a
general board of review of the actions of the City
of Montgomery."
754 F. Supp. 2d at 1321. Unlike Ashe, Kendrick went to both
city council meetings at which public nuisances were declared
to exist at K&D Automotive, and he contested the City's
continued application of the City nuisance ordinance at a
subsequent meeting as well; accordingly, we cannot say that he
31
1121344
is seeking a second bite of the apple. Moreover, unlike the
federal district court in Ashe, we are a state court and, as
the Ashe court noted, this is the appropriate venue for such
an argument. Id. ("Should Ashe believe that the city
incorrectly removed operable vehicles that were illegally
parked, then he should seek redress in state court.").
VI.
Kendrick and K&D next argue that the trial court erred by
entering a summary judgment on count 10 asserted in their
amended complaint, which alleges that the defendants violated
their due-process rights inasmuch as the city council
declared
public nuisances to exist on the K&D Automotive premises even
though, Kendrick and K&D argue, the city council heard no
evidence of any specific nuisances. The defendants, however,
argue that the resolution authorizing nuisance abatement
submitted by the housing-code department, accompanied by a
list of the properties containing alleged nuisances and a
short description of the alleged nuisances, is itself
sufficient evidence and that no additional evidence is
required. The defendants further assert that a
representative
from the housing-code department attends each city council
32
1121344
meeting and that that representative is ready to offer
additional evidence of the alleged nuisances if a property
owner appears and contests the issue. In this case, however,
the defendants assert that no additional evidence was offered
because, even though Kendrick attended the relevant city
council meetings, in both cases he attempted to resolve the
issue without formally submitting to the entire city council
evidence challenging the asserted nuisance violations.
We agree with the defendants' argument. At the two city
council meetings involving vehicles on the premises of K&D
Automotive, the city council was presented with lists of 55
and 95 properties, respectively, that were alleged to be
hosting nuisances.
Those lists contained the
property
owners'
names and mailing addresses, as well as legal and general
descriptions of the property and a short description of the
alleged nuisance violation or violations. The evidence in the
record also indicates that the lists were prepared by
employees of the housing-code department, such as Hill, who
were also involved in the other facets of the nuisance-
investigation and abatement process. We conclude that those
lists were themselves evidence sufficient to shift the burden
33
1121344
of proof to the property owners and that due process does not
require the presentation of additional evidence before the
city council can take action. The trial court accordingly did
not err by entering a summary judgment in favor of the
defendants on Kendrick and K&D's 10th count.
VII.
Kendrick and K&D's final argument is that summary
judgment was not warranted on count 11, which alleged that the
defendants have violated their due-process rights inasmuch as
the City's procedures for declaring and abating nuisances
authorized Tony's Automotive to tow vehicles from K&D
Automotive's premises that were not even at those premises
until after the city council had adopted the resolutions
authorizing abatement.
Specifically, with regard to
the
April
2007 tows, Kendrick and K&D have submitted evidence
indicating
that Bracy initially cited K&D Automotive for nuisance based
on the presence of six or seven vehicles that were alleged to
be in violation of the City nuisance ordinance. However,
after the city council adopted a resolution declaring "the
nuisances on the properties described in [the attached list]
to be public nuisances and the same ordered to be immediately
34
1121344
abated," a city employee –– presumably Bracy –– returned to
K&D Automotive and prepared a list of 12 vehicles to be towed,
only 1 of which had been identified before the city council
meeting and 2 of which had not been delivered to K&D
Automotive until after the city council meeting. Tony's
Automotive subsequently towed 10 of those 12 vehicles.
With regard to the September 2007 tows, there is no
evidence regarding which vehicles led to the initiation of the
nuisance-abatement process; however, after the city council
adopted a resolution similar to the one adopted in April, a
city employee went to K&D Automotive and prepared a list of 27
vehicles to be towed. That list was then give to Tony's
Automotive, which subsequently towed 26 of those 27 vehicles
along with 2 additional vehicles that its tow-truck driver
apparently deemed to be junk vehicles. It is undisputed that
neither of those two vehicles had been at K&D Automotive when
the
city
council
adopted
the
resolution
authorizing
abatement.
The defendants do not dispute the essence of Kendrick and
K&D's claim –– that city employees and/or the selected
abatement agents are allowed to decide what vehicles to tow
from a property once a public nuisance has been declared to
35
1121344
exist on the property without regard to whether the selected
vehicle was on the property at the time that declaration was
made. Rather, they cite Ashe in support of this policy
inasmuch as the Ashe court held that the notice Ashe received
advising him to remove junk vehicles from his property
"adequately warned him that he was responsible for moving any
vehicles fitting this specific description." 754 F. Supp. 2d
at 1320. Thus, they argue, Kendrick and K&D had notice that
any vehicles falling within the definition of "junk" in the
City nuisance ordinance were subject to abatement at any time
after the city council adopted the resolutions declaring the
nuisances at K&D Automotive to be public nuisances.12
However, Kendrick and K&D argue that Ashe may be
distinguished inasmuch as Ashe argued only that he was never
told what specific vehicles on his property were nuisances; he
did not, Kendrick and K&D argue, claim that vehicles that were
subsequently towed from his property were not on his property
when the city council passed the relevant resolution. This
distinguishing factor is important, Kendrick and K&D argue,
because "the resolutions could not declare any conditions
As already noted, Kendrick and K&D also dispute that the
12
towed vehicles fell within the definition of "junk."
36
1121344
other than those that existed when the resolutions were passed
to be nuisances. ... [I]t is not possible to give notice of
and hold an evidentiary hearing to weigh evidence of whether
a condition that does not exist constitutes a nuisance."
(Kendrick and K&D's brief, p. 37.) We agree. The resolutions
adopted by the city council declared "the nuisances on the
properties described in [the attached list] to be public
nuisances." Notably, the properties themselves are not
declared public nuisances; rather, it is the identified
nuisances then existing on the property that are declared
public nuisances. Kendrick and K&D have identified certain
vehicles that were towed from K&D Automotive without having
been declared public nuisances by the city council, and it
cannot be said that they were given notice and an opportunity
to be heard regarding the status of those vehicles. The
13
We note that "junk" vehicles differ from litter or
13
generically identified junk in that vehicles are more likely
to have at least some value and are readily identifiable
through different means, whether it be a general description
such as color, make, and model, or by reference to the vehicle
identification number or, if available, the license-plate
number. Thus, a claim that the City had violated due-process
rights by cleaning up common litter such as cigarette butts,
scrap paper, or discarded food packaging that was not on a
property when a public nuisance was declared would be a
different case.
37
1121344
summary judgment entered on this count is accordingly due to
be reversed.
VIII.
Kendrick and K&D sued the City defendants and the Tony's
Automotive defendants asserting various due-process claims
after, on two occasions, the City declared vehicles parked at
K&D Automotive to be public nuisances under the City nuisance
ordinance and authorized Tony's Automotive to abate the
nuisances by removing the vehicles from the premises. The
trial court thereafter entered a summary judgment in favor of
the City defendants and the Tony's Automotive defendants on
those claims; however, Kendrick and K&D have established on
appeal that a judgment as a matter of law was not warranted on
counts 5, 7, 8, 9, and 11 of their amended complaint. The
summary judgment as to those counts is accordingly reversed.
Kendrick and K&D have not established, however, that the trial
court erred by entering a summary judgment in favor of the
defendants on count 10, and that judgment is accordingly
affirmed. The cause is remanded for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
38
1121344
Parker, Shaw, and Wise, JJ., concur.
Moore, C.J., concurs in the result.
39
1121344
MOORE, Chief Justice (concurring in the result).
I concur in the result reached by the main opinion and
write separately to express my belief that this Court is not
bound by the federal district court's decision in Ashe v. City
of Montgomery, 754 F. Supp. 2d 1311, 1319 (M.D. Ala. 2010).
This Court has expressly rejected the view that it is
bound by decisions of federal district and appellate courts.
In Ex parte Gurganus, 603 So. 2d 903, 906 (Ala. 1992),
abrogated by Weems v. Jefferson-Pilot Life Insurance Co., 663
So. 2d 905 (Ala. 1995), a plurality of this Court held that
this Court was bound by decisions of federal appellate courts
interpreting
federal
statutes.
Justice
Shores
concurred
in
the
result, writing: "This Court may rely on a decision of any
federal court, but it is bound by the decisions of the United
States Supreme Court, under Article VI of the United States
Constitution." Gurganus, 603 So. 2d at 908 (Shores, J.,
concurring in the result). Three years later, this Court
stated that Gurganus, which was a plurality opinion, did not
represent the position of the Court. Weems, 663 So. 2d at 913.
The Court then recognized the following rule:
"On the contrary, the correct rule, briefly
stated, is that '[t]his Court may rely on a decision
40
1121344
of any federal court, but it is bound by the
decisions of the United States Supreme Court.'
Gurganus, 603 So. 2d at 908 (Shores, J., concurring
specially) (emphasis in original)."
Weems, 663 So. 2d at 913. Thus, Weems rejected the position
that this Court is bound by a decision of a federal appellate
or district court, holding that it is bound only by decisions
of the United States Supreme Court under the authority of the
United States Constitution.
Apparently, the trial court believed that it was bound by
Ashe. The main opinion does not address whether Ashe binds
this Court but instead carefully distinguishes it. Thus, if
the main opinion might be construed to imply that we are bound
by Ashe, which we are not, I wish to reiterate that this Court
is not bound by a decision of a federal district court. With
that said, I agree that the trial court's summary judgment is
due to be affirmed on Count 10 but is due to be reversed on
Counts 5, 7, 8, 9, and 11. Therefore, I concur in the result.
41 | February 28, 2014 |
42d158fd-6a47-4116-94fc-67f06d17703d | Santa Fe Day Spa, LLC v. Brenda Russell a/k/a Brenda Corrigan (Appeal from Shelby Circuit Court: CV-09-1143). Affirmed. No Opinion. | N/A | 1120338 | Alabama | Alabama Supreme Court | REL: 02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120338
____________________
Santa Fe Day Spa, LLC
v.
Brenda Russell a/k/a Brenda Corrigan
Appeal from Shelby Circuit Court
(CV-09-1143)
MURDOCK, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
1120338
Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., dissents.
2
1120338
MOORE, Chief Justice (dissenting).
Because I believe that material issues of fact are
evident in the record of this case, I dissent from affirming
the trial court's summary judgment in favor of defendant
Brenda Russell a/k/a Brenda Corrigan.
I. Facts and Procedural History
Richard Cowden and Gail Cowden, owners of the Santa Fe
Day Spa, LLC ("Santa Fe"), hired Corrigan as a hair stylist in
June 2005. She signed a "Non-compete Contract" ("the
contract") in which she agreed not to work in the same
business as the spa within a five-mile radius for one year
after the termination of her employment. In October 2009
Corrigan left the Santa Fe Day Spa to work for RL Salon, a
business located within two miles of the Santa Fe Day Spa.
Santa Fe sued Corrigan seeking liquidated damages of six
months of salary and alleging that Corrigan had violated the
contract,
including
converting
proprietary
customer
information, and that she had intentionally interfered with
Santa Fe's business relationship with its customers.
The
trial
court entered a summary judgment for Corrigan, its only
3
1120338
reasoning being the conclusory statement that "[Santa Fe] has
not met its evidentiary burden."
II. Standard of Review
In reviewing a summary judgment, we apply the same
standard as did the trial court: Did Corrigan demonstrate the
absence of a genuine issue of material fact and, if so, is she
entitled to judgment as a matter of law? Dow v. Alabama
Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).
III. Analysis
Section 8-1-1, Ala. Code 1975, generally prohibits
contracts restraining trade with certain exceptions:
"(a)
Every
contract
by
which
anyone
is
restrained from exercising a lawful profession,
trade, or business of any kind otherwise than is
provided by this section is to that extent void.
"(b) ... [O]ne who is employed as an agent,
servant or employee may agree with his employer to
refrain from carrying on or engaging in a similar
business and from soliciting old customers of such
employer within a specified county, city, or part
thereof so long as the ... employer carries on a
like business therein."
Section 8-1-1 does not apply to independent contractors.
Premier Indus. Corp. v. Marlow, 292 Ala. 407, 411, 295 So. 2d
396, 399 (1974). The definition of an
"independent
contractor"
4
1120338
is one whose work is not controlled by the employer. "'For one
to be an employee, the other party must retain the right to
direct the manner in which the business shall be done, as well
as the result to be accomplished, or in other words, not only
what shall be done, but how it shall be done.'" 292 Ala. at
411-12, 295 So. 2d at 399 (quoting Odess v. Taylor, 282 Ala.
389, 396, 211 So. 2d 805, 811 (1968)).
Because evidence in the record indicates that Santa Fe
trained and instructed Corrigan as to how to work with its
customers, whether Corrigan is characterized as an
employee
or
an independent contractor is an issue of fact unsuitable for
resolution at the summary-judgment stage. Evidence indicating
that Corrigan was an independent contractor is that she was
paid on a commission basis and that she received an IRS 1099
form, as opposed to a W-2 form. Other evidence indicating that
she functioned as an employee of Santa Fe is that she was
expected to work regular business days and hours and that all
the equipment she used belonged to Santa Fe. Because all
factual inferences are to be drawn in favor of the nonmovant,
here Santa Fe, on a motion for a summary judgment, the issue
5
1120338
whether Corrigan was an independent contractor is one for a
jury to determine under proper instructions.
In my view, Santa Fe also presented substantial evidence
showing that Corrigan had converted proprietary customer
information. According to the affidavit of Richard Cowden, a
security camera recorded Corrigan printing out Santa Fe's
entire customer list and leaving the premises with it. Also,
60% of the calls listed in Corrigan's cellular-telephone
records in the two months after the termination of her
employment were to or from Santa Fe customers. In the six
weeks after the termination of her employment, 34 of her 59
pre-booked appointments at Santa Fe canceled or did not show.
Corrigan claims that the customer information was not
confidential because hair stylists kept "jump journals" with
customer names and styling preferences. But although these
journals recorded customers' names and their styling and
product preferences, the journals did not, according to
evidence in the record, contain telephone and address
information. These facts create a reasonable inference, as
stated in Cowden's affidavit, that Corrigan was "soliciting
clients from information [she had] obtained or gleaned from
6
1120338
Santa Fe Day Spa business records." See Capital Alliance Ins.
Co. v. Thorough-Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994)
(noting that, in evaluating a motion for a summary judgment,
"the court is to view the evidence in a light most favorable
to the nonmoving party and to draw all reasonable inferences
in favor of that party").
At a minimum, genuine issues of fact exist as to whether
Santa Fe's customer information was confidential and whether
Corrigan improperly appropriated it.
IV. Conclusion
Because "[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge," Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), I dissent
from the no-opinion affirmance of the trial court's summary
judgment in favor of Corrigan.
7 | February 28, 2014 |
3f7793bc-592e-4f92-b417-7a91091f1a36 | Brown v. Michelin North America, Inc. | N/A | 1121330, 1121341 | Alabama | Alabama Supreme Court | REL: 01/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121330 and 1121341
____________________
Ex parte Michelin North America, Inc.
PETITIONS FOR WRIT OF MANDAMUS
(In re: Betty C. Brown, individually and as personal
representative of the Estate of George Alvin Brown, deceased
v.
Michelin North America, Inc., et al.)
(Mobile Circuit Court, CV-11-902482)
STUART, Justice.
Michelin North America, Inc. ("Michelin"), petitions this
Court for writs of mandamus directing the Mobile Circuit Court
1121330, 1121341
2
(1) to vacate its order allowing the plaintiff Betty C. Brown
("Brown") to conduct an on-site inspection of Michelin's
Ardmore, Oklahoma, tire-manufacturing facility (case no.
1121330), and (2) to vacate its order compelling Michelin to
answer certain interrogatories and to comply with certain
document requests propounded by Brown (case no. 1121341). We
grant the petition in case no. 1121330 and grant the petition
in part in case no. 1121341.
I.
On May 25, 2010, Brown and her husband, George A. Brown
("George"), were traveling west on Interstate 10 in Mobile
when the tire mounted on the rear passenger side of their 1992
Ford Explorer sport-utility vehicle ("the subject tire")
failed, causing an automobile accident in which George was
killed and Brown was injured. The subject tire was a
P265/70R15 110S B.F. Goodrich Radial Long Trail T/A passenger
tire, manufactured in 2004 at an Ardmore, Oklahoma, facility
operated by Michelin, which owns the B.F. Goodrich brand. On
November 11, 2011, Brown sued Michelin and others, in her
individual capacity and as personal representative of George's
estate, alleging that her injuries and George's death were the
1121330, 1121341
3
result of tread separation in the subject tire; her complaint
specifically
asserted
products-liability,
negligence,
wantonness,
breach-of-warranties,
and
misrepresentation
claims. Concurrent with the filing of her complaint, Brown
made
an
initial
discovery
request
containing
22
interrogatories and 56 requests for production.
Michelin thereafter objected to the scope of Brown's
discovery request, arguing that she sought information that
was both confidential and irrelevant, inasmuch as she sought
information related to tires other than just B.F. Goodrich
Radial Long Trail T/A passenger tires manufactured at the
Ardmore facility with the same specifications as the subject
tire. Eventually, Michelin and Brown agreed to a protective
order governing the handling of documents and information
deemed by Michelin to be confidential, and Michelin did
thereafter produce some of the requested discovery. Michelin
was ultimately unwilling, however, to produce all the
discovery Brown requested, and, on March 17, 2013, Brown moved
the trial court to compel Michelin to "fully and completely
respond" to 10 outstanding interrogatories and 22 outstanding
requests for production. On April 5, 2013, Michelin filed its
1121330, 1121341
The trial court had already conducted a previous hearing
1
on April 26, 2013, to hear arguments on Brown's discovery
4
response, arguing that Brown's request was overbroad and that
some of the requested information was protected trade secrets.
Michelin supported its response with an affidavit sworn by
Douglas J. Slagh, a senior technical advisor for Michelin.
Also on April 5, 2013, Brown moved the trial court to
enter an order requiring Michelin to allow Brown to inspect
Michelin's Ardmore facility and to take photographs of and to
videotape the manufacturing processes used by Michelin at that
facility. On April 23, 2013, Michelin filed its response to
Brown's motion to inspect, arguing that she sought discovery
of trade secrets protected under Alabama law and that the
information sought was neither necessary nor relevant to her
claims against Michelin. Michelin also moved for a protective
order barring Brown from entering its Ardmore facility. Both
parties thereafter filed additional briefs on the issue of the
plant inspection.
On July 10, 2013, the trial court conducted a hearing at
which it heard arguments regarding both Brown's motion to
compel and her motion to inspect, and, on August 5, 2013, the
trial court entered separate orders granting both motions.1
1121330, 1121341
motions.
5
With regard to Brown's motion to compel, the trial court
defined the scope of discoverable evidence Michelin was
required to produce as follows:
"For
purposes
of
these
below-listed
interrogatory answers and responses to requests for
production, and for all future discovery responses,
the scope of relevant discoverable evidence shall
include all passenger or light truck radial tires
manufactured by Michelin or any of its subsidiaries
with wheel diameters between 14 and 17 inches, tire
widths between 185 and 275 millimeters, aspect
ratios of 50 to 80, speed rating of 130 miles per
hour or below, regardless of plant of manufacture
(i.e., whether Ardmore, Oklahoma; Dothan, Alabama;
Woodborn, Indiana; Tuscaloosa, Alabama; Opelika,
Alabama; or otherwise) for the period of time from
January 1, 2000, through and including December 31,
2010."
Using that guideline, Michelin was ordered to produce complete
responses to the 10 outstanding interrogatories and 22
outstanding requests for production by August 19, 2013.
With regard to Brown's motion to inspect, the trial court
entered a separate order holding that "[Brown's] need for the
on-site
plant
inspection
and
limited
videotaping
and
photography of Michelin's tire manufacturing, machinery, and
processes outweigh any real risk of potential harm to Michelin
from disclosure of such alleged trade secrets ...." In
1121330, 1121341
6
accordance with that holding, the trial court defined the
scope of the inspection that would be allowed to provide
Michelin some protections and ordered Michelin to allow the
inspection no later than September 1, 2013. On August 7,
2013, Michelin moved the trial court to stay its order
granting Brown's motion to inspect so it could seek appellate
review of the order. Michelin simultaneously moved the trial
court to reconsider its order or to certify the order for an
interlocutory appeal pursuant to Rule 5, Ala. R. App. P. On
August 8, 2013, the trial court denied those motions, and, on
August 16, 2013, Michelin petitioned this Court for a writ of
mandamus directing the trial court to vacate its order
granting Brown's motion to inspect and to instead grant
Michelin's motion for a protective order barring such an
inspection. That petition was docketed as case no. 1121330.
Meanwhile, on August 14, 2013, Michelin moved the trial
court to stay its order granting Brown's motion to compel so
it could seek appellate review of that order as well. In
conjunction with that motion to stay, Michelin also moved the
trial court to reconsider its order granting Brown's motion to
compel and to enter a protective order in favor of Michelin
1121330, 1121341
7
with regard to 3 of the outstanding interrogatories and 12 of
the outstanding document requests. As grounds for its motion,
Michelin argued that the order to compel would require it "to
produce irrelevant, trade secret documentation while imposing
undue burdens and excessive costs" upon it. Michelin
supported its motion with another affidavit from Slagh, his
third filed in this case.
On August 15, 2013, Brown filed a response opposing the
August 14 motions filed by Michelin and asking the trial court
to strike the affidavit filed by Slagh in conjunction with
those motions. On Friday, August 16, 2013, Michelin filed an
emergency motion with this Court to stay proceedings in the
trial court on the basis that the trial court had not yet
ruled on its August 14 motions and the ordered discovery was
due on Monday, August 19, 2013. Later that day, however, the
trial court denied Michelin's August 14 motions and granted
Brown's motion to strike Slagh's affidavit. On August 19,
2013, Michelin petitioned this Court for a writ of mandamus
directing the trial court to vacate its August 5, 2013, order
granting Brown's motion to compel with respect to 3 identified
1121330, 1121341
The
Rubber
Manufacturers
Association,
the
Product
2
Liability Advisory Council, and the Business Council of
Alabama have also filed amici curiae briefs in support of
Michelin in case no. 1121330.
8
interrogatories and 12 identified document requests. That
petition was docketed as case no. 1121341.
After conducting an initial review of Michelin's petition
in case no. 1121341, this Court, on August 20, 2013, entered
an order staying all proceedings in the trial court and
ordering Brown to file a response. On September 4, 2013, we
likewise ordered Brown to file a response in case no. 1121330.
Brown thereafter filed a response in each case and separately
moved to strike both Michelin's petition for the writ of
mandamus in case no. 1121341 as well as Slagh's affidavit upon
which that petition relied. Responses and replies to the
various filings were thereafter filed by the parties, and, for
convenience, we have now consolidated Michelin's two petitions
for the purpose of issuing one opinion.2
II.
In both case no. 1121330 and case no. 1121341, Michelin
seeks mandamus review of orders entered by the trial court
deciding discovery matters. This Court has stated:
1121330, 1121341
9
"'"Discovery
matters
are
within the trial court's sound
discretion, and this Court will
not
reverse
a
trial
court's
ruling
on
a
discovery
issue
unless
the
trial
court
has
clearly exceeded its discretion.
Home Ins. Co. v. Rice, 585 So. 2d
859,
862
(Ala.
1991).
Accordingly, mandamus will issue
to reverse a trial court's ruling
on a discovery issue only (1)
where there is a showing that the
trial court clearly exceeded its
discretion, and (2) where the
aggrieved party does not have an
adequate
remedy
by
ordinary
appeal. The petitioner has an
affirmative burden to prove the
existence
of
each
of
these
conditions."
"'Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d
810, 813 (Ala. 2003).
"'Moreover, this Court will review by
mandamus only those discovery matters
involving (a) the disregard of a privilege,
(b) the ordered production of 'patently
irrelevant or duplicative documents,' (c)
orders effectively eviscerating 'a party's
entire action or defense,' and (d) orders
denying a party the opportunity to make a
record sufficient for appellate review of
the discovery issue. 872 So. 2d at 813-14.
The order challenged in this case involving
alleged
work
product
and
the
attorney-client privilege is reviewable
under category (a).'
"Ex parte Meadowbrook Ins. Group, Inc., 987 So. 2d
540, 547 (Ala. 2007)."
1121330, 1121341
10
Ex parte Mobile Serv. Gas Corp., 123 So. 3d 499, 504 (Ala.
2013). Accordingly, we review the trial court's rulings to
see if the trial court exceeded its discretion.
III.
We first consider Michelin's petition in case no. 1121330
challenging the trial court's order giving Brown the right to
inspect Michelin's Ardmore facility. Michelin argues that the
trial court exceeded its discretion in granting Brown's motion
to inspect inasmuch as its order doing so failed to recognize
Michelin's right to protect its trade secrets and compelled
the disclosure of irrelevant information. For the reasons
that follow, we agree.
This Court has recognized that "[t]he Alabama Rules of
Evidence provide that trade secrets are, in some cases,
privileged and not admissible at trial." Ex parte Miltope
Corp., 823 So. 2d 640, 644 (Ala. 2001). Specifically, Rule
507, Ala. R. Evid., provides:
"A person has a privilege, which may be claimed
by the person or the person's agent or employee, to
refuse to disclose and to prevent other persons from
disclosing a trade secret owned by the person, if
the allowance of the privilege will not tend to
conceal fraud or otherwise work injustice. If
disclosure is directed, the court shall take such
1121330, 1121341
11
protective measures as the interest of the holder of
the privilege and of the parties and the interests
of justice require."
A party asserting the trade-secret privilege has the initial
burden of showing that the information sought to be shielded
from disclosure constitutes a trade secret the disclosure of
which would result in injury. Ex parte Miltope, 823 So. 2d
at 644. If such a showing is made, the burden then shifts to
the party seeking the disclosure of the trade secret to show
that the information "is both necessary and relevant to the
litigation." II Charles W. Gamble and Robert J. Goodwin,
McElroy's Alabama Evidence § 361.02(5) (6th ed. 2009). The
trial court then "conducts a balancing process under which it
decides whether the need for the information outweighs any
harm that would result from its disclosure." Id., at §
361.02(3). See also In re Remington Arms Co., 952 F.2d 1029,
1032 (8th Cir. 1991) ("If the party seeking discovery shows
both relevance and need, the court must weigh the injury that
disclosure might cause to the property against the moving
party's need for the information. Coca–Cola Bottling Co. [v.
Coca-Cola Co.], 107 F.R.D. [288,] 293 [(D. Del. 1985)]. If
the party seeking discovery fails to show both the relevance
1121330, 1121341
12
of the requested information and the need for the material in
developing its case, there is no reason for the discovery
request to be granted, and the trade secrets are not to be
revealed.").
In this case, the trial court, in its order granting
Brown's motion to inspect, avoided directly deciding whether
Michelin had established that the manufacturing processes,
techniques, and equipment used at its Ardmore facility
constituted trade secrets, stating:
"Assuming [but] not deciding that some or even
most of the equipment, machinery, and manufacturing
processes constitute trade secrets under Alabama
law, the court nevertheless finds that [Brown] has
met her burden of establishing substantial need for
an on-site inspection at Ardmore, and that an
injustice would occur were she not permitted,
subject to the restrictions imposed herein, to
videotape and take photographs of the equipment,
machinery, and manufacturing processes for use
strictly in the presentation of her case at trial."
However, although the trial court did not decide this issue,
we note that the evidence in the record, specifically the
affidavit of Jack Glazener, a Michelin employee who has worked
at the Ardmore facility continuously since 1971, indicates
that the manufacturing processes, techniques, and equipment
Michelin uses at its Ardmore facility do in fact constitute
1121330, 1121341
Section 8-27-2(1), Ala. Code 1975, defines a trade secret
3
as information that:
"a. Is used or intended for use in a trade or
business;
"b. Is included or embodied in a formula,
pattern, compilation, computer software, drawing,
device, method, technique, or process;
"c. Is not publicly known and is not generally
known in the trade or business of the person
asserting that it is a trade secret;
"d. Cannot be readily ascertained or derived
from publicly available information;
"e.
Is
the subject of efforts that
are
reasonable under the circumstances to maintain its
secrecy; and
"f. Has significant economic value."
13
trade secrets as that term is defined in the Alabama Trade
Secrets Act, § 8-27-1 et seq., Ala. Code 1975.3
Brown argues that the information she seeks does not meet
the definition of a trade secret because Michelin has itself
produced a video available online entitled "How Tires are
Made" and because Glazener acknowledged in his affidavit that
he has himself conducted some public tours of the Ardmore
facility in the past. However, there is no indication that
the Michelin-produced video contains footage of the Ardmore
facility or the manufacturing processes, techniques, and
1121330, 1121341
14
equipment used there. Moreover, with regard to Brown's claim
that the tours conducted at the Ardmore facility undermine
Michelin's claim that the information sought constitutes trade
secrets because Michelin has not maintained efforts to keep
that information secret from the public, see § 8-27-2(e), Ala.
Code 1975, Glazener made the following statements in his
affidavit:
"[Michelin] does not generally permit third
persons to enter the plant unless there is a
legitimate business reason. The few business guests
permitted to enter the Ardmore, Oklahoma, plant must
identify themselves to security personnel and state
the specific purpose for their visit. The stated
purpose is then verified with the [Michelin]
management employee with whom the visitor is meeting
before the visitor is permitted to enter. Each
visitor must conspicuously wear a badge denoting his
or her status and the extent of their access within
the plant is limited based on business need and
prior approval, with signed secrecy agreements in
many instances. Each visitor is queried regarding
possession of cameras and recording devices, all of
which are strictly prohibited. Any items brought
into the plant by a visitor may be inspected. The
[Michelin] employee with whom the visitor is meeting
must accompany the visitor continuously until the
conference is terminated and the visitor leaves the
plant. [Michelin] does not permit plant tours by
persons knowledgeable about tire manufacturing who
do not have a legitimate business purpose, as set
forth above.
"(d) Dealers or customers of [Michelin] who are
permitted into the plant are asked to sign a
confidentiality agreement. They are given 'wide
1121330, 1121341
15
aisle' tours, and are accompanied by [a Michelin]
employee. They are not allowed to take photographs
or video of the plant. A wide aisle tour allows the
approved visitor to see general operations of the
plant, but does not give them access to any detailed
view of machine design or operation, work methods,
specifications, etc. In addition, in the past we
have given wide aisle tours to children on school
trips, but I am not aware of any in the last fifteen
(15) years.
"(e) Years ago, [Michelin] permitted persons
(e.g.,
employee
family
members)
who
are
not
knowledgeable about tire manufacturing and who would
not
recognize
or
appreciate
the
specific
confidential plant processes to enter the plant on
a limited basis during shutdown periods. Cameras
and other recording devices were not permitted."
Based on the totality of the evidence concerning Michelin's
efforts to maintain security and limit access to its Ardmore
facility, we do not agree with Brown's argument that the
trade-secret privilege should not apply because Michelin has
not
exerted
"efforts
that
are
reasonable
under
the
circumstances to maintain its secrecy." § 8-27-2(e).
Having concluded that Michelin has met its initial burden
of showing that the information sought to be shielded from
disclosure constitutes a trade secret the disclosure of which
would result in injury to Michelin, we next turn to whether
Brown has shown that the information sought is both necessary
and relevant to the litigation. In its order granting Brown's
1121330, 1121341
16
motion to inspect, the trial court concluded that Brown had
met this burden and that it would be unjust were she not
permitted to take and then use the videotape and photographs
of the Ardmore facility "in the presentation of her case at
trial." In the brief filed in support of her motion to
inspect, Brown also focused on her need to show the jury the
videotape and photographs of the Ardmore facility, stating:
"To
meet
[her]
burden
to
prove
that
negligent/wanton design
and/or
manufacturing
defects
in the subject tire were a proximate cause of the
tire's failure, Mrs. Brown wishes to show the jury
photographs or video of representative step-by-step
design,
manufacturing,
assembly
and
inspection
processes of similar tires and where and/or at what
stage(s) in such processes problems, mistakes or
inadequacies can occur. Without such a documented
on-site plant inspection, Mrs. Brown –– and the jury
––
will
be
deprived
of
critically
important
information about factors which can constitute
negligence/wantonness
in
the
tire's
design,
manufacture,
assembly,
evaluation,
inspection,
quality assurance, and approval for release into the
marketplace. In consequence, [Brown's] presentation
of her case, and her ability to meet her burden of
proof, will be significantly hampered if she is
unable to adequately illustrate these facts for the
jury.
"A documented inspection of the subject plant is
relevant
because
that
is
the
plant
whose
manufacturing, assembling, and quality assurance/
inspection operations are at issue. Without videos
and photographs of the plant and its operations, the
jurors will be left to guess about the real
environment in which Michelin's employees typically
1121330, 1121341
17
toil while manufacturing and inspecting such tires.
Jurors would never know the sights, sounds, or
working conditions and thereby be made to speculate
about such factors in a vacuum. Without question,
shortfalls and mishaps in the manufacturing process
can cause poor adhesion between the various layers
of a tire and can result in tread separations.
Likewise, failure(s) of Michelin's quality assurance
personnel to detect manufacturing defects can result
in defective tires leaving the subject plant and
entering the marketplace. The jury should be
permitted to see the environment in which Michelin's
employees
typically
perform
these
everyday
activities.
"The jury should be allowed to learn how such
conditions come to be, and there is simply no better
way to create an illustration of where and how in
the manufacturing process such conditions originate
than a plant inspection. Plaintiff's counsel would
have an opportunity to actually show the jury how
design and manufacturing defects occur and are
missed in the inspection process, rather than be
limited to trying to explain it to the jury with
charts and diagrams that are, at best, an educated
guess at what the interior of the plant and the
manufacturing and quality assurance processes look
like.
"Photograph and videotape of the types of
equipment and machinery typically used in the
manufacture of the tires at the subject plant are
the best available evidence of what occurs during
each
typical
step
in
the
tire
building
and
inspection processes."
It is no doubt true that videotape and photographs of
Michelin's manufacturing processes, techniques, and equipment
would likely assist Brown in presenting her case to the jury.
1121330, 1121341
18
However, we do not agree that this is a sufficient basis on
which to conclude that it is necessary for Brown to have
access to those trade secrets. As the Supreme Court of
Indiana has explained, "'[n]ecessity' means that without
discovery of the particular trade secret, the discovering
party would be unable to present its case 'to the point that
an unjust result is a real, rather than a merely possible,
threat.'" Bridgestone Americas Holding, Inc. v. Mayberry, 878
N.E.2d
189,
196
(Ind.
2007)
(quoting
In
re
Bridgestone/Firestone, Inc., 106 S.W.3d 730, 733 (Tex. 2003)).
See also Bridgestone/Firestone, Inc. v. Superior Court, 7 Cal.
App. 4th 1384, 1395, 9 Cal. Rptr. 2d 709, 715 (1992) ("[I]t is
not enough that a trade secret might be useful to real
parties. As we have seen, they were required to make a prima
facie showing that [the desired trade secrets] in fact were
relevant and necessary to their proofs.").
Brown's expert witness, Troy Cottles, states that he had
been employed by the tire industry for 17 years and that he
spent over 14 of those years "in a plant environment." Brown
has also identified a video produced by Michelin describing
the tire-making process to some extent. It thus seems
1121330, 1121341
19
apparent that Brown will be able to present her case and
describe and explain the tire-making process to the jury even
without access to Michelin's Ardmore facility and the trade
secrets it maintains there. There is simply no basis on which
to conclude that not having photographs and videotape will
render Brown unable to present her case to the point that an
unjust result is a real threat. Mayberry, 878 N.E.2d at 196.
However, beyond just asserting the need for photographs
and videotape to be used in presenting her case, Brown also
argues that an inspection will provide Cottles with additional
support for his conclusion that the subject tire was defective
inasmuch as he would have an opportunity to view Michelin's
tire-making process and to determine where and how the defect
might have occurred. Thus, Brown argues, access to Michelin's
manufacturing processes, techniques, and equipment –– its
trade secrets –– is both necessary and relevant. Michelin
argues that Brown's claim of necessity is belied by the fact
that Cottles, without having access to Michelin's trade
secrets, already has formulated and rendered an expert opinion
that the subject tire was defective based solely on an
inspection of the subject tire. Therefore, Michelin argues,
1121330, 1121341
20
Brown cannot establish that access to the Ardmore facility is
truly necessary. See, e.g., Bridgestone/Firestone, Inc. v.
Superior Court, 7 Cal. App. 4th at 1396-97, 9 Cal. Rptr. 2d at
716 (explaining that access to defendant's trade secret would
be "helpful" inasmuch as it might assist plaintiffs' expert in
determining why an observed defect occurred, but access to
trade secret was nevertheless not permitted because it was not
necessary for plaintiffs "to carry their burden of proof"
regarding the existence of a defect).
Moreover, Michelin argues that Brown cannot meet her
burden of showing that the information she seeks is relevant
because, Michelin argues, even though the subject tire was
manufactured at the Ardmore facility, it was manufactured in
2004, over nine years before this discovery dispute, and the
Ardmore facility no longer manufactures that tire and has in
fact undergone significant changes. In his affidavit,
Glazener explained the changes in the Ardmore facility since
the subject tire was manufactured there:
"The manufacturing conditions that existed
during the 26th week of 2004 with respect to the
subject
tire's
manufacturing
are
significantly
different today and cannot be observed. In nine (9)
years that have passed since the subject tire was
1121330, 1121341
21
manufactured, substantial changes have been made to
the plant and its machinery.
"All (100 percent) of the tire building machines
that may have been used to build the subject tire in
2004 have since been upgraded or modified. The
modifications include changes to the component
alignment system, the installation of new ply trays
and guides, and different splice presses, among
other things.
"The tire building room has also been changed by
the modifications of many of the tire building
machines
to
raise
the
plant's
capacity
to
manufacture passenger tires. These and other
changes led to the reconfiguration of the tire
building room equipment layout since 2004.
"The plant equipment used to fabricate and/or
prepare treads, sidewalls, beads, body plies, and
steel belts that would have been used in the
manufacture of the subject tire in 2004 has had
significant modifications. These modifications
include the installation of new component cutters,
numerous changes to the existing component cutters,
replacement of the roll drives, reconfiguration of
extruders, and the addition of new preparation
machinery, among other things.
"The equipment used to cure tires like the
subject tire in 2004 has been modified. These
modifications include the installation of new cure
presses, the replacement or rebuilding of other cure
presses, the installation of new hydraulic systems,
the
installation
of
new
steam
headers,
the
replacement of insulation, and the installation of
new lubrication systems, among other things.
"Other plant modifications since 2004 include
the installation of a new conveyor system, the
installation of new tire balance and upgraded tire
uniformity optimizer machines, the installation of
1121330, 1121341
22
new
modules
and
relocation
of
others,
and
modifications to a variety of other equipment, among
other things.
"The physical plant facility has changed since
2004. For example, substantial areas of the floors
have been resurfaced, new lighting installed, an
upgraded cooling tower, a new addition to the east
side of the production area, additional outside
contractor huts built and upgraded to the exterior
of the plant, among other things."
In Morton v. Cooper Tire & Rubber Co., 288 F.R.D. 126
(N.D. Miss 2012), the United States District Court for the
Northern District of Mississippi considered a motion to
inspect a tire-manufacturing facility filed by a plaintiff in
a case brought pursuant to the Americans with Disabilities
Act, 41 U.S.C. § 121 et seq. That court ultimately granted
the motion and held that the plaintiff was entitled to inspect
the facility and to take photographs of the equipment the
defendant manufacturer alleged the plaintiff was unable to
operate because of his disability. 288 F.R.D. at 133. In its
review of the relevant caselaw, the court reviewed several
cases in which courts had declined to allow inspections based
on the time that had elapsed since an alleged defective tire
was manufactured:
"The court has paid particular attention to the
cases cited by Cooper Tire in which [it] and other
1121330, 1121341
23
tire manufacturers have successfully opposed plant
inspections. These cases and the rationales
employed by the courts are instructive, but because
each of these cases is factually dissimilar to this
case, they are ultimately not helpful to ... Cooper
Tire's position.
"In some of the cases, too much time had passed
from the date of injury to the date of the request.
In Murphy v. Cooper Tire & Rubber Company, No.
5:08cv40 [not reported in F. Supp. 2d], the federal
district court in Florida rejected the plaintiff's
bid to have counsel and experts inspect Cooper
Tire's Findlay, Ohio plant in a products liability,
wrongful death case. The subject tires in that
action were no longer manufactured by Cooper Tire,
and the plant itself had been modified such that the
plant 'does not currently reflect the manufacturing
conditions and processes that existed' when the
subject tire was manufactured. Because anything
discovered was 'only marginally relevant –– at
best,' and would include disclosure of an entire
facility, the inspection was denied. Id. at 5.
"Likewise in Daughtry v. Cooper Tire, (Circuit
Court of the Fourth Judicial District of Florida,
Duval County, No 16–2006–CA–4574), the Florida state
court addressed a wrongful death arising from a tire
blowout. Cooper Tire manufactured the tire in 2002
and the defendant requested the inspection in 2007.
The court did not order inspection [of] the Cooper
Tire [facility] because of 'significant changes
since' 2002 'including the use of new equipment,
modifications of the physical layout and changes in
the stages of the manufacturing process.' Id. at 2.
This inspection, the court found 'would indeed
expose Cooper's trade secrets and be of modest
value' to the plaintiff's case.
"In Williams v. Daihatsu, 3–01–184–D (D. Tex.
March 21, 2002) [not published], the court denied a
motion in which a plaintiff sought permission for
1121330, 1121341
24
their expert to inspect any portion of a tire plant.
The tire at issue had not been manufactured for five
years prior to the requested inspection and 'the
production
methods currently employed' at the
subject plant were 'unlikely to replicate the
production methods used when the tire in question
was manufactured' six years earlier. Id."
288 F.R.D. at 132. See also Hajek v. Kumho Tire Co., No.
4:08CV3157 (D. Neb. Feb. 8, 2010) (not reported in F. Supp.
2d) ("[A]s to plaintiffs' request to tour or inspect Kumho's
manufacturing plant, the plant has changed since the accident
tire was manufactured in 2005. There is no showing that
touring
and
assessing
the
plant's
current
structure,
mechanisms, ventilation, or general cleanliness [in 2010]
would be relevant or lead to discovering information relevant
in determining why a tire manufactured in 2005 failed on
August 17, 2006.").
Thus, in these cases, courts have essentially held that
plaintiffs are unable to make the relevance showing necessary
to justify the inspection of a tire-manufacturing facility and
concomitant disclosure of trade secrets when the tire had been
manufactured as recently as five years before the discovery
requests were made. In the instant case, the subject tire was
manufactured over nine years before, and it is undisputed that
1121330, 1121341
25
the Ardmore facility has undergone significant change in that
time. We agree with the rationales of the courts cited above,
and we accordingly conclude that Brown has not established
that the information she seeks by way of an inspection of the
Ardmore facility is necessary and relevant to this litigation.
For this reason, the trial court exceeded its discretion when
it granted Brown's motion for an on-site inspection of
Michelin's Ardmore facility, and the trial court is hereby
directed to vacate its August 5, 2013, order granting that
motion.
IV.
We next consider Michelin's petition in case no. 1121341
challenging the trial court's order requiring it to produce
complete responses to Brown's 10 outstanding interrogatories
and 22 outstanding requests for production. Michelin does not
challenge the entire scope of the trial court's order, instead
focusing its objections on 3 interrogatories and 12 requests
for production. Michelin argues that it should not be
compelled to respond to these discovery requests for three
reasons: (1) the requests, it says, are too broad inasmuch as
they seek the disclosure of information that Michelin alleges
1121330, 1121341
26
is not relevant; (2) the requests, its says, seek the
disclosure of protected trade secrets and, Michelin alleges,
Brown has not established that those trade secrets are
relevant or necessary to her case; and (3) responding to these
requests would impose a burden upon Michelin that Michelin
alleges is excessive and impermissible.
Before considering the merits of these individual
arguments, we first consider Brown's argument that Michelin's
excessive-burden argument is not properly before this Court.
Brown made her initial discovery requests in November 2011,
and, after she and Michelin were unable to resolve Michelin's
objections regarding those requests, Brown, in March 2013,
moved the trial court to compel Michelin to respond to her
requests. Thereafter, the parties filed multiple briefs with
the trial court regarding Brown's motion to compel, and the
trial court held two separate hearings –– on April 26, 2013,
and July 10, 2013 –– to specifically discuss the proper scope
of discovery. Michelin's filings during this time included
two affidavits from its expert Slagh detailing its objections
to Brown's discovery requests. Those affidavits and
Michelin's arguments during this time frame were exclusively
1121330, 1121341
27
devoted to Michelin's claims that the discovery requests were
too broad and sought the disclosure of protected trade secrets
–– Michelin did not argue that responding to the requests
would impose an excessive and undue burden upon it. On August
5, 2013, the trial court granted Brown's motion to compel, and
it was not until August 14, 2013, when Michelin moved the
trial court to reconsider and to enter a protective order in
Michelin's favor that Michelin first asserted an excessive-
burden argument, supported by a third affidavit sworn by
Slagh. Brown then moved the trial court to strike that
affidavit, and, on August 16, 2013, the trial court did so,
stating:
"Michelin had every opportunity to present
evidence for this Court's consideration prior to and
during the two hearings conducted on these motions.
Furthermore, Michelin's counsel requested and was
given an opportunity to work on a compromise with
[Brown's] counsel concerning the proposed scope of
discovery, but according to the record, elected not
to have any communication with [Brown's] counsel
despite being provided with the opportunity to do
so. The court accordingly concludes that Mr.
Slagh's August 14, 2013, affidavit comes far too
late and shall not now be considered."
Michelin now reasserts its excessive-burden argument to
this Court and argues that the trial court improperly struck
Slagh's third affidavit. Brown meanwhile has moved this Court
1121330, 1121341
28
to strike Slagh's third affidavit from the materials before us
and further argues that we should strike Michelin's entire
petition in case no. 1121341 because, she says, it relies
heavily on that affidavit. Although we deny the motion to
strike Michelin's petition, we agree that the trial court
acted within its discretion in striking Slagh's third
affidavit. Accordingly, because that affidavit was not
considered by the trial court, we give it no consideration in
deciding the merits of Michelin's petition for the writ of
mandamus. See Ex parte Verbena United Methodist Church, 953
So. 2d 395, 399 (Ala. 2006) ("We have not relied upon
[plaintiff's] affidavit because, as previously stated, when
this Court considers a mandamus petition, we can review only
the evidence that was before the trial court.").
Michelin argues that Slagh's third affidavit was proper
and timely because, it argues, under this Court's decision in
Ex parte Reynolds Metals Co., 710 So. 2d 897 (Ala. 1998), it
was required to file a motion for a protective order after the
trial court granted Brown's motion to compel before it could
petition this Court for mandamus relief. See Ex parte Horton
Homes, Inc., 774 So. 2d 536, 540 (Ala. 2000) ("Simply put,
1121330, 1121341
29
Reynolds Metals stands for the proposition that a party
dissatisfied with the trial court's ruling on a motion to
compel discovery must first make a timely motion for a
protective order, so as to create a record to support the
essential allegation that the petitioner has no other adequate
remedy. Id. The motion for a protective order pursuant to
Rule 26(c)[, Ala. R. Civ. P.,] and any subsequent mandamus
petition must be filed within the time period set for
production by the trial court in its order compelling
discovery."). Moreover, Michelin argues, courts regularly
consider new evidence submitted in support of a motion for a
protective order even after the order compelling discovery is
entered. See, e.g., Ex parte Loube Consulting Int'l, Inc., 45
So. 3d 741 (Ala. 2010), Ex parte Fairfield Nursing & Rehab.
Ctr., L.L.C., 22 So. 3d 445 (Ala. 2009), and Ex parte Orkin,
Inc., 960 So. 2d 635, 640 (Ala. 2006).
However, the fact that courts sometimes consider new
evidence submitted in support of a motion for a protective
order filed after an order compelling discovery has been
entered does not mean that all courts are always required to
do so. "This Court has repeatedly recognized that a trial
1121330, 1121341
30
court has broad and considerable discretion in controlling the
discovery process." Pensacola Motor Sales, Inc. v. Daphne
Auto., LLC, [Ms. 1110840, Dec. 6, 2013] ___ So. 3d ___, ___
(Ala. 2013). In this case, the parties have quibbled about
the scope of discovery for over two years. The trial court
has held two hearings specifically to address the issue of
Michelin's objections to Brown's discovery requests. At those
hearings, the trial court repeatedly expressed its frustration
with the slow pace of the case, the time the case was
requiring, and even the parties' propensity to file motions
and evidentiary filings in an untimely fashion. In no filings
leading up to those hearings or at the hearings themselves did
Michelin make a cogent argument that the discovery requests
would impose an undue and excessive burden upon it. Only
after the trial court had entered its ruling granting Brown's
motion to compel –– following five months of discussion and
multiple hearings on that specific issue –– did Michelin
assert an excessive-burden argument for the first time. In
light of that delay, we cannot say that the trial court
exceeded its discretion in declining to consider Michelin's
1121330, 1121341
31
belated argument, and Slagh's affidavit supporting it, on the
basis that they came "far too late."
We emphasize, however, that this is not to say that
courts have no discretion to consider new evidence submitted
in accordance with a motion seeking a protective order
following an order compelling discovery. Certainly, if the
order compelling discovery has been entered in a perfunctory
manner, it would be entirely appropriate to do so. However,
in this case, the trial court expended a great deal of time,
effort, and oversight over the course of a five-month period
attempting to resolve the parties' dispute regarding the scope
of discovery. After granting the parties ample time and
opportunity to submit evidence and make arguments in support
of their respective positions, it entered an order compelling
the discovery requested. Only then did Michelin assert for
the first time that Brown's discovery requests would impose an
undue and excessive burden upon it. Based on these
circumstances, we hold that the trial court acted within its
discretion when it struck the affidavit filed to support this
new and belated argument. To rule otherwise would allow
1121330, 1121341
32
Michelin to effectively negate five months of proceedings on
Brown's motion to compel.
We must still, however, consider the two arguments that
are properly before us in case no. 1121341 -- whether the
trial court's order compelling discovery is too broad and
whether it requires Michelin to disclose protected trade
secrets. In its petition, Michelin summarizes the compelled
discovery as follows:
"Under the order, the temporal scope of which
exceeds a decade, [Michelin] is required to produce
the following design, manufacturing and test-related
documents (many of which are protected trade
secrets) in response to Interrogatory No. 11 and
Document Request Nos. 5, 8, 11, 24, 29, 30 and 31:
"A copy of all specifications and changes
to the specifications relating to the
approximately 2,600 tire designs and 375
million tires encompassed by the defined
discovery scope (Interrog. No. 11; Doc.
Request No. 5);
"All economic analyses regarding the cost
implementation of any such design changes
(Doc. Request No. 11);
"All tests or test studies conducted by any
entity relating to the tires encompassed by
the defined discovery scope (Doc. Request
No. 8);
"[Michelin's] Decision Trees and Aspect
Specifications (Doc. Request Nos. 29, 30,
and 32); and
1121330, 1121341
Michelin did not, in this excerpt from its petition, cite
4
the third interrogatory it challenges, interrogatory no. 18;
however, its objection to that interrogatory similarly relates
to the breadth of the request.
33
"Any internal memos, notes, reports or
studies relating to tread separations,
tread/belt
separations,
or
belt
edge
separations, for any tires encompassed by
the defined discovery scope (Doc. Request
No. 24).
"Further, with respect to Interrogatory No. 14,
and Document Request Nos. 9, 18 and 23, [Michelin]
is required to produce 'documents of any type
whatsoever' relating to claims, complaints and
lawsuits asserted against [Michelin] regarding all
tires encompassed within the defined discovery
scope, as well as adjustment data reflecting
warranty returns, regardless of the type of tire
failure involved. The court also ordered the
production
of
'all documents and/or writings'
relating to any product liability claims involving
tread separations in all tires within the defined
discovery scope (Document Request No. 10) and 'all
incident
reports,
claims
reports
or
product
liability reports' reflecting any such complaints
(Document Request No. 26)."
(Michelin's petition, pp. 7-8.)4
The parties' dispute regarding the breadth of discovery
basically centers on what tires are relevant to Brown's claim.
Michelin takes the position that Brown is entitled only to
discovery related to P265/70R15 110S B.F. Goodrich Radial Long
Trail T/A passenger tires manufactured at the Ardmore facility
from 2002-2006, approximately two years before and two years
1121330, 1121341
34
after the subject tire was manufactured. In support of this
argument, Michelin cites Slagh's affidavits, in which he
acknowledges that "[m]ost modern automotive tires share some
basic features" but states that the various models of tires
that Michelin produces are otherwise so different in terms of
"size, load capacity, components, compounds, number of plies,
recommend
pressures,
speed
ratings,
and
intended
applications"
that they cannot be considered to be substantially similar to
the subject tire and are therefore of no relevance to the
instant case. Slagh further states that P265/70R15 110S B.F.
Goodrich Radial Long Trail T/A passenger tires like the
subject tire were manufactured only at the Ardmore facility
and that even a tire manufactured and marketed under that name
in 2002 is a fundamentally different design from a tire
manufactured just two years later.
Brown's expert Cottles, however, responded to this
argument in his affidavit, stating that "Michelin's position
limiting the scope of time and scope of tires subject to
discovery is highly evasive because it allows Michelin to
conceal a substantial amount of highly relevant evidence
1121330, 1121341
35
relating to design and manufacturing defects at issue in the
subject tire." Cottles further states:
"I have personally inspected dozens of Michelin
tires,
including
x-rays,
and
shearographic
examinations. The Michelin tires I have inspected
and x-rayed include 14", 15", 16", and 17" tires in
widths
ranging
from
185
millimeters
to
275
millimeters and speed ratings of 130 and below.
Based on my many Michelin tire inspections, I
conclude that all tires of sizes 14", 15", 16", and
17" of a width of 185-275 millimeters, with a speed
rating of 130 mph or below, contain the same basic
tire structure which includes a tread, a tread base,
two steel belts where the steel wires are encased in
a compounded rubber and an inner liner. In
addition, there are other components that are common
to all Michelin tires such as sidewalls, veneers,
rim cushions, chafers, bead and filler. The subject
tire is no different.
"....
"Michelin's Long Trail tire line is composed of
various substantially similar tires that share
common design characteristics and materials. The
size differences are meaningless.
"....
"The tire brand or tire line is completely
irrelevant. Michelin makes many brands or lines of
tires and I can say with a high degree of confidence
that the brand or line is nothing more than a
marketing tool. As many as 20 brands or lines of
tires
may
be
made
to
a
single
green
tire
specification or GTS.
"Michelin, as do all other tire manufacturers,
streamline the design and manufacture process by
building up known design and manufacture processes.
1121330, 1121341
36
In real world terms, the wheel is not reinvented
every time Michelin places a new product into the
market. It is for this reason the same skim stock
and virtually all components are interchangeable,
without consideration to size, between the various
Michelin tire lines, makes and models.
"The typical failure mode in Michelin tires I
have forensically examined, regardless of size,
plant of manufacture or date of manufacture, is
essentially
the
same
––
belt-leaving-belt
separation. The belt-leaving-belt separations that
I have seen in Michelin tires begin as belt edge
separation at the edge of the second, or top, belt.
Significantly, they generally occur after several
years of operation.
"Moreover, the same design and/or manufacturing
defects which caused the tread separation failure in
the previous Michelin cases I have been involved
with are similar to the design and/or manufacturing
defects in the case at hand. The defects, which are
thoroughly discussed in the information [Brown] now
seek[s] to compel production of, concern the
catastrophic failure of Michelin tires as the result
of belt to belt separation. Hence, the modes and
mechanisms of failures are the same.
"Regardless of tire size, plant of manufacture,
or date of manufacture, the Michelin tires that
failed in other cases are similarly designed and
share similar design and manufacturing defects to
the defects I have identified in this case. In
prior cases, the Michelin tires were designed with
no nylon caps to retard belt/belt detachment. The
failure to use a nylon cap was among the design
defects that I found in this case. Michelin knew of
these defects long before the manufacture of the
subject tire.
"At any given point in time, the belt skim
rubber used in Michelin light truck and passenger
1121330, 1121341
37
tires, regardless of size, plant of manufacture, or
date of manufacture, is identical.
"It is common knowledge in the tire industry
that tire defects often become more prevalent after
tires have been in service for several years. Tread
separation of the type exhibited by the subject tire
is due, in part, to accelerated deterioration of the
physical
properties
of
the
tire's
internal
compounds. This deterioration may be accelerated by
poor formulae, poor design specifications, or poor
execution in manufacturing and formulation. A
shortcoming in any of these materials or procedures
will be exhibited in all sizes that use the same
material and manufacturing process. All of these
similar tires have the same 'separation resistance.'
Thus, the information relating to other similar
Michelin tires is highly relevant to evaluating the
defects in the subject tire."
Thus, the trial court was essentially tasked with making
a discovery determination in the face of contradictory expert
affidavits –– Michelin's expert stated that only information
related to P265/70R15 110S B.F. Goodrich Radial Long Trail T/A
passenger tires was relevant to Brown's claims, while Brown's
expert stated that information related to almost any Michelin-
produced tires within a 10-year time span was relevant and
discoverable. Toward the end of the July 10 hearing on this
issue, the trial court noted the difficulty in bridging the
gap between these two positions and stated that without having
some standard by which to reasonably narrow the scope of
1121330, 1121341
38
discovery it was inclined to accept the broad scope proposed
by Brown. Counsel for Michelin offered to help the court find
a compromise position, stating:
"ATTY:
The proposal is –– you know, the dilemma,
I guess, we have is Michelin has staked out
this position. [Brown] ha[s] staked out
this position and no one has really staked
out anything in the middle, which is ––
"COURT:
I'm trying to give you the opportunity.
"ATTY:
Yeah. Well, I know I offered one thing and
I think some other things in discussion
were offered by way of compromised scopes.
I wonder if it would be useful to the court
if, within the ten days we're supposed to
submit information on the plant inspection
order, we should submit our very best
compromise position between those two
extremes to the court for consideration, if
that would be of any benefit to the court.
We can go back and search ourselves and say
how far can we stretch, what can we do, and
just offer that to the court."
The trial court welcomed Michelin to submit such a compromise;
however, Michelin failed to follow up on its offer, and the
offered materials were never submitted to the trial court.
Accordingly, the trial court entered a ruling based on the
arguments that were made and the evidence that was before it.
As noted, much of that evidence appears to be incompatible; in
such instances the decision is left to the discretion of the
1121330, 1121341
39
trial court. Based on the record before us, we cannot say
that the trial court exceeded its discretion in defining the
scope of discovery as it did.
Michelin also argues that the trial court exceeded its
discretion by compelling the production of protected trade
secrets. Michelin specifically objects to the production of
information related to its quality-assurance processes,
including adjustment data for returns and "decision trees or
aspect specifications," which describe the process by which
tires are inspected after manufacture. We discussed the
burden-shifting process and balancing analysis a trial court
must conduct when considering such an argument in our
discussion of case no. 1121330. We generally agree with the
implicit conclusion of the trial court that Brown's need for
the requested information outweighs any harm that would result
to Michelin from its disclosure, especially in light of the
protective order that was previously entered in this case.
However, to the extent the order entered by the trial court
requires Michelin to produce information concerning any
instance of tire failure, we agree with Michelin that such
discovery is unwarranted.
1121330, 1121341
40
In Ex parte Cooper Tire & Rubber Co., 987 So. 2d 1090
(Ala. 2007), this Court reviewed a discovery order entered in
another case in which it was alleged that a tire failure had
resulted in an automobile accident resulting in fatalities.
Although we upheld the vast majority of the order entered by
the trial court, we nevertheless held that Cooper Tire was
entitled to an order prohibiting discovery of any materials
that did not relate to the failure of Cooper tires as a result
of tread separation, stating:
"Under the standard articulated in [Ex parte]
Weaver, [781 So. 2d 944 (Ala. 2000)], documentation
concerning tire failures that occurred for reasons
unrelated to tread separation [is] not properly
included in the discovery of materials directed
toward
the
plaintiffs'
claims
that
Cooper's
defective design and manufacture caused the tread
separation that resulted in the accident here. The
trial court should restrict the discovery sought by
the plaintiffs to material related to the failure of
Cooper tires as a result of tread separation."
987 So. 2d at 1104. In the instant case, it is likewise
alleged that the automobile accident at the center of the case
was the result of tread separation. Accordingly, for the
reasons set forth in Ex parte Cooper Tire, we hold that
Michelin is protected from being required to disclose
information, including data for returns and warranty claims,
1121330, 1121341
41
concerning defects or tire failure not related to tread
separation. As we stated in Ex parte Cooper Tire: "[W]e
defer to the trial court's management of the discovery process
as to all other aspects of its order[] to compel production,
and we conclude that in entering th[at] order[] the trial
court did not exceed its discretion." 987 So. 2d at 1109.
V.
Michelin petitioned this Court for writs of mandamus
directing the trial court to vacate its order allowing Brown
to inspect Michelin's Ardmore tire-manufacturing facility
(case no. 1121330) and to vacate its order compelling Michelin
to answer certain interrogatories and to comply with certain
document requests propounded by Brown (case no. 1121341). For
the reasons explained in this opinion, we grant Michelin's
petition in case no. 1121330 and direct the trial court to
vacate its order requiring Michelin to allow Brown to inspect
its Ardmore facility. We grant Michelin's petition in part in
case no. 1121341 and direct the trial court to modify its
order compelling discovery to exclude the production of any
materials that do not relate to the failure of Michelin tires
1121330, 1121341
42
as a result of tread separation; in all other respects, the
petition is denied.
1121330 –– PETITION GRANTED; WRIT ISSUED.
Bolin, Parker, Wise, and Bryan, JJ., concur.
Murdock, J., concurs in the result.
Moore, C.J., and Main, J., dissent.
1121341 –– PETITION GRANTED IN PART AND DENIED IN PART;
WRIT ISSUED.
Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur.
Moore, C.J., and Main, J., concur in part and dissent in
part.
1121330, 1121341
43
MOORE, Chief Justice (dissenting in case no. 1121330 and
concurring in part and dissenting in part in case no.
1121341).
In case no. 1121330, I dissent from issuing the writ of
mandamus directing the trial court to vacate its order
granting Betty C. Brown's motion to inspect Michelin's
Ardmore, Oklahoma, tire-manufacturing facility. In case no.
1121341, I concur in the main opinion insofar as it denies the
petition for a writ of mandamus and I dissent to the extent
that this Court grants the petition for a writ of mandamus and
directs the trial court to modify its order granting Brown's
motion to compel answers to the 3 identified interrogatories
and the 12 identified document requests to exclude the
production of any materials unrelated to the failure of
Michelin's tires as a result of tread separation.
1121330, 1121341
44
MAIN, Justice (dissenting in case no. 1121330 and concurring
in part and dissenting in part in case no. 1121341).
In case no. 1121330, I must respectfully dissent. In
case no. 1121341, I concur in part and dissent in part.
I do not believe mandamus relief is proper in the context
of most discovery matters. This Court has recognized four
circumstances in which a discovery order may be reviewed by a
petition for a writ of mandamus. See Ex parte Ocwen Fed.
Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003); see also Ex parte
Dillard Dep't Stores, Inc., 879 So. 2d 1134, 1137 (Ala. 2003)
(citing Ocwen). Those circumstances are:
"'(a) [W]hen a privilege is disregarded,
see Ex parte Miltope Corp., 823 So. 2d 640,
644–45 (Ala. 2001); (b) when a discovery
order compels the production of patently
irrelevant or duplicative documents the
production of which clearly constitutes
harassment or imposes a burden on the
producing party far out of proportion to
any benefit received by the requesting
party, see, e.g., Ex parte Compass Bank,
686 So. 2d 1135, 1138 (Ala. 1996); (c) when
the trial court either imposes sanctions
effectively precluding a decision on the
merits or denies discovery going to a
party's entire action or defense so that,
in either event, the outcome of the case
has been all but determined and the
petitioner would be merely going through
the motions of a trial to obtain an appeal;
or (d) when the trial court impermissibly
prevents the petitioner from making a
1121330, 1121341
45
record on the discovery issue so that an
appellate court cannot review the effect of
the trial court's alleged error. The burden
rests on the petitioner to demonstrate that
its petition presents such an exceptional
case--that is, one in which an appeal is
not an adequate remedy. See Ex parte
Consolidated Publ'g Co., 601 So. 2d 423,
426 (Ala. 1992).'
"Dillard, 879 So. 2d at 1137."
Ex parte Guaranty Pest Control, Inc., 21 So. 3d 1222, 1226
(Ala. 2009). I am not convinced that Michelin has adequately
alleged that any of these circumstances apply here. Further,
I am not persuaded that this Court should expand the discovery
categories available for review by mandamus.
Regardless, the cases are few where it can be shown that
a trial court "clearly exceeded it discretion" in the
discovery order and that an appeal of the discovery order is
not an adequate remedy. See, e.g., Ex parte Ocwen Fed. Bank,
supra. Regarding mandamus review of discovery matters, this
Court has said:
"'A writ of mandamus will be "issued
only when 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
1121330, 1121341
46
court." Ex parte United Serv. Stations,
Inc., 628 So. 2d 501, 503 (Ala. 1993).'
"Ex parte Horton Homes, Inc., 774 So. 2d 536, 539
(Ala.
2000).
Regarding
discovery
matters
specifically, this Court has stated:
"'Discovery matters are within the
trial court's sound discretion, and this
Court will not reverse a trial court's
ruling on a discovery issue unless the
trial court has clearly exceeded its
discretion. Home Ins. Co. v. Rice, 585 So.
2d 859, 862 (Ala. 1991). Accordingly,
mandamus will issue to reverse a trial
court's ruling on a discovery issue only
(1) where there is a showing that the trial
court clearly exceeded its discretion, and
(2) where the aggrieved party does not have
an adequate remedy by ordinary appeal. The
petitioner has an affirmative burden to
prove the existence of each of these
conditions.
"'Generally, an appeal of a discovery
order
is
an
adequate
remedy,
notwithstanding
the
fact
that
that
procedure may delay an appellate court's
review of a petitioner's grievance or
impose
on
the
petitioner
additional
expense; our judicial system cannot afford
immediate
mandamus
review
of
every
discovery order.'
"Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810,
813 (Ala. 2003) (footnote omitted)."
Guaranty Pest Control, 21 So. 3d at 1225–26.
In case no. 1121330, regarding that portion of the trial
court's order allowing for an on-site inspection of Michelin's
1121330, 1121341
47
tire-manufacturing facility, I cannot say that Michelin has
met the standard of showing that the trial court exceeded its
discretion in entering its order giving Brown the right to
inspect Michelin's facility. Likewise, in case no. 1121341,
I do not believe that Michelin has shown that the trial court
exceeded its discretion in compelling Michelin to answer
certain interrogatories and to comply with certain document
requests propounded by Brown. Accordingly, I cannot conclude
that Michelin has shown a clear legal right to the relief
sought in its petitions in case no. 1121330 and case no.
1121341. Thus, I believe Michelin's petitions for a writ of
mandamus should be denied in both cases.
Based on my review of this case, I cannot say that the
trial court clearly exceeded its discretion in allowing the
on-site inspection of Michelin's facility (case no. 1121330).
See, e.g., Ex parte Cooper Tire & Rubber Co., 987 So. 2d 1090
(Ala. 2007). When you consider the extensive hearing that the
trial court conducted and the trial court's order granting the
on-site inspection, which is substantially similar to the
order proposed by Michelin's counsel after the hearing, I do
not believe that Michelin has shown a clear legal right to the
1121330, 1121341
48
writ. Instead, I contend that "[t]his Court itself should be
able to restrict the abuse of using petitions for a writ of
mandamus in discovery matters by restricting the use of
extraordinary
writs
to extraordinary instances and by
recognizing that an appeal is in almost all cases an adequate
remedy." Ex parte Ocwen Fed. Bank, 872 So. 2d at 818. I
cannot say that this is one of those extraordinary instances.
Further, discovery orders prohibiting any disclosure of
alleged trade secrets are a "rarity." Ex parte Warrior
Lighthouse, Inc., 789 So. 2d 858, 861 n.1 (Ala. 2001). See
Cooper Tire, 987 So. 2d at 1097. Accordingly, I cannot say
that Michelin has shown a clear legal right to the order it
seeks in case no. 1121330. Thus, I would deny Michelin's
petition for a writ of mandamus in case no. 1121330.
Turning to the trial court's order compelling Michelin to
answer certain interrogatories and to comply with certain
document requests propounded by Brown (case no. 1121341), I
cannot say that the trial court exceeded its discretion by
compelling the production of what Michelin asserts are trade
secrets. As I mention in my discussion of case no. 1121330,
a discovery order forbidding any disclosure of asserted trade
1121330, 1121341
49
secrets is a "rarity." Warrior Lighthouse; Cooper Tire.
Additionally, I do not believe that the trial court's
discovery
order
regarding
certain
interrogatories
and
document
requests is so overbroad as to violate Michelin's privilege
relating to its trade secrets. I also cannot say that the
trial court's order should be limited to tread separation as
the majority opinion concludes. The majority opinion cites
Cooper Tire in holding that the writ should issue in part as
to certain interrogatories and document requests. I, however,
believe Cooper Tire is distinguishable from this case. The
complaint in this case is not limited to tread separation.
Thus, I cannot say that the trial court exceeded its
discretion in its order on certain interrogatories and
document requests propounded by Brown.
Because I conclude that the trial court did not exceed
its discretion, I would deny Michelin's petitions for a writ
of mandamus in case no. 1121330 and case no. 1121341. | January 24, 2014 |
d4e63930-0bff-40d1-a9c3-f20ebde450e7 | Calvert Fire Insurance Company v. Green | 180 So. 2d 269 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 269 (1965)
CALVERT FIRE INSURANCE COMPANY
v.
W. G. GREEN.
4 Div. 233.
Supreme Court of Alabama.
November 18, 1965.
Preston C. Clayton, Eufaula, for appellant.
Jere L. Beasley, Clayton, for appellee.
MERRILL, Justice.
This is an appeal by Calvert Fire Insurance Company from a judgment of $1,800 rendered against it in favor of W. G. Green, the owner of a hay baler which was damaged by collision on September 1, 1964, and which had been insured by appellant against direct physical loss or damage. The policy was issued to Commercial Credit Equipment Corporation, which financed the purchase of the hay baler by Green from Beaty Motor Company, but the policy covered the interest of the finance company and the purchaser. A motion for new trial was overruled.
Appellee's complaint, filed September 29, 1965, consisted of two counts. Count Two charged breach of contract in failing to pay the damage to the hay bailer, but on the day of the trial, Count Two was dismissed by appellee because he had been paid the damages due under the policy on the same day suit was filed. The cause was submitted to the jury on Count One.
Count One sought damages based upon the negligence of appellant in the adjustment of appellee's claim under the policy of insurance. Appellee alleged that his hay baler was damaged in a collision on September 1, 1964, that appellant was notified of the loss on September 2, 3, 9 and *270 14, that "he was led to believe by Defendant that his claim would be adjusted immediately due to the nature of the loss," that appellant "negligently failed to take action and adjust the property loss caused to said Hay Baler by collision within a reasonable time," that as a proximate consequence of this negligence, he lost a considerable amount of peanut hay which was ruined and destroyed by heavy rainfall on September 10 and 13, 1964.
This case is one of first impression in Alabama, and presents the question of whether an insurer of personal property against loss or damage by upset or collision is liable to the insured for failure to adjust and pay a claim within a period of less than thirty days.
The documentary evidence shows that the loss occurred on September 1, was reported September 3, and received by the adjuster for appellant on September 9. There is evidence that he had some thirty other claims to settle, that he may have mislaid the claim in the instant case, and that he devoted seven hours to the adjusting and settlement of it on September 29, 1964. The channel of notification went from the owner-insured to the dealer to Commercial Credit Corporation to appellant, and there was no direct communication between the owner and appellant until September 29.
The hay baler was damaged as it was being towed along a road and the right side of the baler collided with a parked truck on the side of the road. The dealer "patched it up" once or twice so that it would bale hay but did not repair it completely because he had not been authorized by the insurer to repair it. The dealer told the man he reported to at Commercial Credit Corporation that the situation was an emergency because the insured had hay lying in the field.
Pertinent provisions of the policy which was introduced in evidence are:
"2. INTEREST AND PROPERTY INSURED:
This policy covers the following interests and property:
"3. ATTACHMENT AND TERMINATION OF RISK:
This insurance attaches with respect to the property described in *271 Sub-paragraph (a) of Paragraph 2 above from the time such property is sold to a purchaser having executed a retail installment sales contract that is purchased by Assured until termination of the Assured's financial interest therein, * * *
"5. PERILS INSURED:
"6. PERILS EXCLUDED:
This policy does not insure against:
"8. VALUATION:
"14. PAYMENT OF LOSS:
Some states impose upon an insurance company, as a condition of doing business within the state, the obligation to pay damages and attorney's fees in case of default or vexatious delays in payment of their policies. 3 Appleman, Insurance Law and Practice, §§ 1601-1605. But Alabama has no such statute.
In 6 Appleman, Insurance Law and Practice, § 4031, it is stated: "It has been held that, in the absence of statutes, the insured cannot recover damages beyond legal interest because of the insurer's delay or refusal to pay the amount of a loss. And even where the insurer's action was wilful, such as refusing to pay a loss in order to take advantage of the insured's need for ready money wherewith to re-establish his business, it did not constitute a tort so as to entitle the insured to damages beyond interest." Cited in support of these statements are New Orleans Insurance Co. v. Piaggio, 83 U.S. 378, 16 Wall. 378, 21 L. Ed. 358, and Baumgarten v. Alliance Assurance Co., C.C.Cal., 159 F. 275. The Piaggio case has been cited many times for the principle that a claim for damages for the mere nonpayment of money due under a contract, above or in addition to interest, cannot be recovered.
In De Rossett Hat Co. v. London Lancashire Fire Ins. Co., 134 Tenn. 199, 183 S.W. 720, it was held that where the policies did not require payment until sixty days after furnishing proof of loss, a statement agreed to by the adjuster of the insurers that the claim would be paid in not more than five days at utmost, did not entitle insured to immediate payment, or furnish a basis for recovery of the statutory penalty.
In 6 Appleman, Insurance Law and Practice, § 4037, it is said: "The insured's right to a penalty * * * does not attach until the loss becomes payable under the terms of the policy."
Sections 5 and 14 of the policy in the instant case provided for payment within sixty days after receipt of proof of interest *272 and loss. Here, the entire matter was adjusted and paid on the 28th day after the collision and on the 26th day after the notice of loss. The defendant did all that it promised to do within less than half the time it pledged itself to compensate for a loss by the terms of the policy.
Also, Section 6 of the policy specifically provided that the policy did not insure against loss or damage caused by or resulting from delay, loss of market or rain.
We cannot defeat the express terms of a policy of insurance by judicial interpretation; we must enforce the contract as it is written, and not attempt to make a new contract for the parties. General Motors Acceptance Corp. v. Kendrick, 274 Ala. 566, 150 So. 2d 185, and cases there cited.
Here, the policy covered damage to the hay baler. The insurer paid that damage under the terms of the policy and prior to the time limit set by the policy.
There is no escape from the fact that the appellant insurer did exactly what it was required by the policy to do, and paid the claim within less time than it was obligated to pay it. And under Section 8 of the policy, the insurer would have been liable for the earlier repair or replacement by the dealer, had the insured authorized the dealer to go ahead with the repairs. This he did not do.
Georgia is one of the states which has a statute imposing a penalty on insurance companies for not paying claims within a reasonable time. In Leonard v. Fireman's Insurance Co. of Newark, N. J., 100 Ga.App. 434, 111 S.E.2d 773, the court held that damages sought to be recovered were in the nature of a penalty since the plaintiff claimed damages because of the insurer's failure to settle his claim promptly. It said that a suit under the statute, Code, § 56-706, was the exclusive remedy; and it held that the "Mere breach of a contract cannot be converted into a tort by showing that failure to perform upon the part of the one committing the breach had resulted in great inconvenience, trouble, annoyance, and hardship to the other party to the contract."
Appellee cites us one sentence from Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So. 2d 524 [18, 19]: "A failure to exercise ordinary diligence proximately causing damage to the insured is actionable in tort." But that sentence and that case had to do with liability insurance, where the insurer could have settled, and was requested by the insured to do so, a claim for damages within the limits of the policy. Here, the coverage is for property loss or damage. The distinction is recognized by the Georgia Court in the Leonard case, cited supra, where the court said:
It is elementary that where there is no duty, there can be no negligence. Gilbert v. Gwin-McCollum Funeral Home, Inc., 268 Ala. 372, 106 So. 2d 646, and cases there cited. Also, there can be no actionable negligence without breach of a legal duty. Alabama Great Southern R. Co. v. Green, 276 Ala. 120, 159 So. 2d 823.
*273 In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) A failure by the defendant to perform that duty; and (3) An injury to the plaintiff from such failure of the defendant. When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these renders a complaint bad or the evidence insufficient. Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So. 2d 274; Stokely-Van Camp, Inc. v. Ferguson, 271 Ala. 120, 122 So. 2d 356; Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 So. 170.
Here, the evidence was insufficient to show either a duty owed by the insurer to speedily adjust the claim, or a breach of the duty it had contracted to perform. Every pertinent provision of the policy was performed by the insurer, and the full monetary coverage provided by the policy was paid in less than half the time allowed the insurer to pay.
There was no evidence to support the allegation in the complaint that the insured "was led to believe by Defendant that his claim would be adjusted immediately."
It follows that, under the authorities cited supra, the trial court erred in refusing to given the affirmative charge requested by the appellant, and also erred in refusing to grant the motion for a new trial. Each of these refusals was assigned as error and argued in brief.
We have not considered the question of whether Count One of the complaint stated a cause of action. Appellant filed a demurrer which was overruled, but no argument in brief raises this ruling of the court for our consideration.
Reversed and remanded.
LIVINGSTON, C. J., SIMPSON and HARWOOD, JJ., concur. | November 18, 1965 |
61e53458-1490-4292-8499-60a81fb50832 | Russo v. Alabama Department of Corrections | N/A | 1120557 | Alabama | Alabama Supreme Court | REL: 02/21/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120557
____________________
Victor Joseph Russo
v.
Alabama Department of Corrections
Appeal from Montgomery Circuit Court
(CV-12-215)
PER CURIAM.
Victor Joseph Russo, an inmate in the custody of the
Alabama Department of Corrections ("ADOC") who is currently
confined at the St. Clair Correctional Facility, appeals the
Montgomery Circuit Court's dismissal of his action against
1120557
ADOC challenging the implementation of a policy charging a
$1.00 processing fee for money orders and cashier's checks
deposited in an inmate's "prisoner money on deposit" ("PMOD")
account. We dismiss his appeal.
Russo alleges in his complaint that ADOC does not have
"legislative or other valid authority for taking a dollar off
his incoming money as a processing fee." In response to a
motion to dismiss or for a summary judgment filed by ADOC,
Russo contended in the circuit court that the legislature had
not "delegate[d] any power to the ADOC to take money from
inmates." Along with his response to ADOC's motion, Russo
filed an "affidavit" in which he made an additional argument
in opposition to the processing fee. Russo quoted from § 14-
3-30(b), Ala. Code 1975, which states in part that ADOC has
the "responsibility for the maintenance and upkeep, including
the payment of medical costs, of an inmate sentenced to the
custody of the department." Russo argued that this provision
means that ADOC must bear all the costs associated with caring
for an inmate in its charge and that the $1.00 processing fee
is, therefore, unlawful.
2
1120557
As a preliminary matter, we note that "[w]e treat a
pleading and any other filing according to its substance,
rather than its form or its style." Ex parte Bender
Shipbuilding & Repair Co., 879 So. 2d 577, 584 (Ala. 2003).
Although Russo, acting pro se, styled his complaint in the
circuit court as a "petition for a writ of certiorari," it is
in essence a direct, original action against an agency of the
State seeking declaratory and injunctive relief.
That said, however, Russo names only ADOC as a defendant
in his action. "Section 14, Ala. Const. 1901, provides
'[t]hat the State of Alabama shall never be made a defendant
in any court of law or equity.' This section affords the
State and its agencies an 'absolute' immunity from suit in any
court." Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala.
2004). "[A]DOC ... as a department of the State, is entitled
to sovereign immunity." Id.
There are, of course, certain general categories of
actions that do not come within the prohibition of § 14. "One
such exception is when a party '"seeks a declaration under the
Declaratory Judgments Act, § 6-6-220 et seq., Ala. Code 1975,
construing a statute and applying it in a given situation."'"
3
1120557
Off Campus Coll. Bookstore, Inc. v. University of Alabama in
Huntsville, 25 So. 3d 423, 425-26 (Ala. 2009) (quoting
Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 21 (Ala.
2007), quoting in turn Latham v. Department of Corr., 927 So.
2d 815, 821 (Ala. 2005)). In Alabama Department of
Transportation v. Harbert International, Inc., 990 So. 2d 831
(Ala. 2008), this Court clarified, however, that "[t]he
purpose of the so-called 'exception' to § 14 allowing
declaratory-judgment actions is to give direction to State
officers," and so we held in Harbert International that,
"[c]onsistent with the other 'exceptions' to § 14 immunity,
... only State officers named in their official capacity --
and not State agencies -- may be defendants in such
proceedings." 990 So. 2d at 841. Again, Russo did not name
any officers or employees of ADOC as defendants in his
action.
1
"Because the complaint purported to effect an action
against the State in violation of § 14, Ala. Const. 1901, the
trial court acquired no subject-matter jurisdiction over this
In addition, insofar as Russo's action amounts to a
1
request for a declaratory judgment, it does not seek the
construction of a statute, as required by the above-described
exception for declaratory-judgment actions.
4
1120557
action." Ex parte Alabama Dep't of Transp., 978 So. 2d at 27.
Accordingly, the trial court's judgment is void, and a "void
judgment will not support an appeal." Underwood v. State,
439 So. 2d 125, 128 (Ala. 1983) (cited with approval in
Gallagher Bassett Servs., Inc. v. Phillips, 991 So. 2d 697,
701 (Ala. 2008)). Russo's appeal therefore is due to be
dismissed.
Also pending before this Court in relation to the
foregoing matter is a document filed by Russo in this appeal
and styled as a "Petition or Motion for a Rule Nisi to Appear
and Show Cause and Order for Contempt and Request to Stay
Proceeding." Russo's filing is, in effect, a petition for a
writ of mandamus asking this Court to direct the warden and an
officer of the St. Clair Correctional Facility to return what
Russo alleges are missing legal materials he had compiled in
the course of filing the underlying action and this appeal and
to hold them in contempt for not producing the materials.
This Court lacks jurisdiction to grant the relief Russo
requests because Russo has not filed a motion or any action in
the circuit court seeking a return of his legal materials.
This Court does not have original jurisdiction to issue writs
5
1120557
against State officers and employees other than to the lower
courts. See Art. VI, § 140, Ala. Const. 1901. Moreover,
Russo has not filed an action in the circuit court against the
warden or the officer, and so this Court has no jurisdiction
over those individuals. Even if this Court did have such
jurisdiction, those individuals could not be held in contempt
without an order first being issued requiring them to return
to Russo the allegedly missing materials. See, e.g., Ivey v.
State, 698 So. 2d 179, 184 (Ala. Crim. App. 1995) (stating
that "[w]illful disobedience of the court's order is the only
element necessary to prove contempt of court"). The record
does not indicate that any such order has been issued.
Finally, Russo's request for a stay of the proceedings is moot
because the underlying action is due to be dismissed.
Therefore,
we
dismiss
what
is,
substantively,
Russo's
petition
for a writ of mandamus filed in conjunction with his appeal.
APPEAL DISMISSED; PETITION DISMISSED.
Moore, C.J., and Bolin, Murdock, Main, and Bryan, JJ.,
concur.
6 | February 21, 2014 |
e9f0f588-95f3-40e7-ae0d-26dcb8526373 | Semmes Nurseries, Inc. v. McVay | 181 So. 2d 331 | N/A | Alabama | Alabama Supreme Court | 181 So. 2d 331 (1965)
SEMMES NURSERIES, INC.
v.
Yancey W. McVAY.
1 Div. 124.
Supreme Court of Alabama.
December 16, 1965.
*332 Hamilton, Denniston, Butler & Riddick and Oliver J. Latour, Jr., Mobile, for appellant.
Cunningham & Bounds, Mobile, for appellee.
COLEMAN, Justice.
On application of the employer we review, by certiorari, a judgment awarding compensation to an employee for sixty per cent permanent partial disability sustained by the employee by reason of "a form of hernia known as prolapse of the rectum resulting from injury by an accident arising out of and in the course of his employment.. . ." The court found that the employee, "while stooping over and straining to lift a tree or bush felt a sudden pain in his back and spine which was later found to be a prolapse of the rectum . . .."
Before this cause was submitted in this court, appellee filed motion to dismiss on the ground that citation of appeal had not been served on appellee as required by § 801, Title 7, Code 1940.
After appellee filed his motion and prior to submission of this cause, citation of appeal was served on appellee as is made to appear by supplement to the record.
Because the ground of the motion to dismiss was eliminated prior to submission, the motion to dismiss is due to be *333 and is overruled. Blalock v. Johnson, 270 Ala. 654, 121 So. 2d 604.
The employer says that "no reasonable view of the evidence will support the judgment of the trial Court" in certain particulars.
On review by certiorari in workmen's compensation cases, where there is any legal evidence, or reasonable inference from legal evidence, to support the finding of facts of the trial court, such finding is conclusive, and the judgment thereon will not be disturbed. Sloss-Sheffield Steel & Iron Co. v. House, 217 Ala. 422, 116 So. 167; Horton v. DeLoach, 276 Ala. 357, 162 So. 2d 453. We will look to see if there be any legal evidence, or reasonable inference therefrom, to support the court's findings in those particulars as to which appellant asserts a deficiency in the evidence.
Assignment 2. Employer argues that the finding that "plaintiff suffered a sudden pain is not supported by any reasonable view of the evidence."
The statute requires that in claims for compensation for hernia, it must be proved to the satisfaction of the court that "it was accompanied by pain." Title 26, § 279 (F) 1(c). Plaintiff testified:
"Q. All right. You say you felt a sudden pain?
"A. Yes sir."
Plaintiff's wife testified that when plaintiff came home on the day of injury, he did not look well and he appeared to have pain. This testimony we think sufficient to support the finding that the hernia was accompanied by pain.
It is true that plaintiff admitted that he had testified on pre-trial examination that: "`Well no, I can't say that I felt any pain. . ..'"; and on the trial, that he did not recall whether he had pain "at that time," meaning, it seems, at the time three days after the accident when he went to the doctor.
There thus appears a conflict in plaintiff's own testimony with respect to his suffering pain, but that conflict does not prevent the court from finding that the hernia "was accompanied by pain."
The fact that a plaintiff makes contradictory statements, in his own case, does not justify the court in directing the verdict against the plaintiff. Which version of plaintiff's testimony should be believed is a question for the jury, although the fact that his testimony is conflicting could be considered by the jury in weighing the testimony and treated as a circumstance against him. The conflict may not have been intentional; it may have been due to the inability of the witness to describe accurately the situation on the occasion of the injury. Atkinson v. Dean, 198 Ala. 262, 269, 73 So. 479.
Where a party, on cross-examination, sought to limit or restrict his testimony on direct examination to a considerable extent, this court said the jury had the right to determine which statement made by plaintiff the jury would believe. Zemczonek v. McElroy, 264 Ala. 258, 263, 86 So. 2d 824.
In the instant case, we think the trial court had the right to decide which of plaintiff's statements with respect to pain should be believed. Assignment 2 is not well taken.
Assignment 3. Employer argues that the finding that plaintiff's hernia appeared suddenly is not supported by any reasonable view of the evidence.
Plaintiff testified that he was lifting some trees, felt a sudden pain, and "it just felt like a drop in my intestine back there. Like it dropped down." We think Assignment 3 is without merit.
Assignment 4. Employer argues that the finding that plaintiff's hernia did *334 not exist prior to the accident is not supported by any reasonable view of the evidence.
Plaintiff testified that, prior to the accident, he may have had a little trouble like hemorrhoids but had never had to go to a doctor about it; that he had worked for defendant for about two years and had missed only about three days from work; and that his work had been "heavy type work." There seems to be no dispute that plaintiff had suffered a rectal prolapse and that a man with such an injury could not do the type of work plaintiff had been doing. We think the evidence favorable to plaintiff supports an inference that plaintiff's hernia did not exist prior to the accident.
Assignments 8, 9, 10. Employer argues that the findings, (1) that plaintiff had suffered a permanent partial disability, and, (2) that plaintiff's permanent disability was sixty per cent of the body as a whole, were not supported by any reasonable view of the evidence.
Evidence favorable to plaintiff is his own testimony that as the result of his injury he couldn't walk for a time; that all of his work had been "heavy type work"; that since his injury, if he stays on his feet too long he feels "like it is coming back down." There is also the testimony of Dr. Pennington that plaintiff had suffered a prolapse of the rectum of the third degree, which seems to be the most severe type of such prolapse; that if plaintiff continued to do heavy work, he could expect the condition to return; that Dr. Pennington had told plaintiff that "he couldn't do heavy work"; and that the statement that plaintiff could not do heavy work was "assuming he had no surgical repair." The evidence indicates that plaintiff had been unemployed since the injury and that he was sixty-six years old at the time of trial.
There is no testimony using the words that plaintiff is partially permanently disabled, or that the extent of the permanent disability is sixty per cent, or any other number of per cent, of plaintiff's whole body. We do not think, however, that the law demands testimony, expert or otherwise, in the words "sixty per cent permanent partial disability," or any other number of per cent, in order to sustain a finding that plaintiff had a permanent partial disability amounting to sixty per cent of his body as a whole.
The Supreme Court of Nebraska has held that absence of testimony showing the percentage of permanent partial disability did not prevent the court from finding the amount of permanent partial loss. The court said:
*335 See also Petroleum Casualty Co. v. Seale, (Tex.Civ.App.), 4 S.W.2d 90, 92, 93, where the court said:
In the case at bar, plaintiff has worked all his life at "heavy type work" manual labor. He has suffered a prolapsed rectum, and, according to the employer's expert witness, Dr. Dodson, a man with a prolapsed rectum is not able to do heavy laboring type work.
We are of opinion that we cannot say that there is no reasonable basis in the evidence to support the finding that plaintiff has suffered a sixty per cent permanent disability of his whole body. Assignments 8, 9, and 10 are not sustained.
Assignments 5, 6, and 7. Employer argues that the court erred in rendering its judgment because the finding that plaintiff suffered a rectal prolapse is outside the issues raised by the pleadings. Employer says plaintiff alleged one injury and proved another, to employer's prejudice.
The allegation of the circumstances of plaintiff's injury is:
Employer, by its answer, denied these allegations.
Employer appears to argue that it has been prejudiced because plaintiff alleged an injury to his back and proved a hernia. Apparently, employer claims prejudice because it was not given notice, in haec verba, that plaintiff had suffered a prolapse of the rectum, or a hernia. Employer recognizes that technical rules of pleading are not followed in cases of the instant kind. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So. 2d 159.
Examination of the complaint shows plaintiff alleged that: (1) he was lifting trees, (2) he was stooping over, (3) he strained, (4) he felt a sudden pain in back and spine, and (5) since the injury he has been totally and permanently disabled.
It appears from the testimony, that a prolapse of the rectum involves a defect in the muscle at or very near to the lower end of the spine. Plaintiff testified that it "felt like a drop in my intestine back there" in the rectal area. We think "pain in his back and spine" was proved.
The Workmen's Compensation Act seems designed to eliminate the requirements of technical pleading but seems also designed to give to the employer full opportunity to ascertain the true nature of plaintiff's alleged injury. § 293, Title 26, provides:
". . . The injured employee must submit himself to examination by the employer's physician at all reasonable times, if requested to do so by the employer but the employee shall have the right to have a physician of his own selection present at such examination. . . And in case of dispute as to the injury, the court may, at the instance of either party, or of its own *336 motion, appoint a neutral physician of good standing and ability to make an examination of the injured person and report his findings to the court, the expense of which examination shall be borne equally by the parties. If the injured employee refuses to comply with any reasonable request for examination or refuses to submit to medical and surgical treatment and attention, or refuses to accept the medical service which the employer elects to furnish under the provisions of this chapter his right to compensation shall be suspended, and no compensation shall be payable for the period of such refusal. . . ."
We are not to be understood that a plaintiff should be permitted to allege, for example, an injury to a foot and prove loss of an eye, but we are of opinion that in the instant case, the employer was not prejudiced by the failure of plaintiff to use the words prolapse of the rectum or hernia in the instant complaint. The employer here did fully advise itself of the nature of plaintiff's injury prior to the trial as is shown by questions relating to the pre-trial examination of plaintiff and the testimony of employer's expert witness who was a specialist in rectal disorders. Assignments 5, 6, and 7 are not sustained.
Assignments 13, 14, 15, and 16. Employer asserts that the court erred in its judgment on the merits, rendered July 25, 1962, in failing to require the plaintiff to submit to a corrective operation for his hernia as required by § 279(F) 1, Title 26, Code 1940, Recompiled 1958.
The statute does provide that, all hernias shall be treated in a surgical manner by radical operation, and, if the injured employee refuses to undergo the radical operation, no compensation will be allowed during the time such refusal continues, subject, however, to exceptions based on the employee's health and physical condition. Title 26, § 279(F) 1, Code 1940, Recompiled 1958.
We are not advised that the statute provides any specific procedure for giving effect to the provision for hernia operation as a condition to the continuance of payment of compensation. This court has expressed the view that the provision for hernia operation ". . . may present defensive matter to be duly invoked and pleaded, viz., set up by the answer," and that an answer, which is a mere general denial of liability, does not ". . . duly seek, before and at the trial, to invoke the opportunity and discharge . . ." the duty of the employer as to the desired and required surgical operation. (Emphasis supplied.) Woodward Iron Co. v. Vines, 217 Ala. 369, 372, 116 So. 514.
As we understand Vines, supra, this court indicated that the employer, who seeks to require the employee to submit to hernia operation, must raise such defensive matter before the trial. We think before the trial means by answer showing that the employer has offered to provide and is ready, willing, and able to provide the hernia operation and that the other requirements of the statute in respect to the operation have been complied with. As was said in Gulf States Steel Co. v. Cross, 214 Ala. 155, 106 So. 870, with respect to an eye operation,
In the instant case, the answer of defendant merely denies certain allegations of the complaint and contains no averment as to an offer to furnish an operation made "before and at the trial." Certainly the court cannot be held to have erred in the judgment of July 25, 1962, by failing to require plaintiff to submit to an operation. Assignments 13, 14, 15, and 16 are clearly without merit.
*337 Assignments 17 and 18. Employer assigns as error that the court erred in its "judgment of December 4, 1962 in failing to require the plaintiff to undergo a radical operation after defendant offered to pay the cost of such operation to the extent and within the limit provided in the Compensation Law of Alabama."
Employer's argument in support of these assignments seems to be embraced in the following statement in brief:
We have already said that the court did not err in failing to require the hernia operation in original judgment on merits granting compensation. We say this is not error because the employer did not properly offer to furnish and plead such offer before the trial. If we sustain Assignments 17 and 18, we, in effect, would declare a rule that the employer need not make and plead the offer of an operation before the trial if the employer will make such offer for the first time on the motion for new trial.
As to what might be the case if the employer were actually misled to his prejudice by plaintiff's failure to use the word, hernia, in the complaint we express no opinion. As stated above, the record indicates that the employer was fully advised of the nature of plaintiff's injury prior to the trial. In that situation, we do not think the statute permits the employer to have a new trial or an amended judgment requiring an operation, by offering to furnish the operation for the first time on motion for new trial.
The reasons for this view are that the statute does not so provide; that the provisions of subdivision (F)1 of § 279, Title 26, have been several times re-enacted without substantial change since the decision in Vines, supra; that to allow the offer for first time on motion for new trial will necessitate the delay caused by a second trial to determine whether the plaintiff must submit to the operation; and that the delay is contrary to the policy of the statute "to have done with proceedings under the Compensation Act in the shortest order consistent with the due administration of justice." Wetter Pipe Co. v. Williams, 223 Ala. 220, 135 So. 172.
If the instant plaintiff is, in truth, relieved of any duty placed on him with respect to an operation, it is due not to an error of the court but to the employer's failure to make and plead the offer of an operation before the trial.
Appellant timely filed its motion for new trial and later, more than thirty days after the original judgment, undertook to amend the motion. We pretermit consideration of the propriety of such amendment or its effect on the time for appeal.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | December 16, 1965 |
78f41a66-6721-4e78-8eb1-c02d085a3d42 | Pizzato v. Alabama Educational Television Commission | N/A | 1111494 | Alabama | Alabama Supreme Court | Rel: 9/27/13
Rel: 1/24/14 as modified on denial of rehearing
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2013
____________________
1111494
____________________
Ex parte Alabama Educational Television Commission et al.
PETITION FOR WRIT OF MANDAMUS
(In re: Allan Pizzato and Pauline Howland
v.
Alabama Educational Television Commission et al.)
(Jefferson Circuit Court, CV-12-0937)
BRYAN, Justice.
The Alabama Educational Television Commission ("the
Commission") and Ferris W. Stephens, Rodney D. Herring, Les
Barnett, J. Holland, Dannetta K. Thornton Owens, Bebe
1111494
Howland was added as a plaintiff in the second amended
1
complaint filed on August 10, 2012.
2
Williams,
and
Gregory
O.
Griffin,
Sr.
(hereinafter
collectively referred to as "the Commissioners"), have
petitioned this Court for the writ of mandamus directing the
Jefferson Circuit Court to dismiss claims brought against them
by Allan Pizzato and Pauline Howland and to strike Pizzato and
Howland's second amended complaint. We grant the petition
1
and issue the writ.
Facts and Procedural History
The purpose of the Commission is to "mak[e] the benefits
of educational television available to and promot[e] its use
by inhabitants of Alabama." § 16-7-5, Ala. Code 1975. The
Commission is composed of seven commissioners, one from each
congressional district in Alabama. During the relevant
period, Stephens served as chairman of the Commission.
From 2000 until June 2012, Pizzato served as the
executive director of Alabama Public Television ("APT") and
Howland served as the deputy director and chief financial
officer of APT. Sometime before June 2012, tension arose
between Pizzato and the Commissioners. At its regular
quarterly meeting on June 12, 2012, the Commission voted to go
1111494
"Executive session" is defined in the Open Meetings Act,
2
§ 36-25A-1 et seq., Ala. Code 1975, as "[t]hat portion of a
meeting of a governmental body from which the public is
excluded for one or more reasons prescribed in Section 36-25A-
7(a)[, Ala. Code 1975]." § 36-25A-2(2), Ala. Code 1975.
3
into
executive
session
to
discuss
Pizzato's
"general
2
reputation, character, and job performance." After the
Commission returned to its regular meeting from the executive
session, Barnett moved to terminate Pizzato's and Howland's
employment, stating that "the Commission had decided to move
APT in a new direction." The motion passed by a vote of five
to two. The Commission then voted to hire Don Boomershine as
interim executive director of APT. Although the Commission
had voted to terminate her employment, Howland agreed to
continue functioning in her position as deputy director and
chief financial officer at APT until the end of July, at which
time APT would submit its budget for the 2013 fiscal year.
On July 11, 2012, Pizzato requested certain materials
from the Commission pursuant to the Open Records Act, § 36-12-
40 et seq., Ala. Code 1975. On July 18, 2012, Pizzato sued
the Commission and the Commissioners in their individual and
official capacities, alleging violations of the Open Meetings
Act, § 36-25A-1 et seq., Ala. Code 1975, and the Open Records
1111494
Pizzato and Howland acknowledge that, sometime after the
3
complaint was filed, the Commission and the Commissioners
produced certain documents that had been requested under the
Open Records Act. They go on to argue, however, that they
"question[] whether [the Commission and the Commissioners]
have fully complied" with the Open Records Act. Pizzato and
Howland's brief, at 6. Pizzato and Howland do not identify
any records that should have been produced but, instead,
suggest that there may be some records missing and that
"[g]iven [the Commission's and Commissioners'] flagrant
violation of their responsibilities under the Open Records
Act, Pizzato [and Howland] believe[] that but for the lawsuit,
[the Commission and the Commissioners] would never have
complied with their legal obligations." Pizzato and Howland's
brief, at 6-7.
4
Act and seeking compensatory and punitive damages. Pizzato
also requested a judgment declaring that Stephens improperly
held the office of assistant attorney general while he was
serving as a commissioner.
The Commissioners moved the circuit court to dismiss
Pizzato's claims against them, arguing that Pizzato did not
have standing to bring an Open Meetings Act claim, that the
Open Meetings Act does not provide for the recovery of
compensatory or punitive damages, and that the complaint
failed to state a claim under the Open Meetings Act. The
Commissioners also argued that Pizzato's Open Records Act
claim was moot because, they said, the requested documents had
been produced and that the circuit court did not have
3
1111494
5
subject-matter jurisdiction over the request for a declaratory
judgment because, they asserted, the allegations supporting
that count failed to state a claim upon which relief could be
granted. The Commission likewise moved the circuit court to
dismiss the claims against it, adopting the Commissioners'
arguments and adding an argument that, as a State agency, the
Commission was immune from suit.
Pizzato amended his complaint on August 4, 2012. On
August 6 and 7, the circuit court held a preliminary hearing
on the claims in the amended complaint and heard oral argument
on the motions to dismiss. On August 8, the circuit court
granted the Commission's and the Commissioners' motions in
part, dismissing the claims against the Commissioners in their
individual capacities and all claims seeking compensatory and
punitive damages. The circuit court denied the motions to
dismiss to the extent that Pizzato sought the civil fines
provided for in the Open Meetings Act, to the extent that
Pizzato sought declaratory and/or injunctive relief against
the Commission, and to the extent that Pizzato sought
declaratory
and/or
injunctive
relief
against
the
Commissioners
in their official capacities. The circuit court "reserve[d]
1111494
6
its ruling" with regard to the Open Records Act claim and the
request for a declaratory judgment as it related to Stephens.
On August 10, Pizzato filed a second amended complaint,
adding Howland as a plaintiff and alleging an additional
claim, pursuant to § 36-25A-7(b)(3), Ala. Code 1975, based on
the alleged discussion of Howland during the executive session
at the June 12 meeting. On August 13, the Commission and the
Commissioners moved the circuit court to certify three
questions for an immediate permissive appeal: (1) whether §
36-25A-9(a), Ala. Code 1975, gave Pizzato and Howland standing
to bring their claims; (2) whether § 36-25A-7(a)(1), Ala. Code
1975, prohibits the discussion in an executive session of the
Commissioners'
personal
knowledge
regarding
the
job
performance of certain employees; and (3) whether the
Commission, as a State agency, was immune from suit for
declaratory or injunctive relief. The Commission and the
Commissioners moved to stay the proceedings in the circuit
court pending the interlocutory appeal. The Commission and
the Commissioners also moved the circuit court to strike the
second amended complaint and to amend or reconsider its order
denying in part their motions to dismiss. The Commission and
1111494
[substituted p. 7]
the Commissioners argued that Pizzato and Howland had not
complied with Rule 15(a), Ala. R. Civ. P., in filing the
second amended complaint and that the Commission and the
Commissioners would be prejudiced if the second amended
complaint were allowed to be considered.
After a hearing, the circuit court denied the Commission
and the Commissioners' motions, including the motion for a
permissive appeal under Rule 5, Ala. R. App. P. The
Commission and the Commissioners then petitioned this Court
for mandamus relief and moved for an emergency stay of the
circuit court's orders. After the mandamus petition had been
filed, this Court granted the motion to stay and ordered that
discovery and other proceedings be stayed pending further
order of this Court. The Commission and the Commissioners
supplemented their mandamus petition, adding a request that
the circuit court be directed to strike the second amended
complaint.
Analysis
"'"Mandamus
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;
1111494
8
(3) the lack of another adequate remedy;
and (4) properly invoked jurisdiction of
the court." Ex parte Integon Corp., 672
So. 2d 497, 499 (Ala. 1995). The question
of
subject-matter
jurisdiction
is
reviewable by a petition for a writ of
mandamus. Ex parte Flint Constr. Co., 775
So. 2d 805 (Ala. 2000).'
"Ex parte Liberty Nat'l Life Ins. Co., 888 So. 2d
478, 480 (Ala. 2003) (emphasis added). 'When a
party without standing purports to commence an
action, the trial court acquires no subject-matter
jurisdiction.' State v. Property at 2018 Rainbow
Drive, 740 So. 2d 1025, 1028 (Ala. 1999). Under
such a circumstance, the trial court has 'no
alternative but to dismiss the action.' 740 So. 2d
at 1029."
Ex parte Chemical Waste Mgmt., Inc., 929 So. 2d 1007, 1010
(Ala. 2005).
The Commission and the Commissioners argue that they have
a clear legal right to have the Open Meetings Act claims
against them dismissed and to have the second amended
complaint stricken on the ground that "[t]he circuit court
lacks jurisdiction over [those] claim[s] because Pizzato [and
Howland] lack[] standing and § [36-25A-]9(a) of the [Open
Meetings] Act cannot supply it." Petition, at 11.
"A ruling on a motion to dismiss is reviewed without
a presumption of correctness. This Court must
accept the allegations of the complaint as true.
Furthermore, in reviewing a ruling on a motion to
dismiss we will not consider whether the pleader
1111494
9
will ultimately prevail but whether the pleader may
possibly prevail."
Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003)
(citations omitted).
Section
36-25A-9(a)
provides,
in
pertinent
part:
"Enforcement of this chapter may be sought by civil action
brought in the county where the governmental body's primary
office is located by ... any Alabama citizen." The Commission
and the Commissioners argue that although § 36-25A-9(a) allows
for enforcement by "any Alabama citizen," a plaintiff must
still satisfy the three requirements for standing set forth in
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
In Lujan, the United States Supreme Court stated:
"Over the years, our cases have established that
the irreducible constitutional minimum of standing
contains three elements. First, the plaintiff must
have suffered an 'injury in fact' -– an invasion of
a legally protected interest which is (a) concrete
and particularized, and (b) 'actual or imminent, not
"conjectural" or "hypothetical."' Second, there
must be a causal connection between the injury and
the conduct complained of -- the injury has to be
'fairly ... trace[able] to the challenged action of
the defendant, and not ... th[e] result [of] the
independent action of some third party not before
the court.' Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917,
1926, 48 L.Ed.2d 450 (1976). Third, it must be
'likely,' as opposed to merely 'speculative,' that
1111494
10
the injury will be 'redressed by a favorable
decision.'"
504 U.S. at 560-61 (citations omitted).
This Court has adopted the Lujan test as the means of
determining standing in Alabama. See Ex parte King, 50 So. 3d
1056, 1059 (2010) ("Traditionally, Alabama courts have focused
primarily on the injury claimed by the aggrieved party to
determine whether that party has standing; however, in 2003
this Court adopted the following, more precise, rule regarding
standing based upon the test used by the Supreme Court of the
United States: 'A party establishes standing to bring a ...
challenge ... when it demonstrates the existence of (1) an
actual, concrete and particularized "injury in fact"–-"an
invasion of a legally protected interest"; (2) a "causal
connection between the injury and the conduct complained of";
and (3) a likelihood that the injury will be "redressed by a
favorable decision."'" (quoting Alabama Alcoholic Beverage
Control Bd. v. Henri–Duval Winery, L.L.C., 890 So. 2d 70, 74
(Ala. 2003), quoting in turn Lujan, 504 U.S. at 560–61)). See
also Muhammad v. Ford, 986 So. 2d 1158, 1162 (Ala. 2007)
(stating that, "[i]n [Henri-Duval], this Court adopted a more
precise rule regarding standing articulated by the United
1111494
Section 36-25A-9(g) provides, in pertinent part: "For
4
each meeting proven to be held in violation of this chapter
for one or more reasons, the court shall impose a civil
penalty. The maximum penalty for each meeting shall not
11
States Supreme Court" in Lujan); Town of Cedar Bluff v.
Citizens Caring for Children, 904 So. 2d 1253, 1256 (Ala.
2004) (stating that the Court in Henri-Duval had "effectively
restated" the standard for standing, using the three-pronged
test from Lujan).
Applying the Lujan test here, we conclude that Pizzato
and Howland do not have standing to bring this action because
they have failed to demonstrate "a likelihood that [their
alleged] injury will be 'redressed by a favorable decision.'"
Henri-Duval, supra. Pizzato and Howland argue that they were
injured by the Commission's termination of their employment
and that that "termination was the direct result and
consequence of the Commissioners' violation of the Open
Meetings Act." Pizzato and Howland's brief, at 21. They also
argue:
"Pizzato amended his complaint to seek the relief
mandated by statute and by the Circuit Court.
Pizzato is both a citizen and the former Executive
Director of APT, and his termination resulted
directly from a violation of the Open Meetings Act.
As such, he has every right to demand the civil
fines specified in Ala. Code § 36-25A-9(g)
in
[4]
1111494
exceed one thousand dollars ($1,000) or one half of the
defendant's monthly salary for service on the governmental
body, whichever is less."
As noted, Pizzato and Howland also request "whatever
5
other relief the Circuit Court deems appropriate." Pizzato and
Howland's brief, at 23. We need not speculate as to other
12
addition to whatever other relief the Circuit Court
deems appropriate."
Pizzato and Howland's brief, at 23.
In Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 186 (2000), the Supreme
Court held that civil penalties can serve as redress for
standing purposes "[t]o the extent that they encourage
defendants to discontinue current violations and deter them
from committing future ones." The Supreme Court distinguished
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
106 (1998), stating:
"Steel Co. established that citizen suitors lack
standing to seek civil penalties for violations that
have abated by the time of suit. We specifically
noted in that case that there was no allegation in
the
complaint
of
any
continuing
or
imminent
violation, and that no basis for such an allegation
appeared to exist."
Friends of the Earth, 528 U.S. at 187 (citation omitted).
Here, the only specific relief Pizzato and Howland
requested was the civil fines provided for in § 36-25A-9(g).5
1111494
forms of relief that may or may not be available to Pizzato
and Howland. See Allsopp v. Bolding, 86 So. 3d 952, 960 (Ala.
2011) ("This Court will not 'create legal arguments for a
party based on undelineated general propositions unsupported
by authority or argument.'" (quoting Spradlin v. Spradlin, 601
So. 2d 76, 79 (Ala. 1992))).
13
Like the injury in Steel Co., however, the alleged injury here
was caused by an alleged one-time violation of the Open
Meetings Act that was wholly past when Pizzato and Howland's
action was filed. Pizzato and Howland have not alleged any
"continuing or imminent violation," nor does any "basis for
such an allegation appear to exist." Friends of the Earth, 528
U.S. at 187. Thus, as in Steel Co., Pizzato and Howland's
request for civil fines "seeks not remediation of [their]
injury ... but vindication of the rule of law." Steel Co.,
523 U.S. at 106. In fact, Pizzato and Howland argue:
"To
argue
as
[the
Commission
and
the
Commissioners] have argued that Pizzato has suffered
no redressable injury is to argue that there is no
public policy interest or value to an injured party
in seeing wrongdoers held accountable for failing to
follow the law. Hearing such an argument advanced
by [the Commission and the Commissioners] is
offensive to those who believe their government can
–- and should -– do better. This callous and
nonchalant attitude towards a clear violation of the
law is indicative of the very reason this action
must be maintained. Even if such a judgment will
not make Pizzato whole, the value of enforcing the
law cannot be viewed through the narrow lens of
costs
and
benefits
to
those
wronged
by
the
1111494
14
violation. The significance and value of requiring
Commissioners to comply with the Open Meetings Act
includes the significance and value to Pizzato, but
encompasses the general public as well. The fact
that such value evades easy quantification by [the
Commission and the Commissioners] does not diminish
its importance."
Pizzato and Howland's brief, at 23-24. Fines sought for such
purposes do not satisfy the redressability prong of the Lujan
test. See Steel Co., 523 U.S. at 107 ("Relief that does not
remedy the injury suffered cannot bootstrap a plaintiff into
federal court; that is the very essence of the redressability
requirement."). Thus, Pizzato and Howland have failed to
establish standing under the Lujan test for their claims
against the Commission and the Commissioners.
Conclusion
Because Pizzato and Howland have not established standing
to bring their action against the Commission and the
Commissioners under the Open Meetings Act, the claims asserted
in both the first amended and second amended complaints are
due to be dismissed. Our decision in this regard pretermits
consideration of the remaining arguments raised in the
mandamus petition. Therefore, we grant the petition for
mandamus relief and issue the writ, instructing the circuit
1111494
15
court to dismiss Pizzato's and Howland's claims against the
Commission and the Commissioners.
PETITION GRANTED; WRIT ISSUED.
Stuart and Wise, JJ., concur.
Murdock, J., concurs specially.
Bolin, J., concurs in the result.
Parker, Shaw, and Main, JJ., dissent.
Moore, C.J., recuses himself.
1111494
16
MURDOCK, Justice (concurring specially, as substituted on
denial of application for rehearing on January 24, 2013).
I have struggled mightily to reason my way past the
redressability barrier cited in the main opinion. Having
failed in that endeavor, I am compelled to concur.
The redressability barrier before us is, as the main
opinion indicates, the same redressability barrier that has
been referred to by the United States Supreme Court as part of
"the irreducible constitutional minimum of standing":
"The 'irreducible constitutional minimum of
standing' contains three requirements. Lujan v.
Defenders of Wildlife, [504 U.S. 555] at 560
[(1992)]. First and foremost, there must be alleged
(and ultimately proved) an 'injury in fact' –- a
harm suffered by the plaintiff that is 'concrete'
and 'actual or imminent, not "conjectural" or
"hypothetical."' Whitmore v. Arkansas, [495 U.S.
149] at 155 [(1990)] (quoting Los Angeles v. Lyons,
461 U.S. 95, 101–102 (1983)). Second, there must be
causation –- a fairly traceable connection between
the plaintiff's injury and the complained-of conduct
of the defendant. Simon v. Eastern Ky. Welfare
Rights Organization, 426 U.S. 26, 41–42 (1976). And
third, there must be redressability -- a likelihood
that the requested relief will redress the alleged
injury. Id., at 45–46; see also Warth v. Seldin,
422 U.S. 490, 505 (1975). This triad of injury in
fact, causation, and redressability constitutes the
core
of
Article
III's
case-or-controversy
requirement,
and
the
party
invoking
federal
jurisdiction bears the burden of establishing its
existence. See FW/PBS, Inc. v. Dallas, 493 U.S.
215, 231 (1990)."
1111494
The terminology of the Alabama Constitution limiting
6
jurisdiction to cases and controversies is not unlike the
language of the United States Constitution upon which the so-
called "case-or-controversy requirement" noted in Steel is
based. Indeed, no clause of the United States Constitution
groups the words "case or controversy" into a single phrase.
Article II, § 2, of the United States Constitution provides
that the judicial power "shall extend to all Cases, in Law and
Equity, arising under the Constitution, the Laws of the United
States,
and
Treaties
made."
The
terms
"case"
and
"controversy" are dispersed throughout other clauses of
Article III to grant judicial power as to specific subjects.
Article VI, § 142 of the Alabama Constitution grants circuit
courts power over "cases," and § 140 of the same article
provides this Court power over "cases and controversies as
provided by this Constitution." We have construed Article VI,
§ 139, Ala. Const. of 1901 (as amended by Amend. No. 328, §
6.01), to vest this Court "with a limited judicial power that
entails the special competence to decide discrete cases and
controversies involving particular parties and specific
facts." Alabama Power Co. v. Citizens of Alabama, 740 So. 2d
371, 381 (Ala. 1999). See also Copeland v. Jefferson Cnty.,
284 Ala. 558, 226 So. 2d 385 (1969) (holding that our courts
decide
only
"concrete
controversies"
between
adverse
parties).
17
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,
102-03 (1998) (footnote omitted).6
Justice Scalia wrote for the majority in Steel that it
was not necessary to decide "whether being deprived of
information that is supposed to be disclosed" under the
public-information law at issue there was "a concrete injury
in fact that satisfies Article III ... because, [even]
assuming injury in fact, the complaint fails the third test of
1111494
The notion of concrete injury has in fact been applied
7
more liberally in so-called "public-information" cases. See,
e.g., Public Citizen v. United States Dep't of Justice, 491
U.S. 440, 449 (1989) ("Our decisions interpreting the Freedom
of Information Act have never suggested that those requesting
information under it need show more than that they sought and
were denied specific agency records.").
18
standing, redressability." 523 U.S. at 105. Similarly in
7
the present case, we may assume for the sake of discussion
that the plaintiffs have suffered a concrete injury and that
there is a sufficient causal link between this injury and the
Commissioners' violation of the statute. See also note 9,
infra. Nonetheless, given the absence of a claim for
reinstatement, the plaintiffs are in no better position
vis-à-vis the requirement of redressability than was the
plaintiff in Steel, about whose claim the Supreme Court noted
as follows:
"The complaint asks for (1) a declaratory
judgment that petitioner violated EPCRA [Emergency
Planning and Community Right-to-Know Act of 1986, 42
U.S.C. § 11001 et seq.]; (2) authorization to
inspect
periodically
petitioner's
facility
and
records (with costs borne by petitioner); (3) an
order requiring petitioner to provide respondent
copies of all compliance reports submitted to the
[Environmental Protection Agency]; (4) an order
requiring petitioner to pay civil penalties of
$25,000 per day for each violation of §§ 11022 and
11023; (5) an award of all respondent's 'costs, in
connection with the investigation and prosecution of
this matter, including reasonable attorney and
1111494
I note that Steel does not involve a governmental
8
defendant. It does however, involve a suit to require a third
party to fulfill an obligation that, whatever else may be said
of it, clearly was intended by Congress as an obligation to
disclose information for the benefit of the public at large.
In that sense, it arguably can be considered a "public-law"
case. In any event, in those relatively rare cases (like
Steel) in which a legislature purports to create by statute a
cause of action and to legislatively prescribe elements of the
same in which are not embedded all three of the components of
standing (a circumstance that to my knowledge is unknown to
19
expert witness fees, as authorized by Section 326(f)
of [EPCRA]'; and (6) any such further relief as the
court deems appropriate. None of the specific items
of relief sought, and none that we can envision as
'appropriate' under the general request, would serve
to reimburse respondent for losses caused by the
late reporting, or to eliminate any effects of that
late reporting upon respondent."
523 U.S. at 105-06 (emphasis added).
As Justice Connor stated in her special concurrence in
Steel:
"I agree that our precedent supports the Court's
holding that respondent lacks Article III standing
because its injuries cannot be redressed by a
judgment that would, in effect, require only the
payment of penalties to the United States Treasury."
523 U.S. at 110 (O'Connor, J., concurring specially) (emphasis
added). Likewise, the plaintiffs' loss of their jobs in the
present case "cannot be redressed by a judgment that would, in
effect, require only the payment of penalties to the [Alabama]
treasury."8
1111494
common-law causes of action and that is unknown to almost all
statutorily created causes), it has attempted to give the
court jurisdiction over something that it cannot, because that
something is not a case or controversy. Such was the case in
Steel and such is the case here, at least given the limited
nature of the relief requested in this case. As the author of
this Court's recent opinion in Ex parte BAC Home Loans
Servicing, LP, [Ms. 1110373, September 13, 2013] ___ So. 3d
___ (Ala. 2013), I must confess that the statements in BAC
suggesting a limitation of standing to public-law cases
involving governmental defendants would be better understood
as statements of a general rule that admits of the aforesaid
exception, but only in rare instances involving inadequately
formed statutory causes of action as in Steel.
20
That said, I believe it is important to take note of what
is not before us in this case. First, we do not have before
us a claim by which a media organization or a citizen seeks to
enjoin an anticipated future violation of the statute, or even
one in which the circumstances attendant to multiple (or
perhaps even one) prior violation supports an inference that
such violations will continue in the future but might be
deterred by the judicial declaration of one or more such prior
offenses and punishment for the same. See Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 185-86 (2000) (holding that in an appropriate case civil
penalties can "afford redress to citizen plaintiffs who are
injured or threatened with injury as a consequence of ongoing
unlawful conduct"); Steel, 523 U.S. at 110 (O'Connor, J.,
1111494
21
concurring specially) ("[H]ad respondent alleged a continuing
or imminent violation of the Emergency Planning and Community
Right–To–Know Act of 1986 (EPCRA), 42 U.S.C. § 11046, the
requested injunctive relief may well have redressed the
asserted injury."). Compare also, e.g., Federal Election
Comm'n v. Akin, 524 U.S. 11 (1998) (finding redressability
requirement satisfied in a public-information case in which
the plaintiffs sought, among other things, an injunction to
require a public-interest organization to make public certain
information required to be disclosed by the Federal Election
Commission Act of 1971).
Nor is this a case brought as permitted by § 36-25A-9(a),
Ala. Code 1975, by the attorney general or the district
attorney, officials constitutionally imbued with standing to
act on behalf of the public for whose benefit the law was
intended.
And finally, although an argument can be made that we do
have before us today a case in which the plaintiffs can draw
a sufficient connection between a private meeting of a public
body and some action of that body that has injured them so as
1111494
See Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007),
9
citing with approval Sugar Cane Growers Cooperative of Fla. v.
Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002), for the
proposition that "[a litigant] who alleges a deprivation of a
procedural protection to which he is entitled never has to
prove that if he had received the procedure the substantive
result would have been altered. All that is necessary is to
show that the procedural step was connected to the substantive
result." As the Court in Lujan v. Defenders of Wildlife, 504
U.S. 555, 573 n. 7 (1992), noted, "[t]here is this much truth
to the assertion that 'procedural rights' are special: The
person who has been accorded a procedural right to protect his
concrete interests can assert that right without meeting all
the normal standards for redressability and immediacy. Thus,
under our case law, one living adjacent to the site for
proposed construction of a federally licensed dam has standing
to challenge the licensing agency's failure to prepare an
environmental
impact
statement, even though he cannot
establish with any certainty that the statement will cause the
license to be withheld or altered, and even though the dam
will not be completed for many years." Nonetheless, there
must at least be some likelihood that the relief sought will
prevent, undo, or compensate the plaintiff for a threatened or
past violation of rights or other injury that provides the
basis for standing.
But see § 36-25A-9(f) (stating that an action taken at
10
an open meeting conducted in accordance with the Act shall not
22
to satisfy the injury and causation elements of standing, the
9
case before us is not one in which the plaintiffs seek to be
relieved of their specific injury, i.e, to be reinstated to
their former positions of employment. See generally § 36-25A-
9(f), Ala. Code 1975 (providing that the court may under
certain circumstances invalidate an action taken during a
meeting held in violation of the Open Meetings Act).
10
1111494
be invalidated because of a violation that occurred prior to
such meeting). The plaintiffs argue in this case that the
decision to terminate their employment actually occurred in
the noncompliant meeting of which they complain. The issues
surrounding that assertion, however, are issues of the
plaintiffs' ability to allege, or prove, a cause of action (as
to which neither I nor this Court expresses any view today),
not an issue of standing. See, e.g., Ex parte BAC Home Loans
Servicing, LP, [Ms. 1110373, September 13, 2013] __ So. 3d __
(Ala. 2013).
23
Consequently,
all
the
plaintiffs
can
achieve
for
themselves in the case that is before us is the psychological
satisfaction of knowing that those who purportedly injured
them have been forced to pay a fine to the State. I agree
with the main opinion that this is not enough. As our Court
of Civil Appeals explained recently in Alabama Department of
Environmental Management v. Friends of Hurricane Creek, 114
So. 3d 47, 54 (Ala. Civ. App. 2012):
"Any ... injury done to [plaintiffs] resulting from
the possible continued existence of turbid waters
downstream
from
the
developer's
Williamsburg
development will thus not be remedied; rather, [the
plaintiffs]
will
derive
only
the
abstract
satisfaction that a perceived wrongdoer such as the
developer has received what might be viewed as 'just
desserts'
for
environmental
violations.
Such
'[r]elief that does not remedy the injury' does not
satisfy the redressability element of standing.
Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)."
1111494
24
PARKER, Justice (dissenting).
I agree with Justice Shaw: Imposing the test set forth in
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992),
on the Open Meetings Act, Ala. Code 1975, § 36-25A-1 et seq.,
would effectively neuter the Act.
1111494
25
SHAW, Justice (dissenting).
I respectfully dissent. I am not convinced that the test
for determining standing under federal law, set forth in Lujan
v. Defenders of Wildlife, 504 U.S. 555 (1992), is applicable
in this case. The standing analysis in Lujan is closely tied
to the "case or controversy" provision in Article III of the
United States Constitution, which grants judicial power to the
federal judiciary. Lujan, 504 U.S. at 560 ("[T]he core
component of standing is an essential and unchanging part of
the case-or-controversy requirement of Article III."). The
source
of
the
third
prong
of
the
Lujan
analysis,
redressability, upon which the main opinion turns, looks to
whether a plaintiff has a personal stake in the litigation.
The Alabama Constitution does not have a "cases or
controversy" provision, but we have followed a similar
analysis:
"[S]tanding[] goes to whether a party has a
sufficient 'personal stake' in the outcome and
whether there is sufficient 'adverseness' that we
can say there is a 'case or controversy.'
"'Standing
goes
to
the
existence
of
sufficient adversariness to satisfy both
A r t i c l e
I I I
case-or-controversy
requirements and prudential concerns. In
determining standing, the nature of the
1111494
26
injury asserted is relevant to determine
the existence of the required personal
stake and concrete adverseness.'
"13A Federal Practice & Procedure § 3531.6.
"Although the Alabama
Constitution
does
not
have
the same Article III language as is found in the
Federal Constitution, this Court has held that
Section 139(a) of the Alabama Constitution limits
the judicial power of our courts to 'cases and
controversies'
and
to
'concrete
controversies
between adverse parties.' As Justice Lyons has
stated:
"'Standing is properly limited to
circumstances
stemming
from
lack
of
justiciability. A plaintiff must be so
situated that he or she will bring the
requisite adverseness to the proceeding. A
plaintiff must also have a direct stake in
the outcome so as to prevent litigation,
initiated by an interested bystander with
an agenda, having an adverse impact on
those whose rights are directly implicated.
See Diamond v. Charles, 476 U.S. 54, 61–62,
106 S. Ct. 1697, 90 L. Ed. 2d 48 (1986).
"'Much of the precedent in the area of
standing comes from federal courts subject
to the case-or-controversy requirement of
Article
III
of
the
United
States
Constitution. Of course, we do not have a
case-or-controversy
requirement
in
the
Alabama Constitution of 1901, but our
concepts
of
justiciability
are
not
substantially dissimilar. See Pharmacia
Corp. v. Suggs, 932 So. 2d 95 (Ala. 2005),
where this Court, after noting the absence
of a case-or-controversy requirement in our
Constitution, observed:
1111494
Our previous decisions applying Lujan that are cited in
11
the main opinion involve general challenges to whether certain
elections or legislative acts were constitutional. See Ex
parte King, 50 So. 3d 1056, 1059 (2010) (holding that there
was "no injury" under Lujan to the plaintiffs in an action
challenging the propriety and constitutionality of an election
occurring over 100 years before the suit was filed); Muhammad
v. Ford, 986 So. 2d 1158, 1162 (Ala. 2007) (holding in a case
challenging
the
constitutionality
of
a
constitutional
amendment providing for "bingo" gaming that there was no
actual,
concrete,
and
particularized injury where the
plaintiffs alleged that they were injured because they were
denied the opportunity to live in a county in which a valid
law on bingo-game operations existed); Town of Cedar Bluff v.
Citizens Caring for Children, 904 So. 2d 1253, 1256 (Ala.
[substituted p. 27]
"'"We have construed Art.
VI, § 139, Ala. Const. of 1901
(as amended by amend. no. 328, §
6.01, vesting the judicial power
in the Unified Judicial System),
to
vest
this
Court
'with
a
limited
judicial
power
that
entails the special competence to
decide
discrete
cases
and
c o n t r o v e r s i e s
i n v o l v i n g
particular parties and specific
facts.' Alabama Power Co. v.
Citizens of Alabama, 740 So. 2d
371, 381 (Ala. 1999). See also
Copeland v. Jefferson County, 284
Ala. 558, 226 So. 2d 385 (1969)
(courts
decide
only
concrete
controversies
between
adverse
parties)."'
"Hamm, 52 So. 3d at 500 (Lyons, J., concurring
specially)."
Ex parte McKinney, 87 So. 3d 502, 513 (Ala. 2011) (Murdock,
J., dissenting).
The focus of Alabama law regarding
11
1111494
2004) (holding that an elector presenting a constitutional
challenge to an election legalizing the sale of alcohol had
failed to show a particularized injury); and Alabama Alcoholic
Beverage Control Bd. v. Henri–Duval Winery, L.L.C., 890 So. 2d
70, 74 (Ala. 2003) (holding that there was no injury where the
plaintiff challenged the constitutionality of, and sought a
refund for, a tax that it was not required to pay). I believe
that in such general challenges to government action, the
Lujan analysis is helpful. In the instant case, however, we
do not have a general constitutional challenge. Instead, we
have a very specific cause of action provided by Alabama law,
which provides a very limited form of relief. Further, we
have not strictly followed the three Lujan factors. See,
e.g., Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111
(Ala. 2003) (holding that a plaintiff who suffered no damage
had standing despite Lujan, because she had suffered a "legal
wrong" and an "invasion of a legally protected interest").
28
standing, generally, is on whether the parties have a
"sufficient personal stake in the outcome" in the case,
whether their interests are sufficiently "adverse," and
whether the plaintiff is "so situated" that he or she will
bring "the requisite adverseness" to the proceeding.
It is well settled that the legislature may provide for
a cause of action and may supply subject-matter jurisdiction
to the courts of this State. Ex parte Seymour, 946 So. 2d
536, 538 (Ala. 2006) ("The jurisdiction of Alabama courts is
derived from the Alabama Constitution and the Alabama Code.").
Here, the legislature, through the Open Meetings Act, Ala.
Code 1975, § 36-25A-1 et seq. ("the Act"), has provided a
1111494
29
cause of action, has designated who may file the action, and
has designated the remedies. Specifically, the Act provides,
among other things, that certain meetings by certain
governmental bodies must be open to the public. A "civil
action" may be brought by "any Alabama citizen" to enforce the
Act. Ala. Code 1975, § 36-25A-9(a) ("Enforcement of this
chapter may be sought by civil action brought ... by ... any
Alabama citizen...."). The trial court may provide relief in
various forms, including the imposition of civil penalties.
§ 36-25A-9(g).
Pizzato and Howland allege in their complaint that
certain
members
of
the Alabama
Educational Television
Commission were motivated
by
personal,
political,
and
religious views and that they made "threats" against Pizzato
and others. They allege that Pizzato's "general reputation,
character, and job performance," as well as Howland's "job
performance," were discussed in a closed meeting in violation
of the Act and that, immediately after the meeting, their
employment was terminated. They seek the imposition of civil
penalties under Ala. Code 1975, § 36-25A-9(g)--the only relief
apparently available to them--for the commissioners' alleged
1111494
30
violation of the Act in a meeting where the apparent decision
to terminate Pizzato's and Howland's employment was made.
This action is not pursued by a disinterested third party or
stranger to the incident, but rather by the parties who were
allegedly wronged by a procedure that purportedly did not
comply with Alabama law. It seems to me that the allegations
in Pizzato and Howland's complaint indicate that their
interests are sufficiently "adverse" to those of the
petitioners and that they are "so situated" that they bring
"the requisite adverseness" to the proceeding. For all that
appears, this fulfills the requirements of standing. | January 24, 2014 |
4b178a1d-7c9a-49b8-a487-1139121a0bb5 | R. C. W. v. Alabama | N/A | 1120562 | Alabama | Alabama Supreme Court | REL:05/30/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120562
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: R.C.W.
v.
State of Alabama)
(Mobile Circuit Court, CC-10-445, CC-10-446, CC-10-447,
CC-10-448, and CC-10-449;
Court of Criminal Appeals, CR-11-0387)
BOLIN, Justice.
1120562
2
R.C.W. was convicted of first-degree rape, see § 13A-6-
61, Ala. Code 1975; incest, see § 13A-13-3; Ala. Code 1975;
first-degree sexual abuse, see § 13A-6-66, Ala. Code 1975; and
two counts of first-degree sodomy, see § 13A-6-63, Ala. Code
1975. The trial court sentenced R.C.W., pursuant to the
Habitual Felony Offender Act, to life imprisonment on the
incest and first-degree-sexual-abuse convictions and to life
imprisonment without the possibility of parole on the first-
degree-rape and both first-degree-sodomy convictions. The
Court of Criminal Appeals reversed R.C.W.'s convictions in a
3 to 2 decision. R.C.W. v. State, [Ms. CR-11-0387, November 2,
2012] __ So. 3d __ (Ala. Crim. App. 2012). The State of
Alabama petitioned this Court for a writ of certiorari, which
we granted. We now reverse and remand.
Facts and Procedural History
The Court of Criminal Appeals set forth the following
relevant facts:
"At trial, T.W., R.C.W.'s biological daughter,
testified that her earliest memory of sexual abuse
involving her father occurred when she was 9 years
old and in the fourth grade; T.W. stated that she
was then 18 years old. T.W. stated that she was
forced to perform oral sex on R.C.W. on several
occasions. T.W. testified that on one occasion when
she was 10 years old, R.C.W. forced her to have
1120562
3
sexual intercourse with him. T.W. stated that on
another occasion when she was 11 years old, R.C.W.
performed
oral
sex
on
T.W.
and
had
sexual
intercourse with her. T.W. stated that when she was
13 years old, she informed her mother about the
instances of sexual abuse, after which the sexual
abuse stopped. Lastly, T.W. testified that she did
not report any of these events to authorities but
agreed to 'all just be a family for my little
brother and act like nothing ever happened.'
"Pa.W., T.W.'s mother, testified that she was
married to R.C.W. at the time of trial, although
divorce proceedings were pending. Pa.W. stated that
she had a conversation with T.W. when T.W. was 12 or
13 years old regarding T.W.'s conduct; specifically,
Pa.W. stated that T.W. had started acting distant
and started locking her bedroom door. Pa.W. stated
that after T.W. told her about the sexual abuse, she
took T.W. to the gynecologist. Pa.W. stated that she
thereafter confronted R.C.W. regarding the sexual
abuse, at which time R.C.W. stated that he had 'made
some mistakes' and that '[h]e was sorry' and swore
to her that 'it would never happen again.' Pa.W.
testified that at a later date during a recorded
telephone conversation, she asked R.C.W. whether
anything had happened between him and T.W. since
Pa.W. had initially confronted him about the sexual
abuse; Pa.W. testified that R.C.W. stated '[n]o, not
one fucking thing.' Lastly, Pa.W. stated that a
family conflict had begun after allegations had been
made that T.W. was having a relationship with an
older man when she was 15 years old.
"C.F., a former wife of R.C.W.'s, testified that
while she was married to R.C.W., he was indicted and
convicted for several sex offenses against her
daughter M.W.T., R.C.W.'s biological daughter.
"P.W., who was 27 years old at the time she
testified, stated that on one occasion when she was
1120562
4
10 years old, R.C.W., her biological father, came
into her room after everyone in the house was asleep
and touched her '[o]n my vagina and my butt.' P.W.
stated that on several occasions, R.C.W. 'touched
[her vagina] with his penis as well [as] his mouth'
and would force her to perform oral sex on him.
"M.W.T., who was 34 years old at the time of
trial, testified that at a young age she was
inappropriately touched by R.C.W. and that R.C.W.
forced her to perform oral sex on him.
"Alex
Bassinger,
Susie
Bassinger,
Rhonda
Gainey,
Britney Booker, R.W., R.C.W.'s biological son, and
G.S., R.C.W.'s brother, all testified that T.W. had
a poor reputation for truthfulness. Susie Bassinger,
Gainey, Booker, R.W., and G.S. all testified that
T.W. appeared to have a good relationship with
R.C.W.
"....
"Before trial, the State filed notice of its
intent to introduce Rule 404(b), Ala. R. Evid.,
evidence regarding the prior incidents of sexual
abuse discussed above. R.C.W. argued that the
evidence was too remote and was not necessary to the
State's case because, he said, motive, intent, and
identity would not be contested at trial. Further,
he argued that the prejudicial effect of the
evidence outweighed its probative value. The State
argued that the evidence was admissible pursuant to
Rule 404(b), Ala. R. Evid., for the purposes of
showing motive, opportunity, intent, or plan. The
trial court denied R.C.W.'s motion in limine. Later,
at the close of all the evidence, the following
colloquy regarding jury charges ensued:
"'[The court]: Okay. Let's try this
one. I did borrow some of yours and some of
1120562
5
this is original. But I guess nothing is
ever really original.
"'You
have
heard
testimony
and
evidence regarding other crimes--regarding
crimes, wrongs, or bad acts regarding the
defendant. The defendant is only on trial
for the charges that I have read to you in
the indictments, not for anything else.
Evidence of crimes, wrongs, or bad acts was
allowed in evidence not to prove the
defendant is a bad person or a person of
bad character because that would be wrong
and impermissible or that it made him more
likely to commit the crimes charged in
these indictments because that would also
be impermissible. The evidence of other
acts, wrongs, or crimes was allowed into
evidence for one narrow purpose only. That
is, it may be considered by you only for
the limited purpose as regarding the
defendant's motive, opportunity, intent or
plan.
"'[Prosecutor]: Perfect.
"'[The court]: I know you don't agree
with the whole line. But is that about as
good as you think we can get it? I'm not
asking you to agree with any of it but if
you think of any other way to tweak it to
make it any less--
"'[Defense counsel]: Judge, the main
question I would have, what was the
purposes you said again?
"'[The court]: Motive, opportunity,
intent or plan. And one of the reasons I
had let it in all along is there's one of
the cases, and I thought I had it and maybe
had
it
up
here,
is
maybe
it's--and
1120562
6
obviously don't want to get into this,
that--maybe the one you gave me, Nicki,
that the Court then let it in, I think it
was intent in order to show the jury that
a defendant could in fact have a plan--
intent or plan to have sex with girls of
this age which a normal person would [find]
unbelievable. I think it was intent. This
may be it. Of course, it takes us back to
another case, Ex parte Hatcher[, 646 So. 2d
676 (Ala. 1994)]. But the Alabama Supreme
Court stated in Ex parte Hatcher, 646 So.
2d 676, testimony concerning the rape was
relevant to the question of Hatcher's
motive which was a--which a reasonable
person could find was an unnatural sexual
desire for small children. And in this
case, which was Worthy v. State, [724 So.
2d
55
(Ala.
Crim.
App.
1998),]
the
incidents testified [to] by appellant's
daughters were sufficiently similar to the
present offense as they include evidence
from which the jury could reasonably--the
jury reasonably could conclude that the
appellant was motivated by an unnatural
desire for all three of his young female
victims. So that's kind of the kitchen sink
on [Rule] 404(b)[, Ala. R. Evid.]. I think
when I get my grammar cleaned up I think
that will kind of do it. We've got to take
into account testimony related to the prior
convictions. So I'll get that cleaned up a
bit.
"'Let's get to the rest of--Your
sixteen, I think, is covered now ....'
"The trial court thereafter charged the jury as
follows, in pertinent part:
"'You have heard testimony and evidence
regarding crimes, wrongs or bad acts
1120562
7
regarding the Defendant. The Defendant is
on trial only for the criminal charges that
I have read to you in the indictments, not
for anything else. Evidence of other
crimes, wrongs, or bad acts was allowed
into evidence not to prove that the
Defendant may or may not be a bad person or
may or may not be a person of bad character
or that it made him more likely to commit
the crimes charged in these indictments,
because that would be wrong and legally
impermissible.
The
evidence
of
other
crimes, wrongs or bad acts was allowed into
evidence for one narrow purpose only. That
is, it may be considered by you for the
limited
purpose
as
regarding
the
Defendant's
motive,
opportunity,
intent,
or
plan.'
"Before the case was submitted to the jury,
defense counsel objected to the charge and stated:
"'Judge, with regard to the charge on
[Rule] 404(b) evidence. The portion where
you said that it's for the limited purpose
of motive, opportunity, or plan, I would
submit that those are not matters in
controversy and by having it go--I believe
that that is different than what the State
had said originally, was their purpose for
offering that evidence. We except and
object to the Court giving it with that
broad of reason for it coming in.'"
R.C.W., __ So. 3d at __ (references to record omitted).
R.C.W. argued on appeal that the trial court's admission
of the State's evidence of the collateral bad acts was
reversible error because, he said, the purposes for which the
1120562
8
State offered the collateral-bad-acts evidence "were never
placed in issue by [R.C.W.] at trial." See Draper v. State,
886 So. 2d 105, 117 (Ala. Crim. App. 2002)(noting that, for
collateral-bad-acts evidence to be admissible for one of the
"other purposes" in Rule 404(b), Ala. R. Evid., there must be
a "real and open issue as to one or more of those 'other
purposes.'" (some internal quotation marks omitted)).
The State argued that the collateral evidence of sexual
misconduct involving T.W.'s half sisters was admissible for
the purpose of showing motive. The State further argued that
"'"[t]he fact that the prosecutor gave an erroneous reason in
arguing for the admissibility of the evidence is unimportant
when there is, in fact, a valid reason for admissibility."'"
R.C.W., __ So. 3d at __ (quoting the State's brief, quoting in
turn Ex parte Register, 680 So. 2d 225, 226 (Ala. 1994)).
The Court of Criminal Appeals concluded that the
collateral evidence of R.C.W.'s sexual misconduct involving
T.W.'s half sisters was admissible to establish motive, i.e.,
"in order to establish R.C.W.'s 'unnatural sexual desire for
the small children living in his household' as a motive for
the present offense" with which he had been charged. R.C.W.,
1120562
9
__ So. 3d at __ (quoting Hatcher v. State, 646 So. 2d 676, 679
(Ala. 1994)). However, the Court of Criminal Appeals also
concluded that "it was reversible error for the trial court to
allow the jury to consider the evidence of collateral sexual
misconduct involving T.W.'s half sisters for the improper
purposes of intent, opportunity, and plan," where intent,
opportunity, or plan was not at issue in R.C.W.'s trial,
R.C.W., __ So. 3d at __, because a "jury may not consider
evidence of collateral sexual misconduct for an implausible
purpose." R.C.W., ___ So. 3d at ___. Specifically, the Court
of Criminal Appeals stated:
"In Marks [v. State, 94 So. 3d 409 (Ala. Crim.
App. 2012)], we held:
"'The circuit court's instructions in
this case permitted the jury to consider
the
collateral-act
evidence
for
the
purposes of showing motive, opportunity,
plan, knowledge, and modus operandi. On
appeal, the State argues that opportunity
and plan were at issue and that, therefore,
the circuit court properly instructed the
jury as to those purposes. The State also
argues that the evidence was admissible to
prove identity and preparation--purposes
for which the jury was not instructed
regarding the collateral-act evidence. The
State does not address the additional
purposes--motive,
knowledge,
or
modus
operandi--on which the jury was instructed
1120562
10
it
could
consider
the
collateral-act
evidence in this case.
"'Although
not
as
broad
as
the
instructions at issue in Ex parte Billups,
[86
So.
3d
1079
(Ala.
2010),]
the
instruction in this case regarding the
permissible use of the collateral-act
evidence was too general and authorized the
jury
to
consider
the
evidence
for
"implausible purposes," such as identity.
For example, I.C. identified Marks, and
Marks admitted that he knew I.C.; he
denied, however, that he had had sex with
I.C. or that he had raped her. Thus, I.C.'s
and
Marks's
credibility,
not
Marks's
identity, were at issue. Compare Gibson v.
State, 677 So. 2d 238, 240 (Ala. Crim. App.
1995) (identity was at issue where the
accused
contended
that
someone
else
committed the sexual offenses with which he
was charged), with Mothershed v. State, 596
So. 2d 47 (Ala. Crim. App. 1991) (evidence
of collateral sexual acts of the accused
against
the
alleged
victims
was
inadmissible to prove identity where the
accused denied committing the offenses with
which he was charged and he did not allege
that the crimes were committed by someone
else).
Thus,
the
circuit
court's
instructions were erroneous because they
permitted the jury, over Marks's objection,
to consider the collateral-act evidence for
purposes not at issue in the case. Given
the graphic nature of the collateral-act
evidence at issue here, the "confusion of
the jury and the probable prejudice to
[Marks,]" as a result of the erroneous
instruction "is obvious." Ex parte Billups,
86 So. 3d at 1086 (quoting Billups v.
State, 86 So. 3d 1032, 1079 (Ala. Crim.
App. 2009) (Welch, J., dissenting)). Thus,
1120562
11
in accordance with the Supreme Court's
decision in Billups, the jury instructions
in this case constituted reversible error.
"'For
the
above-stated
reasons,
Marks's conviction for rape in the first
degree is hereby reversed and this case is
remanded to the Mobile Circuit Court for
proceedings consistent with this opinion.'
"94 So. 3d at 413-14.
"Here,
as
in
Marks,
the
trial
court's
instructions permitted the jury to consider the
collateral-act evidence for purposes not at issue in
this case. The trial court instructed the jury as to
the purposes of motive, opportunity, intent, and
plan. Although the State addresses motive, the State
does not address the additional purposes--intent,
opportunity, and plan--for which the jury was
instructed it could consider the evidence of
collateral sexual misconduct.
"'Thus, the circuit court's instructions
were erroneous because they permitted the
jury,
over
[R.C.W.]'s
objection,
to
consider the collateral-act evidence for
purposes not at issue in the case. Given
the graphic nature of the collateral-act
evidence at issue here, the "confusion of
the jury and the probable prejudice to
[R.C.W.,]" as a result of the erroneous
instruction "is obvious." Ex parte Billups,
86 So. 3d at 1086 (quoting Billups v.
State, 86 So. 3d 1032, 1079 (Ala. Crim.
App. 2009) (Welch, J., dissenting)). Thus,
in accordance with the Supreme Court's
decision in Billups, the jury instructions
in this case constituted reversible error.'
"Marks, 94 So. 3d at 413–14."
1120562
12
R.C.W., __ So. 3d at __ (footnote omitted).
Presiding Judge Windom, in her dissenting opinion, agreed
with the holding of the main opinion that evidence of R.C.W.'s
prior sexual abuse of his other daughters was admissible to
establish a motive for raping, sodomizing, and sexually
abusing T.W. R.C.W., __ So. 3d at __. Presiding Judge Windom
also agreed with the conclusion in the main opinion that the
trial court's limiting instruction to the jury erroneously
allowed the jury to consider evidence of R.C.W.'s sexual abuse
of his other daughters for purposes other than to show motive,
i.e., for "'the improper purposes of intent, opportunity, and
plan.'" R.C.W., __ So. 3d at __ (Windom, P.J., dissenting).
However, Presiding Judge Windom concluded that R.C.W. suffered
no harm as the result of the trial court's erroneous jury
instruction, which allowed the jury to consider evidence of
R.C.W.'s sexual abuse of his other daughters for purposes of
intent, opportunity, and plan. Specifically, Presiding Judge
Windom explained:
"In Ex parte Billups, 86 So. 3d [1079] at
1084–85 [(Ala. 2010)], the Alabama Supreme Court
held that when evidence of collateral bad acts is
admitted for one or more purposes other than to show
bad character, the circuit court's failure to give
an instruction that limits the jury's consideration
1120562
13
of that evidence to only the purpose for which it
was admitted constitutes error. Specifically, the
Court held that the circuit court's limiting
instruction relating to Rule 404(b) evidence that
'simply recit[ed] the complete "laundry list" of
permissible theories under Rule 404(b) [for the
admission of collateral-bad-act evidence], ... gave
the
jury
inadequate guidance [and constituted
error].' Billups, 86 So. 3d at 1086.
"The Supreme Court did not, however, create a
per se rule requiring reversal every time a circuit
court's limiting instruction relating to collateral
bad acts includes purposes listed in Rule 404(b) for
which the evidence was not admitted. To the
contrary, the Supreme Court has repeatedly held that
the failure to give a limiting instruction and/or
the giving of an erroneous limiting instruction must
be reviewed on a case-by-case basis. Snyder v.
State, 893 So. 2d 482, 485 (Ala. 2001) (explaining
that 'each inquiry regarding the propriety of an
instruction on the use of evidence of prior
convictions ... must be determined on a case-by-case
basis'); Ex parte Martin, 931 So. 2d 759, 768 (Ala.
2004) (same); Johnson v. State, 120 So. 3d 1119,
1128 (Ala. 2006) (same).
"....
"Although evidence of R.C.W.'s collateral bad
acts was properly admitted as substantive evidence
to show his motive and although the circuit court
correctly prohibited the jury from considering
R.C.W.'s collateral bad acts as evidence of his bad
character, the majority finds reversible error in
the circuit court's limiting instruction because it
allowed the jury to consider that evidence for the
'improper
purposes
of
[establishing]
intent,
opportunity, and plan[, points that were] not at
issue in this case.' __ So. 3d __, __. I, however,
disagree. Because it was not plausible for evidence
of R.C.W.'s collateral bad acts to establish his
1120562
14
intent, opportunity, or plan, any error in allowing
the jury to consider the evidence for those purposes
was harmless. In United States v. Levy–Cordero, 67
F.3d 1002, 1011 (1st Cir. 1995), the government
offered evidence of the appellant's collateral bad
acts to establish his consciousness of guilt. The
trial court, however, gave a limiting instruction
that
directed
the
jury
to
consider
the
collateral-bad-act evidence for the purpose of
establishing the appellant's intent and knowledge.
Id. The United States Court of Appeals for the First
Circuit
held
that
a
trial
court's
limiting
instruction relating to the Rule 404(b) evidence
improperly
allowed
the
jury
to
consider
the
appellant's collateral bad acts as evidence of his
intent and knowledge because those were not reasons
that the evidence was admitted. Although the trial
court improperly instructed the jury that it could
consider the appellant's collateral bad acts for
intent and knowledge, the First Circuit held that
the error was harmless. Id. The Court explained that
the erroneous instruction was harmless because there
was 'no logical reason why [the collateral bad acts]
would demonstrate appellant's intent or knowledge
with respect to [charged] offenses....' Id. Thus,
the circuit court's instruction was harmless because
it 'instructed the jury that it could draw an
inference that the evidence could not logically
support.' Id.
"In this case, the circuit court's instruction
that allowed the jury to consider R.C.W.'s sexual
misconduct for 'improper purposes of [establishing]
intent, opportunity, and plan,' __ So. 3d at __, was
harmless because there was 'no logical reason why
[the
collateral
bad
acts]
would
demonstrate
appellant's intent[, plan, or opportunity] with
respect to [charged] offenses....' Levy–Cordero, 67
F.3d
at
1011.
Stated
differently,
R.C.W.'s
collateral sexual misconduct did not establish his
specific intent to commit, his opportunity to
commit, or a plan to commit the charged offenses.
1120562
15
Therefore, the circuit court's erroneous limiting
instruction was harmless because it merely allowed
the jury to 'draw an inference that the evidence
could not logically support.' Id.
"Additionally,
as
the
majority
explains,
R.C.W.'s intent, opportunity, and plan were not at
issue at trial. R.C.W. was T.W.'s father, and they
lived together at the time of the offenses. From
this evidence, the jury must have drawn the
conclusion that R.C.W., who was living with his
daughter, had the opportunity to rape, sodomize, and
sexually abuse her. Because R.C.W.'s opportunity to
commit the charged offenses was clearly established
at trial, the circuit court's instruction that
allowed the jury to consider R.C.W.'s collateral bad
acts for the purpose of establishing opportunity was
harmless. Cf. Dawson v. State, 675 So. 2d 897, 900
(Ala. Crim. App. 1995) ('The erroneous admission of
evidence that is merely cumulative is harmless.'
(citing Reese v. City of Dothan, 642 So. 2d 511, 515
(Ala. Crim. App. 1993))); Woods v. State, 13 So. 3d
1, 23 (Ala. Crim. App. 2007). Likewise, as the
majority states, '[t]he intent necessary to these
types of crimes may be inferred by the jury from the
acts themselves.' __ So. 3d at __. Because R.C.W.'s
general
intent
was
established
by
the
acts
themselves, the circuit court's instruction allowing
the jury to consider additional evidence of intent
was harmless. Cf. Dawson, 675 So. 2d at 900; Woods,
13 So. 3d at 23. Finally, as the majority states,
R.C.W.'s identity was not at issue in this case
because R.C.W. did not allege that someone else
committed the crime. Because R.C.W. did not place
his identity at issue, the jury had two choices:
believe that R.C.W. committed the acts or believe
that no acts occurred. Because R.C.W.'s identity was
not at issue and the jury was left to decide only
whether the acts occurred, allowing the jury to
consider evidence to show a plan and thus R.C.W.'s
identity was not harmful. Id.
1120562
16
"This is not a case in which evidence of
collateral bad acts was improperly admitted or in
which the circuit court erroneously allowed the jury
to consider that evidence to show bad character.
Instead, evidence of R.C.W.'s collateral sexual acts
was properly admitted and considered as substantive
evidence of his motive, and the circuit court
correctly prevented the jury from considering that
evidence for the sole purpose for which it is not
allowed--bad character and action in conformity
therewith. Because evidence of R.C.W.'s collateral
sexual misconduct was properly considered by the
jury as substantive evidence of motive and because
the
circuit
court
prevented
the
jury
from
considering the evidence to prove bad character, the
circuit court's limiting instruction that allowed
the jury to also consider that evidence for
additional implausible and/or irrelevant purposes
was harmless. Therefore, I respectfully dissent."
R.C.W., __ So. 3d at __ (Windom, P.J., dissenting).
We granted the State's petition for a writ of certiorari
to determine, as a matter of first impression, whether an
erroneous limiting instruction, as to otherwise properly
admitted Rule 404(b) collateral-acts evidence, is subject to
a harmless-error analysis.
Standard of Review
"'This Court reviews pure questions of law in criminal
cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004) (quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala.
2003)).
1120562
17
Discussion
The State argues to this Court that the collateral
evidence of R.C.W.'s sexual misconduct involving T.W.'s half
sisters was properly admitted and considered as substantive
evidence of his motive. The State concedes that the trial
court's limiting instruction to the jury was broader than
necessary because it erroneously allowed the jury to consider
evidence of R.C.W.'s sexual abuse of his other daughters for
purposes other than to show motive, i.e., for the improper
purposes of showing intent, opportunity, and plan. However,
the State argues that the trial court's erroneous limiting
instruction was harmless because, it says, although the
erroneous limiting instruction was overly broad, it did in
fact properly limit the jury's consideration of the collateral
sexual-misconduct evidence to the permissible purpose of
showing
motive
and
properly
prevented
the
jury
from
considering the evidence for the impermissible purpose of
showing the defendant's bad character.
R.C.W. argues that the decision of the Court of Criminal
Appeals properly followed this Court's decision in Ex parte
1120562
18
Billups, 86 So. 3d 1079 (Ala. 2010), a decision he says is "on
point" with the case presently before this Court.
Rule 404(b), Ala. R. Evid., provides:
"Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes, such
as
proof
of
motive,
opportunity,
intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident ...."
Rule 404(b) has been explained as follows:
"'The Alabama Supreme Court has "held that the
exclusionary rule prevents the State from using
evidence of a defendant's prior bad acts to prove
the defendant's bad character and, thereby, protects
the defendant's right to a fair trial." Ex parte
Drinkard, 777 So. 2d 295, 302 (Ala. 2000) (citing Ex
parte Cofer, 440 So. 2d 1121, 1123 (Ala. 1983)).
This court has explained that "[o]n the trial for
the alleged commission of a particular crime,
evidence of the accused's having committed another
act or crime is not admissible if the only probative
function of such evidence is to prove bad character
and the accused's conformity therewith." Lewis v.
State, 889 So. 2d 623, 661 (Ala. Crim. App. 2003)
(quoting C. Gamble, McElroy's Alabama Evidence §
69.01(1) (5th ed. 1996)).
"'"'"This exclusionary rule is
simply an application of the
character rule which forbids the
State to prove the accused's bad
character by particular deeds.
The basis for the rule lies in
the belief that the prejudicial
effect of prior crimes will far
outweigh any probative value that
1120562
19
might be gained from them. Most
agree that such evidence of prior
crimes has almost an irreversible
impact upon the minds of the
jurors."'"
"'Ex parte Jackson, 33 So. 3d 1279, 1284–85
(Ala. 2009) (quoting Ex parte Arthur, 472
So. 2d 665, 668 (Ala. 1985), quoting in
turn
C.
Gamble,
McElroy's
supra,
§
69.01(1)).'
"[Moore v. State,] 49 So. 3d [228] at 232 [(Ala.
Crim. App. 2009)] (emphasis added)."
Ex parte Billups, 86 So. 3d at 1084. Further,
"'"Rule
404(b)
is
a
principle
of
limited
admissibility. This means that the offered evidence
is
inadmissible
for
one
broad,
impermissible
purpose, but is admissible for one or more other
limited purposes...."' Taylor v. State, 808 So. 2d
1148, 1165 (Ala. Crim. App. 2000) (quoting C.
Gamble, McElroy's Alabama Evidence § 69.01(1) (5th
ed. 1996) (emphasis added)).
"....
"In Huddleston v. United States, 485 U.S. 681,
108 S.Ct. 1496, 99 L. Ed.2d 771 (1988), the United
States Supreme Court stated that, when evidence of
a defendant's other crimes, wrongs, or acts is
introduced under Rule 404(b), Fed. R. Evid., 'the
trial court shall, upon request, instruct the jury
that the similar acts evidence is to be considered
only for the proper purpose for which it was
admitted.' 485 U.S. at 691–92, 108 S.Ct. 1496
(citing United States v. Ingraham, 832 F.2d 229, 235
(1st Cir. 1987) (emphasis added)). ...
"....
1120562
20
"'[A]n instruction should advise the jury on the
purposes for which prior acts are admitted, meaning
uses that are plausible in the case at hand, and
should
not
include
a
laundry
list
of
every
conceivable use.' 1 Christopher B. Mueller and Laird
C. Kirkpatrick, Federal Evidence § 4:30 at 789 (3d
ed. 2007)."
Ex parte Billups, 86 So. 3d at 1084-86.
In Ex parte Billups, the defendant was indicted in
October 2004 on 13 counts of capital murder in relation to the
killing of 4 men at the Avanti East Apartments in Birmingham.
In June 2005, the defendant was indicted for the murder of
Stevon Lockett. In November 2005, the defendant was convicted
of 13 counts of capital murder in connection with the Avanti
East killings. The trial court sentenced the defendant to
death.
In December 2005, before the defendant was tried for
Lockett's murder, the State gave the defense notice of its
intent
to
present
evidence
regarding
the
defendant's
involvement in the Avanti East killings during his trial for
the murder of Lockett. The trial court, over the defendant's
objection,
determined that the evidence regarding the
defendant's involvement in the Avanti East killings was
admissible "'based upon the close proximity, the fact that the
1120562
21
same weapon was used, and the fact that [the offenses] [were]
very similar.'" Ex parte Billups, 86 So. 3d at 1081.
At trial, the State presented an overwhelming amount of
evidence relating to the defendant's involvement in the Avanti
East killings. The evidence presented by the State consisted
of eyewitness testimony of the Avanti East killings by two
witnesses; testimony of forensic experts, a firearms expert,
and a detective; and photographic evidence demonstrating the
victims' wounds. The State first mentioned evidence relating
to the defendant's involvement in the Avanti East killings in
its opening statement, during which the State provided the
jury with a detailed account of those killings and displayed
postmortem photographs of the four victims of the Avanti East
killings. During its case-in-chief, the State called seven
witnesses who testified regarding the Avanti East killings.
During its cross-examination of the defendant, the State asked
several questions regarding his involvement in the Avanti East
killings. The State also introduced during its cross-
examination of the defendant the postmortem photographs of the
victims of the Avanti East killings that it had displayed
during the opening statement. Finally, the State made numerous
1120562
22
references to the Avanti East killings in its closing
argument. The defendant objected on several occasions to the
introduction of the evidence relating to his involvement in
the Avanti East killings, arguing, among other things, that
the evidence was inadmissible because it was unnecessary and
prejudicial.
The trial court instructed the jury as follows regarding
its consideration of the evidence of the defendant's
involvement in the Avanti East killings:
"'Ladies and gentlemen, let me tell you one
thing about this testimony. You're hearing testimony
today
about
another
incident
that
allegedly
occurred, not the same one that [the defendant] is
actually charged with in this case.
"'The law is clear that evidence of other
crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action
and conformity therewith. In other words, evidence
of other crimes allegedly committed by the defendant
cannot be used to show bad character.
"'The evidence being presented regarding other
acts allegedly committed by the defendant can be
considered
by
you
only
for
the
purpose
of
determining either motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident.
"'I'm going to repeat those for you. But if you
think the evidence from the other case is relevant
to the issues of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
1120562
23
of mistake or accident in Stevon Lockett's death,
then you can consider this evidence.
"'But it cannot be used by you for any other
purpose; all right?'"
Ex parte Billups, 86 So. 3d at 1082. Further, the trial court
stated the following in its final instructions to the jury:
"'Now, as I instructed you during the trial,
there's been some testimony regarding an allegation
of other crimes. Evidence of other crimes, wrongs or
acts is not admissible to prove the character of a
person in order to show action and conformity
therewith. In other words, evidence of the other
crimes allegedly committed by the defendant cannot
be used to show bad character. It cannot be used to
show bad character. The evidence being presented
regarding other acts allegedly committed by the
defendant can be considered by you only for the
purpose of determining motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident, as I have instructed you. If
you think the evidence from the other case is
relevant to the issues of motive, opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident in Stevon Lockett's
death, then you can consider it. But it cannot be
used by you for any other purpose.'"
Ex parte Billups, 86 So. 3d at 1082.
The Court of Criminal Appeals concluded that the trial
court did not err in admitting the collateral-acts evidence
regarding the defendant's involvement in the Avanti East
killings, stating, in relevant part, that that evidence "was
relevant to establish [the defendant's] identity, intent,
1120562
24
pattern or plan." Billups v. State, 86 So. 3d 1032, 1053
(Ala. Crim. App. 2009). As to the trial court's limiting
instruction regarding the collateral-acts evidence, the Court
of Criminal Appeals noted that "the trial court repeatedly
instructed the jury as to the limited purpose for which
evidence about the [Avanti East] killings ... was being
admitted" and that the trial court "specifically instructed
the jury that it could not use the collateral bad act evidence
to show [the defendant's] bad character or to show that he
acted in conformity therewith." Billups, 86 So. 3d at 1053.
Judge Welch authored a vigorous dissent, concluding that,
although the collateral-acts evidence relating to the Avanti
East killings might have been admissible to show motive, it
was not reasonably necessary to prove motive and that the
prejudicial impact of the substantial evidence and argument
relating to the Avanti East killings so outweighed its
probative value that the motive exception did not justify its
admission into evidence. Billups, 86 So. 3d at 1073.
Specifically, Judge Welch stated:
"The record in this case presents a textbook example
of the reason the exclusionary rule prohibiting
collateral-act evidence was created; the extensive
evidence of collateral acts in [the defendant's]
1120562
25
trial for the murder of Lockett permitted this trial
to become, for all intents and purposes, a trial for
murders of the four Hispanic men as well. The
inadmissible
collateral
evidence
diverted
the
jurors'
minds
from
the
main
issue
of
[the
defendant's] criminal responsibility for Lockett's
death and had an irreversible impact on the jury's
decision-making process in this case. ...
"....
"In addition to the fact that the evidence about
the quadruple murders was unnecessary to the State's
case, the evidence was overwhelmingly and unduly
prejudicial to [the defendant]. The State presented
such substantial evidence and argument about the
quadruple-murder case, beginning in its opening
argument to the jury when it displayed photographs
of the four victims, that the record reads almost as
if [the defendant] were being tried for both crimes
in this trial. There was no way the jury could have
excluded
consideration of the significant and
detailed
collateral
evidence
as
impermissible
character evidence and there was a substantial
danger
that
the
jury
would
have
made
an
impermissible inference, based on the collateral
evidence, that [the defendant] was a depraved
massacring killer so he probably killed Lockett,
too. Allowing the jury to hear the collateral
evidence was far more prejudicial than probative of
the issues the majority contends it was admissible
to prove."
Billups, 86 So. 3d at 1072-77. Additionally, Judge Welch
concluded that the trial court did not properly instruct the
jury as to the purposes for which it could consider the
collateral-acts evidence of the defendant's involvement in the
Avanti East killings and that the erroneous limiting
1120562
26
instruction actually served to exacerbate the error caused by
admitting the collateral-acts evidence. Judge Welch stated:
"[A]lthough the majority has correctly stated that
the trial court did issue 'limiting' instructions,
those instructions were wrong as a matter of law.
The trial court accepted the State's invitation at
trial to instruct the jury that it could use the
collateral-act evidence for any of the reasons
listed in Rule 404(b), [Ala. R. Evid.,] even though
the State never argued that the evidence was
admissible for most of those purposes. The State
never argued that evidence about the [Avanti East
killings]
fell
within
the
exceptions
in
the
exclusionary
rule
for
evidence
related
to
opportunity, preparation, knowledge, or absence of
mistake or accident. Thus, the trial court, by
issuing its erroneous instructions, greatly enhanced
the prejudice caused when evidence about the [Avanti
East killings] was admitted because the erroneous
instructions permitted the jury to consider the
illegal evidence for many issues other than those
for which it was purportedly admitted.
"This Court considered a similar issue in
McAdory v. State, 895 So. 2d 1029 (Ala. Crim. App.
2004), when the trial court incorrectly instructed
the jury about the issues relative to which evidence
of the defendant's prior crimes could be considered.
The Court stated: 'A limiting curative instruction
only mitigates the prejudicial admission of illegal
evidence if the instruction is legally sound. The
jury could not have considered the prior convictions
for knowledge and intent because neither was at
issue.' 895 So. 2d at 1036. Thus, not only was
substantial,
prejudicial
evidence
about
the
quadruple murders erroneously admitted, but the jury
also received misleading instructions that permitted
it to consider that prejudicial evidence for issues
far beyond those for which the evidence was
initially admitted. The confusion of the jury and
1120562
27
the probable prejudice to [the defendant] is obvious
and exacerbated the devastating harm that resulted
from the erroneous admission of the testimony.
Although defense counsel did not object to the
instructions, based on the record as a whole, I
believe that the error affected [the defendant's]
substantial rights and that it seriously affected
the fairness and integrity of the proceeding against
him. ..."
Billups, 86 So. 3d at 1078-79.
The defendant argued to this Court that the trial court
committed reversible error in instructing the jury as to the
purposes for which it could consider the collateral-acts
evidence because the trial court's limiting instruction
allowed the jury to consider the collateral-acts evidence for
issues or purposes not in dispute. In reversing the decision
of the Court of Criminal Appeals, this Court stated:
"Assuming, without deciding, that the evidence
regarding [the defendant's] involvement in the
Avanti East killings was, as the State contends,
relevant to show plan, identity, motive, and intent,
the jury, pursuant to the trial court's broad
instruction, nonetheless remained free to consider
that evidence for numerous other purposes (including
opportunity, preparation, knowledge, or absence of
mistake or accident) that were indisputably not at
issue in this case. See McAdory v. State, 895 So. 2d
1029, 1036 (Ala. Crim. App. 2004) (plurality
opinion) (concluding that the jury could not have
properly
considered
the
defendant's
prior
convictions to show knowledge and intent because
neither was at issue). Presenting the jury with such
a far-reaching 'limiting' instruction carries with
1120562
28
it the same problems as providing the jury with no
specific purpose for considering the other crimes,
wrongs, or acts evidence.
"'[A]n instruction should advise the jury on the
purposes for which prior acts are admitted, meaning
uses that are plausible in the case at hand, and
should
not
include
a
laundry
list
of
every
conceivable use.' 1 Christopher B. Mueller and Laird
C. Kirkpatrick, Federal Evidence § 4:30 at 789 (3d
ed. 2007) (emphasis added). In this case, however,
the jury was allowed to consider the evidence
regarding [the defendant's] involvement in the
Avanti
East
killings
for
several
implausible
purposes, including, among others, opportunity and
absence of mistake or accident. For example, [the
defendant] made no argument at trial that Lockett's
killing was the result of an accident or that he
lacked the opportunity to kill Lockett; rather, [the
defendant's]
defense was that another person,
Charles
Cooper,
was responsible for Lockett's
murder.
"By simply reciting the complete 'laundry list'
of permissible theories under Rule 404(b), the trial
court's instruction in this case gave the jury
inadequate guidance. See Ex parte Belisle, 11 So. 3d
323,
333
(Ala.
2008)
('[A]n
appellate
court
"presume[s] that the jury follows the trial court's
instructions unless there is evidence to the
contrary."' (quoting Cochran v. Ward, 935 So. 2d
1169,
1176
(Ala.
2006))).
The
trial
court's
instruction also failed to limit the State to the
purposes--as nonspecific as they were--that it
advanced in support of admission of the evidence
regarding [the defendant's] involvement in the
Avanti East killings. Thus, we conclude that the
trial court erred by failing to limit the jury's
consideration of that evidence to only those
purposes for which the evidence was purportedly
offered by the State (plan, identity, motive, and
intent). See Huddleston [v. United States, 485 U.S.
1120562
29
681 (1988)]; cf. United States v. Tse, 375 F.3d 148,
158 (1st Cir. 2004) (finding that the district court
'adequately limited the jury's consideration of
[certain Rule 404(b)] evidence' when the court
instructed the jury that it could not use that
evidence 'to make a propensity inference' and that
the jury could use that evidence to determine only
the defendant's 'knowledge and intent').
"With regard to the erroneous jury instruction,
we agree with Judge Welch's conclusions that '[t]he
confusion of the jury and the probable prejudice to
[the defendant] is obvious' and that 'the error
affected [the defendant's] substantial rights and
... seriously affected the fairness and integrity of
the proceeding against him.' Billups, 86 So. 3d at
1079
(Welch,
J., dissenting). Accordingly, we
conclude that, under the particular circumstances of
this case, the trial court's failure to properly
instruct the jury regarding the purposes for which
it could consider the evidence of [the defendant's]
involvement in the Avanti East killings constituted
plain error."
Ex parte Billups, 86 So. 3d at 1085-86.
Although not expressly stated in this Court's main
opinion in Ex parte Billups, Judge Welch's dissent in Billups,
with which this Court expressly agreed, was based on two
independent conclusions. First and foremost, Judge Welch
determined that a substantial amount of prejudicial evidence
relating to the defendant's involvement in the Avanti East
killings had been erroneously admitted at trial. As Judge
Welch stated in Billups: "The record in this case presents a
1120562
30
textbook example of the reason the exclusionary rule
prohibiting
collateral-act
evidence
was
created;
the
extensive
evidence of collateral acts in [the defendant's] trial for the
murder of Lockett permitted this trial to become, for all
intents and purposes, a trial for murders of the four Hispanic
men as well." 86 So. 3d at 1072 (emphasis added). Second,
Judge Welch determined that the overly broad limiting
instruction
that
permitted
the
jury
to
consider
the
collateral-acts evidence for issues beyond those for which the
evidence was initially admitted resulted in obvious confusion
to the jury and probable prejudice that only exacerbated the
already prejudicial effect of the erroneously admitted
collateral-acts evidence. Billups, supra. In other words,
Judge Welch determined that the already overwhelming amount of
prejudicial evidence admitted became even more prejudicial
when considered in context with the overly broad limiting
instruction,
which
allowed
the
jury
to
consider
the
prejudicial evidence for many purposes other than those for
which it was purportedly admitted. Given the sheer volume of
prejudicial evidence admitted in Billups, the overly broad
instruction given to the jury in that case regarding the
1120562
31
purposes for which that evidence could be considered,
including matters beyond those for which the evidence was
initially admitted, certainly was prejudicial because the
limiting instruction gave the jury little guidance and no
limitations as to the proper purposes for which the jury could
consider the collateral-acts evidence. See Ex parte Billups,
86 So. 3d at 1086 (stating that "[p]resenting the jury with
such a far-reaching 'limiting' instruction carries with it the
same problems as providing the jury with no specific purpose
for considering the other crimes, wrongs, or acts evidence"
and that, "[b]y simply reciting the complete 'laundry list' of
permissible theories under Rule 404(b), the trial court's
instruction in this case gave the jury inadequate guidance").
Thus, Ex parte Billups can be read as standing for the
proposition
that
an
improper
limiting
instruction
is
prejudicial if, in effect, it offers little guidance or no
limitations to the jury as to the proper purpose or purposes
for which the collateral-act evidence could be considered.
To be sure, the factual scenario present in Ex parte
Billups is extreme, given the voluminous amount of prejudicial
collateral-acts evidence admitted at trial coupled with an
1120562
32
overly broad limiting instruction in which the trial court
simply listed each possible exception to Rule 404(b). For
that reason, the holding in Ex parte Billups is limited to a
similar factual scenario and does not "create a per se rule
requiring reversal every time a circuit court's limiting
instruction relating to collateral bad acts includes purposes
listed in Rule 404(b) for which the evidence was not
admitted." R.C.W., __ So. 3d at __ (Windom, P.J.,
dissenting).
In the present case, the State presented the limited
testimony of R.C.W.'s two other biological daughters regarding
similar acts of sexual abuse perpetrated upon them by R.C.W.
This evidence was necessary to the State's case to establish
motive, i.e., "to establish R.C.W.'s 'unnatural sexual desire
for the small children living in his household' as a motive
for the present offense." R.C.W., __ So. 3d at __.
Additionally,
this
evidence,
although
obviously
prejudicial
to
R.C.W., was not so potentially prejudicial as to outweigh its
probative value. See Irvin v. State, 940 So. 2d 331, 346 (Ala.
Crim. App. 2005). Thus, we agree with the Court of Criminal
1120562
33
Appeals' conclusion that the collateral-acts evidence in this
case was properly admitted to show motive.
We further agree with the Court of Criminal Appeals'
conclusion that the trial court's limiting instruction in this
case was erroneous because it permitted the jury to consider
the collateral-acts evidence for purposes not at issue in this
particular case, i.e., to show "opportunity, intent, or plan."
See Ex parte Billups, supra. However, for the reasons
explained below, we conclude that the erroneous limiting
instruction was harmless error.
Initially, we note that, unlike the situation in Ex parte
Billups, the potential prejudicial effect resulting in this
case from the admission of the evidence of R.C.W.'s prior
sexual misconduct with his other daughters, coupled with the
erroneous limiting instruction given by the trial court, was
muted because of the limited amount of collateral-acts
evidence admitted at trial. Here, the collateral-acts
evidence was properly admissible to show motive and was
limited to the testimony of R.C.W.'s other two biological
daughters, who testified to specific instances of similar
sexual misconduct as alleged in this case. Furthermore,
1120562
34
although the limiting instruction in this case erroneously
allowed the jury to consider the collateral-acts evidence for
issues not in dispute, the limiting instruction properly
instructed the jury that it could consider the collateral-acts
evidence for the purpose of motive and that it could not
consider the evidence to show R.C.W.'s bad character and that
he acted in conformity with that character. To the extent the
trial court's limiting instruction allowed the jury to
consider the collateral-acts evidence for issues not in
dispute, we agree with Presiding Judge Windom's conclusion
that "[b]ecause it was not plausible for evidence of R.C.W.'s
collateral bad acts to establish his intent, opportunity, or
plan, any error in allowing the jury to consider the evidence
for those purposes was harmless." R.C.W., __ So. 3d at __
(Windom, P.J., dissenting). As set forth earlier, Presiding
Judge Windom aptly explained:
"In this case, the circuit court's instruction
that allowed the jury to consider R.C.W.'s sexual
misconduct for 'improper purposes of [establishing]
intent, opportunity, and plan,' __ So. 3d at __, was
harmless because there was 'no logical reason why
[the
collateral
bad
acts]
would
demonstrate
appellant's intent[, plan, or opportunity] with
respect to [charged] offenses....' Levy–Cordero, 67
F.
3d
at
1011.
Stated
differently,
R.C.W.'s
collateral sexual misconduct did not establish his
1120562
35
specific intent to commit, his opportunity to
commit, or a plan to commit the charged offenses.
Therefore, the circuit court's erroneous limiting
instruction was harmless because it merely allowed
the jury to 'draw an inference that the evidence
could not logically support.' Id.
"Additionally,
as
the
majority
explains,
R.C.W.'s intent, opportunity, and plan were not at
issue at trial. R.C.W. was T.W.'s father, and they
lived together at the time of the offenses. From
this evidence, the jury must have drawn the
conclusion that R.C.W., who was living with his
daughter, had the opportunity to rape, sodomize, and
sexually abuse her. Because R.C.W.'s opportunity to
commit the charged offenses was clearly established
at trial, the circuit court's instruction that
allowed the jury to consider R.C.W.'s collateral bad
acts for the purpose of establishing opportunity was
harmless. Cf. Dawson v. State, 675 So. 2d 897, 900
(Ala. Crim. App. 1995) ('The erroneous admission of
evidence that is merely cumulative is harmless.'
(citing Reese v. City of Dothan, 642 So. 2d 511, 515
(Ala. Crim. App. 1993))); Woods v. State, 13 So. 3d
1, 23 (Ala. Crim. App. 2007). Likewise, as the
majority states, '[t]he intent necessary to these
types of crimes may be inferred by the jury from the
acts themselves.' __ So. 3d at __. Because R.C.W.'s
general
intent
was
established
by
the
acts
themselves, the circuit court's instruction allowing
the jury to consider additional evidence of intent
was harmless. Cf. Dawson, 675 So. 2d at 900; Woods,
13 So. 3d at 23. Finally, as the majority states,
R.C.W.'s identity was not at issue in this case
because R.C.W. did not allege that someone else
committed the crime. Because R.C.W. did not place
his identity at issue, the jury had two choices:
believe that R.C.W. committed the acts or believe
that no acts occurred. Because R.C.W.'s identity was
not at issue and the jury was left to decide only
whether the acts occurred, allowing the jury to
1120562
36
consider evidence to show a plan and thus R.C.W.'s
identity was not harmful. Id."
R.C.W., __ So. 3d at __ (Windom, P.J., dissenting).
Instructing
the
jury
that
it
could
consider
the
collateral-acts evidence for purposes for which it ultimately
would not actually consider it did not prejudice R.C.W.,
because the trial court properly instructed the jury that it
could consider the collateral-acts evidence for the proper
purpose of motive. The instruction here, although overly
broad, was not so broad that it essentially gave no guidance
or no limitation to the jury as to the proper purpose for
which the evidence could be considered. See Ex parte Billups,
supra. Because the collateral-acts evidence was appropriately
before the jury for the purpose of proving motive, and because
the limiting instruction did not rise to the level of
prejudicial ambiguity found in Ex parte Billups, any error
arising from the trial court's limiting instruction was
harmless.
Conclusion
This Court did not establish with its decision in Ex
parte Billups a per se rule requiring the reversal of a
conviction when the trial court gives an overly broad limiting
1120562
37
instruction as to the purposes for which collateral-act
evidence admitted pursuant to Rule 404(b) may be considered.
In fact, this Court expressly limited the holding in that case
to the "particular circumstances of [that] case." Ex parte
Billups, 86 So. 3d at 1086. In this matter, we agree with the
Court of Criminal Appeals that the evidence relating to
R.C.W.'s prior sexual misconduct with his daughters was
admissible to show motive. We further agree that the trial
court's
limiting
instruction
was
erroneous because it
permitted the jury to consider the collateral-acts evidence
for issues not in dispute. However, because of the
distinctions shown above this case is unlike Billups, and we
apply a harmless-error analysis and conclude that any error
arising from the trial court's limiting instruction was
harmless and was not prejudicial to R.C.W. Accordingly, the
judgment of the Court of Criminal Appeals is reversed, and the
case is remanded for further proceedings.
REVERSED AND REMANDED.
Stuart, Parker, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Shaw, J., concur in the result.
Murdock, J., dissents.
1120562
38
SHAW, Justice (concurring in the result).
I concur in the result. Under Rule 404(b), Ala. R.
Evid., evidence regarding a defendant's other misdeeds or bad
acts (hereinafter referred to as "collateral acts") is not
admissible "to prove the character of a person in order to
show" that the person acted in conformity with that character
as to the current offense. This Court has noted that such
evidence "may divert the minds of the jury from the main
issue"; thus, collateral-act evidence is "presumptively
prejudicial," and its improper admission into evidence
constitutes reversible error. Ex parte Cofer, 440 So. 2d
1121, 1124 (Ala. 1983). That stated, collateral-act evidence
can be admitted into evidence for other purposes, including
to show a person's motive, opportunity, intent, or plan. See
Rule 404(b) (listing the permissible purposes). These other
purposes, however, must be "real and open issue[s]," i.e.,
"the evidence offered must be relevant to some issue that is
material to the case." Anonymous v. State, 507 So. 2d 972,
974 (Ala. 1987). In Anonymous, this Court rejected the
argument that certain collateral-act evidence was admissible,
stating that "[t]here [wa]s simply no imaginable reason for
1120562
39
the admission of this testimony other than to prove the
defendant's bad character. This is, of course, not an
acceptable purpose." 507 So. 2d at 974.
As the main opinion and the Court of Criminal Appeals
note, the testimony regarding R.C.W.'s collateral acts--here,
prior sexual misconduct involving his other biological
daughters--was properly admissible in this case to show his
"motive" for committing the charged offenses. Because this
collateral-acts evidence was properly admitted, no prejudice
is presumed. Cofer, supra.
When collateral-act evidence is admitted, a party can
request the trial court to provide an instruction to the jury
describing the limited nature of the evidence's use. See Rule
105, Ala. R. Evid. Such a limiting instruction "has the
effect of lessening any prejudice that may have been caused by
the evidence admitted under Rule 404(b); and Alabama courts
have long urged judges to give such a limiting instruction
when evidence of a collateral act or uncharged misconduct is
admitted for a limited purpose." Taylor v. State, 808 So. 2d
1148, 1166 (Ala. Crim. App. 2000).
1120562
40
Here, the trial court gave an instruction to the jury
that the collateral-acts evidence could not be considered for
the purpose of showing R.C.W.'s "bad character" or that that
character made it more likely that he committed the charged
offenses. However, the trial court instructed the jury that
it "may be considered ... only for the limited purpose ...
regarding the defendant's motive, opportunity, intent, or
plan."
The Court of Criminal Appeals concluded that, although
R.C.W.'s collateral acts were admissible to show R.C.W.'s
motive, there was no "real or open" or material issue
regarding opportunity, intent, or plan. Thus, although the
trial court correctly instructed the jury that it "may"
consider the collateral-acts evidence to show R.C.W.'s motive,
the instruction that it "may" also consider the evidence for
the purposes of proving opportunity, intent, or plan was
improper.
In Ex parte Billups, 86 So. 3d 1079 (Ala. 2010), the
trial court, in instructing the jury on how it was to consider
evidence regarding collateral acts of the defendant, stated
that it could consider that evidence for purposes that were
1120562
Ex parte Billups also faulted the trial court's
1
instruction because it "failed to limit the State to the
purposes ... it advanced in support of the admission of the
evidence," 86 So. 3d at 1086; thus, this Court concluded that
the trial court had erred "by failing to limit the jury's
consideration of that evidence to only the purposes for which
the evidence was purportedly offered by the State." 86 So. 3d
at 1086. In the instant case, it appears that the State
actually offered the evidence of R.C.W.'s collateral acts for
the purposes described in the trial court's instruction.
41
"indisputably" not at issue. The instruction "simply
recit[ed] the complete 'laundry list' of permissible theories"
under which collateral-act evidence is permissible under Rule
404(b). 86 So. 3d at 1086. Such a "far-reaching" instruction,
we held, "carries with it the same problems as providing the
jury with no specific purpose for considering the other
crimes, wrongs, or acts" and "gave the jury inadequate
guidance." 86 So. 3d at 1086.
1
As noted in the main opinion, the factual scenario in Ex
parte Billups was extreme: the trial court simply listed all
the permissible purposes for which the voluminous collateral-
acts evidence could be used, even purposes not advanced by the
State. Thus, the language in that decision is broad.
However, consistent with the main opinion, I read Ex parte
Billups to stand for the proposition that an improper limiting
instruction is prejudicial if it, in effect, offers little
1120562
42
guidance or no limitation to the jury's consideration of the
collateral-act evidence. I would limit the holding of Ex
parte Billups to such a scenario; it thus does not "create a
per se rule requiring reversal every time a circuit court's
limiting instruction relating to collateral bad acts includes
purposes listed in Rule 404(b) for which the evidence was not
admitted." R.C.W. v. State, [Ms. CR-11-0387, November 2,
2012] ___ So. 3d ___, ___ (Ala. Crim. App. 2012) (Windom,
P.J., dissenting).
Here, the jury was instructed that it "may" consider the
collateral acts for purposes of showing motive, intent, plan,
and opportunity. According to the Court of Criminal Appeals,
the purposes of intent, plan, and opportunity were not
material. But the jury could consider the evidence for the
purpose of determining motive. I see nothing indicating that
instructing the jury that it could use the collateral-acts
evidence for three purposes for which it would, ultimately,
not use that evidence -- i.e., it would not use the evidence
to determine if R.C.W. possessed an intent, plan, and
opportunity -- necessarily prejudiced R.C.W. Telling the jury
that it could consider the evidence for something it would not
1120562
43
consider it for anyway, on its face, does not prejudice the
defendant when the evidence was otherwise properly before it
for another purpose. Ex parte Billups holds that reversible
error exists--and I believe prejudice is shown--when the
instruction is so broad that it essentially gives no guidance
or no limitation to the jury. I do not believe that the
instruction in the instant case rises to that level; I see no
error under Ex parte Billups. Because the collateral-acts
evidence was properly before the jury for another purpose, and
because the instruction does not rise to the level of
ambiguity found in Billups, I agree with the conclusion
reached in the main opinion that any error in the instruction
was harmless, i.e., it has not probably injuriously affected
R.C.W.'s substantial rights.
1120562
44
MURDOCK, Justice (dissenting).
Like the majority of the Alabama Court of Criminal
Appeals, I must conclude that the instructions given by the
trial court with regard to the jury's use of certain evidence
of "prior bad acts" by R.C.W. was confusing and potentially
prejudicial. I therefore would affirm the judgment of the
Court of Criminal Appeals in this case. Accordingly, I
respectfully dissent.
Rule 404(b), Ala. R. Evid., prohibits the admission of
evidence of prior bad acts by a criminal defendant to
demonstrate the defendant's "propensity" to act in a given
manner, i.e., to show "action in conformity therewith."
"The rule regarding admissibility of prior
misconduct by a criminal defendant has been well
stated in C. Gamble, McElroy's Alabama Evidence
§ 69.01(1) (3rd ed. 1977):
"'This is a general exclusionary rule which
prevents the introduction of [collateral]
criminal acts for the sole purpose of
suggesting that the accused is more likely
to be guilty of the crime in question. ...
"'This exclusionary rule is simply an
application of the character rule which
forbids the state to prove the accused's
bad character by particular deeds. The
basis for the rule lies in the belief that
the prejudicial effect of [collateral]
crimes will far outweigh any probative
1120562
45
value that might be gained from them. Most
agree that such evidence of [collateral]
crimes has almost an irreversible impact
upon the minds of the jurors.'"
Ex parte Cofer, 440 So. 2d 1121, 1123 (Ala. 1983). See also
Rule 403, Ala. R. Evid ("Although relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury ....").
If it is true that evidence of other types of prior
criminal acts (e.g., burglary, theft, and drug possession) can
leave an "irreversible impact upon the minds of the jurors,"
how much more so is this true as to the type of acts alleged
here? As this Court explained in Ex parte Billups, 86 So. 3d
1079
(Ala.
2010),
given
the
graphic
nature
of
the
collateral-acts evidence at issue, the risk of "'confusion of
the jury and the probable prejudice to [the defendant,]'" as
a result of the erroneous instruction "'is obvious,'" and even
constitutes "plain error." 86 So. 3d at 1086 (quoting Billups
v. State, 86 So. 3d 1032, 1079 (Ala. Crim. App. 2009)
(Welch, J., dissenting)).
I can find no meaningful distinction between the present
case and Ex parte Billups -- and certainly not one that has
1120562
46
been explained using a clear standard by which future cases
can be judged. In both Ex parte Billups and this case, the
jury was "overcharged." In both cases, the jury was told it
could consider "prior-bad-acts" evidence as to multiple
purposes for which there was no "plausible" need for the
evidence.
In Ex parte Billups, this Court concluded that the fact
that it was not plausible for the jury to use the evidence of
Billups's prior bad acts for some of the uses as to which it
was instructed
rendered
the
trial
court's
instruction
prejudicial. Today, we use the same lack of "plausibility"
rationale to conclude that the overcharging of the jury here
was harmless. I cannot reconcile these two different
perspectives.
It is true that, in Ex parte Billups, the jury was
charged as to four purposes Billups contended were not at
issue ("opportunity, preparation, knowledge, [and] absence of
mistake," 86 So. 3d at 1085), whereas here the jury was
charged as to three impermissible uses of such collateral-bad-
act evidence (intent, plan, and opportunity). I see no
distinction -- and no articulated rule of decision explaining
1120562
Likewise, there is no distinction between this case and
2
Ex parte Marks, 94 So. 3d 409 (Ala. Crim. App. 2012), in
which, as in this case, the jury was erroneously instructed
that it could consider evidence of prior bad acts for three
purposes that did not correspond to real and open issues:
"The State does not address the additional purposes
-- motive, knowledge, or modus operandi -- on which
the jury was instructed it could consider the
collateral-act evidence in this case.
"Although not as broad as the instructions at
issue in Ex parte Billups, [86 So. 3d 1079 (Ala.
2010),] the instruction in this case regarding the
permissible use of the collateral-act evidence was
too general and authorized the jury to consider the
evidence for 'implausible purposes'...."
94 So. 3d at 413 (emphasis added).
Justice Shaw states in his special writing that he sees
3
"nothing indicating that instructing the jury that it could
use the collateral-acts evidence for three purposes for which
it would, ultimately, not use the evidence -- i.e., it would
47
any distinction -- between the risk of prejudice when the
jury is instructed as to four improper uses versus three
improper uses.2
Nor do I believe we can take comfort in the notion that
jurors will be able to, and actually will, parse the different
reasons for which the trial judge tells them they may consider
problematic
evidence
and
discern
which
purposes
are
appropriate for their consideration under our rules and which
are not. Most jurors, of course, are not lawyers. They are
3
1120562
not use the evidence to determine if R.C.W. possessed an
intent, plan, and opportunity -- necessarily prejudiced
R.C.W.," __ So. 3d at __ (emphasis added), and that "[t]elling
the jury that it could consider the evidence for something it
would not consider it for anyway, on its face, does not
prejudice the defendant when the evidence was otherwise
properly before it for another purpose." ___ So. 3d at ___
(first emphasis added).
Because these were not real and open issues in this case,
4
the trial court did not explain to the jurors what Rule 404(b)
contemplates by the terms "intent" and "plan." Although the
omission of such instructions therefore was understandable,
it left the jurors to apply their common, "everyday"
understanding of these terms. The meaning of these terms
within the contemplation of Rule 404(b), however, is of course
48
instructed by the judge, the authority figure in the courtroom
upon whom the jurors depend for their understanding of the law
and the task they are to perform, that they in fact may use
this evidence for any of and all the purposes the judge lists
for them. It would only be natural for the jurors to attempt
to "plug in" this evidence to some of or all these purposes.
In this case, for example, it is not difficult to imagine one
or more jurors, after hearing from the judge that they may
consider the defendant's prior acts in relation to the
defendant's "intent" and "plan," reasoning that the defendant
probably "intended" and "planned" to abuse the victims
because, after all, he had committed similar acts on similar
victims in the past.
4
1120562
different. As the majority of the Court of Criminal Appeals
recognized:
"In the present case, R.C.W. was charged with
crimes -- first-degree rape, incest, first-degree
sexual abuse, and sodomy -- that do not require any
specific criminal intent. The intent necessary to
these types of crimes may be inferred by the jury
from the acts themselves. See Anonymous [v. State,
507 So.2d 972, 975 (Ala. 1987)]. Accordingly, the
testimony regarding the prior sexual mistreatment of
R.C.W.'s daughters was inadmissible under Rule
404(b), Ala. R. Evid., to prove intent.
"Additionally, there was no real and open issue
as to the other purpose, i.e., showing a common
plan, for which the jury was instructed it could
consider the evidence. This Court has held that the
common plan, scheme, or design exception applies
only when identity is actually at issue. See
Campbell v. State, 718 So. 2d 123, 128–29 (Ala.
Crim. App. 1997) (quoting Register v. State, 640 So.
2d 3 (Ala. Crim. App. 1993), aff'd, 680 So. 2d 225
(Ala. 1994)). The Alabama Supreme Court has also
held that the identity exception is coextensive with
the exception for plan, scheme, or system. See Ex
parte Darby, 516 So. 2d 786, 789 (Ala. 1987); 1
Charles W. Gamble & Robert J. Goodwin, McElroy's
Alabama Evidence § 69.01(6) (6th ed. 2009) ('Indeed,
there is some judicial language that these two
exceptions –- plan and identity –- are co-extensive
in the sense of rendering plan or scheme unavailable
unless identity is clearly at issue in the case.').
Here, there was nothing in the record that indicates
that R.C.W.'s identity was in issue. R.C.W. never
alleged that someone else was the perpetrator of the
crimes. See Mothershed v. State, 596 So. 2d 47, 48
(Ala. Crim. App. 1991). Thus, the evidence of the
collateral sexual misconduct was inadmissible to
prove plan."
49
1120562
R.C.W. v. State, [Ms. CR-11-0387, Nov. 2, 2012] ___ So. 3d
___, ___ (Ala. Crim. App. 2012).
50
In short, by inviting jurors to consider the use of such
collateral-acts evidence for purposes that are not at issue
and that are not further explained to the jurors, the trial
court invites confusion and attempts by jurors to find uses
for the evidence of "prior bad acts" that correspond in the
jurors' minds in some way to the trial court's instructions.
We are warned by courts and commentators alike that, "[w]hen
prior bad act evidence is offered to prove a motive for the
crime, 'courts must be on guard to prevent the motive label
from being used to smuggle forbidden evidence of propensity to
the jury.'" United States v. Varoudakis, 233 F.3d 113, 120
(1st Cir. 2000)(quoting 22 Charles Alan Wright & Kenneth W.
Graham, Jr., Federal Practice and Procedure § 5240 (1978)).
The type of instructions we accept today makes it more likely,
not less, that jurors will in effect end up considering the
evidence of the defendant's prior bad acts as evidence
indicating a propensity to have acted that way again, the very
thing Rule 404(b) was designed to guard against. As the
current version of the above-referenced treatise also warns,
experience with efforts to admit prior-bad-act evidence in
1120562
This in the context of concerns that persist among some
5
courts and commentators, notwithstanding contrary holdings by
this and other courts, that, if the defendant did the act, the
intent and motive can readily be inferred from the act itself
and that so-called "motive" evidence amounts to nothing more
than prohibited "propensity evidence." See, e.g., 22A
Federal Practice and Procedure: Evidence § 5248 (discussed in
the text, supra); State v. Wells, 289 Kan. 1219, 1229, 221
P.3d 561, 569 (2009) ("Conviction for mere 'propensity' --
defined by The American Heritage Dictionary of the English
Language 1048 (1971), as an innate inclination, a tendency or
bent -- would be the almost certain result of admitting this
evidence for motive."); State v. Kirsch, 139 N.H. 647, 654,
662 A.2d 937, 942 (1995) ("The crux of the State's argument
appears to be that the other incidents show the defendant's
desire for sexual activity with a certain type of victim.
This, however, 'is proof of propensity, not motive.'"). See
generally, e.g., 1 Kenneth S. Broun, McCormick on Evidence §
51
sex-offense cases "suggests that in practice they often
degenerate into some version of the outlawed use of other
crimes evidence to show propensity to engage in [the] crime."
22A Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure: Evidence, Other Crimes, Wrongs, or
Acts — Other Exceptions § 5248 (2012).
At the end of the day, I believe we have left ourselves
and the trial courts without a rationale -- and without a
standard -- that provides meaningful guidance going forward.
Moreover, I believe we have accepted an approach that, as a
practical matter, will have the effect in many cases of
negating the core prohibition intended by Rule 404(b).5
1120562
190 (7th ed. 2013) (explaining that "[t]he motive theory
should not apply ... when 'motive' or 'intent' is just another
word for propensity" (footnotes omitted)); 22A Federal
Practice and Procedure: Evidence, Other Crimes, Wrongs, or
Acts — Exceptions; Motive § 5240 (2012)(earlier edition cited
in the text, supra).
52 | May 30, 2014 |
72402d8c-6584-47f5-a0fc-b89793758b12 | Ex parte William Keith Robey. PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: State of Alabama v. William Keith Robey) (Jefferson Circuit Court: CC-95-4454; CC-95-4455; Criminal Appeals : CR-12-1573). Petition Denied. No Opinion. | N/A | 1121399 | Alabama | Alabama Supreme Court | REL:08/29/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1121399
____________________
Ex parte William Keith Robey
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama
v.
William Keith Robey)
(Jefferson Circuit Court, CC-95-4454 and CC-95-4455)
PER CURIAM.
PETITION DENIED. NO OPINION.
1121399
Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., dissent.
Main, J., recuses himself.
2
1121399
MOORE, Chief Justice (dissenting).
William Keith Robey petitioned this Court for a writ of
mandamus to order Judge Alfred Bahakel, Jefferson Circuit
Court, to grant Robey's application for in forma pauperis
("IFP") status and to waive prepayment of the filing fee for
1
a Rule 32, Ala. R. Crim. P., petition seeking postconviction
relief. This Court today denies Robey's petition. For the
reasons stated below, I dissent.
I. Facts and Procedural History
On June 13, 2013, Robey filed his fourth Rule 32 petition
accompanied by an application for IFP status. Attached to the
application was a report of the activity in Robey's inmate
account for the preceding 12 months that showed total deposits
of $415 or an average of $34.58 per month. On June 19, 2013,
Judge Bahakel summarily denied Robey's application for IFP
status. Robey then filed a petition for a writ of mandamus
with the Court of Criminal Appeals to compel the circuit court
to grant him IFP status. In its order of August 23, 2013,
"In forma
pauperis" means "[i]n the manner of an indigent
1
who is permitted to disregard filing fees and court costs."
Black's Law Dictionary 899 (10th ed. 2014).
3
1121399
denying Robey's petition, the Court of Criminal Appeals
stated:
"Currently, the fee for filing a postconviction
petition in the Jefferson Circuit Court is $206.
Robey's inmate account summary shows that in the 12
months preceding the filing of the Rule 32 petition
he had deposits to his inmate account in the amount
of $415. [Robey] could have saved the money to pay
the filing fee and is not indigent. See Ex parte
Wyre, 74 So. 3d 479, 482 (Ala. Crim. App. 2011)."
Robey then petitioned this Court for a writ of mandamus,
arguing that Ex parte Wyre, 74 So. 3d 479 (Ala. Crim. App.
2011), upon which the Court of Criminal Appeals relied in
denying his mandamus petition, conflicted with previous cases
that determined an inmate's indigency as of the date of the
filing of a Rule 32 petition and did not use a retrospective
"could-have-saved" rule. See Ex parte Beavers, 779 So. 2d
1223, 1224-25 (Ala. 2000); Ex parte Dozier, 827 So. 2d 774,
776 (Ala. 2002). He also argued that the rule in Wyre denied
indigent prisoners access to the courts and was thus
unconstitutional. On November
27,
2013, we ordered the circuit
judge and the State of Alabama to answer Robey's petition.
Because Judge Bahakel had retired early in 2013, Judge
Bill Cole, who assumed Judge Bahakel's docket, responded to
our order, stating, in part:
4
1121399
"The undersigned is aware that individuals
frequently abuse the privilege of being able to file
a Rule 32 Petition. If inmates are allowed to spend
any money they receive knowing that they can then
file a Rule 32 without cost, they would probably be
more willing to file a frivolous Rule 32. These
petitions can require the State of Alabama and the
judges presiding over the case to spend several
hours ruling on an issue that has already been
raised or that the petitioner may know is without
merit. To abandon any consideration of the amount of
money that has been in an inmate's prison account
during the last year could cause abuse of the
important relief individuals are allowed though Rule
32 of the Alabama Rules of Criminal Procedure."
II. Standard of Review
"A writ of mandamus is an extraordinary remedy that
requires the showing of: (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty on the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) the properly
invoked jurisdiction of the court." Ex parte McNaughton, 728
So. 2d 592, 594 (Ala. 1998). A trial court's refusal to grant
IFP status to an indigent prisoner seeking postconviction
relief makes it impossible for the prisoner to file a Rule 32
petition. "[I]n the absence of a docket fee ... or an approved
in
forma
pauperis
declaration,
the
petition
for
[postconviction] review was never properly before the trial
5
1121399
court." Goldsmith v. State, 709 So. 2d 1352, 1352-53 (Ala.
Crim. App. 1997). Because "refusal of the circuit court to
accept a petition is not a final judgment," id. at 1353, the
remedy of appeal is unavailable.
Thus, Robey satisfies the third part of the mandamus
test: the lack of another adequate remedy. For this reason,
"mandamus, and not appeal, is the proper method by which to
compel the circuit court to proceed on an in forma pauperis
petition." Goldsmith, 709 So. 2d at 1353. Robey properly
invoked the jurisdiction of this Court by timely filing a
petition for a writ of mandamus directed to the circuit court
within 14 days of the decision of the Court of Criminal
Appeals. Rule 21(e), Ala. R. App. P. The only issue remaining
is whether Robey had a clear legal right to IFP status that
the circuit court had an imperative duty to recognize.
III. Analysis
In Wyre, the Court of Criminal Appeals held that an
inmate who had "more than twice the amount" necessary to pay
a filing fee deposited in his inmate account in the previous
12 months was not indigent and that "an inmate who has
appreciably more than the amount necessary to pay a filing fee
6
1121399
deposited in his inmate account in the 12 months preceding the
filing of an IFP request is not indigent as that term is
defined in Rule 6.3(a), Ala. R. Crim. P." 74 So. 3d at 482.
The Court of Criminal Appeals in dicta has encouraged trial
courts to use the Wyre rule to deny IFP status to Rule 32
petitioners. See State v. Thomas, [CR-10-1401, May 25, 2012]
___ So. 3d ___ n.3 (Ala. Crim. App. 2012); Yocum v. State, 107
So. 3d 219 n.1 (Ala. Crim. App. 2011).
The quantity and often questionable quality of Rule 32
petitions is a valid concern for the judiciary. The Wyre rule,
however, is inconsistent with precedent of this Court
governing the methodology for determining prisoner indigency.
Additionally,
alternative
remedies
are
available
to
effectively deter frivolous Rule 32 filings without closing
the courthouse door on prisoners who lack the current means to
pay a filing fee.
A. The Volume of Postconviction Litigation
Judge Cole's concern about reducing the number of
meritless Rule 32 petitions is valid. "We do not favor
continuous, repetitious or frivolous petitions on matters
which have been finally adjudicated." Allison v. State, 277
7
1121399
Ala. 423, 424, 171 So. 2d 239, 239 (1965). See also Ex parte
Coleman, 728 So. 2d 703, 705 (Ala. 1998) ("The barrage of
postconviction petitions has caused numerous delays in the
judicial process and problems in enforcing judgments.").
The challenge of managing a flood of often questionable
prisoner litigation is not new. In 1961, the Alabama Court of
Appeals stated:
"We are now receiving a large number of various
sorts of documents from prisoners confined in the
penitentiaries of this State, seeking extraordinary
writs. Apparently encouraged by recent decisions of
the Federal courts, they do not hesitate to make the
most
extravagant
claims
of
deprivation
of
constitutional rights in their trials in the courts
of this State. It is often difficult for the court
below and for this court to determine just what
relief these documents are seeking, other than the
authors want out of the penitentiary."
Warden v. State, 41 Ala. App. 449, 450, 134 So. 2d 783, 784
(1961). This Court, noting that "[f]inality of a criminal
judgment and sentence today is as outmoded as the Model-T,"
expressed concern at the heavy toll this "mockery of our
judicial system" exacted. Cooper v. Wiman, 273 Ala. 699, 700,
145 So. 2d 216, 217 (1962).
"The petitioners take great comfort in the fact that
no matter how frivolous their allegations or how
utterly deficient their pleadings may be, the state
must respond to these ofttimes unintelligible
8
1121399
pleadings, letters or memorandums, and/or proceed to
costly and time-consuming hearings. The petitioners
have nothing to lose, for they know that the very
least they can obtain is a day away from their
prison surroundings."
273 Ala. at 701, 145 So. 2d at 217.2
B. Determining Prisoner Indigency
Effective January 1, 1991, this Court adopted the Alabama
Rules of Criminal Procedure, which defined an indigent as "a
person who is financially unable to pay for his or her
defense." Rule 6.3(a), Ala. R. Crim. P. An inmate claiming
indigency could seek a waiver of the filing fee for a
postconviction petition by attaching to the petition an "In
Forma Pauperis Declaration." At the time of the adoption of
the Alabama Rules of Criminal Procedure, Rule 32.6(a) read as
follows, in pertinent part:
"In all such cases, the petition shall also be
accompanied by a certificate of the warden or other
appropriate officer of the institution in which the
petitioner is confined as to the amount of money or
securities on deposit to the petitioner's credit in
any account in the institution, which certificate
may be considered by the court in acting upon his
application for leave to proceed in forma pauperis."
Currently, Rule 32 petitions constitute 24% of the cases
2
filed in the Alabama Court of Criminal Appeals -- about 500
filings per year. Alabama Unified Judicial System Fiscal Year
2012 Annual Report and Statistics, at 9.
9
1121399
The appendix to Rule 32 elaborated at paragraph (7):
"If you do not have the necessary fee, you may
request permission to proceed in forma pauperis, in
which event you must complete the declaration at the
end of this form, setting forth information
establishing your inability to pay the fees and
costs or give security therefor. Your declaration
must include financial information relating to the
twelve (12) months preceding the filing of this
petition."
The IFP declaration requires the inmate to disclose the "total
value" of the inmate's prison account and the amount of money
received from every source "during the past twelve months." At
the end of the IFP declaration is a certificate for a prison
official to complete as to the amount in the prisoner's
account at the "institution where he is confined." Appendix to
Rule 32. If the trial court grants the petitioner IFP status,
the clerk of court "shall file the petition" without
prepayment of the filing fee. Rule 32.6(a).
During the first decade that the IFP procedure of Rule
32.6(a) was in effect, prisoners complained that the trial
court, despite a demonstration of indigency, refused to grant
IFP status. The Court of Criminal Appeals was responsive to
these complaints. See Lucas v. State, 597 So. 2d 759, 760
(Ala. Crim. App. 1992) (reversing denial of IFP status when
10
1121399
"there has never been any more than $31.47 in the petitioner's
account at any one time" and the filing fee was $95); Robinson
v. State, 629 So. 2d 5, 5 (Ala. Crim. App. 1993) (reversing
denial of IFP status when prisoner's IFP declaration "states
that the only money available to the appellant is $6.25, which
is in his prison account"); Stafford v. State, 647 So. 2d 102
(Ala. Crim. App. 1994) (reversing denial of IFP status when
filing fee was $110, prisoner's account contained $91.83 at
the time of filing, the highest monthly balance in the account
in the previous nine months was $104.33, and the average
balance for that period was $63.15); Griggs v. State, 659 So.
2d 1044 (Ala. Crim. App. 1995) (reversing denial of IFP status
when prisoner had only $1.10 in his inmate account when he
filed his Rule 32 petition); Powell v. State, 674 So. 2d 1259,
1260 (Ala. Crim. App. 1995) (reversing denial of IFP status
when prisoner had $1.00 in his prison account when he
attempted to file the petition, the filing fee was $110, and
thus "it appear[ed] that the appellant [was] indigent");
Hawkins v. State, 675 So. 2d 1359 (Ala. Crim. App. 1995)
(reversing denial of IFP status because "[f]rom examining the
appellant's prison account balances, we conclude that the
11
1121399
appellant is indigent"); Malone v. State, 687 So. 2d 218 (Ala.
Crim. App. 1996) (reversing denial of IFP status when prisoner
showed a balance of $15.04 in his prison account on the filing
date, the maximum balance in the account over the previous
four months was $60.21, and the filing fee was $110); Cummings
v. State, 687 So. 2d 1290 (Ala. Crim. App. 1996) (reversing
denial of IFP status when prisoner had $31.49 in his prison
account when he filed the petition and the filing fee was
$110); Ex parte Coleman, supra (reversing denial of IFP status
where certificate attached to IFP declaration showed $.29 in
inmate's prison account); Ex parte Ferrell, 819 So. 2d 83
(Ala. Crim. App. 2001) (finding that prisoner satisfied
definition of indigency in Rule 6.3(a) when he had a balance
of $.17 in his prison account on the filing date, the maximum
balance in the account in prior months was $40, and the filing
fee was $140); and Ex parte Spence, 819 So. 2d 106, 106 (Ala.
Crim. App. 2001) (ordering the trial court to allow the
petitioner "to file his Rule 32 petition without the
prepayment of a filing fee" where his inmate account had $2.06
on deposit at the time of filing).
12
1121399
During that period the Court of Criminal Appeals
uniformly granted IFP status when the balance in an inmate's
prison account on the date the Rule 32 petition was filed was
less than the filing fee and the prisoner's account balance
had never exceeded the filing fee in previous months. The
opinions of this Court affirmed these principles. In Ex parte
Hurth, 764 So. 2d 1272 (Ala. 2000), the trial court relied on
a "could-have-saved" argument to deny the petitioner IFP
status:
"'The
Court has reviewed the petitioner's prison
fund.
The defendant can save the usual [amount] deposited to his
account until he has sufficient funds to pay a filing fee in
this case. Petition to proceed in forma pauperis is denied.'"
Hurth, 764 So. 2d at 1273. Although Hurth's account statement
showed an average monthly deposit of $23.57, this Court did
not agree with the trial court that Hurth was not indigent
because he "could have" saved that amount for six months to
accumulate the $140 filing fee. Instead we ordered the trial
court to approve Hurth's IFP application. Our indigency
analysis relied primarily upon Hurth's financial position at
the time he filed his Rule 32 petition.
"[T]he facts before this Court indicate that Hurth
was indigent when he filed his petition for
13
1121399
post-conviction relief. See, e.g., Malone v. State,
687 So. 2d 218, 219 (Ala. Crim. App. 1996) (holding
that the petitioner was indigent -- his prison fund
had shown a balance of $15.04 on the day before he
filed his Rule 32 petition, and his account had
never contained more than $60.21 during the four
months before he filed his petition)."
Hurth, 764 So. 2d at 1274.
In Ex parte Beavers, supra, the prisoner's sister sent
him $10 per week, his account balance at time he filed his
Rule 32 petition was zero, and the filing fee was $140.
Although Beavers theoretically could have saved the $140
filing fee from deposits received in prior months, we
nonetheless reversed the trial court's order denying him IFP
status.
"Although Beavers's in forma pauperis declaration
indicated that his sister sent him $10 per week, the
accompanying certificate indicated that he had a
zero balance in his prison account on the day he
filed his Rule 32 petition. Thus, the evidence
before us suggests that Beavers was, in fact,
indigent."
779 So. 2d at 1224-25. Finally, in Ex parte Dozier, 827 So. 2d
774, 776 (Ala. 2002), we held that a petitioner who "had a
zero balance in his prison account when he filed his Rule 32
petition" was unable to pay a $140 filing fee despite the
fact, as the dissent pointed out, that the prisoner had spent
14
1121399
over $100 on canteen sales in each of the preceding two
months. In Dozier we cited Hurth and Beavers and three similar
opinions of the Court of Criminal Appeals -- Ferrell, Coleman,
and Malone.
In Hurth, Beavers, and Dozier, we also stressed that
refusing to accept Rule 32 filings from prisoners who, at the
time of filing, lacked the funds to pay a filing fee raised
troubling constitutional questions. In Hurth we stated:
"'To impose any financial consideration between an
indigent prisoner and the exercise of his right to
sue for his liberty is to deny that prisoner equal
protection of the laws.' Hoppins v. State, 451 So.
2d 363, 364 (Ala. Crim. App.1982) (citing Smith v.
Bennett, 365 U.S. 708, 81 S. Ct. 895, 6 L. Ed. 2d 39
(1961)). 'While habeas corpus may, of course, be
found to be a civil action for procedural purposes,
it does not follow that its availability in testing
the State's right to detain an indigent prisoner may
be subject to the payment of a filing fee.' Smith,
365 U.S. at 712, 81 S. Ct. 895. (Citation omitted.)
'[I]n order to prevent "effectively foreclosed
access" [to the courts], indigent prisoners must be
allowed to file appeals and habeas corpus petitions
without payment of docket fees.' Bounds v. Smith,
430 U.S. 817, 822, 97 S. Ct. 1491, 52 L. Ed.2d 72
(1977)."
Hurth, 764 So. 2d at 1274. In Beavers, we repeated the
quotations in Hurth from Hoppins v. State, 451 So. 2d 363, 364
(Ala. Crim. App. 1982), and Bounds v. Smith 430 U.S. 817
15
1121399
(1977). 779 So. 2d at 1224. In Dozier, we quoted Beavers'
statement of these principles. 827 So. 2d at 775-76.
Thus, Robey is quite correct in arguing that the "could-
have-saved" rule adopted in 2011 in Wyre directly conflicts
with earlier cases decided both by this Court and by the Court
of Criminal Appeals. The attorney general's brief does not
dispute this point.
Effective August 1, 2002, this Court amended Rule 32.6(a)
to require that the prison certificate accompanying the
inmate's IFP declaration must state the amount on deposit "for
the previous twelve (12) months." The addition of this phrase
to the rule, however, cannot be viewed as authorizing the
Court of Criminal Appeals to abandon the previous practice of
determining indigency by comparing the filing fee with the
balance in the inmate's account on the date of filing or the
maximum balance in previous months. A year after the
amendment, the Court of Criminal Appeals denied IFP status to
an inmate facing a $149 filing fee whose prison account showed
"monthly balances as high as $185." Ex parte Holley, 883 So.
2d 266, 269 (Ala. Crim. App. 2003). That decision is
consistent with the prior practice of comparing the filing fee
16
1121399
with the maximum monthly balance in an inmate's account.
Holley departed from precedent, however, in not also placing
significant weight on the balance in the inmate's account at
the time of the filing of the Rule 32 petition.
The maximum-monthly-balance rule, however, is a far cry
from the 2011 decision in Wyre to base the determination of
indigency on a comparison of the filing fee with the total
deposits for the 12 months preceding the filing. The annual
deposit total, for example, is 12 times the average monthly
deposit. Using Wyre's annual-sum-of-deposits calculation as
the threshold for indigency means that a prisoner like Robey,
who had an average monthly income of $34.58, would not be
considered indigent though he had only $27.45 in his account
at the time of filing and was faced with the payment of a $206
filing fee, which represented almost six times his average
monthly deposit. Wyre's drastic alteration of the method for
calculating
indigency
is
inconsistent
with
governing
precedent
of this Court interpreting Rule 6.3(a) and Rule 32.6(a).3
Requiring a prisoner like Robey to save every penny of
3
his income for six months to prepay a filing fee could also
preclude access to the courts by allowing the statute of
limitations for filing a Rule 32 petition to expire while the
prisoner was saving for the filing fee. Rule 32.2(c), Ala. R.
17
1121399
C. Alternative Means of Deterring Meritless Filings
Judge Cole's concern that allowing indigent prisoners "to
file a Rule 32 without cost" will overwhelm the courts with
meritless filings may be alleviated under current law without
denying equal protection of the laws to poor prisoners or
abandoning the precedent of Hurth, Beavers, and Dozier. Since
1975 Alabama law has provided for the imposition of indigent
filing fees after the fact. "The docket fee may be waived
initially and taxed as costs at the conclusion of the case if
the court finds that payment of the fee will constitute a
substantial hardship." § 12-19-70(b), Ala. Code 1975. See Ex
parte Coleman, 728 So. 2d at 707 (noting that a trial court
"may protect itself from prolific litigants" by "tax[ing] the
fee as costs at the end of the proceeding") (citing § 12-19-
70(b)); Ex parte Beavers, 779 So. 2d at 1224 (noting the
provision in § 12-19-70(b) for an initial waiver of the docket
fee for an indigent prisoner followed by an imposition of the
fee at the conclusion of the case); Castillo v. State, 786 So.
2d 1147, 1149 (Ala. Crim. App. 2000) (noting that "the court
Crim. P. For a discussion of this point, see Ex parte Johnson,
123 So. 3d 953, 954 (Ala. 2013) (Moore, C.J., dissenting).
18
1121399
may properly tax the cost of the filing fee to the petitioner
at the conclusion of the case, even if the petitioner has
previously been determined to be indigent"); and Neal v.
State, 803 So. 2d 586, 588 (Ala. Crim. App. 2001) (noting that
"docket fees can be waived for indigent petitioners because of
the processes that allow an indigent inmate to repay those
costs").
In 2002 this Court amended Rule 32.6(a) to add language
allowing for after-the-fact recovery of indigent filing fees:4
"If the application to proceed in forma pauperis is
granted, the filing fee shall be waived. If, upon
final disposition of the petition, the court finds
that all of the claims for relief are precluded for
any of the reasons stated in Rule 32.2, it may
assess the filing fee, or any portion thereof, and
order the correctional institution having custody of
the petitioner to withhold 50% of all moneys the
institution then has on deposit for the petitioner,
or receives in the future for the petitioner, until
the filing fee that has been assessed by the court
has been collected and paid in full."
(Emphasis added.) Thus, a prisoner who files a meritless
petition is subject to a lien on his inmate account of 50% of
future deposits until the filing fee is paid in full. Section
12-19-70(b) and the more detailed recovery language of Rule
The
language
was
subsequently
moved
to
Rule
32.7(e),
Ala.
4
R. Crim. P. See discussion infra.
19
1121399
32.6(a) work together to provide that an indigent inmate who
files a meritless petition is liable for repayment of the
filing fee from his prison account. See Clemons v. State, 55
So. 3d 314, 334 & n.8 (Ala. Crim. App. 2003) (noting that
"[s]ection 12-19-70, Ala. Code 1975, applies to Rule 32
petitions" and quoting from the recovery section of Rule
32.6(a)). Effective November 28, 2012, the recovery language
in Rule 32.6(a) was moved to Rule 32.7(e), Ala. R. Crim. P.
("Assessment of Filing Fee"). In addition to the preclusion
grounds of Rule 32.2, the new Rule 32.7(e) added two
additional grounds for recovery of the filing fee, namely that
the claims for relief "are lacking in specificity as required
by Rule 32.6(b), or fail to state a claim of law or fact that
is meritorious."
A petitioner whose claim survives summary dismissal under
Rule 32.7(d), Ala. R. Crim. P., and is therefore entitled to
an evidentiary hearing is not subject to recovery of the
filing fee under Rule 32.7(e). Thus, a lien is placed on an
indigent prisoner's account for recovery of a filing fee only
if the petition itself is meritless. Section 12-19-70 and Rule
32.7(e), if implemented by the trial courts, provide a strong
20
1121399
disincentive for prisoners to file frivolous Rule 32
petitions. The practice of denying IFP status to prisoners who
currently are financially unable to pay a filing fee, but who
theoretically could have saved the money for the fee over the
previous year, seems incompatible with the plain language of
Rule 6.3(a). The Wyre rule also places an obstacle in the path
of poor prisoners that those with more assets do not face,
thus raising the constitutional issues that this Court
identified in Hurth, Beavers, and Dozier.
In 1996, concerned about the rising tide of prisoner
litigation, Congress passed the Prison Litigation Reform Act
("PLRA"). A section of the PLRA, codified at 28 U.S.C. § 1915,
requires that an indigent prisoner, "when funds exist," pay
20% of the balance in the inmate's account as a down payment
on a filing fee. 28 U.S.C. § 1915(b)(1). Twenty per cent of
the funds in the inmate's prison account are requisitioned
every month thereafter, so long as the balance in the account
is above $10, until the fee is paid in full. 28 U.S.C. §
1915(b)(2). Rather than foreclosing an indigent inmate from
filing a petition until the full filing fee has been saved,
the PLRA, like Rule 32.7(e), allows recovery of the fee after
21
1121399
the conclusion of the case, thus eliminating access-to-the-
courts and equal-protection issues. The PLRA specifically
5
emphasizes that "[i]n no event shall a prisoner be prohibited
from bringing a civil action ... for the reason that the
prisoner has no assets and no means by which to pay the
initial partial filing fee." 28 U.S.C. § 1915(b)(4). The
federal policy of allowing indigents freely to file petitions
and then providing for recovery of the filing fee by an
assessment against the inmate's account at the conclusion of
the case had a noticeable deterrent effect. "The [PLRA] has
been highly successful in reducing litigation, triggering a
forty-three percent decline over five years, notwithstanding
the simultaneous twenty-three percent increase in the
The attorney general argues that federal law requires a
5
showing that a prisoner's petition has merit before IFP status
will be granted on an access-to-the-courts claim. State's
brief, at 10-14. Under Alabama law, however, a trial court
does not have subject-matter jurisdiction to consider the
merits of a Rule 32 petition until the IFP issue has been
resolved and the filing fee has been either paid or waived. Ex
parte Carter, 807 So. 2d 534, 536-37 (Ala. 2001). In any
event, the equal-protection issue, which is distinct from an
access-to-the-courts claim, is also fully implicated by the
Wyre rule.
22
1121399
incarcerated population." Margo Schlanger, Inmate Litigation,
116 Harv. L. Rev. 1555, 1694 (2003).6
Enforcing the provisions of Rule 32.7(e) and § 12-19-70
is wiser in my view than leaving in place a barrier to filing
-- the Wyre rule -- that is constitutionally questionable,
unspecified in rule or statute, and incompatible with this
Court's decisions on this issue.
IV. Remedy
Because Wyre is inconsistent with our prior cases on
determining indigency, Robey, in my opinion, is entitled to
relief. However, the proper remedy is not obvious. After the
Court of Criminal Appeals denied Robey's petition for a writ
of mandamus, he did not have the option of asking this Court
to correct that ruling: "If an original petition for
extraordinary relief has been denied by the court of appeals,
review may be had by filing a similar petition in the supreme
court (and, in such a case, in the supreme court the petition
shall seek a writ directed to the trial judge)." Rule
In 2013, the Alabama Legislature enacted the Alabama
6
Prisoner Litigation Reform Act ("APLRA"), § 14-15-1 et seq.,
Ala. Code 1975. Although similar in substance to the PLRA, the
APLRA does not apply to Rule 32 petitions. § 14-15-2, Ala.
Code 1975.
23
1121399
21(e)(1), Ala. R. App. P. Bound by Rule 21, Robey had no
choice but to direct his petition in this Court to the trial
judge rather than to the Court of Criminal Appeals. Thus,
although Robey had a clear legal right to have his IFP
application considered under the proper legal standard, the
trial judge, obeying the Court of Criminal Appeals in applying
Wyre, cannot be said to have had an "imperative duty" to
disregard Wyre and adopt our controlling precedent.
Under the peculiar posture of this case, I would decline
to issue a writ of mandamus to the trial judge, who followed
what he understood to be valid direction from the Court of
Criminal Appeals. Instead, I would order the trial court to
reconsider Robey's IFP application in keeping with the
governing precedent expounded in Hurth, Beavers, and Dozier,
and the available remedies in § 12-19-70 and Rule 32.7(e).
24 | August 29, 2014 |
c28fec8a-c35d-4870-8c48-bd209f4ef9f0 | Stokes, Jr. v. Cottrell | N/A | 1111006 | Alabama | Alabama Supreme Court | REL:02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1111006
____________________
Ex parte E'Stella Alexander Webb Cottrell
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Frank Stokes, Jr.
v.
E'Stella Alexander Webb Cottrell et al.)
____________________
1111011
____________________
Ex parte Johnnie Mae Alexander Green et al.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Johnnie Mae Alexander Green et al.
v.
E'Stella Alexander Webb Cottrell)
(Elmore Circuit Court, CV-03-321;
Court of Civil Appeals, 2101086; 2100920)
MOORE, Chief Justice.
E'Stella Alexander Webb Cottrell ("Cottrell"), on the one
hand, and Johnnie Mae Alexander Green, Lillie Robinson, Oscar
C. Alexander, Bertha Mae Humphrey, Shirley Alexander, Cathy
Alexander, Johnny Alexander, Jr., and Althea Alexander ("the
Alexander plaintiffs"), on the other, separately petition for
a writ of certiorari reversing the Court of Civil Appeals'
judgment overturning an award to them of three parcels of land
from the estate of Estelle Haggerty Alexander ("Estelle"). We
granted certiorari review, and we now reverse and remand.
I. Facts and Procedural History
In 1962, Estelle, who owned 6 parcels of land in Elmore
County consisting of 270 acres, died intestate. Estelle's
cousin and
nearest
next-of-kin, Larenda Jenkins,
was
immediately vested with ownership of the land. See McCollum v.
Towns, 435 So. 2d 17, 19 (Ala. 1983) (noting that "real estate
2
1111006, 1111011
vests immediately in the heirs at law," subject to the
decedent's debts). Living on the land at the time of Estelle's
death were Johnny Alexander, Sr., his family, and Cottrell.
Although Estelle had raised Johnny Sr. and Cottrell from
infancy, they were not her children, and she never adopted
them. The Elmore County Probate Court appointed Larenda
Jenkins administrator of Estelle's estate. In 1963 Cottrell
and Johnny Sr. filed a complaint seeking title to 100 acres of
Estelle's land on the theory that Estelle had intended them to
own it. Their action was dismissed in 1975 for lack of
prosecution. Cottrell moved off the property in 1965 and
never lived there again.
In 1965 Larenda Jenkins died and was succeeded as
administrator
by
her
granddaughter,
Johnnie
Mae
Stokes.
Stokes
died intestate in 1996. Frank Stokes, Jr., Johnnie Mae's son
("Stokes"), then assumed the duties of the administration of
Estelle's estate. Throughout this period the estate was not
formally closed. Johnny Sr. had eight children (seven of whom
are Alexander plaintiffs). Many of them grew up on the land
and continued to live there after his death in 1988.
3
1111006, 1111011
In 2002, Cottrell and Oscar C. Alexander, one of Johnny
Sr.'s sons, alleging that they were the lineal descendants and
thus heirs of Estelle, filed a petition seeking to be
appointed as administrators of Estelle's estate. After the
probate court issued letters of administration, Cottrell and
the
Alexander
plaintiffs
(hereinafter
referred
to
collectively
as "the plaintiffs") signed an agreement with a third party to
sell the 270 acres for $450,000. In 2003, the plaintiffs then
filed an action in the Elmore Circuit Court to quiet title to
the land in themselves. Stokes opposed that action and
presented evidence indicating
that none of the
plaintiffs
were
Estelle's legal heirs but that he was an heir and entitled to
the property through intestate descent from Larenda Jenkins.
After the plaintiffs recanted their assertions of
a
biological
relationship with Estelle, the probate court vacated its
orders
appointing
Cottrell
and
Oscar
Alexander
as
administrators of the estate. The circuit court then set the
quiet-title action for trial based on the plaintiffs' newly
adopted theory of adverse possession.
Following a bench trial, the court divided the six
parcels of land that constituted Estelle's estate, finding
4
1111006, 1111011
that the plaintiffs and their ancestors had adversely
possessed three parcels ("the three parcels") by living on the
land and engaging in certain activities there but that the
heirs of Larenda Jenkins, as holders of legal title, were
entitled to the other three ("the farmed parcels"). All
parties appealed. Stokes attacked the settling of the three
parcels in the plaintiffs. Cottrell and the Alexander
plaintiffs
separately
cross-appealed,
seeking
title
to
all
six
parcels between them. This Court deflected the appeal to the
Court of Civil Appeals. Holding that the plaintiffs'
possession of the land was permissive rather than adverse, the
Court of Civil Appeals reversed the circuit court's judgment
in part and instructed the circuit court that title to all six
parcels should be quieted in Stokes and any other heirs of
Larenda Jenkins. Stokes v. Cottrell, 58 So. 3d 123 (Ala. Civ.
App. 2008), vacated in part sub nom., Ex parte Green, 58 So.
3d 135 (Ala. 2010).
This Court granted the separate petitions for a writ of
certiorari filed by Cottrell and the Alexander plaintiffs.
Holding
that
unadjudicated
issues
rendered
the
circuit
court's
judgment unappealable in
part,
this Court vacated the judgment
5
1111006, 1111011
of the Court of Civil Appeals reversing the award of the three
parcels to the plaintiffs and remanded the case for further
proceedings. Ex parte Green, 58 So. 3d 135 (Ala. 2010) ("Green
I"). This Court also quashed in part the writ it had issued to
review the judgment of the Court of Civil Appeals affirming
the trial court's award of the farmed parcels to the heirs of
Larenda Jenkins. This Court held that Stokes's leasing of the
farmed parcels to third parties rendered the plaintiffs'
possession nonpeaceable and thus not amenable to
a
quiet-title
action. 58 So. 3d at 146-49 (citing § 6-6-560, Ala. Code
1975).
On remand from the Court of Civil Appeals, the circuit
court did not revisit its original division of the land
between the plaintiffs and Stokes but did hold a hearing to
further allocate the three parcels, settling 50% of that land
in Cottrell and the other 50% in the Alexander plaintiffs. The
Alexander plaintiffs appealed, challenging the award of
50%
of
the three parcels to Cottrell. Stokes also appealed, seeking
reversal of the award of the three parcels to the plaintiffs.
Because the circuit court did not reexamine its award of three
parcels to each side, the Court of Civil Appeals simply
6
1111006, 1111011
adopted its original analysis from the first
appeal.
Reversing
the award of the three parcels to the plaintiffs, it quieted
title for the three parcels in the heirs of Larenda Jenkins.
The Court of Civil Appeals then dismissed as moot any review
of the circuit court's allocation of the three parcels as
between Cottrell and the Alexander plaintiffs. Green v.
Cottrell, [Ms. 2100920, Feb. 10, 2012] ___ So. 3d ___ (Ala.
Civ. App. 2012).
We granted the petitions of Cottrell and the Alexander
plaintiffs for certiorari review of the 2012 decision of the
Court of Civil Appeals.
II. Standard of Review
"Where a trial court hears ore tenus testimony,
as in this case, its findings based upon that
testimony are presumed correct, and its judgment
based on those findings will be reversed only if,
after a consideration of all the evidence and after
making all inferences that can logically be drawn
from the evidence, the judgment is found to be
plainly and palpably erroneous. The trial court's
judgment will be affirmed if there is credible
evidence to support the judgment. Furthermore, where
the trial court does not make specific findings of
fact concerning an issue, this Court will assume
that the trial court made those findings necessary
to support its judgment unless such findings would
be clearly erroneous. The presumption of correctness
is particularly strong in boundary line disputes and
adverse possession cases, because the evidence in
7
1111006, 1111011
such cases is difficult for an appellate court to
review."
Bearden v. Ellison, 560 So. 2d 1042, 1043-44 (Ala. 1990)
(citations omitted) (emphasis added).
III. Analysis
In Green I, we held that the plaintiffs could not
maintain an action to quiet title to the farmed parcels, which
the heirs of Larenda Jenkins had leased to third parties,
because the plaintiffs were unable to satisfy the statutory
requirement that they were in peaceable possession of the
farmed parcels. See § 6-6-560, Ala. Code 1975. The plaintiffs
have not sought certiorari review on this issue. Thus, the
only issue for decision is whether the Court of Civil Appeals
erred in overturning the circuit court's award of the three
parcels to the plaintiffs on an adverse-possession theory.
A. Quiet-Title Analysis
When a plaintiff seeking to quiet title establishes
peaceable possession, the burden then shifts to the defendant
to demonstrate valid legal title. Upon that demonstration the
burden shifts back to the plaintiff to show superior title by
adverse possession or a better deed. Wiggins v. Stapleton
Baptist Church, 282 Ala. 255, 257, 210 So. 2d 814, 816-17
8
1111006, 1111011
(1968). Sufficient evidence exists in the record from which
the circuit court could have found that the plaintiffs had
peaceable possession of the three parcels at the time they
filed the underlying action in 2003. The leases given by the
Jenkins heirs for third parties to farm and hunt and the
actual use of the land by the lessees could be interpreted to
apply to the entire property, i.e., the three parcels and the
farmed parcels, or to only the farmed parcels. Thus, credible
evidence and reasonable inferences from that evidence
supported a
finding
of peaceable possession, even though other
evidence existed that would
support
a contrary conclusion. The
burden then shifted to Stokes to show valid legal title to the
three parcels. When Stokes provided evidence that title had
vested in him by intestate succession, the burden shifted back
to the plaintiffs to show that they held superior title by
deed or intestacy or through adverse
possession.
They provided
no evidence of possession of a deed to the land or vesting by
intestacy. Thus, "[t]he only other available method by which
[Cottrell
and]
the
Alexander
plaintiffs
could
have
established
superior title
was through adverse possession."
Stokes,
58 So.
3d at 131.
9
1111006, 1111011
B. Adverse Possession
When the initial possession is permissive, as it was in
this case, "'continued use will not ripen into adverse
possession by mere lapse of time.'" Stokes, 58 So. 3d at 132
(quoting Wadsworth v. Thompson, 912 So. 2d 529, 533 (Ala. Civ.
App. 2005)).
"In order to change possession from permissive to
adverse, the possessor must make a clear and
positive disclaimer or repudiation of the true
owner's title. The possessor must give the true
owner actual notice of such disavowal, or he must
manifest acts or declarations of adverseness so
notoriously that actual notice will be presumed."
Calhoun v. Smith, 387 So. 2d 821, 824 (Ala. 1980).
The Court of Civil Appeals analyzed this issue as
follows:
"We find no evidence of a repudiation or
disclaimer of this permissive use preceding the
filing of the 2003 quiet-title action by the
Alexander plaintiffs. The evidence establishes that
the Alexander plaintiffs lived on parcel 1,
maintaining only 3 to 4 acres of that 100-acre tract
for their personal use. They did not establish any
fencing on the property or post any notices on the
property to declare in any way that the property
belonged
to
them.
They
did
not
notify
the
administrators or any other heir of Larenda Jenkins
that they claimed the property as their own.
"Additionally, the Alexander plaintiffs were
aware that the taxes assessed against the property
were paid by the administrators of Estelle's estate
10
1111006, 1111011
and then by Frank Stokes, Jr., from 1962 up until at
least the late 1990s and possibly until 2003, when
this quiet-title action was filed. The Alexander
plaintiffs accepted that benefit and continued
living on the land without cost until they decided
to pursue a quiet-title action.
"Further, the Alexander plaintiffs were aware
that the administrator was leasing the property to
third parties and that those leases applied to all
the property in Estelle's estate. In fact, the two
leases included in the record demonstrated the
permissive nature of the Alexander plaintiffs' use.
Johnnie Mae Stokes granted third parties the right
to farm, hunt, and fish on the property but reserved
to the Alexander plaintiffs the right to hunt and
fish on the property as well. This permissive use
was expressed in a lease agreement as late as 1993.
Further, one of the lessees testified that he had
run into Johnny Jr. while the lessee was on the
property and that Johnny Jr. had not inquired of him
why he was there and had not asked him to leave.
"Based on the record evidence, it appears that
the Alexander plaintiffs knew and acknowledged that
the administrators and Frank Stokes, Jr., exercised
control over the property and that third parties,
acting under the authority of Jenkins and the
Stokeses, were within their rights to be on the
property. Such acquiescence is inconsistent with the
exclusive, hostile, open, and notorious possession
of
property
required
to
establish
adverse
possession.
"Because
the
Alexander
plaintiffs'
possession
of
the property was permissive and because they
established no evidence of repudiation or disclaimer
of that permissive nature, their claim of adverse
possession failed as a matter of law."
Stokes, 58 So. at 132-33.
11
1111006, 1111011
However, contrary evidence existed from which the circuit
court could have found "a clear and positive disclaimer or
repudiation of the true owner's title." Calhoun, 387 So. 2d at
824. In particular, in 1963 Cottrell and Johnny Sr. sued
Larenda Jenkins in the Elmore Circuit Court "individually and
as administratrix of the estate of Estelle Alexander,"
alleging that Estelle had
purchased the property identified as
parcel one in this case "while your complainants were minors,
holding it in trust for the said complainants." They further
alleged that "your complainants are the owners of the above
described real estate" and
"den[ied] that said Larenda Jenkins
own[ed] any right, title or interest in and to said lands in
any
capacity whatsoever ...." They requested that, "upon
proof
of the material allegations of the bill, Your Honor will enter
an order vesting the legal title to the real estate described
in the Bill of Complaint in your complainants share and share
alike and that by said decree Your Honor will settle the title
to said lands ...."
The service of this action upon Larenda Jenkins
constituted "a clear and positive disclaimer
or
repudiation of
the true owner's title," but only as to the 100 acres
12
1111006, 1111011
constituting parcel one. Jenkins demurred to the complaint.
After Jenkins died in 1965, Johnny Sr. moved the court to
substitute her heirs as defendants. The suit languished,
perhaps because oral evidence is insufficient to establish
title to land, and was dismissed for lack of prosecution in
1975. In Green I Chief Justice Cobb dissented from this
Court's vacating the Court of Civil Appeals' judgment for lack
of an appealable final judgment. Accordingly, she addressed
the merits and stated:
"In 1965, Cottrell and Johnny Alexander, Sr., filed
a complaint, alleging that, during her lifetime,
Estelle had purchased 100 acres of the land for
their benefit and that, at the time of Estelle's
death, the property was being held in a constructive
trust for them. Competing inferences may be drawn
from the existence of the action and the fact that
the
1965
action
was
dismissed
for
lack
of
prosecution. However, a finder of fact could
reasonably conclude that the action manifested a
disavowal of the record owner's title sufficient to
notify the record owner that Cottrell and Johnny Sr.
did not recognize the validity of the record owner's
title to at least 100 acres of the property."
58 So. 3d at 165-66.
In addition to the effect of the 1963 quiet-title action
in disclaiming title, the evidence cited by the Court of Civil
Appeals in support of a finding of permissive possession is
not unequivocal. For instance, "payment of the property taxes
13
1111006, 1111011
by the record title holder does not prevent adverse possession
of the property." Lilly v. Palmer, 495 So. 2d 522, 530 (Ala.
1986). Chief Justice Cobb framed the evidence as follows:
"In addition, the plaintiffs used the property
in whatever manner they pleased without accounting
to anyone for their use of it and without paying
rent. They lived on the property for several
generations,
maintained
improvements
on
it,
cultivated portions of it, drew water from it, kept
domestic livestock on it, cut timber on it, cut
firewood on it, hunted on it, fished on it, operated
a business on it, and buried their dead on it. Until
shortly before the trial of this case, a number of
the plaintiffs believed themselves to be, and openly
held themselves out to be, the grandchildren and
heirs of Estelle Haggerty Alexander.
"One
could
reasonably
conclude
from
the
evidence
that the plaintiffs clearly and openly held
themselves out to be the rightful owners of the
property, not merely permissive users."
58 So. 3d at 166.
The Court of Civil Appeals stated the ore tenus rule in
its standard-of-review section, Stokes, 58 So. 3d at 129, but
in its analysis of the evidence did not accord the circuit
court's findings the required deference.
Were we deciding this
case in the first instance, we might well rule as the Court of
Civil Appeals did on the merits. However, showing due respect
to the judgment of the circuit court, as the ore tenus rule
requires, we conclude that credible evidence was presented to
14
1111006, 1111011
support the circuit court's allotment to the plaintiffs of the
three parcels, which included the 100-acre parcel at issue in
the 1963 quiet-title action.
"[O]pposing inferences [are] to be finally resolved
by the decree of the trial judge who heard the
witnesses testify and whose conclusion has the force
and effect of a jury verdict. According the usual
presumption
of
correctness
to
the
conclusion
attained by him, we would not be warranted in
disturbing his finding."
Stewart v. Childress, 269 Ala. 87, 94, 111 So. 2d 8, 14
(1959). See Lilly v. Palmer, 495 So. 2d at 530 (noting that
"it is a rare case when this Court will overturn a finding by
a trial judge who hears an adverse possession case presented
ore tenus").
IV. Conclusion
We reverse the judgment of the Court of Civil Appeals in
both case no. 2100920 and case no. 2101086. Our reversal of
the Court of Civil Appeals' judgment on the three parcels
(case no. 2101086) revives the argument of the Alexander
plaintiffs that the trial court erred in awarding 50% of the
three parcels to Cottrell (case no. 2100920). The Court of
Civil Appeals dismissed the appeal of
the
Alexander plaintiffs
in case no. 2100920 as moot because it was reversing the award
15
1111006, 1111011
of the three parcels to the plaintiffs. Accordingly, on remand
of this case the Court of Civil Appeals is to decide the
issues presented in case no. 2100920.
1111006 -- REVERSED AND REMANDED.
1111011 -- REVERSED AND REMANDED WITH DIRECTIONS.
Stuart, Bolin, Parker, Main, and Wise, JJ., concur.
Murdock and Shaw, JJ., concur in the result.
Bryan, J., recuses himself.*
*Justice Bryan was a member of the Court of Civil Appeals
when that court considered this case.
16 | February 28, 2014 |
01857b19-104e-4d52-b2b9-016e6b9f0cac | Ex Parte Perry County Board of Education | 180 So. 2d 246 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 246 (1965)
Ex parte PERRY COUNTY BOARD OF EDUCATION et al.
2 Div. 480.
Supreme Court of Alabama.
November 18, 1965.
*247 Goodwyn & Smith, Montgomery, for petitioner.
Pitts & Pitts, Selma, for respondent.
HARWOOD, Justice.
Prior to 1965, the Perry County Board of Education had operated all of the schools in Perry County.
In January 1965, the City of Marion, in Perry County, established its own educational system, appointed a City Board of Education and by resolution of the City Council transferred to the jurisdiction of the Board of Education of the City of Marion the public schools within the City of Marion. This action was pursuant to the provisions of Title 52, Section 148 et seq., as amended. Thereafter the State Department of Education transferred the schools' plants and properties in the City of Marion to the jurisdiction of the Marion City Board of Education.
During the summer of 1965, the complainants who are parents of children living in northwest Perry County began contacting the Perry County Board of Education as to what arrangements were to be made for transporting children living in the northwest area of the county to schools, the children having theretofore attended the schools in the City of Marion. Finally on 27 August 1965, some three days before the opening day of the schools on 31 August 1965, the Perry County Board of Education notified the parents of the children living in the above mentioned area of Perry County that the County Board would not transport children on county busses to the schools in the City of Marion which was then under the jurisdiction of the City of Marion Board of Education.
On 12 September 1965, the complainants, who are parents of children who previously had attended schools in Marion, and who lived in northwest Perry County, filed a bill against the Perry County Board of Education and the County Superintendent of Education, and the Board of Education of the City of Marion, and the Superintendent of Schools for the City of Marion. The bill sought an injunction, a temporary injunction, and a declaratory judgment to order the Perry County Board of Education to provide transportation to schools in the City of Marion for children living in northwest Perry County who had attended schools in the City of Marion in the school year 1964-1965.
The bill, after setting forth certain facts in detail avers that the "arrangement of transportation worked out by the Perry County Board of Education is unreasonable, unjust, unfair, and discriminatory as it pertains to the children who reside in said area and places an undue burden upon said children and their parents." We note that the transportation arrangement complained of provides for transportation of children living outside in City of Marion to schools operated by the County Board of Education only.
After a hearing the lower court issued a temporary injunction by the terms of which the Perry County Board of Education and the Perry County Superintendent of Education were separately and severally enjoined:
On 13 September 1965 the Perry County Board of Education and the Perry County Superintendent of Education petitioned this court for a writ of Prohibition and that a rule nisi be issued to Hon. L. S. Moore, Judge of the Circuit Court of Perry County in Equity directing him to show cause why he should not be prohibited from proceeding further in said cause.
On 15 September 1965, this court issued the rule nisi as prayed, returnable within thirty days. The order thus issued further stated:
Judge Moore duly filed his answer to the rule nisi, attaching to said answer a copy of the transcript of the evidence taken at the hearing.
Among the matters set forth in Judge Moore's answer, and pertinent to this review, are the following:
"* * * on the hearing for temporary injunction it was developed that on the last day of school in early June of 1965, L. G. Walker, Superintendent of the Perry County Board of Education, delivered to school officials, to be placed in the hands of school bus drivers, a mimeographed memorandum which in substance stated to the children that were to ride said bus the route or routes the busses would take during the school year of 1965-66 and the schools to which said busses would operate, but this Respondent says that there was no direct evidence that these mimeographed sheets ever actually arrived in the hands of the parents of said children; that the evidence adduced on said hearing firmly established that the Complainants had attempted during the entire Summer to ascertain from the Perry County Board of Education whether or not school busses would transport their said children to the schools located in the City of Marion and on more than one occasion the Complainants and other parents situated in North Perry County, where schools had been demolished by the Perry County School Board and children only recently assigned to schools within the corporate limits of the City of Marion, had sought to obtain from the Perry County Board of Education a definite statement as to whether or not their children would be transported on school busses to schools in the City of Marion; that in fact L. G. Walker, Superintendent of Education of Perry County, Alabama, had attended a community meeting in North Perry and this question had been propounded to the said L. G. Walker and he would not *249 give to said parents a definite answer and stated to them he would see what could be done about the situation; that said parents were constantly inquiring of the Perry County Board of Education during the Summer of 1965 as to whether or not their children would be transported in school busses to schools in the City of Marion; that it was not until on, to-wit: Friday, August 27, 1965, that the Perry County Board of Education definitely advised the Complainants that their children would not be transported on school busses to the City of Marion and that the children of high school age would be transported to Suttle High School, necessitating that said children board said busses in the neighborhood of 5:00 to 5:30 each morning, returning to their homes between 5:00 and 6:00 each day; * * *.
It is clear under our decisions that courts have no general supervisory power over the transportation of school children by the agency of the government (Boards of Education) constituted for that purpose, and a court will not ordinarily seek to control the exercise of the broad discretion given by statutes to Boards of Education in this respect, the powers being quasi judicial as well as administrative. This is true even though in the exercise of its discretion a Board of Education may have exercised faulty judgment. Hodges v. Board of Education of Geneva County, 245 Ala. 64, 16 So. 2d 97.
It is equally clear under our decisions that where the transportation of pupils to a consolidated school is not involved, and there has been no agreement between two school systems as to the acceptance and transportation of pupils into the school system in which they do not reside, there is no duty on the part of a Board of Education to transport pupils beyond its territorial limits. Not only is there no duty, there is no lawful warrant to furnish such transportation in the absence of an agreement between the systems. Conecuh County Board of Education v. Campbell, 276 Ala. 343, 162 So. 2d 233; Ex parte Board of Education of Blount County, 264 Ala. 34, 84 So. 2d 653.
As above stated, courts ordinarily will not interfere with the transportation of school pupils as determined by a Board of Education. An exception to this rule is that a court will interfere if the acts of the Board of Education are infected *250 with fraud, or bad faith, or gross abuse of discretion. Salter v. Board of Education of Jefferson County, 229 Ala. 631, 159 So. 78; Scott v. Mattingly, 236 Ala. 254, 182 So. 24.
It was the conclusion of the lower court that the Perry County Board of Education was guilty of bad faith or gross abuse of discretion in refusing to furnish transportation of county children into the Marion city school system, not having informed the county patrons until three days before the opening of school.
In the absence of an agreement between the Perry County Board of Education and the Board of Education of the City of Marion, the County Board was without authority to furnish transportation. Clearly no agreement existed between the two boards, and it was clearly within their sole province to enter into such an agreement. Each board had an option and discretion in the matter. No basis for a conclusion of the existence of bad faith or abuse of discretion can arise from the non-exercise of an option.
While the lower court apparently gave weight to the fact that there was no firm evidence that the mimeographed announcement concerning school transportation was ever delivered to the parents of the children affected, his further findings as to the efforts of the parents through the summer to obtain information, the community meeting, etc., abundantly show that the complainants and other parents had full knowledge as to the situation created by the separation of the Marion city schools into a new school system.
A more deliberate consideration of the issues would seem to verify this court's expression of doubt as to the equity of the bill filed by the complainants.
The Marion County Board of Education, and the County Superintendent did not, however, seek to test by appeal the decree granting the injunction but sought to prohibit the lower court from further proceeding in the matter. By the provisions of Section 1057, Title 7, Code of Alabama 1940, an appeal from an order granting or refusing a writ of injunction lies to this court within ten days, to be heard as a preferred case on the first Thursday this court is in session after the expiration of the ten days, or as soon thereafter as feasible.
A writ of prohibition is an extraordinary and drastic writ to be employed with great caution and should be issued only in cases of extreme necessity. Exparte Burch, 236, Ala. 662, 184 So. 694. It is a preventive rather than a corrective remedy employed to prevent a usurpation of excess jurisdiction by a judicial tribunal. Ball v. Jones, 272 Ala. 305, 132 So. 2d 120; State ex rel. McQueen v. Horton, 31 Ala.App. 71, 14 So. 2d 557, Affd. 244 Ala. 594, 14 So. 2d 561. A writ of prohibition will not issue when a plain, adequate, and speedy remedy at law is available. Barber Pure Milk Co. of Montgomery v. Alabama State Milk Control Board, 274 Ala. 563, 150 So. 2d 693, and cases therein cited, and neither a writ of prohibition, or mandamus will usually be issued to review the order of an inferior tribunal granting or denying a temporary injunction because such order is generally appealable. Ex parte Register, 257 Ala. 408, 60 So. 2d 41. Only if the pleadings show on their face that the lower court does not have jurisdiction to make the order entered, will a writ of prohibition be issued prohibiting the lower court from making further orders except to dismiss the petition. Ex parte Register, supra. In such instances the act of the usurping court is wholly void, and will not support an appeal. Ex parte State ex rel. Martin, Atty.Gen., 200 Ala. 15, 75 So. 327.
In the present case the petition as framed clearly discloses probable jurisdiction in the court below. After hearing the court issued the decree here sought to be questioned by a petition for a writ of prohibition. The decree is a fait accompli. There is now nothing to prohibit. If erroneous, *251 an adequate remedy by appeal was open for corrective purposes.
The rule nisi heretofore issued in response to the petition for a writ of prohibition should be, and hereby is, discharged.
We note that in his answer Judge Moore, in asserting that the rule nisi should be discharged, set forth that since the issuance of the rule nisi, and the stay of the injunction by this court, the Perry County Board of Education has run notices in a Perry County newspaper that children similarly situated to the children of the complainants would be transported by the Perry County Board of Education to the schools in the City of Marion, and that "in effect the case that is now before this court is moot in that the Perry County Board of Education has already abided by the temporary injunction even though this court stayed the Writ of Injunction * * * thereby recognizing their previous abuse of authority." In response to questions from the bench during the arguments of this matter, counsel for both sides were in agreement that the transportation of the children by the Perry County Board of Education was to be continued for this full school year of 1965-66.
This demonstrates that any emergency that may have existed in the origin of this conflict no longer exists, and that the appellants will not be prejudiced in resorting to appropriate procedural methods to review the action of the lower court by such method as may now be open to them, such as by a motion to discharge or dissolve the temporary injunction.
Since the rule nisi is due to be discharged because procedurally inapt, no need arises to consider the respondent's assertion that the matters presented in the present proceedings are or are not moot.
Rule nisi discharged.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | November 18, 1965 |
f1271d7a-837e-4902-9bbf-3c53d3e25435 | Lewis v. Zell | 181 So. 2d 101 | N/A | Alabama | Alabama Supreme Court | 181 So. 2d 101 (1965)
Clidie Payne LEWIS
v.
R. B. ZELL.
6 Div. 24.
Supreme Court of Alabama.
December 16, 1965.
*102 London, Yancey, Clark & Allen, Birmingham, for appellant.
D. G. Ewing and Jas. C. Manning, Birmingham, for appellee Zell.
Davies, Williams & Wallace, Birmingham, for Motors Ins. Corp.
LAWSON, Justice.
R. B. Zell brought this suit in the Circuit Court of Jefferson County against Clidie Payne Lewis. Zell's amended complaint contained two counts. Count One was based on negligence and Count Two charged wantonness. In both counts the plaintiff sought to recover for expenses incurred by him in the treatment of injuries sustained by his minor daughter, Margaret Katherine Zell, which resulted from a collision of plaintiff's automobile, which was being driven by Margaret, and an automobile driven by the defendant. In both counts the plaintiff also sought to recover for the loss of his daughter's services and companionship, for the damage done to his automobile, and for the expense he incurred in hiring an automobile while his was being repaired.
Motors Insurance Corporation was the collision insurance carrier on the automobile of the plaintiff, R. B. Zell, and paid him the sum of $861.37 for the damage which his automobile sustained as a result *103 of the collision. After R. B. Zell filed his suit, Motors Insurance Corporation filed its petition to intervene as a party plaintiff in order to claim its damages from the defendant. The petition to intervene was granted and Motors Insurance Corporation filed its complaint, which contained only one count, wherein intervenor claimed damages from the defendant on the charge of negligence. In its amended complaint, the intervenor claimed $861.37 from the defendant.
The defendant pleaded the general issue in short by consent in the usual form.
There was a verdict in favor of the plaintiff, R. B. Zell, in the amount of $3,500 and a verdict for the intervenor in the sum of $861.37. Judgments followed the verdicts.
The defendant filed a motion for new trial wherein she asserted error by the trial court as to the judgment of $3,500 in favor of the plaintiff, R. B. Zell. No mention was made of the verdict and judgment in favor of the intervenor.
The motion for new trial was overruled. The defendant below appealed to this court from the judgment rendered against her in favor of the plaintiff, R. B. Zell. Notice was given the intervenor in compliance with § 804, Title 7, Code 1940, and intervenor has filed a brief in this court.
The defendant contends that the trial court erred in refusing to give the general affirmative charge with hypothesis as to the wanton count duly requested in writing by her.
In considering the question as to whether there was evidence from which the jury could find for the plaintiff on the wanton count, we must consider the evidence in the light most favorable to the plaintiff. Johnson v. Sexton, 277 Ala. 627, 173 So. 2d 790.
The collision occurred at the intersection of 19th Street South and 29th Avenue South, at about 5:00 P.M. on the afternoon of Sunday, December 11, 1960. 19th Street runs north and south, while 29th Avenue, a main thoroughfare in the City of Homewood, at the point of collision runs east and west, although it is a link in that part of U. S. Highway 31, which runs generally in a northerly and southerly direction between Birmingham and Montgomery. There was a traffic signal light at the intersection, which the evidence tends to show is located in a prominent and busy section of Homewood. The City Hall is on the southeast corner of the intersection; on the northeast corner is a bank or building and loan association building; on the southwest corner is an eating establishment; and on the northwest corner a newspaper building. It is without dispute that just prior to the collision the automobile of plaintiff, which had been proceeding in a northerly direction on 19th Street, was stopped by its driver, plaintiff's daughter, awaiting the traffic signal light facing her to turn green. After that light turned to green, plaintiff's automobile was driven across the intersection at a speed of about ten miles an hour and it had reached the northernmost of the four lanes on 29th Avenue when it was hit by the automobile being driven by the defendant in a westerly direction on 29th Avenue. In brief filed in this court on behalf of the defendant below this statement appears: "At the time of the accident, the light was green for the plaintiff's driver and red for the defendant." 29th Avenue is straight and level for two blocks and a driver proceeding in a westerly direction on that avenue can see the intersection for a distance of two blocks away. The traffic signal light is situated fourteen feet above the center of the intersection. After the collision the defendant told an investigating officer that she "ran the red light."
There were automobiles behind that of the defendant which were moving in a westerly direction on 29th Avenue, and at least one automobile which had been moving in that direction had been brought to a stop in compliance with the signal light at the *104 time the plaintiff's daughter drove his automobile into the intersection. There were automobiles approaching the intersection from the west. And at least one other automobile was stopped on 19th Street behind plaintiff's car awaiting the green signal light.
Wantonness has been defined as the conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So. 2d 277; Johnson v. Sexton, supra.
Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Rainey v. State, 245 Ala. 458, 17 So. 2d 687; Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 149 So. 2d 821; Johnson v. Sexton, supra; Graves v. Wildsmith, 278 Ala. 228, 177 So. 2d 448.
In the brief of appellant, the defendant below, it is said: "The appellant did not testify, so there is no evidence as to whether she had ever been on the highway before; her familiarity with the intersection; whether or not she saw the traffic light, or for that matter, even knew a traffic light was there." The defendant did not testify; in fact, no witness was called on her behalf. There is no evidence going to show that the defendant had ever been on 29th Avenue before or that she was familiar with the intersection. But, in our opinion, the statement made by the defendant to the investigating officer after the collision to the effect that she "ran the red light" tends to show that she was aware of the presence of the traffic signal light and that she saw it and consciously proceeded across the intersection with a red light, a stop signal, staring her in the face.
Since there was no direct evidence going to show that the defendant below had ever traveled on 29th Avenue before the time of the collision or was familiar with the intersection, she insists that the trial court erred in submitting the wanton count to the jury because we have said that there can be no wanton injury without a knowledge of conditions which make the act causing it likely to result in injury and a consciousness of the danger. Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556; Birmingham Electric Co. v. Turner, 241 Ala. 66, 1 So. 2d 299; Alabama Power Co. v. Dunlap, 240 Ala. 568, 200 So. 617; Bradley v. Johnson, 212 Ala. 330, 102 So. 710.
But knowledge need not be shown by direct proof. It may be made to appear, like any other fact, by showing circumstances from which the fact or actual knowledge is a legitimate inference. Griffin Lumber Co. v. Harper, supra; Shirley v. Shirley, 261 Ala. 100, 73 So. 2d 77.
A photograph taken a short time after the collision, before the vehicles involved had been removed from the scene, was introduced in evidence. It shows that 29th Avenue carries a considerable amount of vehicular traffic. The presence of the traffic signal light was a proclamation of danger. Tooley v. Margulies (Fla.), 79 So. 2d 421. Although there was testimony to the effect that traffic was not particularly heavy at the moment of the collision, the evidence, as pointed out above, shows that there were automobiles proceeding east and west on 29th Avenue at the time of the collision and at least two vehicles were moving in a southerly direction on 19th Street at that time.
*105 Under these circumstances, we think it is legitimate to infer that the defendant had knowledge of conditions which would make her conscious act of proceeding into the intersection against the red light likely to cause injury.
We have read with care the authorities cited by the defendant below in support of her insistence that the trial court erred in letting the wanton count go to the jury. None of those authorities is factually in point. Appellee has cited no case factually similar to the case at bar. We have found none exactly in point.
We have said that what constitutes wanton conduct depends upon the facts in each particular case. The question presented here is not free from difficulty, but we are of the opinion that the trial court did not err in submitting the issue of wantonness to the jury.
The appellant, defendant below, next insists that the trial court erred in refusing to give at her request the following written charges:
The action of the court in refusing these charges may be justified on the ground that the verdict, when considered in the light of the evidence, does not indicate that the jury assessed punitive damages. The damages assessed were not, in our opinion, in excess of the amount of actual damage which the jury could have awarded the plaintiff, Zell, for damage to his automobile, the expense to which he was put in hiring a necessary substitute, the expense he incurred in providing hospital care and treatment for his daughter, and the sum to which he was entitled for the loss of his daughter's services and companionship. It is not contended to the contrary in the brief filed here on her behalf. See Bradley v. Ashworth, 211 Ala. 395, 100 So. 663; W. E. Belcher Lumber Co. v. Woodstock Land & Mineral Co., 245 Ala. 5, 15 So. 2d 625. In disposing of this contention of appellant in this manner, we do not want to be understood as holding that a plaintiff may not recover punitive damage for a wanton injury to his property (Foster v. Floyd, 276 Ala. 428, 163 So. 2d 213; Dearing v. Moore, 26 Ala. 586), or that such damage need be claimed in a wanton count. See Johnson v. Collier, 161 Ala. 204, 49 So. 761.
Finding no merit in the argued assignments of error, we hold the judgment of the trial court is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | December 16, 1965 |
697cb9c6-2f40-4138-bb52-130318fad33f | Dorough v. Ricks | N/A | 1120260 | Alabama | Alabama Supreme Court | REL:02/07/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120260
____________________
Ex parte Denise Scott Ricks
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Adam Dorough, Rufus Dorough, James Dorough, Patrick
Dorough, and Robert Dorough
v.
Denise Scott Ricks)
(Autauga Circuit Court, CV-09-900165;
Court of Civil Appeals, 2101130)
MOORE, Chief Justice.
1120260
Denise Scott Ricks sought to admit a self-proving will to
probate in the Autauga Probate Court. After the will was
admitted, Adam Dorough, Rufus Dorough, James Dorough, Patrick
Dorough,
and Robert Dorough
(hereinafter referred
to
collectively as "the Dorough brothers") brought a
will contest
in the Autauga Circuit Court. The Autauga Circuit Court
declared the will to be valid, and the Dorough brothers
appealed. The Court of Civil Appeals reversed the judgment of
the Autauga Circuit Court. This Court granted certiorari
review, and we now reverse the judgment of the Court of Civil
Appeals.
I. Facts and Procedural History
On June 9, 2009, Joseph Paul Dorough ("Joseph") executed
a will leaving all his property to Ricks and naming Ricks as
his personal representative. Ricks is the daughter
of
Margaret
Farmer, who died in 2009. Joseph and Margaret had dated off
and on since 1988, when Ricks was 14 years old. Although Ricks
was not related to Joseph by blood or marriage, Ricks
testified that they had a close relationship and that she
considered him a surrogate father. Joseph died on August 22,
2009. Ricks petitioned to admit the will to probate in the
2
1120260
Autauga Probate Court, and the Dorough brothers filed an
answer to Ricks's petition, indicating
their
intent
to
contest
the will in the Autauga Circuit Court in a later proceeding.
On October 13, 2009, the Autauga Probate Court entered an
order titled "Decree Admitting Self-Proving Will to Probate."
In the order, the court said:
"'The Court finds that the said instrument was
made self-proving at the time of its execution by
acknowledgment of [Joseph] and the affidavits of the
witnesses, each made before an officer authorized to
administer oaths and evidenced by the officer's
certificate, under official seal, attached to or
following the will in the form required by law; and
further finds that there has been no showing of
fraud, forgery, undue influence or unsound mind of
[Joseph].'"
Dorough v. Ricks, [Ms. 2101130, Nov. 16, 2012] ___ So. 3d ___,
___ (Ala. Civ. App. 2012) (emphasis added by the Court of
Civil Appeals). Thus, the probate court declared the will to
be Joseph's last will and admitted it to probate.
On October 15, 2009, the Dorough brothers, who were
Joseph's brothers and next of kin, filed a will contest in the
Autauga Circuit Court. On December 15, 2009, the circuit court
ordered the probate court to transfer the case. The probate
court filed certified copies of all the documents with the
3
1120260
circuit court but did not file the originals with the circuit
court.
Although
the
proper
procedure
in
a
will-contest
proceeding is for the proponent of the will to introduce the
proceedings from the probate court before the contestant
presents his or her case-in-chief, the Dorough brothers
1
presented their case-in-chief first without asserting that
they had no obligation to present their case until Ricks first
introduced the proceedings from the probate court. During
their case-in-chief, the Dorough brothers introduced a
copy of
the will, showing that Joseph and the witnesses had signed the
will and that the notary public had signed a certificate as
required by § 43-8-132, Ala. Code 1975. However, the copy did
2
not adequately show an impression of the notary public's seal,
as required by § 43-8-132. The Dorough brothers challenged the
See Smith v. Bryant, 263 Ala. 331, 334, 82 So. 2d 411,
1
414 (1955).
Self-proving
wills
are
"self-proved,
by
the
2
acknowledgment thereof by the testator and the affidavits of
the witnesses, each made before an officer authorized to
administer oaths under the laws of the state where the
acknowledgment
occurs
and
evidenced
by
the officer's
certificate, under the official seal, attached or annexed to
the will." § 43-8-132, Ala. Code 1975 (emphasis added).
4
1120260
will on the grounds of 1) lack of valid execution, 2) undue
influence, 3) fraud, and 4) lack of testamentary capacity.
After
the
Dorough
brothers
presented
their
case-in-chief,
Ricks called Joy Booth, the attorney who had drafted the will
and had signed the notary certificate in her capacity as a
notary public, to testify as to the execution of Joseph's
acknowledgment and the two subscribing witnesses' affidavits.
Booth testified that Joseph signed the will in the presence of
the
two
subscribing
witnesses.
She
was
never
asked
specifically whether she had affixed her official seal to the
will, but she did testify that she notarized the signatures of
Joseph and the two subscribing witnesses.
On March 25, 2011, the circuit court entered an
interlocutory order declaring that the will met the statutory
requirements of a self-proving will under § 43-8-132 and that
the will was Joseph's last will. The Dorough brothers then
filed a motion to alter, amend, or vacate the interlocutory
order, arguing for the first time that they were entitled to
a judgment on partial findings because Ricks failed to show
that the notary public had affixed her seal to the will, as
required by § 43-8-132. Ricks responded with a motion asking
5
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the court to take judicial notice that the probate court had
found that the will was self-proving. The court granted
Ricks's motion, denied the Dorough brothers' motion, and
entered an order certifying its March 25 interlocutory order
as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.
The Dorough brothers then appealed the order to the Court of
Civil Appeals.
The Court of Civil Appeals reversed the circuit court's
order, holding that the will did not comply with the
requirements of a self-proving will under § 43-8-132. In
examining the record, the Court of Civil Appeals said:
"The certified copy of the will filed with the trial
court by the Autauga Probate Court shows what may be
a circular impression near the notary public's
signature, and, if it is indeed a circular
impression, it is possible that that circular
impression is the notary public's official seal;
however, even when the evidence is viewed in the
light
most
favorable
to
Ricks,
it
is
not
sufficiently clear from the certified copy of the
will that what may be a circular impression near the
notary public's signature is indeed the notary
public's official seal to meet Ricks's burden of
making a prima facie showing that the notary
public's official seal is affixed to the will. The
original of the will, which would be the best
evidence of whether the notary public's official
seal is affixed to the will, was not introduced into
evidence."
6
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Dorough, ___ So. 3d at ___. The Court of Civil Appeals also
held that the probate court's finding that the will was self-
proving had no probative value in the circuit court action and
that, therefore, the probate court's order did not constitute
a prima facie showing that the will was self-proving. Id. at
____.
On rehearing in the Court of Civil Appeals, Ricks argued
that the Dorough brothers had waived their objection to
Ricks's not having made a prima facie showing because they
made their case-in-chief first without asserting that they had
no obligation to present their case until Ricks introduced the
proceedings from the probate court. The Court of Civil Appeals
found this argument meritless, holding that the Dorough
brothers could make their objection in the circuit court
before the judgment was entered. ___ So. 3d at ___. Ricks also
argued that the Dorough brothers had waived their objection
based on the failure to affix the notary public's seal because
they did not object on that basis until they moved to alter,
amend, or vacate the interlocutory order, which
occurred
after
the will had been admitted into evidence by the circuit court.
However, the Court of Civil Appeals noted that the circuit
7
1120260
court's order was an interlocutory order, not a final
judgment,
and
that,
therefore,
the
Dorough
brothers'
objection
did not come too late and was not waived. ___ So. 3d at ___.
Ricks petitioned for a writ of certiorari, claiming that
the decision of the Court of Civil Appeals conflicted with
prior decisions of this Court. This Court granted her
petition. We now reverse and remand.
II. Standard of Review
"'On certiorari review, this Court accords no presumption
of correctness to the legal conclusions of the intermediate
appellate court. Therefore, we must apply de novo the standard
of review that was applicable in the Court of Civil Appeals.'"
Ex parte Helms, 873 So. 2d 1139, 1143 (Ala. 2003) (quoting Ex
parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996)).
Ordinarily, the standard of review of a ruling on a motion for
a judgment on partial findings is the ore tenus standard.
Burkes Mech., Inc. v. Ft. James-Pennington, Inc., 908 So. 2d
905, 910 (Ala. 2004). However, "the ore tenus standard is
inapplicable 'where the evidence is undisputed, or where the
material facts are established by the undisputed evidence.'"
8
1120260
Id. (quoting Salter v. Hamiter, 887 So. 2d 230, 234 (Ala.
2004)). In such a case, the standard of review is de novo. Id.
III. Analysis
A. Jurisdiction of Probate Court to Admit Will
The parties argue extensively over the legal relevance of
the probate court's admission of the will to probate.
According to Ricks, the judgment of the probate court
admitting the will to probate had probative value in the will
contest in the circuit court. In response, the Dorough
brothers argue that, pursuant to § 43-8-198, Ala. Code 1975,
once they filed their answer in the probate court, the probate
court did not have jurisdiction to do anything other than
transfer the case and that, therefore, the judgment admitting
the will to probate was void. Thus, before proceeding to the
merits, it is necessary to determine whether the probate court
had jurisdiction to admit the will to probate.
Section 43-8-198 states, in relevant part: "Upon the
demand of any party to the contest, made in writing at the
time of filing the initial pleading, the probate court, or the
judge thereof, must enter an order transferring the contest to
the circuit court of the county in which the contest is made
9
1120260
...." Moreover, this Court stated in Summerhill v. Craft, 425
So. 2d 1055, 1056 (Ala. 1982), that once a demand in writing
to transfer a will contest to the circuit court was made, the
probate court "had no jurisdiction to hold a hearing to
probate the will nor to issue its order that the will was duly
provided," and therefore such an order was void.
However, in this case, the Dorough brothers stated the
following in their answer in the probate court: "The heirs
will be contesting the Will and so pursuant to [§ 43-8-198,
Ala. Code 1975, t]hey will so request this matter be
transferred to Circuit Court. This as well will be addressed
by way of a separate motion." (Emphasis added.) Both the
future tense and the explicit statement that the transfer
request would be addressed by a separate motion indicate that
the Dorough brothers were not making a demand to transfer the
case to the circuit court in their answer, as contemplated by
§ 43-8-198, but were notifying the probate court of their
intent to move to transfer the case in the future. Therefore,
although the Dorough brothers properly brought a will contest
in the circuit court under § 43-8-199 after the will was
admitted to probate, the Dorough brothers did not make a
10
1120260
proper demand under § 43-8-198 to transfer the case when they
filed their answer; therefore, the probate court did not lose
jurisdiction to admit the will to probate. See also Newman v.
Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (holding that the
opportunity to remove a case to circuit court under § 43-8-198
is lost if the movant does not file a pleading with the motion
to transfer).
B. Conflict of the Court of Civil Appeals' Decision with
Prior Decisions
Turning now to the merits, Ricks argues that the decision
of the Court of Civil Appeals conflicts with prior decisions
of this Court that establish the proper procedures in a will-
contest proceeding. In Smith v. Bryant, 263 Ala. 331, 82 So.
2d 411 (1955), this Court discussed the procedures for
introducing a will that had been admitted to probate into the
circuit court in a will contest under what is now § 43-8-199,
Ala. Code 1975. Relying on McCutchen v. Loggins, 109 Ala. 457,
19 So. 810 (1895), the Smith Court stated that "those who
claim under the probated will must show affirmatively its
validity and become the actors." Smith, 263 Ala. at 334, 82
So. 2d at 413. However, the Court thereafter stated:
11
1120260
"While we have seen no statement by this court
as to the exact manner in which trials should be had
under the provisions of § 64, Title 61, Code of 1940
[now § 43-8-199, Ala. Code 1975], providing for a
will contest in the equity court, we would say that
the respondent, who is in effect the proponent,
should first introduce the proceedings in the
probate court, that is the petition to probate the
will, the order fixing the time for hearing and
giving notice, testimony of the attesting witnesses
and proof of will, the decree admitting the will to
probate and the will itself. Section 44, Title 61,
Code of 1940 [now § 43-8-171, Ala. Code 1975],
provides in effect that a will which has been
admitted to probate must be received without further
proof. The complainant, who is in effect the
contestant, should then introduce testimony on which
the alleged invalidity of the will is based. The
respondent should then introduce the rebuttal
testimony, if any. The respondent should then make
the opening argument to the jury, the complainant
should then make the argument for complainant and
the respondent should have the closing argument."
Smith, 263 Ala. at 334, 82 So. 2d at 414.
This Court drew on Smith in Hancock v. Frazier, 264 Ala.
202, 86 So. 2d 389 (1956), in which this Court further
discussed the procedures in a will contest under what is now
§ 43-8-199, Ala. Code 1975, as follows:
"We have recently considered the question where
there was a contest in equity under section 64,
Title 61, Code, with a jury trial. Smith v. Bryant,
263 Ala. 331, 82 So. 2d 411, 414 [(1950)]. There
referring to our previous cases in such a suit, it
is stated that the proper procedure is that the
respondent, who is in effect the proponent, should
first introduce the proceedings admitting the will
12
1120260
to probate in the probate court, citing 57 Am. Jur.
608, section 925. It is also there stated that
complainant, who is the contestant, 'should then
introduce testimony on which the alleged invalidity
of the will is based. The respondent should then
introduce the rebuttal testimony, if any. The
respondent should then make the opening argument.'
Some of our older cases are cited by the Court.
Mathews v. Forniss, 91 Ala. 157, 8 So. 661 [(1890)];
McCutchen v. Loggins, 109 Ala. 457, 19 So. 810, 812
[(1896)]. It means, as we said in McCutchen v.
Loggins, that in such a suit as this 'those who
claim
under
the
probated
will
must
show
affirmatively its validity, and become the actors.'
But we interpret Smith v. Bryant, supra, to mean
that
this
is
prima
facie
sustained
by
the
proceedings in the probate court admitting the will
to probate. The duty, not a shifting of the burden
of proof, is then upon complainants to introduce
evidence on which it is claimed the 'alleged
invalidity of the will is based.' We further take
that to mean that when complainants introduce such
evidence from which its invalidity may be inferred,
the judgment in the probate proceedings will have
lost its value as evidence, for the trial is de
novo. It is also said in McCutchen v. Loggins,
supra, that when complainants showed their interest
and right to contest in equity 'the burden was
placed upon the respondents to affirm and maintain
the validity of the probated will. Complainants have
no standing in the chancery court, except as
contestants.'
"In both Smith v. Bryant, supra, and McCutchen
v. Loggins, supra, the contest was tried in the
equity court with a jury under sections 64 to 67,
Title 61, Code. The burden of proof is the same of
course whether it is tried with a jury or without
one. The procedure outlined in Smith v. Bryant does
not prescribe the course to be pursued in taking the
depositions of witnesses prior to trial. There is no
rule of procedure as to when that should be done.
13
1120260
When the trial comes on to be had on testimony, then
to be taken in open court, the procedure is outlined
in that case. When it is based on depositions,
without a jury as in this case, counsel must prepare
notes of the evidence which has been taken and which
they wish to use. Equity Rule 57, Code 1940, Tit. 7
Appendix. The court in considering the case should
then apply the rule fixing the burden of proof as
outlined in McCutchen v. Loggins, supra. Section 67,
Title 61, further provides that on the trial before
the jury, or hearing before the circuit judge on a
contest in equity, the testimony of the witnesses
which had been reduced to writing by the judge of
probate according to section 42, Title 61, is to be
considered by the judge or jury. That should be
shown in the note of testimony, when a note is
necessary. But on such contest the judgment in the
probate court has no probative value, and only
serves to give direction to the order of procedure
in the circuit court in equity and support for
equity jurisdiction."
Hancock, 264 Ala. at 203-04, 86 So. 2d at 390-91 (emphasis
added).
Finally, in Ray v. McClelland, 274 Ala. 363, 365-66, 148
So. 2d 221, 222 (1963), this Court stated:
"When
the
respondent
introduced
the
probate
proceedings, the validity of the will was prima
facie sustained and it became the duty of the
complainant to offer evidence upon which the
invalidity of the will was based. Hancock v.
Frazier, 264 Ala. 202, 86 So. 2d 389 [(1956)]; Smith
v. Bryant, 263 Ala. 331, 82 So. 2d 411, 414
[(1955)]; McCutchen v. Loggins, 109 Ala. 457, 19 So.
810 [(1896)]."
14
1120260
Ricks argues that these cases stand for the proposition
that once the proponent introduces the probate proceedings in
the will contest in the circuit court, including the judgment
admitting the will to probate, the validity of the will is
prima facie sustained, and it is then the duty of the
contestant to produce evidence contesting the validity of the
will. We agree with Ricks.
Ricks correctly observes that the rules arising from
Smith, Hancock, and Ray are akin to a rebuttable presumption
under Rule 301(b), Ala. R. Evid., which states:
"(b) Types of rebuttable presumptions. Every
rebuttable presumption is either:
"(1) A presumption that affects the burden of
producing evidence by requiring the trier of fact to
assume the existence of the presumed fact, unless
evidence sufficient to sustain a finding of the
nonexistence of the presumed fact is introduced, in
which event the existence or nonexistence of the
presumed fact shall be determined from the evidence
without regard to the presumption; or
"(2) A
presumption
affecting the
burden
of
proof
by imposing upon the party against whom it operates
the burden of proving the nonexistence of the
presumed fact."
This Court stated in Hancock:
"The duty, not a shifting of the burden of proof, is
then upon complainants to introduce evidence on
which it is claimed the 'alleged invalidity of the
15
1120260
will is based.' We further take that to mean that
when complainants introduce such evidence from which
its invalidity may be inferred, the judgment in the
probate proceedings will have lost its value as
evidence, for the trial is de novo."
Hancock, 264 Ala. at 204, 86 So. 2d at 390. Consequently, the
rebuttable presumption here would be a presumption under Rule
301(b)(1), not Rule 301(b)(2).
In this case, the Court of Civil Appeals interpreted
Hancock to mean:
"(1) [T]hat it is only the testimony of the
subscribing witnesses reduced to writing by the
probate judge pursuant to what is now § 43-8-169,
Ala. Code 1975, that is probative regarding the
issue whether the will was validly executed, (2)
that the probate court's order admitting the will to
probate has no probative value regarding the issue
whether the will was validly executed, and (3) that
the probate court's order admitting the will to
probate is only admissible for the limited purpose
of giving direction as to the procedure to be
followed in the circuit court and support for the
circuit court's jurisdiction over the will contest."
Dorough, ___ So. 3d at ___. The Court of Civil Appeals appears
to have based this reading on the second paragraph of the
excerpt
of
Hancock,
quoted
supra.
However,
such
an
interpretation
would
render
the
previous
paragraph
meaningless. Such an interpretation cannot be sustained,
especially in light of this Court's subsequent holding in Ray
16
1120260
that,
"[w]hen
the
respondent
introduced
the
probate
proceedings, the validity of the will was prima facie
sustained and it became the duty of the complainant to offer
evidence upon which the invalidity of the will was based."
Ray, 274 Ala. at 365, 148 So. 2d at 222. Thus, the decision of
the Court of Civil Appeals conflicts with this Court's prior
decisions.
Under the rules discussed above, Ricks was obligated to
introduce the proceedings from the probate court before the
Dorough brothers presented their case-in-chief, but the
Dorough brothers made their case-in-chief without asserting
that Ricks was obligated to, and had failed to, introduce the
proceedings from the probate court. "[I]t is a settled
principle that neglect to take advantage of rights at the
proper time will be regarded as a waiver of such rights."
Smith, 263 Ala. at 334, 82 So. 2d at 414. Because the Dorough
brothers did not assert that Ricks was obligated to introduce
the proceedings from the probate court before they proceeded
with their case-in-chief, they waived their right to object to
Ricks's not following the proper procedures for introducing
evidence.
17
1120260
As discussed above, it was the Dorough brothers who
offered a copy of the will into evidence. At the close of
evidence, the Dorough brothers made a motion for a judgment on
partial findings, arguing that Ricks had not made a prima
facie case because none of the attesting witnesses had
testified as to the validity of the will. Ricks, however, was
attempting to admit to probate a self-proving will. Under §
43-8-132, Ala. Code 1975, if the requirements of the statute
are met, then the proponent does not need to call witnesses.
Because the Dorough brothers had introduced the evidence that
would have been Ricks's duty to present -- either by
introducing the proceedings from the probate court or by
introducing the will itself in the circuit court -- the
evidence necessary to decide whether to accept the will was
ultimately presented to the circuit court. Thus, Ricks did not
fail to make a prima facie case, nor did the circuit court err
in denying the Dorough brothers' motion for a judgment on
partial findings.
The final question is whether the Dorough brothers waived
their argument that the notary seal was not properly affixed
to the self-proving page of the will by not asserting that
18
1120260
argument until after the circuit court had entered its order.
"[I]t is a settled principle that neglect to take advantage of
rights at the proper time will be regarded as a waiver of such
rights." Smith, 263 Ala. at 334, 82 So. 2d at 414. Because the
Dorough brothers did not object on the basis that the self-
proving will did not comply with the requirements of § 43-8-
132, Ala. Code 1975, until after the circuit court ruled on
the will-contest claim, they waived their objection.
The Court of Civil Appeals, however, held that because
the circuit court's order was interlocutory in nature, the
Dorough brothers were entitled to raise their objection even
after that order had been entered. However, the Court of Civil
Appeals based its holding on the rule that "[a] trial court is
not required to consider a new legal argument raised for the
first time in a postjudgment motion ...." Dorough v. Ricks,
___ So. 3d at ___. The Court of Civil Appeals thus reasoned
that because postjudgment motions under Rule 59, Ala. R. Civ.
P., are contemplated only when there has been a final judgment
and because the circuit court's order was not a final
judgment, the rules applicable to postjudgment motions do not
apply here and that, therefore, the Dorough brothers "were
19
1120260
entitled to raise their argument that Ricks had failed to
prove that the notary public's official seal was affixed to
the will for the first time in that motion." ___ So. 3d at
___. However, it does not follow that, just because the
Dorough brothers' motion was not a postjudgment motion, they
were therefore entitled to raise their new argument. On the
contrary, the rule that failure to raise an argument at the
right time results in a waiver is the default rule. Smith, 263
Ala. at 334, 82 So. 2d at 414. Because the Dorough brothers
did not raise the argument that the notary seal was not
sufficiently affixed before the circuit court entered its
order, the Dorough brothers waived that argument.
Moreover, even if the Dorough brothers had not waived
their objection, the Court of Civil Appeals did not consider
the testimony of Joy Booth, who testified that she had
notarized the will. Although the will admitted as evidence in
the circuit court was a copy and not the original will, the
copy was properly admitted pursuant to Rule 1007, Ala. R.
Evid., when Ricks testified to its contents. "[H]istoric
Alabama practice has recognized that a party's testimony,
admitting the contents of an original, opens the door to
20
1120260
secondary evidence of those contents, without accounting for
the
nonproduction
of
the
original."
Advisory
Committee's
Notes
to Rule 1007, Ala. R. Evid. (citing Donahay v. State, 287 Ala.
716, 255 So. 2d 599 (1971), and Kessler v. Peck, 266 Ala. 669,
98 So. 2d 606 (1957)). Consequently, if there was a question
about the notary seal, it was logical to consider Booth's
testimony that she had notarized the will. See Rule 402, Ala.
R. Evid. Although Booth did not testify specifically as to
whether she had affixed her seal, notarizing a document
necessarily includes affixing the notary public's seal. See §
36-20-73(2), Ala. Code 1975. Therefore, because Booth
testified that she had notarized the will and because the
circuit court received such testimony ore tenus, the Court of
Civil Appeals should have considered Booth's testimony and
given the judgment of the circuit court its proper deference
in determining whether the notary seal was sufficiently
affixed to the will.
IV. Conclusion
For the reasons stated above, the judgment of the Court
of Civil Appeals is reversed and the cause is remanded for
proceedings consistent with this opinion.
21
1120260
REVERSED AND REMANDED.
Stuart and Parker, JJ., concur.
Bolin and Murdock, JJ., concur in the result.
Shaw, J., dissents.
Wise and Bryan,* JJ., recuse themselves.
___________________
*Justice Bryan was a member of the Court of Civil Appeals
when that court considered this case.
22
1120260
MURDOCK, Justice (concurring in the result).
I find the procedural history of this case in the probate
court and the circuit court confusing, and I express no view
as to the description of that history in the main opinion.
For purposes of casting my vote in this case, I merely accept
the fact that a contest of the will in question was in fact
filed in the circuit court at a point in time after the will
had been admitted to probate in the probate court. See Ala.
Code 1975, § 43-8-199. That said, I believe that the judgment
of the circuit court at issue here (finding that the will was
executed
with
the
proper
formalities)
finds
sufficient
support
in the record and, accordingly, that the decision of the Court
of Civil Appeals reversing that judgment is, itself, due to be
reversed.
Albeit pursuant to one or more motions filed by the
contestants to the will (sometimes referred to in the main
opinion and here as "the Dorough brothers"), a copy of both
the will and the probate court's order admitting the will to
probate were before the circuit court. The probate court's
order in this regard constituted prima facie evidence that the
will was validly executed. See Ala. Code 1975, § 43-8-132(c);
23
1120260
see also Ala. Code 1975, § 43-8-171; Hancock v. Frazier, 264
Ala. 202, 86 So. 2d 389 (1956); Smith v. Bryant, 263 Ala. 331,
82 So. 2d 411 (1955).
As indicated in the main opinion, if the contestant to
the will puts on evidence that the execution formalities were
not properly observed, then the prima facie case is rebutted,
and it is then incumbent on the proponent of the will to
present sufficient evidence to meet its burden of proof. ___
So. 3d at ____ (also explaining that the circuit court's
consideration of a will contest is de novo); see also Hancock,
264 Ala. at 204, 86 So. 2d at 390. In the present case,
however, the record does not reflect the submission to the
circuit court by the Dorough brothers of any evidence by which
they challenge the adequacy of the formalities attendant to
the execution of the will. Although counsel for the Dorough
brothers did cross-examine both Denise Scott Ricks and Joy
Booth (the attorney who drafted the will and who, in her
capacity as a notary public, notarized the will), who
testified as to her notarization of the will, at the hearing
conducted by the circuit court, this cross-examination failed
to adduce any evidence that would serve to rebut the prima
24
1120260
facie showing effected by the order of the probate court
admitting the will to probate. Also, the circuit court had
before it a copy of the will itself (certified and filed by
the probate court), and the circuit court was able to inspect
the acknowledgment form signed by Booth and see for itself the
circular impression that Ricks contends was the notary seal.
In their examination of Booth, the contestants posed no
questions regarding this impression or specifically whether
Booth had affixed her seal to the acknowledgment form; at no
time during the hearing did the contestants raise any issue as
to whether the acknowledgment form was lacking the seal
required by § 43-8-132(a), Ala. Code 1975. Under these
circumstances, I am reluctant to consider the copy of the will
introduced at trial by the Dorough brothers, which was
identified as a copy of the will that Ricks had offered for
probate, as evidence that rebuts the prima facie showing made
by the certified filings from the probate court. Moreover,
even if it were to be considered such evidence, the fact of
such circular impression was on the will for the circuit court
to see and assess for itself. The impression is consistent
3
In addition, this Court is in receipt only of an
3
electronic copy of the document before the circuit court, and
25
1120260
with the affixation of a notary seal to the acknowledgment.
I am unwilling to conclude as a matter of law, particularly
under the circumstances presented in this case, that the
circuit court could not have inferred from that impression
that a seal had in fact been affixed by Booth to her
acknowledgment.
In addition, the circuit court heard the testimony of
Booth herself to the effect that she had "notarized" the
signature of the two witnesses and of the testator. The
circuit court certainly was free to treat this as additional
evidence indicating that Booth had affixed her seal to the
acknowledgment
form,
given
the
requirement
for
such
affixation
in the event of a "notarization" of a will, see § 43-8-132(a),
and given the circuit court's ability to assume or to infer
that Booth, as an attorney and experienced notary public, was
aware of this requirement when testifying that she
"notarized"
the document.
Based on the foregoing, I agree that the judgment of the
circuit court holding that the will in question was validly
it cannot foreclose the possibility that the circular
impression on the document actually viewed by the circuit
court was more "definite" than what is before this Court and
what was before the Court of Civil Appeals.
26
1120260
executed should have been affirmed, and, accordingly, I
concur.
27
1120260
SHAW, Justice (dissenting).
I respectfully dissent. I do not believe that the main
opinion correctly applies this Court's decision in Hancock v.
Frazier, 264 Ala. 202, 86 So. 2d 389 (1956); the main opinion
actually alters the traditional burdens of proof in a will
contest filed in the circuit court under Ala. Code 1975, § 43-
8-199. I additionally believe that this Court has denied the
respondents, the Dorough brothers, due process of law by
reversing the judgment of the Court of Civil Appeals on issues
as to which this Court actually denied certiorari review.
Finally, I respectfully dissent from the portion of the main
opinion reversing the Court of Civil Appeals' judgment on an
issue raised by none of the parties.
In ground "A" of Denise Scott Ricks's petition for
certiorari review, she contended that the Court of Civil
Appeals' decision conflicted with prior caselaw regarding
"whether the proceedings of the Probate Court establish a
prima facie case of due execution of the subject will."
Petition at 3. Specifically, Ricks contended in ground "A"
that the Court of Civil Appeals' decision "misconstrues and
28
1120260
misapplies the language of Hancock." This Court granted the
petition solely as to this ground.
Section 43-8-199 provides for an action in the circuit
court to contest a will that has been previously admitted to
probate by the probate court. In Hancock, this Court stated
that "in such a suit as this 'those who claim under the
probated will [here, Ricks] must show affirmatively its
validity ....'" Hancock, 264 Ala. at 203-04, 86 So. 2d at 390
(quoting McCutchen v. Loggins, 109 Ala. 457, 462, 19 So. 810,
812 (1895)). See Ferrell v. Minnifield, 275 Ala. 388, 389-90,
155 So. 2d 345, 346 (1963) ("On a will contest in equity
court, the burden of proof is on the proponents of the will
...."). This Court further noted that the validity of the
will is "prima facie sustained by the proceedings in the
probate court admitting the will to probate." Hancock, 264
Ala. at 204, 86 So. 2d at 390. Hancock makes clear in the
very next sentence, however, that the admission of the will to
probate by the probate court does not shift any burden to the
persons contesting the will to disprove the will: "The duty,
not a shifting of the burden of proof, is then upon the
[plaintiffs, who are contesting the will,] to introduce
29
1120260
evidence on which it is claimed the 'alleged invalidity of the
will is based.'" Hancock, 264 Ala. at 204, 86 So. 2d at 390
(quoting Smith v. Bryant, 263 Ala. 331, 334, 82 So. 2d 411,
414 (1955) (emphasis added)). If the submission in the circuit
court of the proceedings in the probate court does not shift
the burden of proof to the party contesting the will, then it
cannot be said that the submission of the probate judgment in
any way proves or supports the case of the will's proponent.
Any purported presumption in favor of the validity of the will
indicated by this language, however, is destroyed--not merely
rebutted--when the party contesting the will in the circuit
court action submits evidence indicating that the will was
invalid:
"[W]hen
[the
plaintiffs]
introduce
such
evidence
from
which [the will's] invalidity may be inferred, the judgment in
the probate proceedings will have lost its value as evidence,
for the trial is de novo." Hancock, 264 Ala. at 204, 86 So.
2d at 390. The circuit court action, as explained in Hancock,
is essentially a "trial de novo" of the probate proceeding; in
a trial de novo, the actions and judgment in the lower court
carry no weight. Ball v. Jones, 272 Ala. 305, 309, 132 So. 2d
120, 122 (1961) ("A trial de novo, within the common
30
1120260
acceptation of that term, means that the case shall be tried
in the Circuit Court as if it had not been tried before, and
that that court may substitute its own findings and judgment
for that of the lower tribunal."). The Hancock Court further
stated that, in a circuit court will contest, "the judgment in
the probate court has no probative value." Hancock, 264 Ala.
at 204, 86 So. 2d at 391 (emphasis added). The circuit court
action is a new trial to determine the validity of the will;
the probate court's judgment has no value as evidence of the
validity of the will ("no probative value"). This is in
4
accord with the idea of a trial de novo, where the lower
court's judgment is treated as if it did not exist.
5
The main opinion, however, appears, contrary to Hancock,
to assign probative value to the probate court's judgment,
i.e., giving the probate court's judgment "value as evidence"
and "probative value," despite the holding of Hancock. The
main opinion further posits that the submission of the probate
Certain evidence submitted in the probate court is still
4
admissible in the circuit court proceeding. See Ala. Code
1975, §§ 43-8-171 and -202.
Subsequent decisions repeating language from Hancock did
5
not alter this proposition. Ferrell v. Minnifield, 275 Ala.
388, 155 So. 2d 345 (1963); Ray v. McClelland, 274 Ala. 363,
148 So. 2d 221 (1962).
31
1120260
proceedings in the circuit court creates a rebuttable
presumption under Rule 301(b)(1), Ala. R. Evid., i.e., a
"presumption ... requiring the trier of fact to assume the
existence of the presumed fact." This is the complete
opposite of what Hancock says: "[T]he judgment in the probate
court has no probative value." 264 Ala. at 204, 86 So. 2d at
391.
The main opinion attempts to bolster its contrary
reasoning by noting a purported inconsistency in Hancock,
namely, that the portions of that opinion stating that the
fact that the probate court admitted the will to probate has
no evidentiary value conflict with the portion of the opinion
stating that the introduction of the probate proceedings
"prima facie sustain[s]" the will. However, there is no
6
actual inconsistency in Hancock; there is only a perceived
inconsistency as a result of the odd posture of the parties in
a will contest in the circuit court. The persons contesting
the will file the circuit court action and are the plaintiffs;
the proponent of the will in the probate court proceedings is
The main opinion provides no reason as to why it chooses
6
one side of this purported conflict as correct and rejects the
other.
32
1120260
now the defendant. Normally the plaintiff in an action proves
his or her case, but the defendant here--the proponent--must
first put forth the will (by introducing the probate
proceedings) that the plaintiff/contestant intends to attack.
Thus Hancock states that the "prima facie" showing made by the
probate court proceedings "only serves to give direction to
the order of procedure in the circuit court," not that it
proves the proponent's position. Hancock, 264 Ala. at 204, 86
So. 2d at 391 (emphasis added). Further, the submission of
the probate court's judgment was required to provide a
jurisdictional prerequisite to the circuit court, sitting in
equity, to hear the case:
"It is also said in McCutchen v. Loggins, supra,
that when complainants showed their interest and
right to contest in equity 'the burden was placed
upon the respondents to affirm and maintain the
validity of the probated will. Complainants have no
standing
in
the
chancery
court,
except
as
contestants.'
"... [O]n such contest the judgment in the
probate court has no probative value, and only
serves to give direction to the order of procedure
in the circuit court in equity and support for
equity jurisdiction."
Hancock, 264 Ala. at 204, 86 So. 2d at 390-91 (emphasis
added). See also Ferrell, 275 Ala. at 391, 155 So. 2d at 347
33
1120260
("The admission of the will to probate in the probate court
is, therefore, a condition precedent to the jurisdiction of
the equity court to entertain such a contest."). The probate
court's judgment did not provide substantive support for the
proponent's case; it "only" provided a starting point for the
proceedings and the support for the exercise of equity
jurisdiction. When the party contesting the will presents
evidence
showing
the
invalidity
of
the
will,
the
proponent/defendant must rebut that evidence. Hancock lays
out this procedure as follows:
"[T]he proper procedure is that the [defendant], who
is in effect the proponent, should first introduce
the proceedings admitting the will to probate in the
probate court.... [The plaintiff,] who is the
contestant, 'should then introduce testimony on
which the alleged invalidity of the will is based.
The [defendant] should then introduce the rebuttal
testimony....'"
Hancock, 264 Ala. at 203, 86 So. 2d at 390. The introduction
of the probate court's judgment admitting the will to probate
serves only to set the stage for the plaintiffs'/contestants'
will
contest
and
to
establish
the
circuit
court's
jurisdiction. The introduction of the probate proceedings
does not, in a trial de novo, satisfy a burden on the part of
the defendant that the plaintiffs must rebut in their case-in-
34
1120260
chief. I dissent from any holding in the main opinion to the
contrary.
Even if the main opinion's application of Hancock is set
aside, the argument might be made that the evidence submitted
by Ricks at trial nevertheless supported the will and thus
supports the circuit court's decision. This is the issue
presented in ground "B" of Ricks's certiorari petition.
Specifically, she alleged, among other things, that the Court
of Civil Appeals erred in holding: (1) that the will contained
no official seal; (2) that the testimony of the notary public
that she had "notarized" the signatures was insufficient to
show that the will contained a seal; (3) that the circular
mark on the copy of the will was not indicative of a seal; and
(4) that Ricks did not introduce the probate proceedings into
evidence, despite the fact that a copy of the probate court's
record was transferred to the circuit court. This Court
denied certiorari review as to ground "B"; thus, those issues
are not before us, and I express no opinion as to whether the
Court of Civil Appeals correctly decided those issues. I
believe that ruling on an issue this Court expressly stated it
35
1120260
would not review is erroneous and arguably denies the
respondents due process of law.
Additionally, the main opinion holds that the respondents
waived their argument that no seal was affixed to the will
because the argument was raised for the first time in an
interlocutory motion filed after the circuit court
had
entered
a nonfinal order. This argument was rejected by the Court of
Civil Appeals, and Ricks did not oppose that holding in either
her certiorari petition or her brief to this Court. The
respondents, with no notice that waiver was even at issue,
also do not discuss the issue in their brief. Because the
issue is not raised or discussed, and is, in any event,
material only to the issues upon which this Court denied
certiorari review, I must respectfully dissent.
36 | February 7, 2014 |
3ebfe5f9-cbf1-45d3-bbfd-c2feb3746ab4 | In re The incorporation of Caritas Village | N/A | 1120471 | Alabama | Alabama Supreme Court | REL:01/10/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120471
____________________
In re The incorporation of Caritas Village, Alabama
v.
Judge James W. Fuhrmeister
Appeal from Shelby Probate Court
(PR-12-0533)
BOLIN, Justice.
This is an appeal from an order entered by the Shelby
Probate Court denying a petition to incorporate Caritas
Village located in Shelby County, pursuant to § 11-41-1, Ala.
Code 1975. The pivotal issue in this case involves
1120471
declarations of residency. In order to meet the 300
inhabitants required for incorporation under § 11-41-1, the
petitioners included 51 people actually living in Caritas
Village along with 296 people who had declared that they have
designated Caritas Village as their place of residence
pursuant to § 12-13-23, Ala. Code 1975. The issue is whether
that is sufficient for purposes of § 11-41-1. We hold that it
is not.
Facts and Procedural History
On August 30, 2012, the petitioners filed their petition
in the Shelby Probate Court to incorporate Caritas Village,
along with numerous affidavits and documents in support of the
petition. On October 18, 2012, the probate court concluded
that the petition did not comply with § 11-41-1. The probate
court determined that 1) the proposed municipality had a
population of less than 300; 2) the population of the proposed
municipality did not constitute a body of citizens whose
residences were contiguous and all of which formed a
homogeneous community; 3) the application was not signed by at
least 15 percent of the qualified electors residing within the
limits of the proposed municipality; 4) there were not 4
2
1120471
qualified electors residing on each quarter of a quarter
section of the platted or unplatted lands in the proposed
municipality; 5) the application did not contain an accurate
plat of the land to be included within the proposed corporate
limits; 6) the place of residence by street and number, if
available, of those living within the proposed municipality
was not included; and 7) the petition did not accurately state
the name of the proposed municipality.
On December 17, 2012, the petitioners filed a motion to
amend their petition. On January 8, 2013, the probate court
entered the following order:
"This
matter
came
before
the
court
on
petitioners' Motion for Leave of Court to Amend the
Application and Petition to Incorporate to Cure the
Deficiencies in the Application as Identified by the
Judge of Probate and Request for a Hearing. The
petitioners seek incorporation of a portion of
Shelby County, Alabama, as a municipal corporation
pursuant to Ala. Code § 11-41-1 et seq. (1975 as
amended). By order entered October 18, 2012 (the
'Prior Order'), this Court found that petitioners'
Application did not comply with Code § 11-41-1.
Petitioners seek to amend their Application pursuant
to § 11-41-2(b) to cure the deficiencies. Said
motion for leave to amend is GRANTED. Petitioners
also request a hearing on their Application and said
request is DENIED because § 11-41-2(b) does not
provide for a hearing at this stage of the
proceedings.
3
1120471
"For municipal incorporation, Alabama law
requires an area to have 'a population of not less
than 300, constituting a body of citizens whose
residences are contiguous to and all of which form
a homogeneous settlement or community.' To reach
this population requirement, petitioners filed 205
affidavits that were made pursuant to [§ 12-13-23,
Ala. Code 1975] (the 'Act'). In Exhibit A to the
Amended Application, affiant Jason Terrell states
that 51 persons reside within the territory subject
to the Application and an additional 296 persons
have declared their residency within the area by
filing affidavits pursuant to the Act. It is the
opinion of this Court, and it is so held, that
affidavits made pursuant to the Act are not
sufficient to establish the population requirement
of § 11-41-1. Declaring one's legal residence is not
equivalent to being domiciled in a particular place,
being part of a homogeneous settlement or community
and thus being part of the area's population.
Petitioners must demonstrate that there are at least
300
people
domiciled
in
the
subject
area.
Petitioners have failed to establish that the
subject area satisfies the population requirement of
the Code, that all residences of the population are
contiguous, and that the subject area is a
homogeneous settlement or community.
"Therefore, based on the foregoing as well as
the reasons set forth in the Prior Order, the Court
FINDS, and it is so ORDERED, ADJUDGED and DECREED,
that the Application as amended does not comply with
the provisions of Code § 11-41-1 and the Application
is due to be, and is hereby, DENIED."
(Capitalization in original.)
On January 17, 2013, the petitioners timely filed an
appeal.
Standard of Review
4
1120471
"'This court reviews de novo a trial court's
interpretation of a statute, because only a question
of law is presented.' Scott Bridge Co. v. Wright,
883 So. 2d 1221, 1223 (Ala. 2003). Where, as here,
the facts of a case are essentially undisputed, this
Court must determine whether the trial court
misapplied the law to the undisputed facts, applying
a de novo standard of review."
Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033,
1034–35 (Ala. 2005).
Discussion
Section 12-13-23 provides:
"(a) For the purposes of this section, the
following words shall have the following meanings:
"1) Declaration of residence. Any
written document which conveys a person's
intention to designate any place within
this state as his or her place of
residence.
"(2) Person. Whether used in the
singular or plural form, a natural person
who is a citizen of the United States. When
used in reference to the designation of a
place of residence, the word 'person' shall
include any dependent minor child of a
person.
"(3) Place or place of residence. A
physical location which is capable of
habitation and may be described in any way
reasonably calculated to locate the same.
"(4) Resident. A lawful citizen of
this state for all legal purposes other
5
1120471
than registration to vote or qualification
for elected office.
"(b) Any person who is absent from this state on
military
duty,
eleemosynary
journey,
mission
assignment, or other similar venture may designate
any place within the State of Alabama as his or her
residence. Upon filing a notarized declaration of
residence with the judge of probate of the county in
which the designated place of residence is located,
the person and his or her dependent children shall
thereafter
be
considered
residents
of
that
designated place for all purposes under the law.
"(c) The judge of probate of the county, upon
receipt of a declaration of residency, shall file
the same within the public record of his or her
office.
"(d)
Notwithstanding
the
foregoing,
a
declaration of residence filed under this section
shall not affect the person's eligibility to
register to vote or qualify for an elected office if
that person otherwise meets the requirements of law
to register to vote or to qualify for elected
office.
"(e) Notwithstanding the foregoing, if a person
is previously registered to vote in a district their
voting rights shall continue in that district.
"(f) In the event a person has filed a
declaration of residence as provided in this section
and otherwise meets all requirements of law to
register to vote or to qualify for elected office,
then that person may also register to vote or
qualify for elected office at the place of residence
designated pursuant to this section.
"(g) Notwithstanding the foregoing, the filing
of a declaration of residence under this section
does not establish permanent residency for the
6
1120471
person filing the declaration for the purposes of
eligibility for the Alabama G.I. and Dependents’
Educational Benefit Act, Sections 31-6-1 through 31-
6-17, inclusive.
"(h) Nothing in this section shall be used to
change the venue of any pending civil action or for
the purpose of forum shopping.
"(i) Notwithstanding the foregoing, the filing
of a declaration of residence under this section
does not establish permanent residency for the
person filing the declaration for the purposes of
qualifying for in-state tuition rates at a state-
supported institution of higher education, unless
the person either filed a personal income tax return
with the State of Alabama or would have been
required to file a personal income tax return if the
person otherwise had a tax liability."1
The petitioners argue that the affidavits, which included
declarations of residency pursuant to § 12-13-23, satisfy the
population requirement of § 11-41-1. They also argue that
the probate court's conclusions regarding contiguity and
homogeneity based on the 296 persons declaring residency in
Caritas Village were erroneous.
"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
The constitutionality of § 12-13-23 is not an issue in
1
this case.
7
1120471
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)."
Ex parte State Dep't of Revenue, 683 So. 2d 980, 983 (Ala.
1996). "It is ... well accepted that this Court[, in
interpreting a statute,] will give words used in a statute
their 'natural, plain, ordinary, and commonly understood
meaning.'" Ex parte Etowah Cnty. Bd. of Educ., 584 So. 2d
528, 530 (Ala. 1991)(quoting Alabama Farm Bureau Mut. Cas.
Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1223 (Ala.
1984)). "'[W]hen a term is not defined in a statute, the
commonly accepted definition of the term should be applied.'"
Ex parte Gadsden Reg'l Med. Ctr., 904 So. 2d 234, 236 (Ala.
2004)(quoting Bean Dredging, L.L.C. v. Alabama Dep't of
Revenue, 855 So. 2d 513, 517 (Ala. 2003)).
Section
11-41-1
provides
that
an
"unincorporated
community" with a "population" of "300" "inhabitants" whose
"residences" are "contiguous to and all of which form a
homogeneous
settlement
or
community"
may
seek
incorporation
as
a "municipal corporation." Section 11-41-1 goes on to
provide:
8
1120471
"The petition for incorporation shall be
submitted by the persons seeking the incorporation
referendum to the judge of probate by a verified
application, which shall state the proposed name of
the municipality, have attached thereto and as a
part thereof an accurate plat of the territory
proposed to be embraced within the corporate limits,
including all subdivisions into lots, blocks,
streets, and alleys, within the territory, if any,
and have accurate description by metes and bounds of
the boundary of the territory. The application shall
contain proof of residence and qualifications as
electors of petitioners and of persons affected.
When determining the ownership of the lands, the
person, firm, or corporation assessing the property
for taxation shall be accepted by the judge of
probate as prima facie the owner thereof. All
petitions circulated with respect to any proposed
incorporation
referendum
shall
be
uniform
in
character. Each signer of a petition shall sign his
or her name and shall have placed on the petition
after his or her name his or her place of residence
by street and number, if available, and the date on
which the signature is affixed. The signatures
attached to any petition need not be signed on one
page, but each page shall have attached an affidavit
by the person circulating the petition stating the
number of signers on each page of the petition, that
each signature signed on the page is the genuine
signature of the person whose name it purports to
be, and that the signature was made in the presence
of the person circulating the petition."
In Baker v. Conway, 214 Ala. 356, 108 So. 18 (1926), the
Court recognized that "reside," "resident," and "residence"
may have different meanings in different settings:
"The
words
'reside,'
'residence,'
and
'resident,' as used in constitutions and statutes,
have been often defined and construed by the courts.
9
1120471
7 Words and Phrases, First Series pp. 6147–6166.
Their meaning has been variously shaded according to
the variant conditions of their application. For
some purposes, a merely constructive residence,
resting chiefly upon the intention of the citizen,
is sufficient to fix or retain his residence at a
designated place. For other purposes, an actual
residence is intended or required. In some cases it
has been held that there must be a union of fact and
intention. ...
"....
"'The word "reside" may, and sometimes
does, have different meanings in the same
or different articles or sections of a
constitution or statute.'"
214 Ala. at 356-57, 108 So. at 18 (quoting People v. Owers, 29
Colo. 535, 546, 69 P. 515, 518 (1902)).
In Carey v. City of Haleyville, 230 Ala. 401, 402, 161
So. 496, 498 (1935), the Court addressed a statute authorizing
a municipality to issue bonds to construct schoolhouses,
stating:
"Municipal corporations are voluntary associations
created and built upon the voluntary assent of the
community and its citizens (Montgomery v. City of
Athens, 229 Ala. 149, 155 So. 551 [(1934)], and a
reading of the act ... is persuasive that the
Legislature had this in view, and intended a broad
authority
in
matters
affecting
the
health,
convenience, and promotion of the general welfare of
the inhabitants thereof -- all of which were to be
sanctioned by the voters before the bonds could be
thus issued for these purposes."
10
1120471
(Emphasis added.) In City of Dothan v. Dale County
Commission, 295 Ala. 131, 324 So. 2d 772 (1975), the City of
Dothan sought to annex territory in an adjoining county. The
probate court held that the annexation was void because its
irregular shape and its lack of homogeneity with the rest of
the city violated the legislative intent behind annexation.
This Court, reversing the probate court's judgment, stated:
"We know of no statutory mandate that the
municipal boundaries of all territories sought to be
annexed must form a regular shape. Tit. 37, § 135
(10) [now codified at § 11-42-2, Ala. Code 1975,]
does require that such annexed territory 'form a
homogeneous part of the city or town.' But, this is
not to imply that homogeneity demands regularity of
shape of the boundaries of the municipality.
'Homogeneous' is defined as 'of similar kind or
nature ... of uniform structure or composition ...
consisting of uniform elements (as of people or
groups with similar background)...' Webster's Third
New International Dictionary, 1966."
295 Ala. at 135, 324 So. 2d at 776 (emphasis added).
City of Fultondale v. City of Birmingham, 507 So. 2d 489,
491
(Ala. 1987), involved a municipal annexation that included
public-road rights-of-way as necessary to create contiguity
with existing city limits; in holding the annexation invalid,
the Court stated:
"Although Alabama law does not require that
municipal boundaries form a regular shape, the legal
11
1120471
and popular idea of a municipality in this country
is 'that of oneness, community, locality, vicinity;
a collective body, not several bodies; a collective
body of inhabitants--that is, a body of people
collected or gathered together in one mass, not
separated into distinct masses, and having a
community of interest because residents of the same
place, not different places.' 56 Am.Jur.2d Municipal
Corporations § 69 at 125 (1971)."
(Emphasis added.)
In Fort Morgan Civic Ass'n v. City of Gulf Shores, 100
So. 3d 1042 (Ala. 2012), a citizens' group and a resident of
an
unincorporated area challenged the recent annexation of
the
unincorporated area, arguing that the annexation constituted
a "long-lasso" annexation and that the annexation was invalid
because the State did not own all the annexed property as it
had stated in its petition. Justice Murdock concurred in the
result and wrote separately regarding, in part, his concerns
over
the
Court's
jurisprudence
as
to
"long-lasso
annexations."
Although the present case does not involve a long-lasso
annexation, we find Justice Murdock's discussion helpful in
elucidating the nature of a community grounded in residency:
"'Although
Alabama
law
does
not
require that municipal boundaries form a
regular shape, the legal and popular idea
of a municipality in this country is "that
of oneness, community, locality, vicinity;
a collective body, not several bodies; a
12
1120471
collective body of inhabitants—-that is, a
body of people collected or gathered
together in one mass, not separated into
distinct masses, and having a community of
interest because residents of the same
place, not different places." 56 Am.Jur.2d
Municipal Corporations § 69 at 125 (1971);
City of Dothan [v. Dale County Comm'n, 295
Ala. 131, 324 So. 2d 772 (1975)]. The
annexations proposed by Fultondale and
Trussville do not create a collective body
of
inhabitants,
but,
rather,
several
bodies
scattered across an area, a result we feel
the legislature did not intend.'
"[City
of
Fultondale
v.
City of
Birmingham,]
507
So. 2d [489] at 491 [(Ala. 1987)] (emphasis added).
"Clearly, the
essential rationale of
the
City of
Fultondale decision is that annexing a long strip of
land to reach another 'community, locality, [or]
vicinity,' one that is not 'contiguous' to the
existing boundaries of the annexing municipality, is
a use of the annexation power that was not intended
by the legislature. The rationale of the Court was
that a 'long lasso'—-whether or not consisting
solely of a public roadway—-is an artifice to
achieve the annexation into a municipality of a
separate body of inhabitants and landowners who do
not share with the existing municipality a community
of interest grounded in their place of residency."
100 So. 3d at 1053-54 (Murdock, J., concurring in the
result)(some emphasis omitted; some emphasis added).
In the present case, we agree with the probate court's
conclusion that the proposed incorporation was not a
"homogeneous settlement or community" as intended under § 11-
13
1120471
41-1. None of the 296 declarants physically reside in the
area to be incorporated and governed as a municipality so as
to be "inhabitants of the unincorporated community which has
a population of not less than 300."
We find the Minnesota Supreme Court's reasoning in State
v. Village of Island Lake, 130 Minn. 100, 153 N.W. 257 (1915),
analogous to the present case. In Island Lake, a petition for
annexation was signed by 25 persons residing in the area
sought to be incorporated as a village.
"The territory so included within the village was
sparsely settled, lying south of Red Lake, and is
four miles long by three miles wide, containing
7,600 acres of land, only 15 of which was platted
into
town
lots.
In
December
following
the
incorporation the platted part of the village
contained 19 persons, men, women, and children, and
its present population is 12, 5 adults and 7
children. It never contained more than eight
buildings, only five of which now remain; one
thereof being the village jail. The population of
the whole territory never exceeded 52 persons,
though at the date of the incorporation many
laborers were employed at lumber camps within the
district; but their presence was temporary, during
the logging season, and they had no actual residence
therein. ...
"The contention
of
the
Attorney
General
was
that
the incorporation of the village was fraudulently
obtained, that it never contained the necessary
population, and for that reason should be dissolved.
The trial court sustained this contention.
14
1120471
"It is contended by appellants in this court
that the laborers in the lumber camps were properly
included in determining the 'resident population,'
and that by including them therein the territory
incorporated contained the necessary population of
140.
Appellants'
contention
should
not
be
sustained. The purpose of the statutes providing for
the incorporation of small villages is to further
the interests, and for the better protection, of
those actually residing and having a fixed abode
within the territory incorporated, and not for the
benefit of those who may be temporarily sojourning
therein. In this particular case there were in fact
only 52 actual residents within the territory. The
laborers at the lumber camps were there temporarily,
during the logging season, and cannot be included to
make up the necessary population, for they cannot be
considered or treated as residing in the territory
within the meaning of the statute. These facts do
not appear to have been called to the attention of
the board of county commissioners at the time the
petition for incorporation was presented, and the
act
of
incorporation
without
the
necessary
population was unauthorized and illegal."
130 Minn. at 101-02, 153 N.W. at 257-58 (emphasis added).
Similar to the temporary presence of the loggers in the
Minnesota case, the declarants' statements of intent to
declare residency in Caritas Village does not meet the purpose
of incorporating small municipalities.
"A
municipal
corporation
is
a
legal
institution,
formed by charter from sovereign power, erecting a
populous community of prescribed area into a body
politic and corporate, with corporate name and
continuous succession, and for the purpose and with
the
authority
of
subordinate
self
government
15
1120471
improvement and local administration of affairs of
state.' Municipal corporations are thus incorporated
cities, towns, and villages created to serve the
dual role as agents of the state and local governing
entities. Their characteristic feature is the power
and right to local self-government."
1 James D. Cox and Thomas Lee Hazen, Treatise on the Law of
Corporations § 1:17 (3d ed. 2012)(footnote omitted).
"There must exist a village, a community of people,
a settlement of a town occupying an area small
enough that those living therein may be said to have
such social contacts as to create a community of
public interest and duty requiring, in consideration
of the general welfare, an organized agency for the
management of their local affairs of a quasi public
nature."
State v. Town of Lake Placid, 109 Fla. 419, 426, 147 So. 468,
471 (1933).
We note that although § 12-13-23(b) provides that a
declarant is considered a resident of the place designated in
the declaration for all purposes under the law, the statute
goes on to provide that the declaration will not affect the
declarant's eligibility to register to vote or to qualify for
an elected office; if the declarant has been previously
registered to vote in another district, his or her voting
rights will continue in that other district; the declarant may
16
1120471
also register to vote or to qualify for elected office at the
place of declaration of residency; the declaration does not
establish permanency for the purposes of certain educational
benefits for members of the armed forces and their family
members; the declaration cannot be used to change venue in a
civil action;
and
the declaration does not establish permanent
residency for the purpose of receiving in-state tuition at
state universities unless the declarant has to file an income-
tax return in Alabama. One of the purposes of this statute is
to allow military personnel and missionaries who are on
extended
travels
out-of-state
to
declare
residency
in
Alabama.
However, we cannot say that the residency declarations
provided for in the statute meet the requirements of § 11-41-1
because the mere declaration of residency does not indicate a
body of inhabitants who share with the proposed municipality
a community of interest grounded in their place of residency.
We note that the petitioners contend that the legislature
intended to include those who declare their residency to be
Caritas Village pursuant to § 12-13-23 as part of the 300
inhabitants "whose residences are contiguous to and all of
which form a homogeneous settlement or community." This is so
17
1120471
because, they say, § 11-41-3 and § 11-41-5, Ala. Code 1975,
provide that only persons who are qualified electors under
state law and who have resided within the boundaries of the
proposed municipality for three months preceding the election
to incorporate may vote in the election. However, before an
election can occur, the petition must meet the requirements of
§ 11-41-1; the inhabitants
of
an unincorporated community must
have a population of 300 citizens who form a homogeneous
settlement or community.
Based on the foregoing, we affirm the judgment of the
probate court.
AFFIRMED.
Stuart, Murdock, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Parker, J., dissents.
Moore, C.J., recuses himself.
18
1120471
PARKER, Justice (dissenting).
I respectfully dissent. Section 11-41-1, Ala. Code 1975,
provides, in pertinent part:
"When the inhabitants of an unincorporated
community, which has a population of not less than
300,
constituting
a
body
of
citizens
whose
residences are contiguous to and all of which form
a homogeneous settlement or community, desire to
become organized as a municipal corporation, they
may apply to the judge of probate of the county in
which the territory is situated, or the greater
portion thereof if it is situated in two or more
counties, for an order of incorporation, by a
petition in writing signed by not less than 15
percent of the qualified electors residing within
the limits of the proposed municipality and by the
persons, firms, or corporations owning at least 60
percent of the acreage of the platted or unplatted
land of the proposed municipality."
Given its plain and ordinary meaning, this statutory
language provides that a group of at least 300 persons who are
inhabitants, i.e., residents, of an unincorporated community
may apply to the probate judge in the county in which that
territory is located for an order of incorporation. Section
12-13-23, Ala. Code 1975, defines "resident" as follows: "A
lawful citizen of this state for all legal purposes other than
registration to vote or qualification for elected office."
"'"'Words used in a statute must be given their natural,
19
1120471
plain, ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret that
language to mean exactly what it says. If the language of the
statute is unambiguous, then there is no room for judicial
construction and the clearly expressed intent of the
legislature must be given effect.'"'" Thomas v. Merritt, [Ms.
1111588, December 6, 2013] ___ So. 3d ____, ____ (Ala. 2013)
(quoting Blue Cross & Blue Shield v. Nielsen, 714 So. 2d 293,
296 (Ala. 1998), quoting in turn IMED Corp. v. Systems Eng'g
Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992)). In this
case, the intent of the legislature is obvious in that it
unambiguously defined "resident" to include any "lawful
citizen of this state for all legal purposes other than
registration to vote or qualification for elected office";
thus, there were at least 300 "residents" who petitioned the
probate court for an order of incorporation. Because there
were at least 300 "residents" seeking an order incorporating
Caritas Village, the petition to incorporate was due to be
granted. Had the legislature intended that the petitioners
must physically reside in the area proposed as Caritas Village
to meet the requirements of § 11-41-1, it could have used
20
1120471
language similar to the language found in the latter part of
§ 11-41-1, which requires, in relevant part, that "[t]he
inhabitants of any island having ... a population of not less
than 300 qualified electors actually residing thereon ... may
become organized as a municipal corporation"; however, the
legislature chose not to do so. It is well settled that "the
legislature knows how to distinguish between ... two terms
when it so chooses and ... it has distinguished them in the
relevant statutes here." See, e.g., Belcher v. Kier, 558 So.
2d 1039, 1044 (Fla. Dist. Ct. App. 1990). Based on the
foregoing, I would reverse the order of the Shelby Probate
Court denying the petition for incorporation of Caritas
Village. Therefore, I must dissent.
21 | January 10, 2014 |
9592682e-dd9c-4015-9a1d-cb54260a62a4 | David Vinson, Jr. v. G & R Mineral Services, Inc. (Appeal from Shelby Circuit Court: CV-10-900862). Affirmed. No Opinion. | N/A | 1120976 | Alabama | Alabama Supreme Court | Rel: 01/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120976
____________________
David Vinson, Jr.
v.
G & R Mineral Services, Inc.
Appeal from Shelby Circuit Court
(CV-10-900862)
PARKER, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Stuart, Bolin, Murdock, Shaw, Main, Wise, and Bryan, JJ.,
concur.
Moore, C.J., dissents.
1120976
2
MOORE, Chief Justice (dissenting).
Because I believe a genuine issue of material fact exists
as to whether G & R Mineral Services, Inc., was a "special
employer" of David Vinson, Jr., I respectfully dissent from
affirming the summary judgment in favor of G & R.
I. Facts and Procedural History
Vinson sought employment with G & R, a contractor who
provided services to Chemical Lime Company of Alabama
("ChemLine"), the operator of a lime quarry in Calera. G & R
directed
Vinson
to
Diversified
Sourcing
Solutions,
a
temporary-employment agency who employed Vinson and assigned
him to work for G & R at the Chemline "baghouse" to change out
lime filters. Vinson's first day at work was uneventful. On
the second day he inhaled lime dust, left early, was
hospitalized, and never returned to work.
Vinson sought and was awarded worker's compensation
benefits
from
Diversified.
When
Diversified's
workers'
compensation carrier became insolvent, the Alabama Insurance
Guaranty Association assumed the responsibility of paying for
Vinson's care but eventually discontinued paying him benefits.
Vinson then sued G & R seeking worker's compensation benefits.
1120976
3
G & R's workers' compensation carrier convinced Vinson to
dismiss the action on the ground that Diversified, and not G
& R, had been Vinson's employer. Vinson then brought a
negligence action against G & R, who raised as a defense that
it was a "special employer" of Vinson and thus was immune from
liability for negligence. Vinson moved to strike the "special
employer" defense on the ground that it was inconsistent with
G & R's argument in the worker's compensation case that it was
not Vinson's employer. The trial court denied the motion to
strike and instead entered a summary judgment for G & R,
finding that Diversified was merely a temporary-employment
agency and that Vinson had an implied contract of special
employment with G & R that shielded G & R from liability for
torts. Vinson appealed the summary judgment to this Court.
II. Issue
The issue presented by this case is whether G & R was a
"special employer" of Vinson so that Vinson's exclusive
recourse for a job-related injury at G & R's work site was a
worker's compensation claim or whether he was solely an
employee of Diversified and was thus entitled to sue G & R in
negligence for his injuries.
1120976
4
III. Analysis
Vinson argues that Diversified alone was his employer and
that he had not formed an implied contract with G & R as a
special employee. Alternately, Vinson argues that a genuine
issue of material fact exists as to whether G & R was his
special employer, thus precluding a summary judgment.
An action brought under Alabama's Workers' Compensation
Act, § 25-5-1 et seq., Ala. Code 1975, is the exclusive remedy
for an employee's injuries sustained in the course of his or
her employment. § 25-5-53, Ala. Code 1975. An employee is a
"person in service of another under any contract of hire,
express or implied, oral or written," § 25-5-1(5), Ala. Code
1975 (emphasis added).
"'When a general employer lends an employee to
a special employer, the special employer becomes
liable for workmen's compensation only if
"'(a) the employee has made a contract of hire,
express or implied, with the special employer;
"'(b) the work being done is essentially that of
the special employer; and;
"'(c) the special employer has the right to
control the details of the work.'"
Terry v. Read Steel Prods., Inc., 430 So. 2d 862, 865 (Ala.
1983) (quoting 1C A. Larson, The Law of Workmen's Compensation
1120976
5
§ 48 (1980)). If all three criteria are satisfied, the
"special employer" may assert as a defense to a negligence
action the exclusivity provision of § 25-5-53. In this case no
dispute has arisen as to criteria (b) and (c). The only
contested factual issue at the summary-judgment stage and in
this appeal is whether Vinson had entered into an implied
contract of hire with G & R.
G & R argues that Diversified was a temporary-employment
agency, which did not employ Vinson to do work for it, but
instead assigned him to work on a contract basis for clients
to whom it provided employees. A worker employed by a general
employer that is "unambiguously [a] temporary employment
placement agenc[y]" "necessarily agrees to a contract of hire
with the special employer." G.UB.MK Constructors v. Garner, 44
So. 3d 479, 488 (Ala. 2010). The hourly fee G & R paid
Diversified for Vinson's services included a prorated payment
for the workers' compensation coverage Diversified carried. "A
worker should not be allowed to sue in tort the employer who
paid for his workers' compensation." Terry A. Moore, Alabama
Workers' Compensation § 5:49 (2013). However, in Lewis v.
Alabama Power Co., 83 So. 3d 560 (Ala. Civ. App. 2011), the
1120976
6
Court of Civil Appeals found that a factor weighing against a
special-employer relationship was that the defendant "was only
indirectly involved in the provision of workers' compensation
insurance." Id. at 567.
Vinson argues that G & R's insistence that it was not
Vinson's employer in the worker's compensation case creates a
genuine issue of fact as to whether it should be considered
Vinson's employer in this negligence case. I agree.
G & R's workers' compensation insurance carrier, in
seeking dismissal of G & R in Vinson's worker's compensation
case,
stated
that
Vinson
had
"no
employer/employee
relationship" with G & R and that "Mr. Vinson was not an
employee of G & R Mineral Services." Further, G & R's safety
officer
in
a
letter
to
the
Mine
Safety
and
Health
Administration stated: "The miner, David Vinson, is an
employee of Diversified Sourcing Solutions, not G & R Mineral
Services. Diversified [is] paying Mr. Vinson's worker's
compensation benefits, not G & R." G & R's assertion that it
did not have an employment relationship with Vinson is
probative of the issue whether Vinson had an implied contract
of employment with G & R. As Vinson argued: "If it is not
1120976
7
obvious and unambiguous to G & R that Vinson was an
implied-contract employee, then how can G & R legitimately
assert that the implied contract for hire must have been
unambiguous and obvious to Vinson?" Vinson's reply brief, at
12.
Resolving
all
reasonable
doubts
in
favor
of
the
nonmovant, as we must in reviewing a summary judgment, I would
conclude that G & R's opportunistic switch from nonemployer to
employer raises a factual question whether G & R was Vinson's
special employer.
Additionally, Vinson's two days of employment before his
injury is ordinarily not sufficiently long to establish a
special-employer relationship, Garner, 44 So. 3d at 488, and
Diversified, not G & R, retained the right to terminate
Vinson's employment. "Obviously, the 'right to hire and fire'
is indicative of an employment relationship." 44 So. 3d at
489. Finally, Diversified arguably operated not as a mere
temporary-employment
agency,
but
as
a
human-resources
subcontractor for G & R. Employees of a subcontractor who
perform work for another organization are not usually
considered special employees of the recipient company.
1120976
8
"[T]here is a point at which an entity that the contracting
parties attempt to cast as a general employer assumes such
duties as to become an independent contractor for provision of
services, not just laborers, and at that point its employees
do not impliedly contract with the 'special employer.'" Gaut
v. Medrano, 630 So. 2d 362, 368 (Ala. 1993).
Where
fair-minded
persons
might
draw
different
conclusions from undisputed facts, the question is one for the
jury. One Justice stated this principle as follows:
"The
issue
in
this
case
as
to
whether
[defendant] was a special employee ... is not a
question of pure law. It is [a] fact question if
from the evidence, even though it is undisputed,
reasonable persons might draw different conclusions
as to whether [defendant] was a special employee
....; such a fact question is for the jury. Only if
all
reasonable
persons
would
reach
the
same
conclusion would it be a question of law."
Rast Constr., Inc. v. Peters, 689 So. 2d 781, 786 (Ala. 1996)
(Kennedy, J., dissenting). In this case, the facts, depending
upon the weight accorded to them and the inferences drawn from
them, might reasonably support a legal conclusion that G & R
was a special employer of Vinson or that it was not. In that
circumstance the issue is one for the jury and a summary
judgment is inappropriate. See Capital Alliance Ins. Co. v.
1120976
9
Thorough-Clean, Inc., 639 So. 2d 1349, 1350 (Ala. 1994)
(noting that, in evaluating a motion for a summary judgment,
"the court is to view the evidence in a light most favorable
to the nonmoving party and to draw all reasonable inferences
in favor of that party"). | January 24, 2014 |
15a92720-ab35-4648-85c5-c95cb3ba6eeb | Tucker, Jr. v. Tombigbee Healthcare Authority | N/A | 1121194 | Alabama | Alabama Supreme Court | REL:02/07/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121194
____________________
Ex parte Gerald Hodge, M.D.
PETITION FOR WRIT OF MANDAMUS
(In re: David Tucker, Jr., as administrator ad litem for the
Estate of Gertha R. Tucker, and David Tucker, Jr.,
individually
v.
The Tombigbee Healthcare Authority et al.)
____________________
1121217
____________________
Ex parte Tombigbee Healthcare Authority d/b/a Bryan W.
Whitfield Memorial Hospital
PETITION FOR WRIT OF MANDAMUS
(In re: David Tucker, Jr., as administrator ad litem for the
Estate of Gertha R. Tucker, and David Tucker, Jr.,
individually
v.
The Tombigbee Healthcare Authority et al.)
(Marengo Circuit Court, CV-12-900026)
BOLIN, Justice.
Dr. Gerald Hodge and Tombigbee Healthcare Authority d/b/a
Bryan W. Whitfield Memorial Hospital separately petition this
Court for a writ of mandamus directing the Marengo Circuit
Court to dismiss the claims asserted against them by Gertha R.
Tucker and David Tucker, Jr., individually and as the
administrator ad litem for Gertha Tucker's estate, based on
the applicable statute of limitations.
Factual and Procedural History
Gertha Tucker underwent a hysterectomy in 2006. The
hysterectomy was performed by Dr. Gerald Hodge at Bryan W.
Whitfield Memorial Hospital. On December 28, 2011, Gertha was
seen by a rheumatologist upon her complaints of bilateral
thigh pain. An X-ray revealed the presence of a surgical
hemostat clamp lodged in Gertha's peritoneal cavity. On
2
1121194, 1121217
February 8, 2012, Gertha underwent a surgical procedure to
remove the retained hemostat clamp from her abdomen. Gertha
also had her appendix removed at that time.
On March 5, 2012, Gertha sued Dr. Hodge, Tombigbee
Healthcare Authority d/b/a Bryan W. Whitfield Memorial
Hospital (hereinafter referred to collectively as "the
defendants"), and others, alleging claims under the Alabama
Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et
seq., Ala. Code 1975. In count I of the complaint, Gertha
specifically alleged that Dr. Hodge performed a hysterectomy
on her in 2005; that Dr. Hodge negligently failed to account
1
for and to remove from her body a surgical hemostat clamp;
that she did not discover the presence of the foreign object
until December 2011, when she first started
experiencing
pain;
and that as the proximate result of the negligent failure to
remove the hemostat claim, she was made to suffer pain, life-
Although
the
original
complaint
asserted
that
the
surgery
1
was performed in 2005, David asserted in the second amended
complaint that Gertha underwent the hysterectomy in May 2006.
For purposes of discussion we will use May 2006 as the date of
the hysterectomy. However, in summarizing the parties'
arguments, we will use 2005 as the date, that being the date
to which the materials filed before the second amended
complaint were geared.
3
1121194, 1121217
threatening
medical
problems,
including
severe
infections,
and
mental anguish.
In count II of the complaint, Gertha alleged that the
defendants failed to properly manage, train, or supervise
their surgical team, which, she says, directly resulted in the
hemostat clamp being retained in her body and causing her
injuries.
In count III of the complaint, Gertha asserted claims
against Dr. Judy Travis and Dr. Ronnie Chu alleging a failure
to diagnose; a failure to treat and to make a timely referral
for treatment; a failure to disclose; and fraudulent
suppression, which, she says, caused her condition to
deteriorate
resulting
in
her
life-threatening
medical
problems
including
sepsis,
infection,
blood
clots,
possible
stroke,
and
the removal of her appendix. On March 19, 2012, Gertha
amended her complaint to add, as a plaintiff, her husband
David, who asserted a claim for loss of consortium.
On March 22, 2012, Dr. Hodge moved the trial court to
dismiss the amended complaint against him pursuant to Rule
12(b)(6), Ala. R. Civ. P., arguing that it was barred by the
applicable statute of limitations set forth in § 6-5-482, Ala.
4
1121194, 1121217
Code 1975. On April 3, 2012, Tombigbee Healthcare answered
and also moved the trial court to dismiss the amended
complaint against it pursuant to Rule 12(b)(6), Ala. R. Civ.
P., arguing that it was barred by the applicable statute of
limitations set forth in § 6-5-482, Ala. Code 1975. Section 6-
5-482(a) provides:
"(a) All actions against physicians, surgeons,
dentists, medical institutions, or other health care
providers for liability, error, mistake, or failure
to cure, whether based on contract or tort, must be
commenced within two years next after the act, or
omission, or failure giving rise to the claim, and
not afterwards; provided, that if the cause of
action is not discovered and could not reasonably
have been discovered within such period, then the
action may be commenced within six months from the
date of such discovery or the date of discovery of
facts which would reasonably lead to such discovery,
whichever is earlier; provided further, that in no
event may the action be commenced more than four
years after such act; except, that an error,
mistake, act, omission, or failure to cure giving
rise to a claim which occurred before September 23,
1975, shall not in any event be barred until the
expiration of one year from such date."
(Emphasis added.) The defendants argued that Gertha's injury
occurred and her cause of action accrued at the time of the
act or omission complained of whether or not the injury was or
could have been discovered within the statutory period. See
Jones v. McDonald, 631 So. 2d 869 (Ala. 1993) (holding that
5
1121194, 1121217
plaintiff's medical-malpractice action accrued when physician
performed the surgery and left the surgical instrument in the
body at the surgical site); Street v. City of Anniston, 381
So. 2d 26 (Ala. 1980) (holding that in medical-malpractice
actions the legal injury occurs at the time of the negligent
act or omission, whether or not the injury is or could be
discovered within the statutory period); and Bowlin Horn v.
Citizens Hosp., 425 So. 2d 1065 (Ala. 1982). The defendants
argued that the injury complained of occurred in 2005, when
Gertha underwent the hysterectomy, and that her complaint
filed in 2012 is barred by the four-year period of repose set
forth in § 6-5-482(a).
On July 23, 2012, the Tuckers filed a response in
opposition to the defendants' motions to dismiss. Citing
Crosslin v. Health Care Authority of Huntsville, 5 So. 3d 1193
(Ala. 2008), and Mobile Infirmary v. Delchamps, 642 So. 2d 954
(Ala. 1994), the Tuckers argued that Gertha's legal injury
occurred in December 2011, when she first began experiencing
pain in her abdomen and discovered the presence of the
hemostat clamp. See Crosslin, 5 So. 3d at 1196 (stating that
"'[w]hen the wrongful act or omission and the resulting legal
6
1121194, 1121217
injury do not occur simultaneously, the cause of action
accrues and the limitations period of § 6-5-482 commences when
the legal injury occurs'" (quoting Mobile Infirmary, 642 So.
2d at 958)). Thus, the Tuckers contend that the complaint
filed in March 2012 was not barred by the statute of
limitations found in § 6-5-482.
Gertha passed away on April 8, 2012. On July 25, 2012,
David was substituted by order as the administrator ad litem
and personal representative of Gertha's estate. On August 2,
2
2012, the trial court entered an order denying Tombigbee
Healthcare's motion to dismiss the amended complaint. The
trial court's order contained no express disposition of Dr.
Hodge's motion to dismiss.
On August 6, 2012, David, as the personal representative
of Gertha's estate, filed a second amended complaint in order
to assert a wrongful-death claim against the defendants.
3
David alleged that as the result of the defendants' actions
The previously filed personal-injury claims, including
2
those filed pursuant to the Alabama Medical Liability Act,
survived Gertha's death. See § 6-5-462, Ala. Code 1975; King
v. National Spa & Pool Inst., Inc., 607 So. 2d 1241 (Ala.
1992).
David also added Dr. Jerry Luther as an additional
3
defendant in the second amended complaint.
7
1121194, 1121217
Gertha suffered injuries, including abdominal abscesses,
sepsis, stroke, and pulmonary thromboembolism, which caused
her death on April 8, 2012.
On August 9, 2012, Tombigbee Healthcare moved to dismiss
the
second amended complaint, arguing that any claims
relating
to the surgical procedure performed in 2006 were barred by the
four-year period of repose set forth in § 6-5-482. Also on
August 9, 2012, Tombigbee Healthcare moved the trial court for
a partial summary judgment as to all claims asserted against
it. Tombigbee Healthcare argued that Gertha's cause of action
accrued in 2006, the date of the act complained of, i.e., the
hysterectomy, and that her cause of action filed in March 2012
was filed well beyond the absolute bar of the four-year period
of repose found in § 6-5-482(a). Citing Hall v. Chi, 782 So.
2d 218 (Ala. 2000), Tombigbee Healthcare further argued that
because
Gertha did not have a viable medical-malpractice claim
at the time of her death -- because that claim was barred by
the four-year period of repose -- her estate could not
maintain a wrongful-death action because such an action would
also be untimely as it relates to the complained of
hysterectomy performed in 2006. See Hall, 782 So. 2d at 221
8
1121194, 1121217
("If the decedent had a viable medical-malpractice claim when
he died, then the decedent's personal representative could,
within two years after the decedent's death, bring a
wrongful-death action alleging medical malpractice.").
On August 10, 2012, Dr. Hodge moved the trial court to
dismiss the second amended complaint, echoing Tombigbee
Healthcare's argument that Gertha's estate could not maintain
a wrongful-death claim without the existence of a viable
medical-malpractice claim at the time of her death.
On September 27, 2012, David, individually and in his
representative capacity, filed a response in opposition to
the
defendants' motions, arguing that the trial court had, by its
order of August 2, 2012, denying Tombigbee Healthcare's
initial motion to dismiss, determined that Gertha had a viable
medical-malpractice claim at the time of her death on April 8,
2012. David contended that the wrongful-death claim was
governed by the applicable two-year statute of limitations
found in § 6-5-410, Ala. Code 1975, and not by the provisions
of § 6-5-482. Thus, David argued that the wrongful-death
claim asserted on August 6, 2012, was timely because it was
9
1121194, 1121217
brought within the two-year limitations period set forth in §
6-5-410.
On January 28, 2013, Dr. Hodge supplemented his motion to
dismiss with the affidavits of Dr. Jerry Luther and Dr. Judy
Travis, which indicate that the hemostat clamp was discovered
in Gertha's abdomen by a CT scan as early as March 5, 2008;
that Gertha was made aware of the discovery of the hemostat
clamp in her abdomen; that Gertha refused surgery to remove
the clamp; and that Gertha chose not to share the discovery of
the clamp with her family because she said they would "make"
her have the surgery to remove the clamp.
On January 29, 2013, David filed a response in opposition
to the defendants' motions along with evidentiary material in
support of the response in opposition. Following a hearing,
the trial court on July 1, 2013, entered an order denying Dr.
Hodge's motion to dismiss and Tombigbee Healthcare's motion
for a partial summary judgment.
Dr. Hodge petitions this Court for a writ of mandamus
directing the trial court to grant his motion to dismiss and
to dismiss all the claims asserted against him based on the
applicable statute of limitations. Tombigbee Healthcare
10
1121194, 1121217
petitions this Court for a writ of mandamus directing the
trial court to grant its motion for a partial summary judgment
as to all claims asserted against it based on the applicable
statute of limitations. The two petitions were consolidated
for the purpose of writing one opinion.
Standard of Review
A writ of mandamus is an extraordinary remedy available
only when the petitioner can demonstrate: "'(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) the properly
invoked jurisdiction of the court.'" Ex parte Nall, 879 So. 2d
541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.
2d 1270, 1272 (Ala. 2001)).
Discussion
The defendants contend that Gertha's medical-malpractice
action was absolutely barred at the time of her death by the
four-year period of repose set forth in § 6-5-482(a).
Because, they say, Gertha did not have a viable medical-
malpractice claim at the time of her death, David could not
maintain
the wrongful-death action against them,
as that claim
11
1121194, 1121217
was also considered to be time-barred. Thus, they argue that
they are entitled to a writ of mandamus directing the trial
court to dispose of the claims against them.
David argues that the petitions are due to be denied
because, he argues, the defendants have failed to establish a
clear legal right to the relief sought in that they have
failed to demonstrate that the medical-malpractice and
wrongful-death claims were barred by § 6-5-482(a). Further,
David argues that the petitions are due to be denied because
the defendants have failed to exhaust all other remedies
available to them; specifically, David argues that they have
failed to seek certification for a permissive appeal pursuant
to Rule 5, Ala. R. App. P.
Initially, we note that Dr. Hodge supplemented his August
10, 2012, Rule 12(b)(6) motion to dismiss with the affidavits
of Dr. Luther and Dr. Travis. Rule 12(b), Ala. R. Civ. P.,
provides, in pertinent part:
"If, on a motion asserting the defense number (6) to
dismiss for failure of the pleading to state a claim
upon which relief can be granted, matters outside
the pleading are presented to and not excluded by
the court, the motion shall be treated as one for
summery judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable
12
1121194, 1121217
opportunity to present all material made pertinent
to such a motion by Rule 56."
The trial court did not expressly exclude Dr. Luther's and Dr.
Travis's affidavits. Therefore, Dr. Hodge's support of his
motion to dismiss with the affidavits of Dr. Luther and Dr.
Travis effectively converted his motion to dismiss to a
summary-judgment motion. Thus, both Dr. Hodge and Tombigbee
Healthcare petition this Court for a writ of mandamus
challenging the denial of a motion for a summary judgment.
1. Clear Legal Right to Relief
In support of their petitions for a writ of mandamus,
the defendants
reiterate their
arguments from the trial court.
They argue that Gertha's legal injury occurred -– and her
medical-malpractice cause of action accrued -– in 2006, at the
time of the act or omission complained of, i.e., the
hysterectomy, whether the injury was or could have been
discovered by Gertha within the statutory limitations period.
They state that it is immaterial whether Gertha did not
actually become aware of the presence of the hemostat clamp in
her body until December 2011. Thus, they conclude that the
medical-malpractice action filed in March 2012 is absolutely
barred by the four-year period of repose set forth in § 6-5-
13
1121194, 1121217
482(a). Further, the defendants argue that because Gertha did
not have a viable medical-malpractice claim at the time of her
death -- because that claim was barred by the four-year period
of repose -- her estate could not maintain a wrongful-death
action; that action would also be untimely because it relates
to the complained of hysterectomy in 2006.
In support of their position, the defendants rely on
Jones v. McDonald, supra. In Jones, the plaintiff underwent
eye surgery in April 1987 to alleviate a condition known as
acute dacryocystitis, a condition caused by an infection in
the tear sac and tear duct. In September 1988, the plaintiff
began experiencing tenderness and infection in the area of the
1987 surgical site. In December 1988, the plaintiff underwent
a second surgery performed by a different ophthalmologist.
During the second surgery, a piece of gauze was discovered
embedded in the tear sac on which the first surgery had been
performed. It was determined that the gauze was the cause of
the plaintiff's post-surgery infection. In March 1990, the
plaintiff sued the original ophthalmologist alleging medical
malpractice. The defendant filed a motion to dismiss and a
motion for a summary judgment, arguing that the claim was
14
1121194, 1121217
barred by the statute of limitations set forth in § 6-5-
482(a). The trial court denied those motions, and the case
proceeded to trial. After the jury returned a verdict in
favor of the plaintiff, the defendant appealed to this Court.
In determining that the plaintiff's cause of action was barred
by § 6-5-482(a), this Court stated that the plaintiff's cause
of action accrued on the date the ophthalmologist performed
the initial surgery and left the gauze at the surgical site.
Id.
In Jones, this Court relied on the decision in Grabert v.
Lightfoot, 571 So. 2d 293 (Ala. 1990). In Grabert, the
plaintiff was referred to a surgeon to repair a hernia. On
May 1, 1987, the physician performed the surgery but was
unable to locate the hernia. The plaintiff was forced to
undergo a second surgery performed by a different surgeon in
order to repair the hernia. The second surgeon was able to
locate and repair the hernia; however, the second surgery left
the plaintiff impotent and also unable to work.
On May 12, 1989, the plaintiff sued the surgeon who
performed the first surgery, alleging medical malpractice.
The surgeon moved the trial court for a summary judgment,
15
1121194, 1121217
asserting the two-year statute of limitations found in § 6-5-
482(a). The trial court granted the motion for a summary
judgment, and the plaintiff appealed. In affirming the
summary judgment in favor of the surgeon, this Court stated:
"As this Court stated in Garrett v. Raytheon
Co., 368 So. 2d 516, 518-19 (Ala. 1979):[4]
"'The very basic and long settled rule
of construction of our courts is that a
statute of limitations begins to run in
favor of the party liable from the time the
cause of action "accrues." The cause of
action "accrues" as soon as the party in
whose favor it arises is entitled to
maintain an action thereon.'
"In Street v. City of Anniston, 381 So. 2d 26, 31
(Ala. 1980), this Court said:
"'Code
1975,
§
6-5-482(a),
is
similarly
titled
"a
statute
of
limitations," and commences the running of
the statute from the time of the act or
omission giving rise to the cause of
action. It does not, however, act as a
grant of immunity; our case law has
established that, in malpractice actions,
legal injury occurs at the time of the
negligent act or omission, whether or not
the injury is or could be discovered within
the statutory period. Garrett v. Raytheon,
[368 So. 2d 516], Hudson v. Moore, 239 Ala.
130, 194 So. 147 (1940), Sellers v.
We note that Garrett involved a personal-injury action
4
based on a chemical exposure and has been overruled on other
grounds.
16
1121194, 1121217
Edwards, 289 Ala. 2, 265 So. 2d 438
(1972).'
"Certainly, [the plaintiff] was entitled to maintain
an action against [the surgeon] immediately after
the May 1, 1987, operation, despite the fact that
the extent of [the plaintiff's] injuries allegedly
caused by [the surgeon's] failure to find or to
remedy the hernia may not have been fully known
then."
Grabert, 571 So. 2d at 294.
Relying on the decisions in Crosslin, supra, and
Delchamps, supra, David argues that Gertha's legal injury did
not occur -– and her medical-malpractice cause of action thus
did not accrue -– until December 2011, when she first began
experiencing pain in her abdomen and discovered the presence
of the hemostat clamp. Thus, he contends that the medical-
malpractice action filed in March 2012 is timely and is not
barred by § 6-5-482(a). Because, he argues, Gertha had a
viable medical-malpractice claim at the time of her death, the
wrongful-death claim filed within two years of Gertha's death
was timely under § 6-5-410.
In Crosslin, the plaintiff was seen on February 23, 2002,
at the emergency room at Huntsville Hospital complaining of
nausea, dizziness, and weakness. The physician evaluated the
plaintiff and ordered diagnostic tests. A radiologist
17
1121194, 1121217
reviewed the images produced by a CT scan and issued a
preliminary radiology report indicating the presence of a
tumor on the plaintiff's pituitary gland. Subsequently, the
physician spoke with the plaintiff concerning his condition
but failed to inform him of the findings of the preliminary
radiology report
indicating
the presence of a pituitary tumor.
There was no allegation that the symptoms from which the
plaintiff suffered on February 23, 2002, were related to the
pituitary tumor. The plaintiff was discharged from Huntsville
Hospital.
On September 1, 2005, the plaintiff returned to
Huntsville Hospital complaining of a loss of vision in his
left eye and decreased vision in his right eye. A CT scan of
the plaintiff's head again indicated the presence of the
pituitary tumor that had been previously identified. It was on
this date that the plaintiff first learned of the pituitary
tumor, and he alleges that he was unaware before this date of
any facts that would have reasonably led to the discovery of
the tumor.
On September 3, 2005, surgery was performed on the
plaintiff to remove the tumor. Following the surgery, the
18
1121194, 1121217
plaintiff's vision did not improve, and he suffered from
blindness and/or severely limited vision in both eyes.
On February 24, 2006, the plaintiff sued the physician
and Huntsville Hospital asserting a medical-malpractice claim
and alleging that Huntsville Hospital and the physician had
been negligent and wanton by failing to inform him of the
existence of the pituitary tumor following the 2002 CT scan
that identified the tumor. Huntsville Hospital and the
physician moved the trial court to dismiss the claims against
them pursuant to Rule 12(b)(6), Ala. R. Civ. P. The defendants
in Crosslin argued that the alleged breach of the standard of
care in that case was a failure to inform the plaintiff of the
presence of a pituitary tumor on February 23, 2002, and that,
if the defendants breached the standard of care and caused
damage as the plaintiff claims, he would have been damaged on
the same date as the alleged negligence, because he was
already suffering from the tumor. Because the plaintiff did
not file his complaint until four years and one day after
February 23, 2002, the defendants argued that the plaintiff's
action was barred by the four-year period for repose set forth
in § 6-5-482(a).
19
1121194, 1121217
The plaintiff amended his complaint to allege that he
suffered bodily injury after February 24, 2002, and argued in
opposition to the motion to dismiss that his cause of action
did not accrue until he suffered an injury, which, according
to his amended complaint, allegedly happened after February
24, 2002. Thus, he argued, his complaint was not barred by §
6-5-482(a).
The trial court granted the defendants' motion to
dismiss. In reversing the trial court's order dismissing the
plaintiff's action as untimely, this Court stated:
"This Court has held that the four-year period
of repose in § 6-5-482(a) 'is an "absolute bar to
all medical malpractice claims which are brought
more than four years after the cause of action
accrues."' Ex parte Sonnier, 707 So. 2d 635, 637
(Ala. 1997) (quoting Bowlin Horn v. Citizens Hosp.,
425 So. 2d 1065, 1070 (Ala. 1982)). 'A cause of
action "accrues" under § 6-5-482 when the act
complained of results in legal injury to the
plaintiff.' Mobile Infirmary v. Delchamps, 642 So.
2d 954, 958 (Ala. 1994). 'When the wrongful act or
omission and the resulting legal injury do not occur
simultaneously, the cause of action accrues and the
limitations period of § 6-5-482 commences when the
legal injury occurs.' Id.; see also Grabert v.
Lightfoot, 571 So. 2d 293, 294 (Ala. 1990) ('"The
statutory limitations period does not begin to run
until the cause of action accrues. ... A cause of
action accrues when the act complained of results in
injury to the plaintiff."' (quoting Colburn v.
Wilson, 570 So. 2d 652, 654 (Ala. 1990))); Ramey v.
Guyton, 394 So. 2d 2, 4 (Ala. 1981) (noting that
when the negligent act and the resultant harm do not
20
1121194, 1121217
coincide, the accrual date of a cause of action
under the [Alabama Medical Liability Act] is the
date of the latter).
"In the present case, [the plaintiff] has
alleged that Huntsville Hospital and [the physician]
failed to inform him that he had a tumor on his
pituitary
gland
on
February
23,
2002.
[The
plaintiff] has alleged that, as a result of the
failure of Huntsville Hospital and [the physician]
to inform him of the existence of the pituitary
tumor, he later suffered vision loss in both of his
eyes. Thus, it appears that the legal injury [the
plaintiff] is alleging is that, because Huntsville
Hospital and [the physician] did not inform him of
the existence of the pituitary tumor when it was
discovered on February 23, 2002, he did not have the
condition remedied before the tumor worsened and
other physical injuries were caused by it.
"The allegations of the complaint, if taken as
true, do not foreclose the possibility of [the
plaintiff's] proving a set of facts that would
entitle him to relief. For example, the evidence
might show that the tumor was not in a growth phase
when [the physician] first diagnosed it on February
23, 2002, and therefore that the tumor did not
worsen on that date. Nor do the allegations of the
complaint foreclose the possibility of proof that,
even if the tumor did worsen on February 23, 2002,
a disclosure of the presence of the tumor to [the
plaintiff] on February 23, 2002, would likely not
have resulted in surgery on that same day so as to
halt whatever worsening of his condition otherwise
would have occurred between that day and the
following day, February 24, 2002. Indeed, even after
the tumor was discovered in a much advanced state
several years later, surgery to remove it was not
scheduled until two days after its discovery. In
other words, the complaint does not, on its face,
establish that Huntsville Hospital's and [the
physician's] failure to inform [the plaintiff] of
the tumor on February 23, 2002, resulted in any
21
1121194, 1121217
actual injury to [the plaintiff] before February 24,
2002, the first day of the four-year period in
question.
"Relying on Grabert v. Lightfoot, supra, and
Tobiassen v. Sawyer, 904 So. 2d 258 (Ala. 2004),
Huntsville Hospital and [the physician] argue that
[the plaintiff] necessarily sustained a legal injury
on February 23, 2002, the date they allegedly failed
to inform him of the existence of the pituitary
tumor,
and
that,
therefore,
his
action
is
time-barred
under
§
6-5-482(a).
Grabert
and
Tobiassen, however, are distinguishable because in
those cases the act of alleged medical malpractice
immediately caused an identifiable injury to the
complaining party and that injury fell outside the
applicable time period, whereas, in the present
case, [the plaintiff's] complaint does not foreclose
his ability to prove that the injury caused by
Huntsville Hospital's and [the physician's] alleged
malpractice did not occur until some time after the
actual act of malpractice and therefore within the
applicable time period.
"In Grabert, the plaintiff was diagnosed with a
hernia and underwent surgery for the purpose of
repairing it. During that surgery, however, the
surgeon failed to locate and repair the hernia.
After a second surgery to repair the hernia left the
plaintiff impotent, he sued the first surgeon
because of that surgeon's failure to remedy the
hernia during the first surgery. We held that the
plaintiff's cause of action for medical malpractice
accrued on the date of the first surgery because it
was immediately after the first, unsuccessful
operation that the plaintiff was entitled to
maintain an action against the surgeon. Grabert, 571
So. 2d at 294. Because of the alleged negligence of
the first surgeon, the plaintiff had 'suffered' a
surgery that availed him nothing.
"Unlike the malpractice at issue in Grabert,
[the physician's] alleged failure to inform [the
22
1121194, 1121217
plaintiff] of the existence of the pituitary tumor
did not, in and of itself, cause [the plaintiff] any
actual injury. As explained above, [the plaintiff]
may be able to prove a set of facts establishing
that he suffered no actual injury until within the
applicable four-year period at issue. Thus, our
holding in Grabert does not compel a finding in this
case that [the plaintiff's] injury arose at the time
of Huntsville Hospital's and [the physician's]
alleged negligent or wanton act or omission."
Crosslin, 5 So. 3d at 1196-99 (footnotes omitted).
In Delchamps, the plaintiff, on December 5, 1985,
underwent surgery to place temporomandibular implants in her
jaw. On December 10, 1991, X-rays indicated that the implants
had caused severe bone degeneration in the plaintiff's
temporomandibular joints. On June 2, 1992, the plaintiff sued
various defendants alleging various theories of recovery,
including negligence. On July 8, 1992, the plaintiff amended
her complaint to add Mobile Infirmary as a defendant. Mobile
Infirmary moved the trial court to dismiss the complaint
against it, alleging that the claims were barred by § 6-5-
482(a). The trial court denied the motion to dismiss; Mobile
Infirmary was permitted to appeal the denial of its motion
pursuant to Rule 5, Ala. R. App. P. In affirming the denial
of the motion to dismiss, this Court stated:
"The limitations period of § 6-5-482 commences
with the accrual of a cause of action. Street v.
23
1121194, 1121217
City of Anniston, 381 So. 2d 26 (Ala. 1980); Bowlin
Horn v. Citizens Hosp., 425 So. 2d 1065 (Ala. 1983);
Ramey v. Guyton, 394 So. 2d 2 (Ala. 1981). A cause
of action 'accrues' under § 6-5-482 when the act
complained of results in legal injury to the
plaintiff. Grabert v. Lightfoot, 571 So. 2d 293, 294
(Ala. 1990); Colburn v. Wilson, 570 So. 2d 652, 654
(Ala. 1990). The statutory limitations period begins
to run whether or not the full amount of damages is
apparent at the time of the first legal injury.
Garrett v. Raytheon Co., 368 So. 2d 516, 518 (Ala.
1979). When the wrongful act or omission and the
resulting legal injury do not occur simultaneously,
the cause of action accrues and the limitations
period of § 6-5-482 commences when the legal injury
occurs. Moon v. Harco Drugs, Inc., 435 So. 2d 218,
219 (Ala. 1983); Ramey v. Guyton, 394 So. 2d 2, 4-5
(Ala. 1981).
"Mobile Infirmary argues that [the plaintiff's]
claims are barred by § 6-5-482 because, it says,
they accrued on December 5, 1985, when the Vitek II
implants were surgically placed in [the plaintiff's]
jaw, not, as she contends, on December 10, 1991,
when she 'discovered' the injury from X-rays. Mobile
Infirmary also contends that in asserting that her
claims accrued on December 10, 1991, [the plaintiff]
elides the distinction between the date of discovery
and the date of legal injury. Mobile Infirmary
asserts that, according to the allegations of her
complaint, [the plaintiff] was legally injured,
however slightly, when the defective implants were
surgically inserted into her jaw. Because, Mobile
Infirmary says, [the plaintiff's] complaint alleges
that she suffered injury at the time of the December
5, 1985, operation, her claims were brought beyond
the limitations period of § 6-5-482, which, it says,
expired on December 5, 1987.
"[The plaintiff] responds by arguing that her
causes of action accrued on December 10, 1991, when
X-rays first revealed the bone degeneration she
24
1121194, 1121217
alleges was caused by the December 5, 1985, surgical
placement of the Vitek II implants. Citing Ramey v.
Guyton, 394 So. 2d 2 (Ala. 1980), [the plaintiff]
contends that although the negligent act occurred on
December 5, 1985 (the date of the alleged act or
omission), the 'legal injury' did not occur until
December 10, 1991 (the date the X-rays first
revealed the bone degeneration). The implication of
[the plaintiff's] argument is that the bone
degeneration, the 'legal injury,' occurred, and was
not merely discovered, on December 10, 1991. [The
plaintiff] contends that her causes of action did
not accrue until December 10, 1991, and that,
therefore, she filed her action well within the
two-year limitations period of § 6-5-482, which she
says would not have expired until December 10, 1993.
"After reviewing the allegations of [the
plaintiff's] complaint in light of the applicable
standard of review, we cannot say that [the
plaintiff] can prove no set of facts that would
entitle her to recover. Whether her claims are
barred by § 6-5-482 depends on when in fact she
first suffered the alleged legal injury, i.e., bone
degeneration
in
her
jaw.
[The
plaintiff's]
complaint, as presently amended, alleges the date on
which the implant was placed in her jaw and the date
on which she first became aware of the alleged
injury to her jaw. The key fact not alleged is the
time when [the plaintiff] first suffered the alleged
bone degeneration. Considering the type of personal
injury alleged and the alleged cause of this injury,
we must conclude that she may be able to establish
that although the implants were placed in her jaw on
December 5, 1985, she did not suffer legal injury
until December 10, 1991, or some other time within
two years of the filing of her complaint. [The
plaintiff]
is
entitled
to
present
evidence
establishing the time at which the bone degeneration
began."
Delchamps, 642 So. 2d at 958.
25
1121194, 1121217
David's
reliance
upon
Crosslin
and
Delchamps
is
misplaced. In both Crosslin and Delchamps, the complained-of
negligent acts -– failure to inform the patient of the
presence of a tumor and the implantation of defective
implants, respectively -- did not immediately cause an
identifiable legal
injury.
Rather, this Court concluded that,
although the negligent acts complained of in those cases
occurred beyond the four-year period of repose in § 6-5-
482(a), the plaintiffs may have been be able to prove a set of
facts indicating that the actual legal injury, i.e.,
complications from the tumor and temporomandibular bone
degeneration, occurred within the four-year period of repose
in § 6-5-482(a).
The situation in this case is more akin to those
presented in Jones and Grabert, in which this Court determined
that the plaintiffs suffered an immediate legal injury at the
time of the alleged negligent act. In Jones, a case factually
similar to the present case, the plaintiff suffered an
actionable legal injury at the time the surgeon performed the
surgery and left the gauze inside the plaintiff's body at the
surgical site. In Grabert, the plaintiff suffered an
actionable legal injury at the time the physician burdened the
26
1121194, 1121217
plaintiff with an invasive procedure without successfully
locating and repairing the hernia.
Here, it is clear from the face of the second amended
complaint that Gertha underwent a surgical procedure in 2006;
that Dr. Hodge left a surgical hemostat clamp in her body at
that time; and that she filed a medical-malpractice complaint
on March 5, 2012. It is clear from the face of the second
amended complaint that Gertha suffered an actionable legal
injury at the time of the surgery in 2006 when Dr. Hodge left
the hemostat clamp in her body, regardless of when or to what
extent the complications from the negligent act would be
discovered. Therefore, her medical-malpractice complaint
filed on March 5, 2012, was barred by the four-year period of
repose found in § 6-5-482(a). Because Gertha did not have a
viable medical-malpractice action at the time of her death,
David could not maintain a wrongful-death action. Hall,
supra. Accordingly, we conclude that the defendants have
established a clear legal right to the relief sought.
2. Other Adequate Remedy
David argues that the petitions should be denied because
the defendants failed to seek a permissive appeal pursuant to
Rule 5, Ala. R. App. P. Generally, an order denying a motion
27
1121194, 1121217
for a summary judgment is not appealable, except by permission
pursuant to Rule 5, Ala. R. App. P. F.A. Dobbs & Sons, Inc.
v. Northcutt, 819 So. 2d 607, 609 (Ala. 2001). This Court has
stated:
"The general rule is that '"a writ of mandamus
will not issue to review the merits of an order
denying a motion for a summary judgment."' Ex parte
Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894
(Ala. 1998) (quoting Ex parte Central Bank of the
South, 675 So. 2d 403 (Ala. 1996)). In all but the
most extraordinary cases, an appeal is an adequate
remedy; however, there are exceptions--for example,
when the trial court denies a motion for a summary
judgment that is based on an argument that
governmental immunity bars the plaintiff's claim.
See, e.g., Ex parte Butts, 775 So. 2d 173, 177-78
(Ala. 2000). In such a case, the defendant may seek
pretrial
appellate
review
by
petitioning
for
permission to appeal an interlocutory order in
accordance with Rule 5, Ala. R. App. P., or by
petitioning for a writ of mandamus. See id.
"In Ex parte Southland Bank, 514 So. 2d 954, 955
(Ala. 1987), this Court stated that '[t]he fact that
a statute of limitations defense is applicable is
not a proper basis for issuing a writ of mandamus,
due to the availability of a remedy by appeal.' 514
So. 2d at 955. Subject to a narrow exception, that
statement remains true. In a narrow class of cases
involving fictitious parties and the relation-back
doctrine, this Court has reviewed the merits of a
trial court's denial of a summary-judgment motion in
which a defendant argued that the plaintiff's claim
was
barred
by
the
applicable
statute
of
limitations."
Ex parte Jackson, 780 So. 2d 681, 684 (Ala. 2000).
28
1121194, 1121217
As discussed above, the defendants have demonstrated from
the face of Gertha's complaint a clear legal right to the
relief sought. Once the trial court denied their motions for
a summary judgment, the defendants were left with seeking a
permissive appeal pursuant to Rule 5, Ala. R. App. P.,
petitioning this Court for a writ of mandamus, or possibly
taking an appeal from a final verdict or judgment. Rule 5(a),
Ala. R. App. P., provides:
"A party may request permission to appeal from an
interlocutory order in civil actions under limited
circumstances. Appeals of interlocutory orders are
limited to those civil cases that are within the
original appellate jurisdiction of the Supreme
Court. A petition to appeal from an interlocutory
order must contain a certification by the trial
judge
that,
in
the
judge's
opinion,
the
interlocutory order involves a controlling question
of law as to which there is substantial ground for
difference of opinion, that an immediate appeal from
the order would materially advance the ultimate
termination of the litigation, and that the appeal
would avoid protracted and expensive litigation. The
trial judge must include in the certification a
statement of the controlling question of law."
Justice
Murdock
aptly
explained,
in
his
special
concurrence in Ex parte Alamo Title Co., [Ms. 1111541, March
15, 2013] __ So. 3d __, __ (Ala. 2013), the inadequacy of a
Rule 5 permissive appeal and/or the taking of an appeal from
a final verdict or judgment, as alternative remedies where a
29
1121194, 1121217
petitioner has established a clear legal right to the relief
sought. As to Rule 5, Justice Murdock stated:
"[T]he standard referenced for mandamus relief -— a
'clear legal right' to the relief —- is the standard
for actually 'winning' relief in the appellate
court. The standard referenced for Rule 5 —- that
there be a controlling question of law as to which
there is 'substantial ground for difference of
opinion' —- is merely the standard that must be met
to get one's grievance before the appellate court in
the first place.
"....
"More
fundamentally, Rule 5
is
indeed
limited
to
rulings
involving
'questions
of
law'
and,
specifically, unsettled questions for which there is
a ground for substantial difference of opinion. Such
uncertainty simply is not characteristic of most
disputes
over
subject-matter
jurisdiction,
in
personam jurisdiction, immunity, venue, discovery,
and fictitious-party practice in the context of a
statute-of-limitations concern, all of which are
subjects as to which legal principles are well
established and as to which we repeatedly have held
that mandamus relief may be appropriate. Instead,
the types of disputes listed above typically turn,
as does the dispute in the present case, on whether
the trial court has exceeded its discretion in
deciding whether the evidence presented justifies
factual findings sufficient to meet a well settled
legal standard.
"Finally,
but
perhaps
most
importantly,
there
is
no right to a Rule 5 certification. Granting
'permission' to appeal an interlocutory order is
within the wide discretion of the trial judge, and
a question exists as to whether appellate relief
would even be available on the ground that the trial
court exceeded some measure of discretion. Even if
the trial court gives its consent, this Court must
30
1121194, 1121217
agree to accept the question certified. See Rule
5(c), Ala. R. App. P. I fail to see how that to
which a party has no right can be deemed a true
'remedy.'"
Ex parte Alamo Title Co., __ So. 3d at __ (Murdock, J.,
concurring specially) (footnote omitted; emphasis added).
As for the notion that further litigation in the trial
court and the eventual taking of an appeal from a final
judgment provides an adequate remedy, Justice Murdock stated:
"In Ex parte L.S.B., 800 So. 2d 574 (Ala. 2001),
this Court held that the standard for whether some
remedy other than mandamus is 'adequate' is not
whether there simply is some other remedy, e.g., an
eventual appeal, but whether that other remedy is
'adequate to prevent undue injury.' 800 So. 2d at
578. As a result, the Court noted that mandamus
would lie to address certain discovery disputes, to
enforce compliance with the court's mandate, to
enforce a right to a jury trial, and to vacate
certain interlocutory rulings in divorce cases. Id.
at 578. All of these —- indeed, virtually any ground
for mandamus relief —- could eventually be raised in
an appeal from a final judgment. Yet we do not
consider this to be an 'adequate' remedy in many
cases.
"Long before L.S.B. was decided, this Court
discussed the requirement that the alternative
remedy be adequate to avoid the particular harm at
issue:
"'[T]he
appeal
must
be
an
adequate
remedy[;] it must be capable of protecting
parties
from
the
injury
immediately
resulting from the error of the court.
While the error in refusing a dismissal for
want of security for costs, may be
31
1121194, 1121217
available on error for the reversal of a
judgment, obviously, an appeal is not an
adequate remedy. The citizen is compelled
into
litigation
with
a
non-resident,
pending the further continuance of the suit
and the appeal, without indemnity against
the costs, the evil the statute intends to
avoid. Hence, it has been the uniform
course of decision that mandamus is an
appropriate remedy to compel the dismissal
of such suit.'
"First Nat'l Bank of Anniston v. Cheney, 120 Ala.
117, 121–22, 23 So. 733, 734 (1898) (citations
omitted).
"The view
expressed in
Cheney
is
consistent
with
the view expressed elsewhere:
"'It is the mere inadequacy and not
the mere absence of all other legal
remedies, and the danger of the failure of
justice without it, that must usually
determine the propriety of the writ. Where
none but specific relief will do justice,
specific relief should be granted if
practicable, and when a right is single and
specific it usually is practicable.
"'To supersede the remedy by mandamus
a party must not only have a specific,
adequate, legal remedy, but one competent
to afford relief upon the very subject of
his application.'
"2 W.F. Bailey, A Treatise on the Law of Habeas
Corpus and Special Remedies 825–26 (1913) (emphasis
added).
"In the present case, the position expressed in
Part II.B of the dissent is that mandamus does not
lie to remedy the trial court's failure to dismiss
the claims against Alamo for lack of in personam
32
1121194, 1121217
jurisdiction because Alamo has available to it the
following alternative and allegedly adequate remedy:
'"continu[ing] to challenge personal jurisdiction in
... answers to the complaint and by motions for
summary judgment or at trial"' and, if unsuccessful
in all of these, pursuing an appeal. __ So. 3d at __
(quoting Ex parte United Insurance Cos., 936 So. 2d
1049, 1056 (Ala. 2006)). Although the dissent cites
Ex parte United Insurance Cos. for the proposition
that the petitioner can in fact continue to
challenge personal jurisdiction in these ways, that
case does not stand for the proposition that the
right to do so in a case challenging in personam
jurisdiction is an 'adequate remedy' that justifies
the refusal of the appellate court to hear a
mandamus petition.
"Indeed, the very reason for the limited
exceptions we have carved out to the general rule
that interlocutory denials of motions to dismiss and
motions for a summary judgment cannot be reviewed by
way of a petition for a writ of mandamus is that
there
are
certain
defenses
(e.g.,
immunity,
subject-matter
jurisdiction,
in
personam
jurisdiction,
venue,
and
some
statute-of-limitations
defenses) that are of such a nature that a party
simply ought not to be put to the expense and effort
of
litigation.
The
cases
recognizing
the
availability of mandamus relief as to such matters
are countless. Further, we have not been asked to
overrule any of these cases.
"Nor do I believe we should consider overruling
this precedent, even in a case in which we might be
asked to do so. It simply is not an 'adequate
remedy' -— i.e., as stated in Ex parte L.S.B., a
remedy 'adequate to prevent undue injury' or, as
Bailey states, a remedy 'competent to afford relief
upon the very subject of his application' -— to say
to a party that has no meaningful contact with the
State of Alabama or who, under our precedents, is
protected by sovereign immunity from even going
through litigation much less from liability that he
33
1121194, 1121217
or she must simply 'further litigate' the case and
one day take an appeal. In a given case, such an
approach could subject a defendant to years of
litigation, hundreds of thousands of dollars in
attorney fees and other litigation expenses, the
time, effort, and expense of traveling to Alabama
from elsewhere in the country for depositions and
hearings (in the case of the party with no contact
with the State), and a cloud of uncertainty and
worry hanging over the party's business or personal
affairs all this time. I cannot agree that further
litigation and an eventual appeal serves as an
'adequate remedy' that meets these 'subjects.'"
Ex parte Alamo Title Co., __ So. 3d at __ (Murdock, J.,
concurring specially)(footnote omitted).
Based on the particular circumstances of this case, we
agree with Justice Murdock's assessment of a Rule 5 permissive
appeal as being an inadequate alternative remedy. As
discussed above, the defendants have demonstrated a clear
legal right from the face of Gertha's complaint to a summary
judgment in their favor. The question presented here is not
the type of unsettled question of law for which there is a
ground for
substantial
difference of opinion that is generally
considered in a Rule 5 permissive appeal. More importantly,
there is no guarantee of Rule 5 certification because
certifying an
interlocutory
order for a "permissive" appeal is
within the wide discretion of the trial judge. Moreover,
should the trial court grant its consent to appeal, there is
34
1121194, 1121217
no guarantee that this Court would accept the question
certified.
Likewise, the taking of an appeal from a final judgment
following further litigation of this matter is also an
inadequate remedy based on the particular circumstances of
this case. If appeal were their only remedy the defendants
would potentially face the substantial expense, time, and
effort of litigating a matter as to which they have
demonstrated from the face of Gertha's complaint a clear legal
right to have dismissed.
3. Mandamus as Permissible Remedy
As noted above, a writ of mandamus is an extraordinary
remedy available only when the petitioner can demonstrate:
"'(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) the properly invoked jurisdiction of the court.'" Ex
parte Nall, 879 So. 2d at 543 (quoting Ex parte BOC Grp.,
Inc., 823 So. 2d at 1272 (emphasis added)). Although
characterized as an extraordinary writ, this Court has
repeatedly recognized that mandamus may be appropriate in
disputes over subject-matter jurisdiction, Ex parte Johnson,
35
1121194, 1121217
715 So. 783 (Ala. 1998); in personam jurisdiction, Ex parte
Northstar Battery Co., 99 So. 3d 1204 (Ala. 2012); immunity,
Ex parte Butts, 775 So. 2d 173 (Ala. 2000); venue, Ex parte
Daniels, 941 So. 2d 251 (Ala. 2006); outbound forum-selection
clauses, Ex parte Bad Toys Holdings, Inc., 958 So. 2d 852
(2006); abatement, Ex parte J.E. Estes Wood Co., 42 So. 3d 104
(Ala. 2010); and issues involving discovery, Ex parte Ocwen
Fed. Bank, FSB, 872 So. 2d 810 (Ala. 2003).
As noted above, this Court has stated that the
applicability of a statute-of-limitations defense is not a
proper basis for issuing a writ of mandamus, because of the
availability of a remedy by appeal. Ex parte Southland Bank,
514 So. 2d 954, 955 (Ala. 1987). However, this Court has
recognized a narrow exception to the general rule regarding
a statute-of-limitations defense involving fictitious parties
and the relation-back doctrine, in which this Court has
reviewed the merits of a trial court's denial of a
summary-judgment motion where the defendant argued that the
plaintiff's claim was barred by the applicable statute of
limitations. Ex parte Jackson, supra.
Although the situation with which we are presented here
does not involve the statute-of-limitations defense in the
36
1121194, 1121217
context of fictitious-party practice and the relation-back
doctrine, the defendants, Dr. Hodge and Tombigbee Healthcare,
are faced with the extraordinary circumstance of having to
further litigate this matter after having demonstrated from
the face of the plaintiff's complaint a clear legal right to
have the action against them dismissed based on the four-year
period of repose found in § 6-5-482(a). Having concluded that
an appeal pursuant to Rule 5 or an appeal from a final
judgment following further litigation is not an adequate
remedy in this case, we conclude, based on the particular
circumstances of this case, that mandamus is necessary in
order to avoid the injustice that would result from the
unavailability of any other adequate remedy. See Ex parte
J.Z., 668 So. 2d 566 (Ala. 1995). This case is not to be read
as a general extension of mandamus practice in the context of
a statute-of-limitations defense; rather, it should be read
simply as extending relief to the defendants in this case
where they have demonstrated, from the face of the complaint,
a clear legal right to relief and the absence of another
adequate remedy.
1121194 -- PETITION GRANTED; WRIT ISSUED.
1121217 -- PETITION GRANTED; WRIT ISSUED.
37
1121194, 1121217
Stuart, Parker, and Wise, JJ., concur.
Murdock and Shaw, JJ., concur specially.
Bryan, J., concurs in the result.
Moore, C.J., dissents.
38
1121194, 1121217
MURDOCK, Justice (concurring specially).
I concur in the main opinion. I write separately to
explain my concurrence in Part 3 of the "Discussion" section
in the main opinion and, as to the issue addressed therein,
why I believe this case can be distinguished from the case of
Ex parte U.S. Bank National Association, [Ms. 1120904, Feb. 7,
2014] ___ So. 3d ___ (Ala. 2014), also decided by the Court
today.
As I discuss in a dissenting opinion in U.S. Bank, this
Court has long adhered to the view that most issues raised by
motions to dismiss or for a summary judgment, if not properly
addressed by the trial court, can be raised before this Court
on appeal and that the appeal of such issues constitutes an
"adequate remedy" for purposes of the elements necessary to
warrant the issuance by this Court of a writ of mandamus
directed to a lower court. We therefore have long adhered to
a general rule, subject only to "certain narrow exceptions,"
that mandamus review is not available to review interlocutory
orders of the trial courts of this State denying motions to
dismiss or for a summary judgment. See U.S. Bank, ___ So. 3d
at ___ (Murdock, J., dissenting). Counting circuit court
judges, probate
court
judges, and juvenile court judges, there
39
1121194, 1121217
are over 200 "trial judges" throughout the numerous
jurisdictions of this State who, in any given week, rule upon
scores of such motions. There is only one Court of Civil
Appeals and only one Supreme Court. The general rule is
critical to preserving the proper balance of roles between
trial and appellate courts and preserving our limited
appellate resources.
Accordingly, it is with some trepidation, and no small
amount of concern that we may have failed to anticipate all
the ramifications of our action, that in the present case I
acquiesce in the relaxation of the general rule so as to make
mandamus review available where a trial court has denied a
motion for a summary judgment based on the ground that the
applicable statute of limitations barred the plaintiff's
action and that that fact is plainly reflected on the face of
the complaint. This circumstance will now become one of the
"certain
narrow
exceptions"
that
we
have
heretofore
recognized
to the general rule.
Unlike in U.S. Bank, the relaxation of the general rule
in the present case does not involve a question that goes to
the merits of the action, at least not in the sense that
question at issue in U.S. Bank does. See U.S. Bank, __ So. 3d
40
1121194, 1121217
at ___ (Murdock, J., dissenting). Instead, the present case
concerns a question as to whether a plaintiff should be
allowed to pursue in our courts a decision on the merits of a
claim in the face of a legal rule -— a statute of limitations
-- that has as its purpose the avoidance of such a decision
under circumstances where the ability of a court to make a
correct decision on those very merits may have been
denigrated. See 51 Am. Jur. 2d Limitation of Actions § 7 ("A
primary purpose of a statute of limitations is to ensure
timely notice to the defendant of a claim against him or her,
to permit the defendant to take necessary steps to gather and
preserve the evidence needed to defend against the suit, so
that the defendant is not prejudiced by having an action filed
against him or her long after the time the defendant could
have prepared a defense against the claim. Statutes of
limitation are intended to provide an adverse party a fair
opportunity to defend a claim, as well as to preclude claims
in which a party's ability to mount an effective defense has
been lessened or defeated due to the passage of time."); 51
Am. Jur. 2d Limitation of Actions § 98 ("The object of a
statute of limitations [is] keeping stale litigation out of
the courts ...."). Accordingly, the present case better lends
41
1121194, 1121217
itself than does U.S. Bank to an argument that an appeal is
not an adequate remedy to prevent "the particular harm at
issue," or as one Court put it, "the evil the statute intends
to avoid." Ex parte Alamo Title Co. [Ms. 1111541, March 15,
2013] ___ So. 3d ___, ___ (Ala. 2013) (Murdock, J., concurring
specially) (quoting the latter passage from First Nat'l Bank
of Anniston v. Cheney, 120 Ala. 117, 121–22, 23 So. 733, 734
(1898)).
5
In contrast, I see the "particular harm" at issue in U.S.
5
Bank as one primarily related to the merits of the action. If
an appeal is not to be deemed an adequate remedy in that
circumstance, the "general rule" is at an end. There is no
place left to "draw the line" -- no principled basis on which
to refuse to involve this Court on an interlocutory basis in
the untold number of preliminary decisions made daily by the
trial courts of this State regarding the merits of the cases
before them. The same cannot be said of the relaxation of the
general rule to cover the circumstances presented in the
present case.
42
1121194, 1121217
SHAW, Justice (concurring specially).
I concur in the main opinion. I write specially to note
the following.
It is undisputed that this Court has the authority, based
on the Alabama Constitution and statute, to issue any writs
necessary for
the
general superintendence and control of lower
courts. Ala. Const. 1901, Art. VI, § 140; Ala. Code 1975, §
12-2-7(3). This Court exercises authority by mandamus to
review interlocutory decisions that, if properly set aside,
would terminate an action so as to avoid the waste and expense
of further litigation. Such interlocutory decisions include
decisions on issues of, among other things, personal
jurisdiction, Ex parte Duck Boo Int'l Co., 985 So. 2d 900
(Ala. 2007); immunity, Ex parte Butts, 775 So. 2d 173 (Ala.
2000); enforcement of outbound forum-selection clauses, Ex
parte Bad Toys Holdings, Inc., 958 So. 2d 852 (Ala. 2006); and
abatement, Ex parte J.E. Estes Wood Co., 42 So. 3d 104 (Ala.
2010). Most notably, this Court will review by mandamus
interlocutory decisions involving the substitution of a
defendant for a fictitiously named party where the defendant
argues that the plaintiff's claim was barred by the applicable
statute of limitations. Ex parte General Motors of Canada
43
1121194, 1121217
Ltd., [Ms. 1120629, September 13, 2013] ___ So. 3d ___ (Ala.
2013); Ex parte Chemical Lime of Alabama, Inc., 916 So. 2d 594
(Ala. 2005). If this Court will review by mandamus a decision
on whether the statute of limitations bars a claim against one
party substituted for a fictitiously named defendant, then I
see no logical reason why this Court cannot review a decision
on whether the entire action is barred.
As explained in the main opinion, applying clear law to
the undisputed facts as stated in the complaint in the instant
case, one must conclude that the underlying action is barred
by the statute of limitations. It is no adequate remedy to
require a defendant to try a case and then subsequently, on
appeal, to seek the exact relief that was available earlier in
the process. I note that this Court has inherent authority to
award just damages and costs to respondents in any case in
which this Court determines that a petition for the writ of
mandamus is frivolous. Cf. Rule 38, Ala. R. App. P.
44
1121194, 1121217
MOORE, Chief Justice (dissenting).
I respectfully dissent. Dr. Gerald Hodge and Tombigbee
Healthcare Authority d/b/a Bryan W. Whitfield Memorial
Hospital separately petition this Court for a writ of mandamus
from the denial of a motion for a summary judgment. "The
general rule is that 'a writ of mandamus will not issue to
review the merits of an order denying a motion for a summary
judgment.' ... In all but the most extraordinary cases, an
appeal is an adequate remedy ...." Ex parte Jackson, 780 So.
2d 681, 684 (Ala. 2000). This Court has created rare
exceptions such as "when the trial court denies a motion for
a summary judgment that is based on an argument that
governmental immunity
bars the plaintiff's claim." Id. No such
exception applies in the case before us. The majority opinion
creates a new exception, however, for cases involving a
statute of limitations. Not only does this new exception
undermine the general rule that mandamus will not issue to
review an order denying a motion for a summary judgment, but
it also undermines the nature and function of mandamus as an
"extraordinary remedy." Ex parte Showers, 812 So. 2d 277, 281
(Ala. 2001) (emphasis added); see generally Rule 21, Ala. R.
App. P.
45
1121194, 1121217
Although this Court has constitutional and statutory
authority to issue writs to superintend lower courts under
Ala. Const. 1901, Art. VI, § 140, and § 12-2-7(3), Ala. Code
1975, it abuses that authority when it purports to invent,
change, and modify the laws over time so that a petition for
a writ of mandamus is no longer only for "emergency and
immediate appellate review of an order that is otherwise
interlocutory and
not
appealable." Rule 21(e)(4), Ala. R. App.
P. The majority opinion references several cases in which this
Court created new exceptions to general rules regarding
mandamus relief; those references supposedly justify yet
another exception to our rules regarding mandamus relief. No
doubt this Court will, at some later date, reference the
majority opinion in this case to justify yet another exception
to those rules. At some point, there will be so many
exceptions that the general rule will no longer exist. Perhaps
that moment is already upon us.
46 | February 7, 2014 |
642548ed-1638-41dc-9618-4c1c3549b98f | Vinyard v. Duck | 180 So. 2d 522 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 522 (1965)
Paul M. VINYARD et al.
v.
Carl E. DUCK et al.
6 Div. 795.
Supreme Court of Alabama.
November 4, 1965.
Rehearing Denied December 9, 1965.
*523 Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.
Rives, Peterson, Pettus & Conway, Birmingham, for appellees.
GOODWYN, Justice.
Appeal by defendants below (Paul Vinyard, F. G. Vinyard and Alden N. Vinyard, partners doing business as Maytag Sales & Service Company) from a judgment rendered on a jury verdict in favor of the plaintiffs (Carl E. and Gladys Duck). Defendants' motion for new trial was overruled. Included in the motion were several grounds charging insufficiency of the evidence to support the verdict.
The case went to the jury on counts 1, 4 and 5. Defendants' demurrer to these several counts being overruled, they entered a plea of the general issue in short by consent.
Count 1 alleges, in pertinent part, the following:
Counts 4 and 5 allege that, as a part of the contract of sale, defendants promised to perform service on the freezer when requested, and charge negligence on the part of defendants "by negligently failing to inspect the said freezer before advising the plaintiffs that the said machine was safe for continued use" (count 4), and "by negligently advising the plaintiffs that the said *524 machine was safe for continued use" (count 5).
The freezer was sold by defendants' salesman, Hamlin, under its trade name of "Maytag." It was installed in the Ducks' jointly owned home. One week later Duck telephoned Hamlin and told him that the freezer was "running hot" and that he was afraid his son would get burned. Hamlin stated that it was normal for the freezer to get hot and told Duck not to worry about it. Duck called Hamlin the next day and hold him the freezer was too hot to touch. Hamlin assured him that there was nothing wrong with it. Two days later Duck went to see Hamlin at the store and complained that the machine was getting progressively hotter. He was assured again that it was operating normally. The following night the Ducks' home burned to the ground.
Defendants contend that count 1 is insufficient because there is no allegation that, in purchasing the freezer, the Ducks relied on defendants' skill or judgment. It is also contended that there can be no recovery under this court because the freezer was bought under its trade name. These requirements are taken from Code 1940, Tit. 57, § 21, a part of the codification of the Uniform Sales Act. Section 21 provides, to the extent here applicable, as follows:
The reliance requirement is found in subsection (1). The trade name exclusion is found in subsection (4). Both of these subsections deal with implied warranties of fitness for a particular purpose. Our view is that the warranty alleged in count 1 is an implied warranty of merchantable quality, found in subsection (2).
It is well-settled that where the merchandise purchased is to be put to only one use, and that is the general and ordinary use for which the merchandise is sold, there is an implied warranty that the merchandise shall be reasonably fit for such use. The law in this field was reviewed in the recent case of Davidson v. Wee (1963), 93 Ariz. 191, 379 P.2d 744, 747, as follows:
"It is well established that the implied warranty of merchantable quality under § 15(2) of the sales act [Ala. Code 1940, Tit. 57, § 21(2)] is applicable to the situation wherein an article is requested and sold by brand name. Botti v. Venice Grocery Co., 309 Mass. 450, 35 N.E.2d 491, 135 A.L.R. 1387, Anno. 135 A.L.R. 1393 (1941); Giant Mfg. Co. v. Yates-American Mach. Co., 111 F.2d 360 (8th Cir., 1940); Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339 (1931); Williston on Sales, 3rd Ed., § 236. Merchantability within the meaning of this statute is that the article is reasonably fit for the general uses it was manufactured to serve, whereas warranty of fitness under § 15(4) relates to suitability for the specific *525 purpose of the buyer for which fitness for general purpose may not be sufficient Giant Mfg. Co. v. Yates-American Mach. Co., supra; Sperry Flour Co. v. De Moss, 141 Or. 440, 18 P.2d 242, 90 A.L.R. 406 (1933). These two warranties are not mutually exclusive. A warranty of fitness and a warranty of merchantability may each arise upon the same situation where the purpose for which the product is purchased is the same as the purpose for which it is generally sold. The warranties may co-exist and recovery may be founded on either. D'Onofrio v. First National Stores, 68 R.I. 144, 26 A.2d 758 (1942); Giant Mfg. Co. v. Yates-American Mach. Co., supra; Ryan v. Progressive Grocery Stores, supra. The following statement quoted in the D'Onofrio case encompasses the reasoning upon which the foregoing principles are based.
Also see: 1 Williston on Sales, Rev.Ed. (1948), § 235, p. 604; Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.Law Rev. 117.
In George v. Willman, (Alaska, 1963), 379 P.2d 103, 104, 105, 106, a "Great Lakes Mobile Home" trailer, purchased by the plaintiff from defendants, was destroyed by fire as the result of a leaking fuel line. On appeal from a judgment in favor of plaintiff, the court said:
"Implied Warranty.
"But before an implied warranty can arise, the goods must have been `bought by description from a seller who deals in goods of that description.' That was done here. The sales contract executed by Willman and appellants specified that he was purchasing a "55 × 10' 2 Bedroom Mobilehome, Great Lakes Make, SA-FK-Winthrop Model.' Such a designation of an article by trade name is itself a description sufficient to meet the statutory requirement that the article be "bought by description' in order to give rise to *526 an implied warranty. [Knapp v. Willys-Ardmore, Inc., 174 Pa.Super. 90, 100 A.2d 105, 107-108 (1953).] And appellants dealt in "goods of that description', since they had been authorized to act as dealers in the sale of Great Lakes Mobile Homes by the manufacturer of that product.
Court 1 alleges that the food freezer "was made and sold for the purpose of storing frozen foods and quick freezing other foods," that the Ducks bought the freezer for such use, and that it was not reasonably fit for such use. We hold this to be an allegation of the existence and breach of an implied warranty of merchantable quality. In such case there is no necessity that, in purchasing the goods, the buyer should rely on the skill or judgment of the seller, nor does the trade name exclusion apply.
Defendants raise the point that Mrs. Duck is not entitled to recover because she was not a party to the contract with defendants. The conditional sales contract shows only Mr. Duck as the purchaser of the freezer. However, there is evidence that both Mr. and Mrs. Duck bought the freezer. No objection was made to this testimony. Accordingly, such evidence was before the jury for consideration, even though it might have been inadmissible on proper objection or subject to exclusion on proper motion. See: Malone v. Hanna, 275 Ala. 534, 536, 156 So. 2d 626; Franklin Life Ins. Co. v. Brantley, 231 Ala. 554, 557, 165 So. 834; Western Union Tel. Co. v. Thomas, 209 Ala. 657, 658, 96 So. 873.
Assuming there was a variance between the allegations and the proof, the defendants are not in a position to complain. Rule 34, Rules of Practice in Circuit and Inferior Courts (Code 1940, Tit. 7, Appendix, p. 1035) provides that the trial court will not "be put in error for refusing the general charge predicated upon such variance, unless it appears from the record that the variance was brought to the attention of the said trial court by a proper objection to the evidence." See Kurn v. Counts, 247 Ala. 129, 132, 22 So. 2d 725.
It is contended that there was insufficient "selective" evidence showing a causal relationship between the defective freezer and the fire. The evidence showed that the freezer got progressively hotter after installation. The testimony of Mrs. Duck tended to show that the fire began where the freezer was located. There was no evidence tending to establish any other agency as being responsible for the fire. *527 In Bradford v. Moore Brothers Feed and Grocery, 268 Ala. 217, 222, 105 So. 2d 825, 829, we discussed the problem of proof of causal relationship in warranty cases:
We feel that the evidence was sufficient to support the verdict. The decision of a trial court refusing to grant a motion for a new trial, on the ground of the insufficiency of the evidence, will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it is wrong and unjust. See: Louisville & Nashville Railroad Co. v. Cooke, 267 Ala. 424, 430, 103 So. 2d 791; Cobb. v. Malone, 92 Ala. 630, 9 So. 738. Such is not the case here.
Finally, the defendants charge excessiveness of the $10,000 verdict. The testimony as to the value of the house and its contents ranged from $8,000 to $12,500. The court is very reluctant to substitute its judgment for that of the jury and the trial court, and will not do so, unless the verdict is so excessive as to indicate passion, prejudice, corruption, or mistake on the part of the jury. See: Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 366, 162 So. 2d 455; Liberty National Life Insurance Company v. Weldon, 267 Ala. 171, 190, 100 So. 2d 696, 61 A.L.R.2d 1346. We find no basis for applying that principle here.
The judgment is due to be, and is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | November 4, 1965 |
8bdcf22d-f314-46c5-a790-3212701fe9e8 | United Insurance Company of America v. Pounders | 186 So. 2d 125 | N/A | Alabama | Alabama Supreme Court | 186 So. 2d 125 (1965)
UNITED INSURANCE COMPANY OF AMERICA
v.
Gardie F. POUNDERS.
8 Div. 149.
Supreme Court of Alabama.
November 18, 1965.
Rehearing Denied March 3, 1966.
Further Rehearing Denied May 19, 1966.
*126 H. Neil Taylor, Russellville, for appellant.
Guin, Guin & Cleere, Russellville, for appellee.
PER CURIAM.
We conclude on application for rehearing that we should, and we do, withdraw the original opinion and substitute this pronouncement which we think responds to the issues presented on this appeal. We adhere to approved appellate procedure under the rules and decisions of this Court.
The plaintiff-appellee recovered judgment on his amended complaint against defendant on a disability insurance contract between them for the present value of remaining disability payments alleged to be due before suit was filed in the Circuit Court of Franklin County. It is alleged that such payments were accelerated as a result of defendant's wrongful renunciation of the insurance contract. This appeal is from a judgment for the present value of such future installments.
We herewith seriatim discuss each of appellant's assignments of error. Assignment 1 is as follows:
The grounds of the demurrer here asserted as having merit are as follows:
"1. The complaint does not state a cause of action.
No other grounds having been asserted as having merit, they are waived and will not be considered. Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So.2d 19[12].
Grounds 1 and 2 of the demurrer, supra, are general and present nothing for review. We held in Bright v. Wynn, 210 Ala. 194, 97 So. 689[2], that a demurrer with assignment that the complaint fails to state a cause of action is too general; it should be specific as to defects, and the court will not be put in error for overruling general assignments of demurrer. Section 236, Title 7, Code of 1940. See also 16 Ala.Dig., Pleading.
The gravamen of the complaint is that the benefit payments obligated by the policy for payment in the future were accelerated to maturity by defendant who "wrongfully and tortiously and without just cause or good excuse undertook in writing to cancel plaintiff's said policy of insurance, and thereby the defendant insurance company tortiously and wrongfully breached the same and became liable to plaintiff *127 for the present value thereof on the date to which defendant had paid its monthly payments, as required by the terms and provisions of the said policy."
While appellant in its brief does mention ground 6 of the demurrer, it fails adequately to argue or point out how and where "it affirmatively appears [in the complaint] that the contract [of insurance] does not provide for an acceleration of payments for an anticipated breach of the policy." 2A Ala.Dig., Appeal & Error. Due to want, or inadequacy, of argument, we will consider this ground as having been waived. Hartford Fire Ins. Co. v. Clark, supra.
We might state parenthetically that we are not unmindful of the pronouncement in Odell v. United Insurance Company of America, 243 S.C. 35, 132 S.E.2d 14, the text of which is quoted in appellant's brief. There, the Supreme Court of South Carolina held in an action similar to the instant case that the measure of damages was limited to the benefits which had accrued to the time of the commencement of the action, leaving benefits thereafter accruing, if any, to be recovered in a subsequent action in the event defendant fails to pay.
The complaint there averred that the defendant wrongfully canceled the policy "and sought damages in the amount of the benefits which had accrued plus such payments as would probably accrue in the future on the theory of an anticipatory breach of the contract."
Plaintiff there contended that the action was not for the benefits due under the policy, but for damages sustained by the wrongful cancellation of the policy of the defendant The appellate court held that the action was for recovery under the policy, and that the lower court correctly limited judgment to the amount of the benefits which had accrued to him at the commencement of the action.
Pretermitting the correctness of the aforementioned pronouncement, construction of the policy and the applicability thereof to the case at bar, we are not here presented any assignment of error that raises the question of damages or the amount thereof, if any, available to plaintiff (appellee) under the issues of the instant case. The motion for a new trial, as we will hereafter observe, is not before us for consideration. We are not called on to decide whether the grounds of this motion, or any of them, adequately presented errors on the part of the trial court with respect to the damages claimed and awarded.
Assignment of error No. 2 reads as follows:
Plea Three answers:
"TIME OF PAYMENT OF CLAIMS
Plea 4 avers, in substance, that written proofs of loss were not submitted as required by the terms of the policy. This plea was not verified, but no point was made of this omission if required.
It is to be noted that the rulings of the court on demurrers to these two pleas were jointly asserted in one assignment of error.
*128 This joint assignment invokes the rule that in order to sustain the assignment, it must appear that all the pleas were good and not subject to demurrer. Southern Ry. Co. v. Slaton, 16 Ala.App. 194, 76 So. 478[1].
Appellant makes no contention by argument or otherwise that plea 4, supra, was not subject to the demurrer interposed. In the absence of such a contention, the assignment with respect thereto was waived and the ruling of the trial court on pleas 4 was free from error. Epperson v. Stacey, 266 Ala. 396, 96 So. 2d 750 [6]; Supreme Court Rule 9, Title 7, Code 1940, Appendix.
Assignment of error 3 states:
The motion for a new trial was filed September 7, 1963, duly continued to a day certain, and overruled on October 4, 1963. This appeal was perfected on September 11, 1963, while the motion was pending. Such an appeal had the effect of removing the cause from the jurisdiction of the circuit court, so that it had no right or power to act on the motion. MacMahon v. Dozier, 237 Ala. 574, 187 So. 710[1]; Robinson v. Morrison, 272 Ala. 552, 133 So. 2d 230[20]. This pronouncement has no application in criminal cases. Tit. 15, §§ 368, 382, Code 1940, wherein it is provided that when an appeal is taken from a judgment of any county or circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for a new trial.
Assignment of error No. 4 is as follows:
We also note that the alleged errors in the trial court's oral charge are jointly asserted in one assignment of error. We think both assignments are insufficient in that they do not point out explicitly the parts of the oral charge alleged to be erroneous. They say no more than that the court erred in charging the jury on total disability and continuous confinement within doors which are not adequate. McLaney v. Turner, 267 Ala. 588, 104 So. 2d 315 [2]. In this case, we said:
"5. There was no competent evidence upon which to base a verdict.
Only rulings of the court are subject to an assignment of error. These assignments present nothing for review. McLaney v. Turner, supra [1]; Central of Georgia Railway Co. v. McDaniel, 262 Ala. 227, 78 So.2d 290[1, 2]. Since assignments of error 5 and 6 do not refer to any ruling of the trial court, we cannot consider them.
The judgment from which the appeal is taken is affirmed.
The foregoing opinion was prepared by Bowen W. Simmons, Supernumerary Circuit Judge, and was adopted by the Court as its opinion.
Original opinion has been withdrawn.
Affirmed.
Application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur. | November 18, 1965 |
e8f9526c-c1bb-4558-b29f-a763843dd5a5 | North River Insurance Company v. Jackson | 179 So. 2d 731 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 731 (1965)
NORTH RIVER INSURANCE COMPANY
v.
J. E. JACKSON, d/b/a Jackson's Garage.
4 Div. 173.
Supreme Court of Alabama.
November 4, 1965.
Harold Albritton, Albrittons & Rankin, Andalusia, for appellant.
W. H. Baldwin, Andalusia, for appellee.
LAWSON, Justice.
This appeal involves the interpretation of a Garage Liability Policy issued by the appellant insurance company to the appellee, Jackson, covering his automobile repair shop.
The issue presented is whether the defendant insurance company's policy issued to Jackson covers the damage by fire to a customer's automotive truck while it was in Jackson's shop for repairs.
On May 19, 1961, one Jesse Taylor took his truck to appellee's garage for repairs. While the truck was in the garage undergoing repairs it caught fire and burned.
On March 14, 1962, Taylor filed suit against appellee in the Circuit Court of Covington County, Alabama, claiming damages resulting from the burning of his truck.
The summons and complaint were forwarded by appellee to appellant, who declined to defend the suit on the ground that *732 the policy excluded coverage under the facts of the case.
Appellee employed counsel at his own expense to defend the suit. The trial of the case resulted in a jury verdict for the plaintiff, Taylor, for the sum of $1,200 and judgment thereon was entered by the court. The appellee paid this judgment and court costs. The court costs amounted to $39.90.
On November 7, 1962, appellee filed suit against The North River Insurance Company seeking the sum of $2,000, plus interest, allegedly due on the policy of garage liability insurance and based on the prior judgment which had been rendered against appellee in the suit for property damage, which suit appellant had refused to defend.
The cause was tried to a jury and the appellant requested the general affirmative charge, which was refused.
There was a verdict for Jackson in the amount of $1,900. Judgment followed the verdict. The insurance company's motion for a new trial having been overruled, it has appealed to this court.
The policy in question contains four types of coverage: Coverage A, Bodily Injury Liability; Coverage B, Property Damage Liability; Coverage C, Automobile Medical Payments; and Coverage D, Property of Others in Charge of Named Insured. Jackson was insured under Coverages A and B but not under Coverages C and D. Coverage B, which is the coverage here relied upon by Jackson as the basis for his suit, obligates the company "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined." The Coverage B "hazard" which Jackson contends his loss arose out of is defined (in Division 2 of the "Definition of Hazards") as:
Division 1 of the "Definition of Hazards" reads in pertinent part:
Division 3 of the "Definition of Hazards" covers "the ownership, maintenance or use of elevators at the premises."
It is also pertinent to note that under Coverage D, the company is obligated "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property of others of a kind customarily left in charge of garages, including the loss of use thereof, caused by accidental collision or upset of such property while in charge of the named insured in connection with his automobile sales agency, repair shop, service station, storage garage or public parking place operations."
*733 The policy contains ten exclusions. Relevant here are the following:
"This policy does not apply:
It is, of course, our duty to resolve any ambiguities in an insurance policy in favor of the insured (National Life & Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45; Pennsylvania Fire Ins. Co. v. Draper, 187 Ala. 103, 65 So. 923; Manhattan Life Ins. Co. v. Parker, 204 Ala. 313, 85 So. 298; Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734; New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547; Safeco Ins. Co. of America v. Banks, 275 Ala. 119, 152 So.2d 666); however, an isolated sentence of the policy should not be construed alone, but in connection with other provisions of the said policy in order to arrive at a construction reasonably calculated to accomplish the intent and purpose of the parties. Mutual Life Ins. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L.R.A.1918D 860; Miller v. Liberty Nat. Life Ins. Co., 30 Ala.App. 503, 9 So. 2d 129, cert. denied, 243 Ala. 250, 9 So. 2d 132.
As noted, the exclusion clause of the policy here in question exempts the insurance company from liability, under Coverage B, for injury to or destruction of property owned by, rented to, in charge of, or transported by the insured (except as to the coverage relating to elevators under the Division 3 hazard, quoted above). The only ambiguity here, if any, is as to the meaning of the words "in charge of." While this particular exclusion clause in a Garage Liability Policy has not heretofore been interpreted by this court, it is almost universally held by courts of other jurisdictions that customers' cars, while being serviced or repaired, are "in charge of" the insured within the meaning of such an exclusion clause. See State Automobile Mut. Ins. Co. v. Connable-Joest, Inc., 174 Tenn. 377, 125 S.W.2d 490; Clark Motor Co. v. United Pacific Ins. Co., 172 Or. 145, 139 P.2d 570; Parry v. Maryland Casualty Co., 228 App.Div. 393, 240 N.Y.S. 105; Root Motor Co. v. Massachusetts Bonding & Ins. Co., 187 Minn. 559, 246 N.W. 118; Yadro v. United States Fidelity & Guaranty Co., 4 Ill.App.2d 477, 124 N.E.2d 370; 2 Richards on Insurance, § 296, p. 978. In Cohen & Powell, Inc., v. Great American Indemnity Co., 127 Conn. 257, 16 A.2d 354, 131 A.L.R. 1102, and Welborn v. Illinois National Casualty Co., 347 Ill.App. 65, 106 N.E.2d 142, cited by appellee, a different result was reached, as well as in Vaughan v. Home Indemnity Co., 86 Ga.App. 196, 71 S.E.2d 111. However, the policies in question varied considerably from that with which we are here concerned.
The Florida case of Haenal v. United States Fidelity & Guaranty Co., 88 So. 2d 888, is squarely in point with the instant case. There, the insured sought to collect for the loss of a customer's car by fire while it was in his shop for repairs, basing his claim on a Coverage B hazard contained in the policy which was identical with that quoted above. The policy also contained a *734 Coverage D identical with that of the instant policy, quoted above, and an identical exclusion clause as to Coverage D. The exclusion clause as to Coverage B was also identical with that of the instant policy, quoted above. In fact, the policy in the Florida case is on all fours with our own in pertinent parts, and that court held:
In the Illinois case mentioned in the quotation above, Yadro v. United States Fidelity & Guaranty Co., supra, 124 N.E.2d 370, 371, 372, that court had the similar problem before it and held:
The fact that Taylor, the owner of the truck, was in and out of the garage during the day and was present when the truck caught fire, having stepped on the starter just prior to the time of the fire, does not, in our opinion, bring about a different result. The evidence shows beyond peradventure that Taylor brought his truck to Jackson to have the carburetor repaired; that he did no work on the truck while it was in Jackson's garage and no work was expected of him.
We hold that the trial court erred in refusing to give the general affirmative charge as requested by the appellant. Therefore, the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | November 4, 1965 |
6edf94ab-c54d-492b-beeb-ed1964895a08 | Esco v. State | 179 So. 2d 766 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 766 (1965)
Howard Edward ESCO
v.
STATE of Alabama.
6 Div. 38.
Supreme Court of Alabama.
September 30, 1965.
*767 Norman E. Moon, Birmingham, for petitioner.
Richmond M. Flowers, Atty. Gen., Bernard F. Sykes, Asst. Atty. Gen., and Roy E. Hicks, Legal Research Aide, Montgomery, opposed.
COLEMAN, Justice.
Defendant was tried on an information, filed by the solicitor, which charged:
The state amended the information before arraignment by striking the words:
A jury found defendant "guilty of changing or concealing his name, as charged in the Solicitor's Complaint." The Court of Appeals affirmed and we granted certiorari.
The authority for convicting defendant is found in § 229, Title 14, Code 1940, which recites:
Defendant contends that the offense of which he was convicted is the offense created by the third alternative of the statute and that the third alternative is void and unconstitutional because it is repugnant to the Fourteenth Amendment to the Constitution of the United States.
The Court of Appeals, in affirming the conviction, observed that the progenitor of § 229 was held valid in Morris v. State, 144 Ala. 81, 39 So. 973. We granted certiorari to review the judgment of the Court of Appeals.
In Morris, this court did hold that the act was under the police power, was clearly within the legislative competence, and did not violate the constitutional prohibition against imprisonment for debt which was the only constitutional provision considered in that case. In Morris, however, the indictment was not based on the third alternative of the statute. The indictment was *768 based on the second alternative of the statute. The indictment there recited:
Upholding the validity of the second alternative is not upholding the validity of the third alternative, and Morris is not decisive of the question here, which is whether the third alternative is valid and constitutional.
Examination of § 229 shows that, when a person changes his or her name with any one of three alternative intents, the act of changing the name is made a crime. The three intents are: (1) intent to defraud, (2) intent to avoid payment of any debt, or (3) to conceal his or her identity.
This court has said:
Under that principle, the validity of the second alternative, against the objection there made, was sustained in Morris v. State, supra. The validity of the first alternative was not considered in Morris and is not at issue here, but we know no good reason why changing one's name with intent to defraud another may not be made a crime.
In the instant case, however, we are concerned with the third alternative, which is different. The difference between the first two alternatives and the third is that the element of fraud is an ingredient of the first two, but not of the third, Burnam v. Commonwealth, 228 Ky. 410, 15 S.W.2d 256.
The element of fraud or other criminal purpose is not present in the third alternative. The intent to defraud is included in the first alternative and the intent to avoid payment of a debt is included in the second, but neither of those intents is included in the third. We must assume then that the intent to defraud is intentionally omitted from the third and that to be guilty under the third, neither the intent to defraud nor the intent to avoid payment of debt is necessary. We ought, then, to consider what character of act it is that is forbidden by the third alternative.
The general rule is well settled that identity of name imports, prima facie, identity of person. Ex parte Davis, 200 Ala. 577, 76 So. 935. It would seem to follow that a difference of name imports, prima facie, a difference of person. A change of name, then, it can be argued, always imports, at least prima facie, a difference in identity. To some extent, a change of name always conceals the nominee's identity. When the change is with intent to defraud another, the act of change is intended to injure another and the state, under the police power, may make the act of changing the name, with such intent, a crime, but can the state, consistent with due process, make the act a crime when the act has no connection with or relation to the public welfare, health, safety, or morals?
The Kentucky Court has said:
"We recognize the legislative power to define what acts or omissions shall constitute criminal offenses so long as the exercise of the power does not infringe constitutional rights and privileges, express or necessarily implied. Taylor v. Commonwealth ex rel. Dummit, 305 Ky. 75, 202 S.W.2d 992. But there is no power to declare to be a crime an act which has no relation to the comfort, welfare and safety of society or an act which could not be avoided by the utmost care and circumspection, or which, in its nature, is and *769 must be under all circumstances innocent, or the nonperformance of which is impossible...." Commonwealth v. O'Harrah (Ky.), 262 S.W.2d 385, 388.
The New Mexico Court said:
The Illinois Court said:
This court has said:
The acts prohibited by the third alternative include that of the child who takes the name of his foster parent, that of the divorced wife who takes again her maiden name, that of the woman who takes the name of her husband. All these persons, as well as the author writing under a fictitious name, the public celebrity seeking privacy by using an assumed name, and the detective using an alias to facilitate crime detection and law enforcement are guilty under the third alternative.
Traveling incognito, without fraudulent purpose, can hardly be regarded as reprehensible. Authors of standing have employed a pen name; e. g., Mark Twain; S. S. Van Dine; Publius in The Federalist. Even this court itself, from earliest to recent times, has recognized the propriety of concealing the identity of parties to a cause. Anonymous, Minor 52; Anonymous, 2 *770 Stewart 228; Anonymous, 34 Ala. 430; Anonymous, 35 Ala. 226; Anonymous, 55 Ala. 428; Anonymous, 89 Ala. 291, 7 So. 100; Anonymous, 206 Ala. 295, 89 So. 462; Anonymous v. State, 272 Ala. 172, 129 So. 2d 684; Anonymous v. Anonymous, 277 Ala. 634, 173 So. 2d 797.
This court has said:
and again:
Examination of the original statute considered in Morris v. State, supra, and § 229, Title 14, Code 1940, discloses a change of some significance. Act No. 477, Acts of 1903, page 438, recited:
In the 1907 Code, § 6937, and in subsequent codes, there has been omitted the exception where the name was changed "in the manner provided by law." Under the 1940 Code, the change to conceal identity is a crime, even if the change be made as provided by law.
The legislature has provided that the court of probate shall have jurisdiction as to the change of name of a person upon his filing a declaration in writing stating the old and the new names. § 278, Title 13, Code 1940.
Thus, the state, in one statute, provides one of the methods of changing a name, which change, in some degree and in some places, must conceal identity, and, in the other statute, § 229, the state makes the change for such purpose a crime.
It may be said, of course, that the state may punish, as a crime, an act which uses the courts to perpetrate fraud, and that omission of the original exception, in cases of change as provided by law, is, therefore, justified. We consider under the third alternative, however, a change of name which is not intended to perpetrate fraud. There is an inconsistency between simultaneously effective statutes, where one authorizes an act and the other statute makes the act a crime.
The legislature has also gone to some lengths to conceal the former name and identity of an adopted child who takes the name of the adopting parents. Upon receipt of copy of final order of adoption, the registrar of vital statistics is enjoined to make a new record of birth in the new name, with the name or names of the adopting parents, and then to seal and file the original certificate of birth, and the sealed package shall be opened only on demand of the child, his natural or adopting parents, or by order of a court of record. § 4, Title 27, Code 1940.
The third alternative was undoubtedly intended to serve a useful purpose, but it sweeps within its influence conduct, neither evil in nature nor detrimental to the public interest, which could not be proscribed as criminal. Kahalley v. State, supra; Connor v. City of Birmingham, 36 Ala.App. 494, 60 So. 2d 474.
*771 We are of opinion that the third alternative of § 229, Title 14, Code 1940, is unconstitutional because it is so vague and indefinite as to deny the requirements of due process under the doctrine of Kahalley and Connor, supra, and that a conviction under the third alternative should not stand.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL, and HARWOOD, JJ., concur. | September 30, 1965 |
c9b1c7d6-7cb2-49e2-a2d4-9b62c4df2cea | ALFA Mutual Insurance Co. v. Culverhouse | N/A | 1121127 | Alabama | Alabama Supreme Court | REL: 02/14/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121127
____________________
Alfa Mutual Insurance Company and William Koch
v.
Corey Culverhouse
Appeal from Geneva Circuit Court
(CV-10-0052)
STUART, Justice.
Alfa Mutual Insurance Company ("Alfa") and William Koch
(hereinafter
referred
to
collectively
as
"the
Alfa
defendants") appeal an order of the Geneva Circuit Court
granting in part Corey Culverhouse's motion to vacate the
1121127
summary judgment entered in favor of the Alfa defendants in
Culverhouse's action asserting that Alfa had wrongfully
refused to pay him benefits he was entitled to under a
homeowner's insurance policy. We affirm.
I.
In late 2005 or early 2006, Culverhouse, a self-employed
general contractor, began constructing a house for himself on
a five-acre lot in Hartford. Culverhouse initially financed
the construction of the house himself; however, he eventually
sought financing from a mortgage company, and, at that same
time, he obtained from Alfa a policy insuring the house during
the remainder of the construction process and after
construction was completed. Culverhouse does not remember
many of the details surrounding his purchase of the policy,
but it appears that Koch was the agent responsible for selling
Culverhouse the policy. Culverhouse acknowledges receiving a
copy of the policy after he purchased it, and it appears that
he subsequently renewed the policy after moving into the house
when construction was finished sometime in 2007 or 2008. For
the one-year period beginning June 19, 2009, the policy
offered a total of $975,700 in coverage –– $464,600 for the
2
1121127
structure, $325,200 for the personal property contained in
the
house, $46,500 for other structures on the property, and
$139,400 for loss of use.
On July 3, 2009, a minor fire damaged the kitchen of the
house. Culverhouse submitted a claim to Alfa, which paid for
a remediation company to clean and repair the smoke damage
caused by the fire. During this process, Culverhouse moved
out of the house and into a barn on his property. After about
two weeks of living in the barn, Culverhouse moved into a
house he was constructing for eventual sale across the road
from his house.
In the early morning of July 30, 2009, Culverhouse was
awakened by his father, who had been alerted by a newspaper-
delivery person and had driven to Culverhouse's house, and
told that his house across the road was again on fire. This
time, however, the fire could not be extinguished, and the
house, its contents, and, according to the parties, the
adjacent
swimming
pool
were
completely
destroyed.
Culverhouse
promptly informed Alfa of the fire, and Alfa thereafter began
an investigation into the cause. Ultimately, however, the
3
1121127
investigator retained by Alfa was unable to establish how the
fire began; its cause remains unknown.
On September 21, 2009, Culverhouse submitted a proof of
loss to Alfa, claiming a total loss of $934,450 related to the
fire. Alfa, however, immediately questioned
the
claim
because
Culverhouse had not submitted with his claim an inventory of
the contents of the house and supporting documentation, and he
had not submitted any evidence supporting the large claim he
had submitted for loss of use in the two-month period since
the fire or evidence indicating that any other structure
besides the house and swimming pool had been destroyed.
1
Moreover, using its standard procedures, Alfa had determined
that the replacement value of Culverhouse's house
was
$432,268
–– a sum within the $464,600 of coverage Culverhouse had on
the house itself –– and Culverhouse had submitted no
contradictory estimates.
Culverhouse, through his attorney, sent Alfa itemized
lists of the alleged contents of the house at the time of the
fire; however, deeming those lists to be insufficiently
specific and lacking in supporting documentation, Alfa, on
Culverhouse's policy provided that "[i]n ground swimming
1
pools are considered other structures."
4
1121127
November 6, 2009, notified Culverhouse that it was invoking
its right under the policy to examine him under oath regarding
his claim. On January 18, 2010, Culverhouse sat for the
examination. During the course of the examination,
Culverhouse admitted that some of the information he had
submitted to Alfa was inaccurate, and he essentially
acknowledged that he had just invented some values and guessed
at others after becoming "frustrated and aggravated" with the
claim process. Eventually Culverhouse refused to answer any
more questions and left the examination.
On February 2, 2010, Culverhouse returned to finish the
examination. Again, Culverhouse acknowledged that the
list of
contents he had submitted was inaccurate, and he was further
unable to explain how he had arrived at the values he placed
on many of the items on the list. Following the conclusion of
that examination, Culverhouse submitted additional itemized
lists supporting his claim for contents of the house that were
lost in the fire. As an example of contents included, that
documentation included a claim that he had lost over 400 pairs
of underwear and over 150 undershirts in the fire. Alfa was
5
1121127
still not satisfied with the submitted information,
deeming
it
to lack sufficient specificity and support documentation.
On March 24, 2010, Culverhouse submitted an estimate from
his chosen builder stating that it would cost $464,154 to
rebuild the house, and, on March 26, 2010, Culverhouse by
letter requested that Alfa release the insurance proceeds he
was due; Alfa responded by offering to settle Culverhouse's
claim for $458,750. On April 2, 2010, Culverhouse rejected
Alfa's offer, stating that it was "unacceptable and in bad
faith" and demanding that Alfa pay the limits of the policy
($975,700). On April 12, 2010, Culverhouse reiterated his
demand that Alfa pay the policy limits. On April 16, 2010,
Alfa advised Culverhouse that it would not meet his request to
pay the policy limits because his "demand for policy limits
[did] not make sense as there [were] various coverage[s] under
the policy that [were] not applicable." Alfa further offered
to settle Culverhouse's claim by paying $464,600 to rebuild
the house and an additional $100,000 to settle all other
claims.
Culverhouse thereafter advised Alfa that he would submit
a response to its offer; however, on July 8, 2010, Culverhouse
6
1121127
instead filed the instant action, alleging that Alfa had
willfully refused to pay him the insurance proceeds he was due
under the policy and asserting claims of breach of contract,
negligence, the tort of outrage, fraud, and bad-faith failure
to pay an insurance claim. Culverhouse claimed $975,700 in
compensatory damages and $2,000,000 in punitive damages, plus
an additional sum for attorney fees and costs. The Alfa
defendants thereafter filed an answer denying Culverhouse's
claims and moving to dismiss the complaint. That motion to
dismiss was granted in part, and the breach-of-contract claim
against Koch was dismissed along with the entire negligence
claim.
At
a
subsequent
deposition,
Culverhouse
acknowledged
that
he had given Alfa false information in the past regarding his
claim, explaining that he had been upset and had wanted to
"throw the book" at Alfa, but he estimated at that time that
approximately $200,000 in personal property was destroyed in
the fire, plus or minus $50,000. He also testified that he
had moved into another house he owned after the fire and that
his only loss-of-use costs associated with that move were $500
to purchase blinds for the house into which he had moved.
7
1121127
With regard to the "other structures" coverage of his policy,
it is also undisputed that Culverhouse had only a swimming
pool, and he submitted an estimate of $22,000 to rebuild that
pool. Regardless of these facts, Culverhouse claimed at his
deposition that he was entitled to the entire policy limits ––
$975,700 –– because he had paid his premiums.
On November 6, 2012, the Alfa defendants filed a
counterclaim
seeking
a
judgment
declaring
that
Culverhouse
had
voided his insurance by making misrepresentations during both
the application process and the claims process. On November
20, 2012, the Alfa defendants moved for a summary judgment on
all of Culverhouse's remaining claims, and Culverhouse
thereafter filed a response moving to dismiss
the
counterclaim
and opposing the summary-judgment motion. After various
delays, a hearing on the summary-judgment motion was held on
March 27, 2013, and on April 2, 2013, the trial court entered
an order granting the Alfa defendants' motion and dismissing
each of Culverhouse's claims; the trial court also dismissed
the Alfa defendants' counterclaim as moot.
Culverhouse thereafter retained a new attorney and, on
May 2, 2013, moved the trial court to alter, amend, or vacate
8
1121127
its April 2, 2013, judgment pursuant to Rule 59(e), Ala. R.
Civ. P. That motion raised some arguments that Culverhouse
acknowledged he had not articulated clearly in his previous
response to the Alfa defendants' motion for a summary
judgment, and, on that basis, the Alfa defendants moved to
strike Culverhouse's motion, while also filing a response
opposing it on its merits. On May 30, 2013, the trial court
granted Culverhouse's motion in part and amended its April 2,
2013, summary-judgment order so as to exclude Culverhouse's
breach-of-contract claim from the judgment, leaving it as the
only remaining claim in the case. The Alfa defendants
2
thereafter moved the trial court to certify its judgment for
an immediate appeal pursuant to Rule 5, Ala. R. App. P., and,
on June 13, 2013, the trial court granted that request. On
June 27, 2013, the Alfa defendants petitioned this court for
It is not clear whether the trial court intended to
2
resurrect Culverhouse's breach-of-contract claim with respect
to Koch, who had successfully moved to dismiss that claim
against him shortly after Culverhouse filed his complaint, or
just Alfa. However, both Alfa and Koch thereafter moved for
permission to appeal the trial court's judgment and both are
parties to this appeal, although the Alfa defendants do note
in their brief that the breach-of-contract claim against Koch
was separately dismissed earlier in the litigation.
9
1121127
permission to appeal, and, on July 31, 2013, we granted that
request.
II.
The Alfa defendants' argument on appeal does not relate
to the merits of Culverhouse's breach-of-contract claim.
Rather, it concerns only whether the trial court acted
properly by amending its summary-judgment order to resurrect
that claim in response to Culverhouse's motion to alter,
amend, or vacate the judgment pursuant to Rule 59(e). We have
stated that "'[w]hether to grant relief under Rule 59(e), Ala.
R. Civ. P., is within the trial court's discretion.'" Schramm
v. Spottswood, 109 So. 3d 154, 160 (Ala. 2012) (quoting
Bradley v. Town of Argo, 2 So. 3d 819, 823 (Ala. 2008)).
III.
The trial court identified and explained the issue of law
before this Court as follows in its order granting
Culverhouse's Rule 59(e) motion:
"Motions to reconsider serve a limited purpose:
'to correct manifest errors of law or fact or to
present newly discovered evidence.' Publishers
Resource, Inc. v. Walker-Davis Publications, Inc.,
762 F.2d 557, 561 (7th Cir. 1985). Examples of
manifest errors of law or fact include when 'the
court has patently misunderstood a party, or has
made a decision outside the adversarial issues
10
1121127
presented to the court by the parties, or has made
an error not of reasoning but of apprehension.'
Quaker Alloy Casting Co. v. Gulfco Industries, Inc.,
123
F.R.D.
282,
288
(N.D.
Ill.
1988).
Reconsideration motions may also be entertained when
'a controlling or significant change in the law or
facts since the submission of the issue to the
court' has occurred. Id. Motions to reconsider are
inappropriate for introducing evidence previously
available or for tendering new legal theories.
Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398,
404 (7th Cir. 1986) ('Although the defendants
attempted to raise the argument in their motion for
reconsideration, a motion for reconsideration is an
improper vehicle to introduce evidence previously
available or to tender new legal issues.'). See
also Hashwani v. Barbar, 822 F.2d 1038, 1041 (11th
Cir. 1987) (holding that a district court did not
abuse its discretion by not considering arguments
raised for the first time on a motion to amend a
summary judgment order); American Home Assurance Co.
v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239
(11th Cir. 1985).
"[Culverhouse] cites the most recent [Court of]
Civil Appeals case of Williams v. Valley View Health
& Rehab., 64 So. 3d 638, 641 (Ala. Civ. App. 2010),
for [his] argument that the court is within its
discretion to consider any new legal arguments in
[his] postjudgment motion. The [Alfa] defendant[s]
argue[] that the trial court's discretion to hear
new arguments in a postjudgment motion is limited to
cases where the party articulated a justification
for failing to timely raise the argument. [The Alfa]
[d]efendant[s] allege[] this is a 'procedural
attempt to take a second bite at the apple.'
[Culverhouse] relies on the Williams case that does
not go into the justification. In the Williams case
the Court of Civil Appeals cited two Supreme Court
decisions
that
do
state
there
is
to
be
a
justification: Espinoza v. Rudolph, 46 So. 3d 403,
416 (Ala. 2010), and Green Tree Acceptance, Inc. v.
11
1121127
Blalock, 525 So. 2d 1366, 1369 (Ala. 1988). In
2010, the Espinoza decision was made in March by the
Supreme Court before the September decision of
Williams by the Court of Civil Appeals. In December
2010, the Supreme Court denied certiorari in the
Williams case. The procedural issue is whether
justification is required. The court specifically
asked
this
question
in
oral
argument
to
[Culverhouse's] counsel, whose response was that
justification was not required. At no time in
briefs or argument did [Culverhouse] offer a
justification to the court. Since the Supreme Court
declined to clarify this matter in December 2010,
the Court believes at this time that justification
is not an absolute requirement. Therefore, whether
to allow new argument is in the discretion of the
court and this court chooses in the interest of
justice to allow [Culverhouse's] new argument."
Subsequently, in certifying its judgment for an immediate
appeal, the trial
court
summarized the controlling question of
law as follows:
"The controlling question of law is whether the
trial court erred by granting a motion to alter,
amend or vacate a summary judgment order based on
new legal arguments not raised during the pendency
of the summary judgment where the movant failed to
offer
any
justification
for
his
failure
to
previously make those arguments."
We note that the issue before us –– under what
circumstances a trial court may consider an argument made for
the first time in a postjudgment motion –– was first
considered by this Court in Green Tree Acceptance, Inc. v.
Blalock, 525 So. 2d 1366 (Ala. 1988). We stated then:
12
1121127
"The question of whether a new legal argument in
a post-judgment motion is timely, is a question of
first impression in this State. Other jurisdictions
considering the question presented by this case have
concluded
that
new
legal
arguments
in
a
post-judgment motion are untimely. See Excavators
& Erectors, Inc. v. Bullard Engineers, Inc., 489
F.2d 318, 320 (5th Cir. 1973); Fehlhaber v.
Fehlhaber, 681 F.2d 1015, 1030 (5th Cir. 1982);
Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398,
404 (7th Cir. 1986); Grumman Aircraft Eng'g Corp. v.
Renegotiation Bd., 482 F.2d 710, 721 (D.C. Cir.
1973), rev'd on other grounds, 421 U.S. 168, 95
S.Ct. 1491, 44 L.Ed.2d 57 (1975).
"However, this Court recently decided a case
analogous to the instant case involving the
introduction of new evidence in a post-judgment
motion. Moore v. Glover, 501 So. 2d 1187 (Ala.
1986). In that case the Court held that when new ––
as opposed to newly discovered –– evidence was first
introduced in a post-judgment motion and no reason
or justification was given for failing to present
the evidence while the summary judgment motion was
pending, the trial judge could not consider the new
evidence. Moore, 501 So. 2d at 1189. Nevertheless,
if the plaintiff had 'offered a proper explanation
for his failure to offer that additional evidence in
response to defendant's motion for summary judgment,
the trial court could have considered it in deciding
whether to amend or vacate its entry of summary
judgment.' Id. (emphasis supplied). Furthermore,
'[a]ny reasonable explanation of the party's failure
to offer evidence in response to a motion for
summary judgment [would] suffice, but this does not
mean that under the guise of a Rule 59(e) motion a
party [could] belatedly submit available evidence in
opposition to a motion for summary judgment.'
Moore, 501 So. 2d at 1191 (Torbert, C.J., concurring
specially).
13
1121127
"Given
the
analogous
situations
in
Moore
and
the
instant case, we conclude that a trial court has the
discretion to consider a new legal argument in a
post-judgment motion, but is not required to do so.
We will reverse only if the trial court abuses that
discretion.
"Based on the record before this Court on
appeal, we conclude that there was no justification
given by [the appellant] for failing to raise the
argument
prior
to
its
post-judgment
motion.
Therefore, the trial court correctly refused to
alter, amend, or vacate its order granting a summary
judgment in favor of the [appellees]."
525 So. 2d at 1369-70. Thus, the Green Tree Court noted that,
under Moore v. Glover, 501 So. 2d 1187 (Ala. 1986), a party
submitting new evidence for the first time in a postjudgment
motion was required to justify why the evidence had not been
previously submitted; otherwise the trial court lacked
discretion to consider the new evidence. Relying on Moore,
the Green Tree Court then concluded that a trial court may
consider, that is, it has the discretion to consider, a new
legal argument in a postjudgment motion but is not required to
do so. The Green Tree Court did not specifically state that
a party making a new legal argument in a postjudgment motion
had to offer an explanation as to why that argument was not
previously made in a timely manner but concluded that a trial
14
1121127
court was justified in not considering such an argument if no
such explanation was offered.
Post-Green Tree, the appellate courts of this State have
at times noted a party's failure to offer an explanation for
a delay in making an argument when affirming a trial court's
decision not to consider the new argument and, at other times,
the appellate courts have been silent on whether an
explanation was offered or necessary. Compare Diamond v.
Aronov, 621 So. 2d 263, 266-67 (Ala. 1993) ("Until he filed
his Rule 60(b) motion, [the appellant] did not raise the
[identified] issue ...; he offered no justification for
failing to raise that issue earlier. A trial judge has the
discretion to consider a new legal argument in a post-judgment
motion, but is not required to do so. Green Tree Acceptance,
Inc. v. Blalock, 525 So. 2d 1366 (Ala. 1988). Absent an abuse
of discretion, we will affirm the trial judge's ruling in this
regard. We cannot hold that the trial court abused its
discretion in failing to consider that new argument;
therefore, we affirm the denial of [the appellant's] Rule
60(b) motion for relief from judgment."), with Blackmon v.
King Metals Co., 553 So. 2d 105, 106 (Ala. 1989) ("On appeal,
15
1121127
[the appellant] argues that the judgment should be reversed
[for two identified reasons]. These issues were first
presented to the trial court after the ore tenus hearing on
[the appellant's] post-judgment motion. It is in the trial
court's discretion whether to deny or grant relief under Rules
59 and 60, and its decision will not be reversed on appeal
absent an abuse of that discretion. ... The trial court did
not abuse its discretion in rejecting [the appellant's] new
legal arguments made in his post-judgment motions. The
judgment of the trial court is, therefore, affirmed.").
However,
although
the
appellate opinions
considering
this
issue have not always been consistent in noting whether a new
argument asserted in a postjudgment motion has been or needs
to be accompanied by explanations for why it was not
previously asserted, those opinions are consistent in one
fashion –– they all recognize the broad discretion of the
trial court in making the decision whether to consider a new
argument and they all ultimately defer to the decision the
trial court has made. Indeed, the Alfa defendants acknowledge
in their brief to this Court that none of the cases they cite
involves an appellate court's holding that a trial court
16
1121127
exceeded its discretion by considering, or not considering, a
new argument; rather, the cases they cite all involve an
appellate court's affirming a trial court's judgment and
holding that the trial court had not exceeded its discretion
in deciding not to consider a new argument. Culverhouse,
however, goes further and notes that not only has this Court
never held that a trial court exceeded its discretion by
considering a new argument presented in a
postjudgment
motion,
but also, in Maxwell v. Dawkins, 974 So. 2d 282, 286 (Ala.
2006), this Court rejected an appellee's argument to that
effect:
"It is true that [the appellant] did not raise
the issue of his father's mental capacity to revoke
his
will
until
he
filed
his
motion
for
reconsideration after the trial court had granted
[the appellee's] motion for a summary judgment.
Accordingly, the trial court was under no obligation
to consider the issue because it was not timely
raised. However, although there was no requirement
that it do so, the trial court nevertheless did have
the discretion to consider the argument, and it
appears to have done so. See Green Tree Acceptance,
Inc. v. Blalock, 525 So. 2d 1366, 1369 (Ala. 1988)
('[A] trial court has the discretion to consider a
new legal argument in a post-judgment motion, but is
not required to do so.')."3
This Court in Maxwell made no mention of whether the
3
appellant had offered an explanation for his failure to raise
this issue before the summary judgment was entered.
17
1121127
Based on Maxwell and the other cases cited by the
parties, we think it clear that the discretion of the trial
court to consider a new argument is paramount, and we see no
reason to limit that discretion to those cases where the
moving party has offered an on-the-record explanation for
failing to make the belated argument earlier. The trial court
is in the best position to determine whether the argument
should be considered, and, in this case, the trial court
specifically stated that it was "in the interest of justice"
that
Culverhouse's
belated
argument
be
considered.
Certainly,
the trial court would have been within its discretion in
refusing to consider the new argument, either because
Culverhouse had not offered an explanation for failing to make
the argument in a timely fashion or for some other reason;
however, that is not the decision the trial court made. In
recognition of the broad discretion afforded a trial court on
this issue, we defer to the decision that the trial court did
make.
IV.
After the trial court amended its order entering a
summary judgment in favor of the Alfa defendants on all of
18
1121127
Culverhouse's
claim to
exclude from
summary
judgment
Culverhouse's breach-of-contract claim, the Alfa defendants
appealed that decision to this Court, arguing that the trial
court lacked discretion to consider a new argument made by
Culverhouse
in
his
postjudgment
motion
because
Culverhouse
did
not offer any explanation for his failure to make that
argument earlier. We hold that the trial court acted within
its discretion in considering the argument and in amending the
order, and its judgment is accordingly affirmed.
AFFIRMED.
Moore, C.J., and Bolin, Parker, and Wise, JJ., concur.
19 | February 14, 2014 |
4126f8fe-cb5b-4b59-a022-25d754f42064 | State Dept. of Industrial Relations v. Ford | 178 So. 2d 190 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 190 (1965)
STATE DEPARTMENT OF INDUSTRIAL RELATIONS et al.
v.
A. H. FORD.
7 Div. 686.
Supreme Court of Alabama.
September 2, 1965.
*191 Hawkins & Rhea, Gadsden, for petitioner.
J. Eugene Foster and Chas. P. Miller, Montgomery, opposed.
Inzer, Martin, Suttle & Inzer, Gadsden, for Republic Steel Corp.
HARWOOD, Justice.
This is a petition for a writ of certiorari to review the judgment of the Court of Appeals rendered in State Department of Industrial Relations and Republic Steel Corporation v. A. H. Ford, Ala.App., 178 So. 2d 185 (7 Div. 762).
Petitioner has assigned two grounds as constituting errors in the judgment of the Court of Appeals. First, that the Court of Appeals erred in interpreting evidence as established in the trial below, in that (the petitioner here sets out certain findings by the Court of Appeals with which he disagrees).
It is well settled under our decisions that on certiorari this court will not enter into a redetermination of facts as found by the Court of Appeals, and such findings are not subject to review by this court. Ex parte Pesnell, 240 Ala. 457, 199 So. 726; Broadway v. Alabama Dry Dock & Shipbuilding Co., 246 Ala. 201, 20 So. 2d 41.
The second ground of error asserted by the petitioner is that the Court of Appeals erred in disqualifying the petitioner from unemployment benefits under Sec. 214 (A), Tit. 26, Code of Alabama 1940, and in concluding that the petitioner's partial unemployment was directly due to a labor dispute still in active progress in the establishment in which he was employed.
A reading of the Court of Appeals opinion convinces us that that court was correct in its application of the law as applied to the facts determined by the Court of Appeals.
While we think that the opinion and judgment of the Court of Appeals is fully supported by the Alabama authorities cited in its opinion, we would also like to cite the case of In re Persons Employed at St. Paul & Tacoma Lumber Co., 7 Wash. 2d 580, 110 P.2d 877, because of its analogy to the present case. In the Washington case supra, certain maintenance workers continued their work for some time after the institution of a strike and were allowed to go through the picket lines by virtue of permits from the striking union of which these maintenance *192 men were members. After a short while the employing mill found it did not have enough wood-fuel on hand to keep up steam and was compelled to resort to the use of oil for such purpose. The use of oil required a small work force and some of the maintenance men were told not to return to work.
The Commissioner decided that those men who were thus deprived of work were not entitled to unemployment compensation for the reason that they were directly engaged in the strike activity. This decision by the Commissioner was appealed to the County Superior Court, and that court reversed the finding of the Commissioner. This judgment by the County Superior Court was reversed by the Supreme Court of Washington.
In the course of its opinion, the Supreme Court of Washington wrote:
We are in accord with the views above expressed by the Supreme Court of Washington.
Writ denied.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | September 2, 1965 |
2ea0bc08-028c-48ec-9944-7289db85de2a | Kemp v. State | 179 So. 2d 762 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 762 (1965)
Bill KEMP, Jr.
v.
STATE of Alabama.
1 Div. 294.
Supreme Court of Alabama.
September 30, 1965.
Rehearing Denied November 18, 1965.
*763 Barry Hess, Mobile, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
LAWSON, Justice.
The indictment charges appellant with murder in the first degree. He was found guilty of murder in the second degree and punishment was fixed at thirty years in the penitentiary.
Appellant was represented by counsel throughout the proceedings in the trial court, from the day set for arraignment through sentence. He is represented by counsel in this court.
It was shown without dispute that appellant killed Martha Ann Dexter by cutting her with a knife, which we know to be a deadly weapon.
And the law is that when one kills another by the intentional use of a deadly weapon, malice, design and motive may be inferred without more and are presumed, unless the evidence which proves the killing rebuts the presumption; and casts on defendant the burden of rebutting it, and to show self-defense or other justification, if he can. Cooley v. State, 233 Ala. 407, 171 So. 725; Colvin v. State, 39 Ala.App. 355, 102 So. 2d 911; Fort v. State, 37 Ala. App. 91, 64 So. 2d 604; Langley v. State, 32 Ala.App. 163, 22 So. 2d 920; Tolbert v. State, 31 Ala.App. 301, 15 So. 2d 745; Moore v. State, 31 Ala.App. 483, 18 So. 2d 803; Austin v. State, 30 Ala.App. 267, 4 So. 2d 442; Coates v. State, 29 Ala.App. 616, 199 So. 830.
As indicated above, the testimony on behalf of the State was that appellant admitted killing Martha Ann Dexter with a knife, a deadly weapon. The burden was then upon him to prove that he was in imminent peril of life or serious bodily harm and that he cut or stabbed deceased to protect himself. This was necessary to show self-defense, though he had no duty to retreat and was free from fault, if he was, in provoking the difficulty. And, though the evidence of appellant may have been *764 without dispute, its credibility was for the jury, as well as its tendency to show imminent peril. The jurors were not bound to accept appellant's testimony as true, or to draw an inference of danger from the circumstances. Cooley v. State, supra; Williams v. State, 36 Ala.App. 583, 61 So. 2d 861; Weaver v. State, 35 Ala.App. 158, 44 So. 2d 773; Tolbert v. State, supra; Coates v. State, supra.
The circumstances here are not comparable to those in the case of Hamby v. State, 254 Ala. 139, 47 So. 2d 218, wherein we held that the evidence which proved the killing rebutted the presumption of malice and hence we reversed. Hamby had been convicted of murder in the second degree. Nor are the circumstances here comparable to those in the case of McDowell v. State, 238 Ala. 482, 191 So. 894, 899, wherein four Justices finally concluded that the judgment should be reversed because the trial court refused the defendant a new trial, in turn, because the verdict was "contrary to the great weight of the evidence."
In our opinion, the issue of appellant's guilt of the offense of murder in the second degree was, even under his own testimony, a question for jury decision and hence the trial court did not err in refusing appellant's written charges 1 and 2, which were to the effect that the jury should acquit appellant.
Refused charge 3 is bad for the reason, if for no other, that it pretermits a consideration of all the evidence. Berry v. State, 27 Ala.App. 507, 175 So. 407.
Refused charge 13 was substantially and fairly covered by the court's oral charge. Its refusal cannot work a reversal. § 273, Title 7, Code 1940.
There was no evidence as to appellant's character, good or bad. Therefore, charges 14 and 15 were abstract and were properly refused. Drake v. State, 51 Ala. 30; Walker v. State, 33 Ala.App. 614, 36 So. 2d 117.
Charge 16 requested by appellant was refused without error in that the trial court in its oral charge substantially and fairly explained to the jury the principle sought to be covered by that charge. § 273, Title 7, Code 1940.
Laying aside the question, vel non, of their correctness, we have concluded that charges 17, 20, 25, 26, 27 and 28 were sufficiently covered by the trial court's oral charge and written charges given at the request of the appellant to avert the criticism that there was any prejudicial error to the defendant in their refusal. § 273, Title 7, Code 1940. The subject of "reasonable doubt" dealt with in those charges was amply covered by the court in its oral charge and the given charges.
Charge 18 was properly refused because of its tendency to mislead. Daniels v. State, 243 Ala. 675, 11 So. 2d 756.
Charge 19 is indefinite and uncertain, with tendency to mislead. It was refused without error. Adams v. State, 133 Ala. 166, 31 So. 851.
An assistant coroner, called as a witness by the State, testified that he performed a post-mortem examination on the body of deceased on October 22, 1964, at the morgue at Mobile General Hospital. He was asked to state his findings. The appellant objected on the ground that it had not been shown that the body was in the same condition on the day the autopsy was performed, October 22, 1964, as it was immediately after the killing on the afternoon of October 20, 1964. The objection was overruled and the assistant coroner then testified that the post-mortem examination revealed multiple stab wounds and he explained to the jury the location of the wounds on the body of deceased. He stated that deceased had eighteen wounds in her back which ranged from the small of her back down to the *765 ilium. The witness stated that the cause of death was the multiple stab wounds and loss of blood.
The appellant admitted on the stand that on the afternoon of October 20, 1964, he stabbed the deceased twice while they were engaged in an argument, but he denied that he stabbed her in the back.
Consequently appellant argues that the trial court erred in permitting the assistant coroner to testify as to his findings based on the post-mortem examination made on October 22, 1964, since it was not shown that the body of deceased was in the same condition on that day as it was immediately after the killing.
Appellant has cited no case and we have found none exactly in point. But there are cases which hold, in effect, that the mere fact that a post-mortem examination was made long after death is no reason in itself for its exclusion as evidence. Tarkaney v. Commonwealth, 240 Ky. 790, 43 S.W.2d 34; Williams v. State, 64 Md. 384, 1 A. 887; Moore's Heirs v. Shepherd, 63 Ky. (2 Duv.) 125. See King v. State, 55 Ark. 604, 19 S.W. 110; Benge v. Commonwealth, 265 Ky. 503, 97 S.W.2d 54. We hold that the trial court did not err in permitting the assistant coroner to testify as to his findings at the post-mortem examination.
The appellant contends that the trial court erred in overruling objections interposed by his lawyer to questions asked appellant by the solicitor on cross-examination as to whether he had been convicted of second degree manslaughter. These questions were not answered. Even if it be conceded that the questions were improper, the court's action in overruling the objections to them would not work a reversal, since the rule is that improper questions not answered are harmless. Strickland v. State, 269 Ala. 573, 114 So. 2d 407; Gosa v. State, 273 Ala. 346, 139 So. 2d 321.
The circumstances attending the inculpatory statements made by appellant, which were proven by the State without objection, affirmatively disclose that they were made voluntarily. After cutting his wife, the appellant had another call the Mobile police department and request police officers to "pick up" the appellant. When the officers arrived they asked appellant why he had called them and he replied that he had cut his wife. He then asked the officers to accompany him to his home where the killing occurred and there appellant gave his version of the fight between himself and the deceased, with whom he had been living as his wife. The fact that appellant did not have a lawyer present at the time he called the police and admitted the cutting did not render his inculpatory statements inadmissible. Duncan v. State, 278 Ala. 145, 176 So. 2d 840. There was no request that the jury be excluded while the voluntariness of the inculpatory statements was determined and, in fact, as shown above, no objection was interposed by counsel for appellant to the questions calling for proof of those statements. See Duncan v. State, supra.
The judgment below is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, MERRILL and HARWOOD, JJ., concur.
COLEMAN, J., dissents.
COLEMAN, Justice (dissenting).
I am of opinion that the court erred in overruling defendant's objection to the coroner's testimony showing the result of the post-mortem examination when it was not shown that the body, at the time of examination, was in the same condition as when found two days earlier on the day of the homicide. | September 30, 1965 |
587c634b-0aa8-4173-8dc0-5a2bafc1fd84 | Ex Parte Moss | 179 So. 2d 753 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 753 (1965)
Ex parte Merle M. MOSS.
3 Div. 195.
Supreme Court of Alabama.
September 30, 1965.
Rehearing Denied November 18, 1965.
*754 Capell, Howard, Knabe & Cobbs, Montgomery, for petitioner.
Goodwyn & Smith, Montgomery, for respondent.
LAWSON, Justice.
This is an original petition by Merle M. Moss praying that a writ of mandamus issue to the Honorable William F. Thetford, as Judge of the Circuit Court of Montgomery County, in Equity, directing him to set aside a decree sustaining a plea in abatement to the venue of a divorce suit filed by the petitioner against her husband, Kenneth E. Moss, and to render a decree denying the plea in abatement filed by the said Kenneth E. Moss.
It is insisted that the present matter should not be reviewed by mandamus because the questions here involved can be ultimately reviewed on appeal.
This court has held that mandamus will not ordinarily be granted if the matter complained of, including a ruling on a plea in abatement, can be ultimately presented to this court through the medium of an appeal from a final decree. Ex parte Brooks, 264 Ala. 674, 89 So. 2d 100; Ex parte Little, 266 Ala. 161, 95 So. 2d 269; *755 Harris v. Elliott, 277 Ala. 421, 171 So. 2d 237. And it has been held that expense and inconvenience are not sufficient to make an expection to the aforesaid general rule. Ex parte Brooks, supra.
However, exceptions to the general rule are mentioned in Brittain v. Jenkins, 263 Ala. 683, 83 So. 2d 432. One of the exceptions is that in the sound discretion of this court the writ of mandamus may be employed to review the ruling in divorce cases on a plea in abatement raising the question of venue, the theory being that there is a public interest involved in such cases. Ex parte Aufill, 268 Ala. 43, 104 So. 2d 897.
We have reviewed by mandamus proceedings decrees denying pleas in abatement in divorce cases in several instances. Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510; Ex parte Davis, 249 Ala. 221, 30 So. 2d 648; Ex parte Lewis, 262 Ala. 463, 79 So. 2d 792; Ex parte Aufill, supra. We can see no valid reason why the same method of review should not be employed to review a decree sustaining a plea in abatement filed in a divorce case. Accordingly, we shall proceed to review the decree sustaining the plea in abatement by way of mandamus.
The circumstances leading up to the filing of the petition for mandamus, as shown by the petition, are as hereafter set out.
On March 5, 1965, the petitioner, Merle M. Moss, filed in the Circuit Court of Montgomery County, in Equity, a sworn bill of complaint against her husband, Kenneth E. Moss, praying "for alimony and support pendente lite, for the production of certain papers on the part of Kenneth E. Moss and for a divorce, custody of the child, settlement of property rights, and for permanent alimony and support for Complainant and the minor child of the marriage." As grounds for the divorce the bill charged cruelty and abandonment. The bill, as amended, according to the averments of the petition for mandamus, alleged that the complainant therein, Merle M. Moss, lived in Huntsville, Alabama, and that the respondent therein, Kenneth E. Moss, lived in Montgomery, Alabama.
Kenneth E. Moss was served with a copy of the complaint on March 5, 1965, by the Sheriff of Montgomery County.
Judge Thetford on March 9, 1965, set a hearing on complainant's prayer for support and alimony pendente lite for March 22, 1965, and ordered Kenneth E. Moss to deliver to the deputy register of the circuit court before March 22, 1965, papers and documents in accordance with the request of complainant. The hearing so set was continued at the request of the attorney for Kenneth E. Moss.
On March 24, 1965, Kenneth E. Moss filed his sworn plea in abatement, alleging that he was a nonresident of Alabama and was such at the time Merle M. Moss filed her complaint in the Circuit Court of Montgomery County, in Equity, and therefore the Circuit Court of Montgomery County was without jurisdiction to try and determine the cause and that it should be abated.
Evidence on the merits of the plea in abatement was taken orally before Judge Thetford on April 28, 1965. In her petition for mandamus, as amended, Merle M. Moss summarizes the testimony taken on the hearing as follows:
On May 18, 1965, Judge Thetford issued an order sustaining the plea in abatement *756 and ordering the cause to be transferred to the Circuit Court of Madison County, in Equity, in accordance with the provisions of Act 76, approved September 15, 1961, Acts of Alabama 1961, Vol. II, p. 1953.
The petition for mandamus further avers that the said order of Judge Thetford is erroneous for the following reasons:
The foregoing completes our summary of the averments of the petition for mandamus.
As shown above, petitioner first asserts that the plea in abatement was defective "in that it related only to part of the bill of complaint." In brief filed here on behalf of the petitioner, her contention as to this point is explained in the following language:
The plea in abatement, as we view it, was directed to the bill as a whole and not to its several aspects. It sought the abatement and transfer of the entire suit. Since the plea averred that complainant was not a resident of Montgomery County where the suit was filed, but of Madison County, and that respondent was a nonresident of this state, the relief sought by the plea was obviously grounded on that part of § 28, Title 34, Code 1940, which is italicized below:
It seems to be petitioner's contention in regard to the point now under consideration that even though it be conceded (which petitioner does not concede, as will be hereinafter shown), a suit for divorce against a nonresident must be brought in the circuit court of the county where the complainant resides, if the question of venue is properly raised by one who can raise it, nevertheless Judge Thetford erred in sustaining the plea in abatement addressed to the bill as a whole and in transferring the entire cause to the Circuit Court of Madison County because in her bill, in addition to praying for an absolute divorce, petitioner prayed for "temporary support and child custody," which petitioner says is a transitory action which could be maintained in Montgomery County because jurisdiction of the person of the respondent, Kenneth E. Moss, was obtained in Montgomery County by personal service made by the sheriff of that county.
In support of her contention that an action for "temporary support and child custody is transitory and may be brought in any county where jurisdiction of the person of respondent is obtained," petitioner relies upon Ex parte Hale, 246 Ala. 40, 18 So. 2d 713. The complainant in that case did not seek an absolute divorce. She prayed that the court grant her a legal *757 separation from respondent and award her custody of their minor child and also award to her an allowance for the support of herself and child. The respondent filed a plea in abatement averring, among other things, that neither he nor the complainant was a resident of Alabama at the time the bill was filed. The plea in abatement was struck on motion. We review that action in a mandamus proceeding but denied the peremptory writ, although we observed that the motion to strike the plea was an inappropriate method of testing its sufficiency. We said the ruling on the motion to strike the plea was without injury because "[i]t is therefore clear enough the plea was wholly insufficient to so much of the bill which seeks separate maintenance and support, as well as control of the child."
In the opinion in the Hale case it was said, in effect, that the prayer for "a legal separation" was tantamount to a prayer for a divorce from bed and board. The opinion in that case contains the following language:
If the Hale case, supra, can be said to be authority for the proposition that an action for "temporary support and child custody" can be maintained in any county where jurisdiction of the person of the respondent is obtained, although the bill also prays for an absolute divorce, that holding has not been applied by this court in so far as we are advised. See Ex parte Stroud, 248 Ala. 480, 28 So. 2d 316; Faulk v. Faulk, 255 Ala. 237, 51 So. 2d 255. We do not mean to indicate that we construe either of the two cases just cited as dealing with bills wherein there was a specific prayer for an absolute divorce. However, we think those cases shed some light on the construction which this court has placed on our opinion in Ex parte Hale, supra.
We hold that a bill which seeks an absolute divorce is, in its entirety, subject to a plea in abatement as to venue if the bill is not filed in accordance with the provisions of § 28, Title 34, Code 1940, irrespective of the fact that the bill also prays for "temporary support and child custody." It would be an anomaly to permit a court wherein such a bill was filed to retain jurisdiction to determine "temporary support and child custody," and yet be compelled to transfer to another county, under the provisions of Act 76, supra, the cause in so far as it prayed for an absolute divorce, and such could be the result if we followed the argument of petitioner, in a case where the plea in abatement was properly addressed to such a bill.
The petitioner next contends that the plea in abatement should have been overruled and denied because "venue is not for the benefit of a nonresident," but for the benefit of the complainant, a resident of this state, and the petitioner alone "was entitled to insist on a hearing in the county of her residence," since the "right to question jurisdiction [venue] is a personal privilege and can be claimed only by one for whose benefit it exists."
We have said that § 28, Title 34, Code 1940, is for the benefit of "the parties" and may be waived since it relates to venue as distinguished from jurisdiction of the subject matter. White v. White, 206 Ala. 231, 89 So. 579; Hooks v. Hooks, 251 Ala. 481, 38 So. 2d 3. See Kemp v. Kemp, 258 Ala. 570, 63 So. 2d 702. But as shown above, petitioner insists that where the respondent is a nonresident that section is for the benefit *758 of the complainant alone and the nonresident respondent cannot be heard to complain that the suit was not filed in accordance with the provisions of said section. In support of that insistence petitioner relies upon Steen v. Swadley, 126 Ala. 616, 28 So. 620; Jefferson County Savings Bank v. Carland, 195 Ala. 279, 71 So. 126; Conner v. Willet, 265 Ala. 319, 91 So. 2d 225. None of those cases involved § 28, Title 34, Code 1940, or a statute which purports to say where a suit against a nonresident is to be brought.
In Jefferson County Savings Bank v. Carland, supra, that point is emphasized. We quote:
In regard to divorce actions, the Legislature has seen fit to make specific provision as to where nonresidents are to be sued. And in Caheen v. Caheen, 233 Ala. 494, 496, 172 So. 618, 619, we observed: "* * * If the defendant is a nonresident the bill for divorce must be filed in the circuit court of the county in which the other party to the marriage resides. * * *" (Emphasis supplied)
In view of the language of § 28, Title 34, Code, as construed in the Caheen case, supra, we cannot agree with petitioner that a nonresident respondent in a divorce action cannot be heard to complain that the suit against him was not filed in accordance with the provisions of § 28, Title 34, Code 1940.
Petitioner next insists that the trial court was in error in sustaining the plea in abatement because the respondent in the divorce action, Kenneth E. Moss, had waived his right to file a plea in abatement.
There is no merit in this insistence. Even if it be conceded that the trial court could have correctly refused to entertain the plea in abatement because it had not been timely filed, it does not follow that the trial court erred in considering the plea. The import of our decisions is that the trial court has a discretion to permit a later filing of a plea in abatement and the appellate courts generally will not revise such a ruling. Webster v. Talley, 251 Ala. 336, 37 So. 2d 190, and cases cited. We cannot say that the trial court improperly exercised its discretion in considering the plea in abatement.
The petitioner in brief, in effect, concedes that under the evidence the trial court could have found that at the time the divorce suit was filed the respondent thereto was a nonresident of this state, but in spite of that assertion, and with all other questions aside, the petitioner argues that the trial court erred in sustaining the plea in abatement in that the evidence shows that Mr. and Mrs. Moss were both domiciled in Montgomery County at the time the separation occurred and that, therefore, under the provisions of § 28, Title 34, Code 1940, petitioner's divorce suit was properly filed in Montgomery County.
We do not agree. The last clause of the section stands alone and spells out *759 where divorce suits against nonresidents are to be filed. We do not believe that we would be justified in rewriting the statute so as to read into the last clause of the section all or any of the provisions of the first clause. See Caheen v. Caheen, supra.
We have treated all of the grounds relied upon by petitioner in her petition for mandamus and, finding no merit in any of them, we hold that the peremptory writ of mandamus is due to be denied. It is so ordered.
Mandamus denied.
LIVINGSTON, C. J., and GOODWYN, MERRILL, COLEMAN and HARWOOD, JJ., concur. | September 30, 1965 |
ddfd213b-fc41-401b-9ade-40d6bbba532b | McClendon v. State | 180 So. 2d 273 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 273 (1965)
Ralph McCLENDON et al.
v.
STATE of Alabama.
7 Div. 592.
Supreme Court of Alabama.
November 18, 1965.
*274 Roy D. McCord, Gadsden, for appellants.
Buford L. Copeland, Gadsden, for appellee.
LAWSON, Justice.
The State of Alabama filed a petition in the Probate Court of Etowah County to condemn lands belonging to appellants, Ralph McClendon, Eloise McClendon, S. P. McClendon and Mildred McClendon, for highway purposes.
The award of the Commissioners in the Probate Court was $15,950 and judgment of condemnation was entered accordingly.
The State took an appeal to the Circuit Court, where no issue was made as to the right of the State to condemn the property in question. In the circuit court the trial was before a jury, which returned a verdict awarding the landowners the sum of $9,500. Judgment was entered accordingly and the landowners' motion for a new trial was overruled. The landowners have appealed to this court.
*275 Appellants have made seventeen assignments of error. Assignments of error 1 through 11 are argued in bulk. We quote from appellants' brief:
Appellants' Proposition of Law I reads: "Hearsay testimony, when properly objected to, is not admissible."
Appellee says that assignments of error 1 through 11 do not all relate to the hearsay rule and insists that we apply the rule that where unrelated assignments of error are argued in bulk, if any one assignment is not well taken, then no reversible error is made to appear. Moseley v. Alabama Power Co., 246 Ala. 416, 21 So. 2d 305; Thompson v. State, 267 Ala. 22, 99 So. 2d 198; First National Bank of Birmingham v. Lowery, 263 Ala. 36, 81 So. 2d 284.
We agree with appellee that assignments of error 1 through 11 are not related. They do not all relate to claimed violations of the hearsay rule. Assignments of error 5, 10 and 11 assert error on the part of the trial court in admitting certain deeds in evidence.
Assignment of error 9 reads as follows:
Assignments of error 2 and 7 are to like effect.
These assignments do not comply with Supreme Court Rule 1. They do not state concisely of what the error consists. They should do so. Errors assigned in, this way will not be considered by this court. Woodruff v. Smith, 127 Ala. 65, 28 So. 736, 54 L.R.A. 440; Hall v. Pearce, 209 Ala. 397, 96 So. 608; Miles v. Moore, 262 Ala. 441, 79 So. 2d 432; Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So. 2d 294; Hughes v. McAnnally, 272 Ala. 169, 130 So. 2d 176.
Assignments of error 1, 2, 3, 4, 6, 7, 8 and 9, having been argued in bulk with assignments 5, 10 and 11, which are without merit, will not be considered. Thompson v. State, supra.
Assignment of error 12 reads:
In their brief appellants complain of this part of the court's oral charge:
The record discloses that the only exception to the court's oral charge is as follows:
The proper way to reserve an exception to a part of the court's oral charge is for the exceptor to select and recite what the court said, or state the substance of what the court said, and thus specifically *276 bring to the attention of the trial court and this court the matter and ruling of which complaint is made. Alabama Power Co. v. Smith, 273 Ala. 509, 142 So. 2d 228. We are of the opinion that the exception reserved to the court's oral charge in this case was insufficient to present for review appellants' criticisms of that part of the oral charge made the basis of assignment of error 12.
Assignment of error 13 is as follows:
The well-established rule of compensation in a condemnation proceeding in this state where only a part of a tract is taken is that the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part remaining after the taking, giving effect to any enhancement in value to the part remaining in case the condemnation was for a public highway as provided in Title 19, Code 1940. In determining the value of the property after the taking, the jury should consider any factor or circumstance which would depreciate the value in any way, and this includes any effect that the completed project for which the land is condemned may produce on the remaining tract. St. Clair County v. Bukacek, 272 Ala. 323, 131 So. 2d 683, and cases cited; State v. Young, 275 Ala. 648, 157 So. 2d 680.
The fact that the road to be built on the condemned land of appellants will divide appellants' property is, we think, a factor or circumstance which the jury could take into consideration in determining the value of the remaining lands of appellants. The charge in question, when carefully considered, does not say to the contrary. It relates to a mere personal inconvenience of the landowners and does not say that the jury could not take into consideration the effect of the severance of appellants' property upon the value of their remaining lands. See Mississippi State Highway Commission v. Smith, 202 Miss. 488, 32 So. 2d 268; State Department of Roads v. Dillon, 175 Neb. 444, 122 N.W.2d 223. The charge in question may have a tendency to confuse or mislead the jury, but when such a charge is given, the remedy is to request an explanatory charge. Farr v. Blackman Plumbing & Heating Co., 267 Ala. 585, 103 So. 2d 777; Jacks v. City of Birmingham, 268 Ala. 138, 105 So. 2d 121.
Assignments of error 14, 15, and 16 are mentioned in appellants' brief, but as to these assignments appellants' brief does little more than repeat the assignments of error and it falls far short of compliance with Supreme Court Rule 9. Alsup v. Southern Mfg. Co., 248 Ala. 405, 27 So. 2d 781; Bertolla & Sons v. Kaiser, 267 Ala. 435, 103 So. 2d 736.
There is no mention of assignment of error 17 in brief of appellants.
The judgment of the trial court is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN, MERRILL and HARWOOD, JJ., concur.
COLEMAN, J., dissents.
COLEMAN, Justice (dissenting).
The instruction; "I charge, you, gentlemen of the jury, that in assessing compensation in this case, no consideration can be given to any inconvenience to the landowner because of the construction of the improvement" seems to me to be an incorrect statement of the law and I would reverse for giving that charge to the jury.
*277 This court has said:
If this court was correct in saying that the "inconvenience to the remaining tract" is "to be considered by the jury," I find it difficult to understand how the charge in the instant case is not incorrect in saying "no consideration can be given to any inconvenience to the landowner."
This court says inconvenience is to be considered and the charge says no consideration is to be given to any inconvenience. One statement or the other is incorrect because they are contradictory, unless the phrase "inconvenience to the remaining tract" means something different from the phrase "inconvenience to the landowner."
I am unable to follow the argument that the phrase, "inconvenience to the landowner," means something personal to him, unconnected with the value of the land, and, therefore, that the charge in the instant case is merely misleading and not an incorrect statement of the law. The only sort of inconvenience that can have any effect on the value of land is inconvenience to the owner, and I do not think a jury would understand the charge any other way.
The argument to the contrary seems to me to be unsound and, for that reason, I dissent. | November 18, 1965 |
d15a3e4f-4a52-473e-96a9-364cde6b3a34 | South Highlands Infirmary v. Camp | 180 So. 2d 904 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 904 (1965)
SOUTH HIGHLANDS INFIRMARY
v.
Laura CAMP.
6. Div. 841.
Supreme Court of Alabama.
November 4, 1965.
Rehearing Denied December 16, 1965.
*905 David J. Vann, Hobart A. McWhorter, Jr., and White, Bradley, Arant, All & Rose, Birmingham, for appellant.
Rogers, Howard, Redden & Mills, Birmingham, for appellee.
LAWSON, Justice.
This is a personal injury action brought in the Circuit Court of Jefferson County by Mrs. Laura Camp against South Highlands Infirmary, a corporation.
In her complaint Mrs. Camp alleged that the Infirmary "negligently caused or allowed to be used a machine for the cutting of skin from the plaintiff's body for the purposes of grafting which machine the defendants knew or in the regular and ordinary course of business should have known, was not in good operating condition and as a proximate consequence of said negligence plaintiff was greatly injured and damaged on her body, in that deep cuts were made in one of her limbs resulting in great pain and mental anguish, permanent scarring and damage to the plaintiff's limb, etc."
The Infirmary pleaded the general issue in short by consent in the usual form.
There was a jury verdict in favor of Mrs. Camp in the amount of $10,000. Judgment allowed the verdict. The Infirmary's motion for a new trial having been overruled, it has appealed to this court.
The facts summarized in the next paragraph are without dispute.
Mrs. Camp was admitted to the operating room of the Infirmary for a skin grafting operation. She had employed a surgeon to perform the operation, the purpose of which was to remove a patch of skin from the front of her right thigh (the "donor" site) to be grafted over an area on the calf of her right leg where she had previously sustained electrical burns. After Mrs. Camp was anesthetized, the surgeon proceeded to remove a strip of skin from the donor site, using a Stryker Dermatome, a kind and type of electrical surgical instrument used in removing skin for grafting, which instrument was tendered to the surgeon by the Infirmary for use on Mrs. Camp. The surgeon proceeded to remove a patch of skin from Mrs. Camp's thigh, which patch of skin was too thick for use. Upon observing that the removed skin was too thick, the surgeon re-set the gauge on the dermatome and proceeded to remove another patch of skin from Mrs. Camp's thigh. When it also proved to be too thick to use for the desired grafting, the surgeon decided not to undertake to remove any more skin from the donor site. The patches of skin which had been removed were sutured back on the thigh of Mrs. Camp. Two significant, permanent scar areas developed at the two places on Mrs. Camp's thigh where the patches of skin were removed and then replaced.
*906 The Infirmary contends that the trial court erred in refusing to give at its request affirmative instructions which it duly requested in writing. The reasons why it was entitled to have such instructions given are stated in the Infirmary's brief as follows:
The first reason asserted by the Infirmary in support of its contention that the trial court erred in refusing its affirmative instructions clearly presents only a question of fact. In considering this contention, we must review the tendencies of the evidence in the light most favorable to the appellee, plaintiff below, without regard to any view we may have as to the weight of the evidence; and must allow such reasonable inferences as the jury was free to draw, not inferences which we think the more probable. W. S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So. 2d 375, and cases cited; Mobile Cab & Baggage Co. v. Busby, 277 Ala. 292, 169 So. 2d 314.
The surgeon who performed the operation on Mrs. Camp was called by her as a witness. On direct examination he said that when he entered the operating room he was provided by the Infirmary with a Stryker Dermatome, a standard surgical instrument used by surgeons in the removal of skin grafts. He made a visual inspection of the dermatome and approved it for use in the operation. There is no evidence that he examined the dematome for latent defects. But within ten seconds after the operation he made a further examination of the dermatome and found it to be defective in that a spring which was designed to keep the front roller rigid was bent to such an extent that it would not perform that function. He did not drop the dermatome after it came into his possession or apply sufficient pressure to it during the operation as to bend the spring. He expressed the opinion that the dermatome was in a defective condition when he entered the operating room. On cross-examination the surgeon admitted that he had been mistaken on his direct testimony in explaining how the Stryker Dermatome works and said that the opinion which he expressed on direct that the dermatome was defective when he entered the operating room was based on the assumption that it operated in the manner described by him during his direct examination. But on redirect examination the surgeon again said that the rollers on a Stryker Dermatome in good working condition should be rigid and he had previously stated that the rollers on the dermatome which he used were not rigid. The springs had undue play in them. As a result of those defects the opening between the blade and the roller was increased, thereby increasing the depth of the skin which was removed.
The dermatome used in the operation was admitted in evidence and was examined by the surgeon. He said that it was then in substantially the same condition as it was immediately after the operation.
Shortly after the operation, within a day or two, the surgeon carried the dermatome to the Infirmary's Administrator, who sent it to the manufacturer for examination. The manufacturer's general manager later wrote a letter to the Infirmary in care of the Administrator, wherein he advised in part as follows:
*907 "After inspecting dermatome #426RD, I would say that the dermatome is now defective. The two springs which help hold the depth setting adjustment have been bent beyond usefulness."
There was evidence which would have justified the jury in finding that the unfortunate result of the operation was due at least in part to the unfamiliarity of the surgeon with the Stryker Dermatome.
But the evidence which we have set out above was, in our opinion, sufficient to take to the jury the question as to whether the dermatome was defective at the time it was furnished by the Infirmary to the surgeon for use in the operation on Mrs. Camp. In this state, unlike in some others, there need be only a scintilla of evidence to require reference of an issue of fact to the jury. If there is "a mere `gleam,' `glimmer,' `spark,' `the least particle,' `the smallest tract"`a scintilla" afforded from the evidence to sustain the issue, the trial court is duty bound to submit the question to the jury. Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251; Boggs v. Turner, 277 Ala. 157, 168 So. 2d 1.
We come now to consider the second reason why the Infirmary says that the trial court erred in refusing the affirmative instructions which it requested. It says, in effect, that there was no evidence that the Infirmary's agents had actual or constructive knowledge of any defect in the dermatome, if there was a defect.
There was no evidence to show actual knowledge of the defect by any agent, servant or employee of the Infirmary.
When the Infirmary says that there was no evidence of any fact that would charge it with constructive knowledge, we assume it is saying that Mrs. Camp did not prove the averment of her complaint to the effect that the Infirmary in the regular and ordinary course of its business should have known of the defect which the complaint alleged to have existed in the "machine," the dermatome. The dermatome was not examined before it was tendered to the surgeon for use in the operation on Mrs. Camp. The effect of the Infirmary's argument, as we understand it, is that there was no duty upon the Infirmary to examine the dermatome for defects before making it available to the surgeon.
The general rule seems to be that the equipment furnished by a private hospital for a patient's use should be reasonably fit for the uses and purposes intended under the circumstances, and where a hospital furnishes defective equipment to a patient who, because of such defective equipment suffers injury proximately resulting therefrom, liability can be imposed as for negligence. Butler v. Northwestern Hospital of Minneapolis, 202 Minn. 282, 278 N.W. 37; Baker v. Board of Trustees of Leland Stanford Junior University, 133 Cal. App. 243, 23 P.2d 1071; Woodhouse v. Knickerbocker Hospital, Sup., 39 N.Y.S.2d 671, aff'd 266 App.Div. 839, 43 N.Y.S.2d 518; Holtfoth v. Rochester General Hospital, 304 N.Y. 27, 105 N.E.2d 610; Medical & Surgical Memorial Hospital v. Cauthorn (Ct. of Civ.App. of Tex.), 229 S.W.2d 932; Hord v. National Homeopathic Hospital, D.C., 102 F. Supp. 792; Delling v. Lake View Hospital Ass'n, etc., 310 Ill.App. 155, 33 N.E.2d 915; Gardner v. Newman Hospital, 58 Ga.App. 104, 198 S.E. 122. See Diermon v. Providence Hospital, 31 Cal. 2d 290, 188 P.2d 12; 41 C.J.S. Hospitals § 8, p. 344.
In this case, as in some of those cited above, the surgical instrument was not furnished directly to the patient, but to another employed by the patient, to be used in the treatment of the patient. If the defect in the dermatome had been a patent one, a different question would have been presented. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Payne v. Santa Barbara Cottage Hospital, 2 Cal. App. 2d 270, 37 P.2d 1061. But the defect was latent, and evidence adduced from a surgeon who testified on behalf of the Infirmary shows that it is *908 not standard practice for a surgeon, before performing an operation with a surgical instrument, to dismantle the instrument or machine to look for defects. That witness said that it is the standard practice for surgeons to accept as suitable for use the surgical instruments and machines that are furnished by the hospital for use in performing an operation.
In Butler v. Northwestern Hospital of Minneapolis, supra, it was said:
In view of what is said above, we hold that there is no merit in the arguments asserted by the Infirmary in support of its contention that the trial court erred in refusing the affirmative charges requested by it.
The Infirmary next contends that the trial court erred in refusing to give its written requested charge No. A-1, which reads:
This charge is somewhat confusing. But for the purposes of this appeal we will treat it, as does counsel for the Infirmary, as being designed to instruct the jury that Mrs. Camp was not entitled to recover even if the dermatome furnished by the Infirmary was defective because it was the duty of the surgeon to examine and inspect the dermatome before using it. The Infirmary says that under our holding in Robinson v. Crotwell, supra, it was error to refuse the charge. We do not agree. In the Robinson case Crotwell sued Robinson, a doctor and the owner of the hospital where the operation was performed by another doctor. Crotwell claimed that Dr. Robinson contributed to the result of the operating surgeon's alleged negligence by furnishing an inadequately equipped place in which to perform the operation. In treating with the question of the hospital's liability, this court said:
In the Robinson case that which was furnished by the defendant was "an inadequately equipped place in which to perform the operation." This related to the overall inadequacy of the hospital and its equipment, which would be obvious to the surgeon, a patent defect, which would relieve the owner of the hospital from liability. But in this case the defect was latent and we do not think that the language of the Robinson case upon which the Infirmary relies is applicable to this case.
The Infirmary makes the same argument in support of its contention that the trial court erred in refusing its written requested charges A-13, A-8, M-W and M-Y as it made in support of its insistence that the trial court erred in refusing its charge No. A-1. What is said above in regard to charge A-1 is applicable to charges A-13, A-8, M-W and M-Y. We hold they were refused without error.
In its brief the Infirmary says that the trial court erred in orally charging the jury "that when the defendant undertook to furnish instruments for use by a surgeon there then arises the duty on the hospital to use reasonable care to see that such instruments are reasonably fit for the purposes and uses for which they are intended and furnished." We lay aside the question as to whether an exception was properly taken to the court's oral charge. In our opinion the statement quoted above is a correct statement of the law and was within the issues of this case.
It is contended by the Infirmary that the trial court erred in permitting Mrs. Camp to introduce in evidence photographs of herself which show the extent of her injury and in allowing her to appear before the jury dressed in shorts, whereby the jury could view the scars on her thigh. There was error neither in the admission of the photographs nor in the exhibition of the scars. Occidental Life Ins. Co. of California v. Nichols, 266 Ala. 521, 97 So. 2d 879; Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So. 2d 598; Johnson v. Sexton, 276 Ala. 332, 161 So. 2d 815.
The Infirmary says that the verdict was excessive and that the trial court erred in overruling the ground of its motion for new trial which took that point. We do not agree. This court has laid down the principle that a verdict will not be disturbed as excessive where the trial court has refused to disturb the amount unless so excessive as to indicate passion, prejudice, corruption or mistake. Montgomery City Lines, Inc. v. Davis, 261 Ala. 491, 74 So. 2d 923. And we have held that the correctness of a jury's verdict is strengthened when the presiding judge refuses to grant a new trial. Simpson v. Birmingham Electric Co., 261 Ala. 599, 75 So. 2d 111. See Brandwein v. Elliston, 268 Ala. 598, 109 So. 2d 687; Smith v. Cullen, 270 Ala. 92, 116 So. 2d 582.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, J., concur.
COLEMAN, J., concurs specially.
COLEMAN, Justice (concurring specially).
I concur in the result and in the opinion, except for the possible implication that defendant would be entitled to the affirmative charge if the defect in the dermatome had been a "patent" defect.
The opinion states that ". . . the defect was latent . . .." In such a case, it does not seem to me necessary to decide what would be the result in case of a patent defect. The opinion certainly *910 does not recite that defendant would be entitled to the affirmative charge if the defect were patent; but, to avoid future misinterpretation, I wish to say that I do not concur in the possible implication that we might reverse if the defect were patent. | November 4, 1965 |
bad2d632-b31b-45ce-a5ef-224218a62fd2 | Voltz v. Dyess | N/A | 1121223 | Alabama | Alabama Supreme Court | REL:01/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121223
____________________
Deborah Voltz et al.
v.
Cameron Leigh Dyess
Appeal from Montgomery Circuit Court
(CV-12-901471)
MOORE, Chief Justice.
Deborah
Voltz,
Jasmin
Voltz,
and
Princess
Turner
(hereinafter referred to collectively as "the plaintiffs")
appeal from an order entered by the Montgomery Circuit Court
1121223
2
dismissing their action against Cameron Leigh Dyess. We
reverse and remand.
I. Facts and Procedural History
On November 1, 2012, the plaintiffs filed a complaint
against Dyess in the Montgomery Circuit Court, alleging that
Dyess had negligently and wantonly caused an automobile
accident in which the plaintiffs were injured. The plaintiffs
sought damages in excess of $50,000. On November 1, the
plaintiffs attempted service of process on Dyess by certified
mail. On February 12, 2013, this service of process was
returned unclaimed. On February 21, 2013, the plaintiffs filed
an amended complaint. On May 3, 2013, the plaintiffs attempted
to serve the amended complaint on Dyess, this time through
personal service by the sheriff.
On
June
12,
2013,
without
giving
notice
to
the
plaintiffs, the trial court entered an order dismissing the
case for lack of service. On the same date, the plaintiffs
filed a motion to alter, amend, or vacate the order of
dismissal. On June 25, 2013, the sheriff's summons was
returned indicating nonservice. Also on June 25, 2013, the
trial court set a hearing for July 11, 2013, on the
1121223
3
plaintiffs' motion to alter, amend, or vacate. However, on
July 1, 2013, the trial court entered an order denying the
plaintiffs' motion to alter, amend, or vacate. On July 12,
2013, the trial court entered a second order, again denying
the plaintiffs' motion. The order stated that on July 11,
2013, the date of the scheduled hearing, "[n]o one appeared."
On July 15, 2013, the plaintiffs filed a renewed motion to
alter, amend, or vacate and a motion to permit service by a
private process server. On July 18, 2013, the plaintiffs filed
notice of appeal of the trial court's dismissal of the case.
II. Standard of Review
"Before the adoption of our current Rule 4(b), [Ala. R.
Civ. P.,] some Alabama cases evaluated a dismissal for
insufficient service of process under Rule 41(b), Ala. R. Civ.
P." State Farm Fire & Cas. Co. v. Smith, 39 So. 3d 1172, 1175
(Ala. Civ. App. 2009). "Failure of a plaintiff to attempt to
obtain service over the defendant within a reasonable time may
amount to a failure to prosecute the action, warranting a
dismissal of the case." Crosby v. Avon Prods., Inc., 474 So.
2d 642, 644 (Ala. 1985); see also State v. Horton, 373 So. 2d
1096, 1097 (Ala. 1979) (same).
1121223
4
"The general rule, of course, is that a court has
the inherent power to act sua sponte to dismiss an
action for want of prosecution. However, because
dismissal ... is such a drastic sanction, it is to
be used only in extreme situations. Accordingly,
this
Court
carefully
scrutinizes
any
order
terminating an action for want of prosecution, and
it does not hesitate to set one aside when an abuse
of discretion is found."
Burdeshaw v. White, 585 So. 2d 842, 847 (Ala. 1991).
III. Analysis
The plaintiffs argue that the trial court exceeded its
discretion by dismissing their case for lack of service of
process when the trial court did not give them 14 days' notice
of its intent to dismiss for failure of service of process,
pursuant to Rule 4(b), Ala. R. Civ. P. Rule 4(b) provides:
"If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
initiative, after at least fourteen (14) days'
notice to the plaintiff, may dismiss the action
without prejudice as to the defendant upon whom
service was not made or direct that service be
effected within a specified time; provided, however,
that if the plaintiff shows good cause for the
failure to serve the defendant, the court shall
extend the time for service for an appropriate
period."
(Emphasis added.) Rule 4(b) was taken from Rule 4(m), Fed. R.
Civ. P., "except for the provision[] for 14 days' notice."
1121223
The federal counterpart to Rule 4(b) allows a federal
1
court to dismiss a case for lack of service "on motion or on
its own after notice to the plaintiff." Rule 4(m), Fed. R.
Civ. P.
5
Committee Comments to Amendment to Rule 4 Effective August 1,
2004.1
We have noted that "Rule 4(b), Ala. R. Civ. P., allows
for service of process up to, and in some instances beyond,
120 days after the plaintiff filed its complaint." Ex parte
East Alabama Mental Health-Mental Retardation Bd., Inc., 939
So. 2d 1, 5 n.6 (Ala. 2006) (emphasis added). However, we have
not had the opportunity to construe the 14-day-notice
provision in Rule 4(b). The fundamental rule of construction
for our rules of procedure is that "[t]hese rules shall be
construed and administered to secure the just, speedy and
inexpensive determination of every action." Rule 1(c), Ala. R.
Civ. P. "'[W]hen interpreting a rule of procedure, we must
give the wording of the rule its plain meaning.'" Lewis v.
State, 889 So. 2d 623, 665 (Ala. Crim. App. 2003) (quoting
J.W. v. State, 751 So. 2d 529, 531 (Ala. Crim. App. 1999)). In
addition, the Alabama Rules of Civil Procedure "are to be
construed liberally to effect the purpose of the rules." B &
1121223
6
M Homes, Inc. v. Hogan, 376 So. 2d 667, 674 (Ala. 1979)
(emphasis added).
The notice provision in Rule 4(b) is unambiguous; we thus
must give the wording of the rule its plain meaning and give
effect to the clear purpose of the rule. Hogan, 376 So. 2d at
674. We agree with the Court of Civil Appeals that "[t]he
obvious purpose of the notice requirement [of Rule 4(b)] is to
give the plaintiff an opportunity to show 'good cause' to
extend the time for service." Moffett v. Stevenson, 909 So. 2d
824, 826-27 (Ala. Civ. App. 2005). See also Moore v. Alabama
Dep't of Corr., 60 So. 3d 932, 934 (Ala. Civ. App. 2010)
(noting that 14-days' notice gives "opportunity to present
good
cause
for
the
failure
to
perfect
service"
and
"opportunity to request additional time in which to perfect
service").
On November 1, 2012, the plaintiffs attempted to effect
service through certified mail. On February 12, 2013, with the
120-day deadline for completing service approaching, the
certified-mail receipt was returned, unclaimed. On May 3,
2013, over 180 days after filing suit, the plaintiffs
attempted to effect in-person service through the sheriff's
1121223
7
office. On June 12, 2013, more than 210 days after the
plaintiffs filed suit, the trial court dismissed the case for
lack of service. Under Rule 4(b), the trial court may dismiss
the action after 120 days if a plaintiff fails to perfect
service.
Standing alone, the plaintiffs' lengthy and unexplained
delay might warrant the involuntary dismissal for lack of
service pursuant to Rule 41(b), Ala. R. Civ. P. (permitting
involuntary dismissal "[f]or failure of the plaintiff to
prosecute or to comply with these rules or any order of
court"). However, the trial court did not dismiss the
plaintiffs' action pursuant to Rule 41(b) for failure to
prosecute. Under Rule 4(b), a failure to effect service within
120 days does not, alone, warrant summary dismissal absent at
least 14 days' notice. From our review of the record, we find
no indication that the trial court provided any notice at all
to the plaintiffs before dismissing the action pursuant to
Rule 4(b).
We hold, therefore, that a trial court is required to
give plaintiffs at least 14 days' notice before dismissing an
action against a defendant on whom service was not effected.
1121223
We recognize that the Moore court held that the 14-day
2
notice may be provided by an opposing party's filings. See
Moore, 60 So. 3d at 933-34 ("[T]he rule does not specifically
prescribe a method by which such notice must be given. ...
Moore had received the requisite notice in the form of [a]
motion to dismiss."). No facts in this case provided such
constructive notice, so we give no opinion as to the Court of
Civil Appeals' interpretation of Rule 4(b) in Moore.
8
See Rule 4(b), Ala. R. Civ. P.; Moffett, 909 So. 2d at 826
("[T]he trial court is required to give the plaintiff 14 days'
notice before it dismisses an action against the defendants on
whom service was not effected." (emphasis added)); and Moore,
60 So. 3d at 933 ("[T]he text of the rule does require notice
of a dismissal for a failure to timely serve a defendant.").2
The trial court erred when it dismissed the action
without giving at least 14 days' notice to the plaintiffs that
their case was subject to dismissal for failure to effect
service. We reverse the order of dismissal and remand the case
for
further
proceedings consistent with this opinion,
including giving the plaintiffs an opportunity to show good
cause to extend the time for service.
REVERSED AND REMANDED.
Stuart, Bolin, Parker, Main, Wise, and Bryan, JJ.,
concur.
Murdock and Shaw, JJ., dissent.
1121223
9
MURDOCK, Justice (dissenting).
The main opinion reverses the trial court's order of
dismissal
because
it
concludes that the 14-day-notice
requirement of Rule 4(b), Ala. R. Civ. P., was not met. Rule
41(b), Ala. R. Civ. P., however, expresses no such 14-day-
notice requirement in providing that "[f]or failure of the
plaintiff to prosecute or comply with these rules" the trial
court may order the involuntary dismissal of a complaint.
Nothing in the language of Rule 41(b) or Rule 4(b) indicates
that Rule 41(b) could not apply in a case such as this.
Indeed, Rule 41(b), which by its terms does not differentiate
between dismissals with prejudice and dismissals without
prejudice, remains the only way in which a dismissal "with
prejudice" can be achieved for an undue delay in service of a
complaint. Because the rules provide no definition of the
phrase used in Rule 41(b), "failure ... to prosecute," whether
the plaintiff's delay in accomplishing service has been long
enough to warrant a dismissal under Rule 41(b) is subject to
dispute in any given case. Rule 4(b) appears to be merely an
attempt to provide some structure to the analysis, creating a
presumption that 120 days is long enough, at least for
1121223
10
purposes of a dismissal without prejudice. In the present
case, of course, the delay went well beyond the 120-day mark,
and dismissal, for all that appears, was warranted under
either Rule 4(b) or Rule 41(b).
The main opinion bases its conclusion on the notion that
the trial court dismissed the plaintiffs' action under only
Rule 4(b), however. I find no support for this conclusion in
the trial court's order or elsewhere in the record. Among
other things, the trial court did not cite Rule 4(b) as the
basis for its order. If the trial court's order was
authorized by any rule of procedure, then it was authorized.
Given the length of time during which the plaintiffs failed to
serve the complaint, the limited efforts at such service in
relation to that length of time, and the absence of any
compelling reason for that delay expressed by the plaintiffs
in any of their filings, I believe the trial court acted
within its discretion in dismissing the complaint on the
authority of Rule 41(b).
Aside from the foregoing, the sequence of events in this
particular case, including the trial court's reconsideration
on two occasions of its order of dismissal more than 14 days
1121223
11
after being requested by the plaintiffs to do so, appears to
satisfy even the prerequisite in Rule 4(b) of 14 days' notice
prior to a dismissal.
Shaw, J., concurs. | January 24, 2014 |
d58fba92-e3cd-4283-adb3-81e89b94bcfb | Calhoun v. Calhoun | 179 So. 2d 737 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 737 (1965)
Clara CALHOUN
v.
Homer CALHOUN.
5 Div. 794.
Supreme Court of Alabama.
November 4, 1965.
Fred D. Gray, Montgomery, for appellant.
Russell, Raymon & Russell, Tuskegee, for appellee.
LIVINGSTON, Chief Justice.
This appeal by the wife from a decree of the Circuit Court of Macon County, in Equity, challenges as error the action of *738 the trial court in (1) granting a divorce a vinculo matrimonii to her husband; (2) denying a divorce a vinculo matrimonii to her; and (3) awarding custody of the parties' four minor children (of female sex) to the father. Application is here made for an attorney's fee for representing appellant on this appeal.
The trial court stated that the testimony was being taken orally pursuant to Act No. 101, General Acts 1943, p. 105. We will consider only such evidence, as did the trial court, that is relevant, material, competent and legal.
It appears from the evidence, the text of which we have carefully read, that the parties to the divorce and custodial proceedings, both of whom are mature in age, were married in August, 1943 while the complainant was in the armed services, and have actually resided in Tuskegee since January, 1946.
When the evidence in this cause was taken on January 13, 1964, the youngest daughter was 12 years of age, the next 14, the third 15, and the oldest 18 years of age. Only two of these daughters, the one 14 and the other 15, testified in the trial of this cause. Each expressed a preference to live with her mother should a divorce be granted.
The evidence discloses bickering, strife, verbal bouts and heated arguments between the spouses from time to time for a period of several years before the divorce proceedings were instituted on November 9, 1962. However, the evidence notes only three instances when the wife was charged by the husband with statutory cruelty, neither of which resulted in a battery, but only threats of bodily injury or harm. All three acts involved brandishing a butcher knife by the wife in the room with appellee.
The first brandish of a butcher knife, complainant testified, occurred during the latter part of September or the first of October, 1956, when, during an argument, appellant (the wife) "jumped up and went to the drawer where knives and forks are kept. * * * she grabbed a long butcher knife like this (indicating) and she drew this butcher knife back at me." She did not cut appellee, but put the knife up.
Again, on June 26, 1958, appellant got a knife after appellee. The argument was over money. Appellee yanked the knife from her hand.
On Sunday, October 15, 1962, appellee testified that when he undertook to discipline one of his daughters whom he was tutoring at the time, appellant drew a knife on him again. The daughter intervened and took the knife from her mother. This was when he decided to seek legal counsel and file for divorce.
Appellee further testified that after the second gesture with a knife in 1958, following a futile effort on the part of a minister of the gospel to promote a reconciliation, he began to live in a separate room from his wife, but under the same roof and in their home.
While our statute, Sec. 22, Title 34, Code of Alabama 1940, as amended (Recompiled Code of 1958), provides that either party to the marriage may obtain a divorce when the other has committed actual violence on his or her person, attended with danger to life or health, it goes further and provides for divorce by either "when from his or her conduct there is reasonable apprehension of such violence."
While the alleged conduct of appellant with a knife in her hand in 1956 and 1958 is not sufficient upon which to predicate a divorce, due to condonation by appellee, a renewal of the complaint revives the right of the condoning party to insist upon the former offense. Weems v. Weems, 255 Ala. 210, 50 So.2d 428(2).
But does the fact that the husband here has lived under the same roof (in separate rooms) since the second exhibition of a butcher knife in 1958 soften the impact *739 occasioned by the alleged conduct of the wife on the three occasions when she allegedly brandished the butcher knife, and on one or more of the occasions threatened to use it on the anatomy of her husband?
In Campbell v. Campbell, 252 Ala. 487, 41 So. 2d 185, where it appears that the wife lived with the husband after he allegedly threatened to drown her in order to command her obedience to his request to sign a deed, there was only one threat (denied by the husband). This Court said:
There are other cases cited by appellant wherein this court has held that the conduct of the husband was not sufficient to create in the mind of complainant a "reasonable apprehension" of violence on the part of the complaining party, attended by either danger to his or her life or health. Wood v. Wood, 80 Ala. 254; Morrison v. Morrison, 165 Ala. 191, 51 So. 743; Bailey v. Bailey, 237 Ala. 525, 187 So. 453; Hammon v. Hammon, 254 Ala. 287, 48 So. 2d 202.
We have read each of the above cases and we do not find that the facts or evidence in either case parallel the case at bar. It is true here that the husband continued to live under the same roof with his wife, came in contact with her, and thereby exposed himself to a renewal of the carving knife episodes. But his parental obligation to his four daughters justified such continued habitation; also he had no other shelter of his own in which to seek retreat. The evidence tends to show that appellee is ardently devoted to the welfare and education of his daughters, and that he has a limited income to be used for these admirable purposes. He is to be commended rather than censured for his devotion to his daughters to the extent that he was willing to stay and expose himself to the further tirades of his wife.
When temperaments of appellant and appellee clashed or flared up, the impulse of the wife was to settle the argument by brandishing a butcher knife in the presence and face of appellee. Emotional impulses of this character could culminate in the actual use of the weapon and an anatomical carving with actual danger to the victim's life or health; certainly, such threatened use is sufficient to create in the mind of the threatened party a reasonable apprehension of violence.
While we have stated the tendency of appellee's evidence in support of his allegations of cruelty on the part of his wife, we have not ignored the tendency of appellant's evidence which refutes much of this accusative evidence. This court has held in many decisions that where the trial court heard and saw the witnesses in open court and his conclusion is that the wife was entitled to a divorce, we will not disturb the decree on a question of fact unless the finding of the court is clearly and palpably wrong. George v. George, 255 Ala. 190, 50 So.2d 744(6). We will not disturb the decree of the trial court that appellant was guilty of cruelty as alleged in the complaint.
Appellant complains here that the trial court erred in dismissing her cross bill that charged appellee with voluntary abanbonment, *740 which entitled her to a divorce, but if not, then, his conduct in abandoning her was recriminatory with the effect of defeating his petition for a divorce. With this contention, we cannot agree.
We have held that voluntary abandonment by the wife of the husband is not shown to exist when the "`conduct on her part which he contends was an abandonment of him by her was moving into another bedroom in the home * * *, which she continued to occupy and the refusal of sexual relations from that time until the present.'" Gross v. Gross, 265 Ala. 58, 89 So.2d 737(1, 2), quoting from Caine v. Caine, 262 Ala. 454, 79 So. 2d 546, 548. "There was no living separate and apart which is an element of voluntary abandonmentthere was no final separation until he moved out of the home." Caine v. Caine, supra. Section 20, Title 34, Code 1940, as amended. See Recompiled Code of 1958.
Since the evidence of both parties unequivocably shows that appellee never did move out of the house, but continued to occupy a separate room from his wife, there was no voluntary abandonment on the part of the husband.
A very serious issue here is that part of the decree which awards the care, custody and control of the four female minor children to the father, with the right on the part of the mother to have said children visit with her in her home at reasonable times, so long as said visits do not interfere with the schooling of said minor children.
We take cognizance of many decisions of this court that in determining custodial award of minors the best interest and welfare of the minor is of paramount consideration and of supreme concern. Hougesen v. Hougesen, 271 Ala. 452, 124 So. 2d 438 (5, 6).
We have also held that considering the age of the children, their wishes as to their custody are entitled to much weight. Weems v. Weems, 255 Ala. 210, 50 So.2d 428(5). Also cited in this case are Wright v. Price, 226 Ala. 591, 147 So. 886; Chandler v. Whatley, 238 Ala. 206, 189 So. 2d 751; Hill v. Gay, 252 Ala. 61, 39 So. 2d 384.
The decree of the trial court sustains the contention of appellee that his wife was guilty of legal cruelty as charged in the complaint. The granting of a divorce to the husband on the ground of cruelty is a circumstance to be considered in awarding the custody of the children to the husband. George v. George, 255 Ala. 190, 50 So. 2d 744 (6), citing Hawkins v. Hawkins, 219 Ala. 31, 121 So. 92; Gayle v. Gayle, 220 Ala. 400, 125 So. 638(2). Granting a divorce against the wife for cruelty indicates, prima facie, her greater fault in this regard. Gayle v. Gayle, supra, (2). One of the pertinent inquiries in cases involving controversies between parents over the custody of children is which party was at fault in terminating the marriage relation. Vinson v. Vinson, 263 Ala. 635, 83 So. 2d 215 (5).
The evidence adduced before the trial court clearly supports appellee's contention that he is very devoted to his children, ages 18, 15, 14 and 12, when the divorce proceedings were heard and the divorce decree entered. Only two of the minors, Janett, age 14, and Joyce, age 15, testified in the case. As we have stated, each of these two expressed a desire to live with their mother. It appears that the father is very ambitious for his children to get an education, and to that end, he has spent much time and thought in tutoring them in their school studies. He regularly takes them to church and Sunday School, and also on shopping tours for their personal needs. He has established a reasonable sum for their college education. He has a regular job from which he takes home, after tax deductions and payments on bonds for the education of his children, the sum of *741 $139.03. He takes this amount home every two weeks. Several witnesses testified as to his good character. But there was one witness who testified by insinuation that the father approached him once to have a homosexual relationship. Evidently, the trial court did not put much faith in this testimony.
But considering the general welfare of the children, a paramount and supreme issue, their education and religious admonition in which the father seems deeply interested, we cannot say that the trial judge was wrong in his award of custody to the father. The latter saves his money, owes only $800.00 on a $5,800.00 home, and is providing for the children and their education. Should he be deprived of their custody, he might lose that direct and zealous interest that he now manifests with respect to their general welfare.
In view of all the evidence, which we have carefully considered in our attempt to review the factual and legal angles presented in this appeal, we are unwilling to disturb the decree in granting the divorce and in awarding custody of the children to the father. The cross bill of appellant was properly dismissed.
We are also unwilling to grant appellant's motion here to require appellee to pay her an amount to compensate her attorney for representing her on this appeal. Appellee has a heavy financial burden to support, maintain and educate his four children. Appellant has a net income from teaching school that equals or slightly exceeds that of appellee. Appellant is not burdened with any of the responsibilities for the support and education of her children. She will be free to take care of her expenses incurred in taking this appeal. It is true she owes some money, but by frugal economy, she will in due course liquidate these debts and her expenses of this appeal.
The decree of the trial court is affirmed.
LAWSON, GOODWYN and COLEMAN, JJ., concur. | November 4, 1965 |
dd5fec7e-5241-49d6-b7fc-8b9e8c93b4a3 | Boulden v. State | 179 So. 2d 20 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 20 (1965)
Billy Don Franklin BOULDEN
v.
STATE of Alabama.
8 Div. 175.
Supreme Court of Alabama.
September 30, 1965.
*22 W. L. Chenault, Decatur, for appellant.
Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Billy Don Franklin Boulden was convicted in the Circuit Court of Morgan County of the first degree murder of Loyd C. Hays. He was sentenced to death in accordance with the verdict of the jury. He has appealed to this court under the automatic appeal law applicable to cases where the death sentence is imposed. Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, §§ 382(1) et seq.
*23 Hays, a conservation officer of the State of Alabama, was killed on the afternoon of May 1, 1964. Boulden, a Negro, eighteen years of age, was taken into custody by law enforcement officers at the scene of the crime. The Honorable James N. Bloodworth, one of the Judges of the Circuit Court of Morgan County, was immediately notified of the crime and that Boulden was being held. Judge Bloodworth directed that Boulden be carried to the Limestone County Jail, in Athens, for safekeeping. He was kept there for several hours.
On the following morning, May 2, 1964, Boulden was brought to the Morgan County Court House before Judge Bloodworth, sitting as a magistrate. Boulden's father had been notified of the hearing to be held before Judge Bloodworth and was told that he could have a lawyer present if he so desired. The Sheriff of Morgan County had sworn to affidavits before Judge Bloodworth charging Boulden with the first degree murder and robbery of Hays and with the rape of Ann Burnett, a fifteen-year-old married white girl. Warrants of arrest signed by Judge Bloodworth were served upon Boulden and returned to Judge Bloodworth at the hearing.
Boulden's father, mother, two brothers and three sisters were present at the hearing. Those present were told by the Judge that the purpose of the hearing was to explain to Boulden and his family the nature of the charges against him and to inform him of his constitutional rights.
Boulden was told the punishment which could be imposed upon him by a jury if he was convicted of any one of the three offenses with which he was charged. He was told that he had a right to a preliminary hearing and the nature of such a hearing was explained to him. He was told that he had the right to apply for a writ of habeas corpus and the right to petition for bail. The nature of these proceedings was explained to him. He was told that he had the right to employ counsel but that if he was financially unable to do so the court would appoint a lawyer to represent him, but that a court-appointed lawyer would not necessarily be the lawyer of his choice.
Boulden was advised that he did not have to say anything at the hearing or at any other time that would incriminate him. He was told that he did not have to submit to an unreasonable search and seizure and was advised that any evidence which may have been obtained by an unreasonable search and seizure could not be used against him in a court of law.
The manner in which an indictment is obtained was explained and he was told that if indicted the law would still presume him to be innocent until the State met the burden upon it to prove his guilt beyond a reasonable doubt.
Boulden was then asked whether the law enforcement officers had mistreated him in any way or threatened to do so. He replied in the negative. Boulden stated that food and water had been furnished him and that he had not been denied bathroom privileges.
He was advised by Judge Bloodworth that it would be wise for him not to make any decision about his future course in court until he had talked to his lawyer.
Judge Bloodworth informed Boulden that he would be taken to Kilby Prison for safekeeping but that his lawyer, whether employed or appointed, would be able to see him there. At the conclusion of the hearing Boulden consulted with his family and was then taken to Kilby Prison near Montgomery.
Boulden was indicted for the murder of Hays by a grand jury of Morgan County on May 7, 1964. He was unable to employ counsel so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed an experienced member of the Morgan County Bar to represent him.
Before arraignment Boulden, by demurrer, challenged the indictment and each *24 count thereof on several grounds. The demurrer was overruled.
Upon arraignment, Boulden pleaded not guilty and not guilty by reason of insanity. The court-appointed attorney was present at arraignment. Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114.
After pleading to the indictment, Boulden moved the court "to commit him to an insane hospital for evaluation." The motion was overruled following a hearing.
The case came on for trial on May 27, 1964, and was concluded on May 29, 1964. As heretofore indicated, the jury found Boulden guilty of murder in the first degree and imposed the death penalty. He was duly sentenced on May 29, 1964. Court-appointed counsel was present throughout the proceedings, from arraignment through sentence.
The attorney who represented Boulden in the court below was appointed to represent him on this appeal. He has filed a brief on Boulden's behalf.
The indictment contains four counts, each charging murder in the first degree. The counts are identical except as to the means by which the offense is alleged to have been committed. In the first count, it is alleged that Boulden killed Hays "by shooting him with a gun or pistol"; in the second count, "by cutting him with a knife"; in the third count, "by shooting him with a gun or guns, or by shooting him with a pistol or pistols, or by cutting him with a knife or other sharp instrument"; and in the fourth count, "by cutting his throat with a `Tree Brand' pocket knife."
The second and fourth counts are substantially in compliance with Form 79, § 259, Title 15, Code 1940, and therefore are sufficient as against the demurrer. Aikin v. State, 35 Ala. 399; Noles v. State, 24 Ala. 672; Franklin v. State, 233 Ala. 203, 171 So. 245; Rice v. State, 250 Ala. 638, 35 So. 2d 617.
The first and third counts are also in substantial compliance with Form 79, supra, except that they charge in the alternative the means by which the offense was committed. This is permissible under the provisions of § 247, Title 15, Code 1940. But when the means by which an offense was committed are charged in the alternative, each alternative charge must describe the means with the same definiteness or particularity as would have been required had the charge been made separately in a separate count. Rogers v. State, 117 Ala. 192, 23 So. 82; State v. Nix, 165 Ala. 126, 51 So. 754, and cases cited; Duncan v. State, 278 Ala. 145, 176 So. 2d 840. An indictment in the language of the first count was held good by our Court of Appeals in Bufford v. State, 23 Ala.App. 521, 128 So. 126. The third count is more involved. It alleges in effect, that Hays died as a result of bullet wounds inflicted by a pistol or pistols or by a gun or guns, or as a result of cuts inflicted by use of a knife or other sharp instrument. While the third count may have been unnecessary in view of other counts in the indictment, we can understand why it was drawn and included, in view of the multiple wounds on the body of Hays, some caused by bullets, others by some kind of sharp instrument. It was drawn to meet the proof which would be adduced as to the exact cause of death. We are of the opinion that the third count sufficiently advises the accused of the means by which the State claimed he killed the deceased. Each alternative was sufficient under our holdings in Rogers v. State, supra; State v. Nix, supra; and Duncan v. State, supra. In regard to the last alternative in the third count, that is, that Boulden killed Hays by cutting him "with a knife or other sharp instrument," see Rowe v. State, 243 Ala. 618, 11 So. 2d 749.
The demurrer to the indictment was properly overruled.
By this motion counsel for Boulden apparently sought to invoke the authority granted the trial court by the provisions of § 425, Title 15, Code 1940, which reads:
In Howard v. State, 278 Ala. 361, 178 So. 2d 520, decided on June 30, 1965, in upholding the action of the trial court in overruling a similar motion, we said:
See Aaron v. State, 271 Ala. 70, 122 So. 2d 360; Lokos v. State, 278 Ala. 586, 179 So. 2d 714, this day decided.
We hold that error to reverse is not made to appear in the trial court's action in overruling the motion presently under consideration.
The evidence on behalf of the State is substantially as hereinafter summarized.
On May 1, 1964, around 4:00 P.M., near U. S. Highway 31 in rural Morgan County, Boulden encountered Mrs. Burnett on a road near Flint Creek. They traveled in his car some distance into the surrounding woods on a dirt road, and there near the bank of a creek engaged in sexual intercourse. Mrs. Burnett testified that she was forced by Boulden to have sexual intercourse with him.
After completion of this act, they were walking back to appellant's automobile, which was parked some distance away, when Hays encountered them in the road.
Hays asked them what they were doing there. Mrs. Burnett then ran screaming from the side of appellant to a position behind the officer. At this time Boulden drew a .22 calibre automatic pistol he had on his person and fired it at Officer Hays until it either became empty or quit firing. Boulden then secured Hays' .38 calibre revolver and fired it at him until it ceased to fire. Boulden then drew and opened a pocket knife which was concealed on his person and proceeded to cut and stab with it until Officer Hays ceased resistance and fell to the ground.
The appellant then fled the scene, taking with him the officer's pistol, holster and wallet.
*26 While the altercation between Officer Hays and Boulden was taking place, Mrs. Burnett ran out of the woods to the main road and there came upon Holly Marie Shull, her stepcousin, whose disabled car Mrs. Burnett had left in search of aid prior to encountering Boulden, and one Louis Compton, a nearby resident.
Mrs. Burnett, Mrs. Shull and Compton then proceeded to a service station some distance away to seek assistance. Mr. Compton flagged down two officers as they passed the service station on patrol, and after talking with Mrs. Burnett these officers hurried to the scene of the crime. Upon turning into the woods road they met Boulden driving out in his car.
The officers approached Boulden's car with guns drawn and asked him for his driver's license. The license he handed them bore the name "Loyd Hays," the name of the deceased. The officers then arrested Boulden and searched his person and his car, and on walking down the woods road found Hays' body.
Boulden testified in his own behalf. His testimony in regard to the shooting and cutting of Hays varies only slightly from the testimony offered by the State. He said that he did not start shooting until after Hays had made a motion to draw his pistol. Boulden admitted that he had sexual intercourse with Mrs. Burnett, but claimed that it was with her consent. Mrs. Burnett's testimony was to the effect that Boulden drew his pistol on her and forced her into his automobile, kept the pistol pointed at her while they drove to the place where the act or acts took place, and even kept the pistol pointed at her while the act or acts of sexual intercourse occurred.
We have not attempted to make a detailed statement of the evidence. We think the above summary will suffice. However, we will discuss some of the evidence in more detail in connection with our treatment of some of the questions which we will discuss.
Exhibit 1 is a picture of Hays taken some time before the day of the crime. It was used in connection with the examination of witnesses for the purpose of identification. It was admitted without error. Malachi v. State, 89 Ala. 134, 8 So. 104.
Exhibits 7 through 18 and Exhibit 45 are photographs of Hays' dead body. They were admitted without error. Washington v. State, 269 Ala. 146, 112 So. 2d 179, and cases cited.
Exhibits 19, 20, 23, 24, 25, 31 and 32 are pictures of the scene of the homicide. They were properly admitted. Blue v. State, 246 Ala. 73, 19 So. 2d 11; Green v. State, 252 Ala. 513, 41 So. 2d 566; Henry v. State, 277 Ala. 247, 168 So. 2d 617.
Exhibits 6 and 21 are diagrams of the locus in quo and surrounding territory. The entries on the diagrams were shown by witnesses to properly represent the true situation. They were properly admitted. Hardie v. State, 260 Ala. 75, 68 So. 2d 35; Bosarge v. State, 273 Ala. 329, 139 So. 2d 302.
Exhibits 26, 27 and 28 are aerial photographs of the scene of the homicide and surrounding territory. They were admitted without error. Aaron v. State, 271 Ala. 70, 122 So. 2d 360. The same is true of Exhibits 26A, 27A and 28A, which are plastic covers or overlays placed over the aerial photographs on which identification markings were placed showing the location of pertinent points.
Exhibits 2, 3, 4, 22, 41, 42 and 44 are articles of clothing and other apparel worn by Hays at the time of the homicide. They were admitted without error. Walker v. State, 223 Ala. 294, 135 So. 438; Roberts v. State, 258 Ala. 534, 63 So. 2d 584; Barbour v. State, 262 Ala. 297, 78 So. 2d 328.
Exhibits 38 and 39 are the shirt and trousers worn by Boulden at the time of the *27 homicide. They were properly admitted in evidence. Teague v. State, 245 Ala. 339, 16 So. 2d 877; Floyd v. State, 245 Ala. 646, 18 So. 2d 392.
Exhibit 37 is a revolver containing six fired cartridges and Exhibit 38 is a holster which held the revolver at the time the revolver and holster were found in Boulden's car. The revolver and holster belonged to Hays or were in his possession at the time of the homicide. Those articles were admitted in evidence without error, as they tended to connect Boulden with the commission of the offense. Frost v. State, 225 Ala. 232, 142 So. 427. The same is true of Exhibit 33, a black wallet containing sixteen dollars, which the evidence shows belonged to Hays but was in the possession of Boulden at the time of his arrest at the scene of the crime. Exhibit 34 is a black wallet found on Boulden at the time of his arrest, which contained identification and other papers. We think it was admitted without reversible error. Exhibit 5 is a small red holster which the evidence shows was worn by Boulden at the time of the offense and at the time of his arrest. Exhibit 35 is a long piece of wire found in Boulden's pocket at the time of his arrest. The admission of these articles does not constitute reversible error.
Exhibit 43 is a shoe found near the scene of the crime. It was shown to have been worn by Mrs. Burnett at the time of the homicide and to have been lost by her as she fled from the scene. We can see no injury to the appellant, Boulden, by the court's action in permitting the shoe to be introduced.
Exhibit 36 is a pocket knife which was found on Boulden at the time of his arrest. The evidence showed that blood and "a fatty material" of human origin were found on the blade of the knife. Since the evidence showed that Hays' throat had been cut and his body cut and stabbed several times, we are clear to the conclusion that the knife was properly admitted in evidence. Brown v. State, 229 Ala. 58, 155 So. 358.
Exhibit 40 is a part of the taillight assembly off of Boulden's car. The evidence shows that as Boulden sought to leave the scene in his car, he had to push Hays' car out of his way. The evidence also shows that paint of the color and consistency of that on Hays' car is on Exhibit 40 and it was, therefore, properly admitted in evidence as tending to corroborate the other evidence which placed Boulden at the scene of the crime.
We have not overlooked the fact that Exhibits 5, 33, 34, 35, 36, 37 and 38 were taken from Boulden's person or from his car at the time of his arrest and that the prohibition of the federal constitution against unreasonable searches and seizures is applicable to trials in the courts of this state by virtue of the decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081. See Duncan v. State, 278 Ala. 145, 176 So. 2d 840. But there was no motion to suppress nor objection interposed to the introduction of those exhibits on the ground that they were obtained by unreasonable searches and seizures. See Sanders v. State, 278 Ala. 453, 179 So. 2d 35, 6 Div. 130, this day decided. However, as to these exhibits, we do not think a motion to suppress or an objection would have been well taken for, as shown above, each of them was seized from Boulden's person or from his car, which was in his possession and under his control at the time of his arrest. Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777. The arrest was lawful, for the arresting officers unquestionably had reasonable cause to believe that Boulden had committed a felony. § 154, Title 15, Code 1940. See Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Knox v. State, 42 Ala.App. 578, 172 So. 2d 787, cert. denied, 277 Ala. 699, 172 So. 2d 795.
*28 Exhibit 40, a part of a taillight assembly, was apparently removed from Boulden's car some time after his arrest, so its admissibility might have been questionable if a motion to suppress or objection had been interposed to its introduction on the ground that it was obtained as a result of any unlawful search and seizure. But there was no such motion or objection. Sanders v. State, supra. The same is true of Exhibits 36 and 37, Boulden's shirt and trousers, and the record fails to reveal the manner in which those articles came into the possession of the State.
As shown above, Boulden was taken to the Limestone County Jail in Athens shortly after he was arrested on the afternoon of May 1st. As far as this record discloses, he made no statement there. He was taken to Kilby Prison, near Montgomery, on May 2nd following his appearance before Judge Bloodworth in Decatur, at which time he was advised of his constitutional rights. He remained in Kilby Prison until May 6th and it does not appear that he made any confessory statement while in Kilby. He was not kept incommunicado while in Kilby. He was visited by a member or members of his family while there.
On the morning of May 6th Boulden was transported from the prison to the scene of the crime in Morgan County in an automobile driven by the sheriff of that county. The sheriff and Boulden were accompanied on the trip by Captain Williams and Lieutenant Watts of the Alabama Department of Public Safety and by Deputy Fire Marshal Howard Dees.
After reaching the scene of the crime Boulden confessed, according to the testimony of Captain Williams and Lieutenant Watts. The sheriff and Dees did not testify.
Lieutenant Watts was the first witness called by the State for the purpose of proving the confession. As soon as it became apparent that Watts was to be questioned by the State concerning a confession, counsel for Boulden requested a voir dire examination of the witness outside the presence of the jury. The request was granted and the jury was excluded.
After the jury left the courtroom Watts testified in response to questions propounded by the Solicitor and by the Court that on no occasion when he was present with Boulden did anyone threaten, abuse or intimidate Boulden or offer him a reward to get him to confess.
The Court then advised counsel for Boulden that he could proceed to examine Watts on voir dire. He did so. The testimony of Watts outside the presence of the jury is in substance as follows. He first saw Boulden at the scene of the crime late in the afternoon of May 1st. He next saw him in the Limestone County Jail at about ten-thirty that night, when witness and Captain Williams questioned him. The questioning began just before eleven o'clock and lasted until shortly after midnight. The questioning, including note-taking, lasted not over two hours. Before the questioning began, Boulden was advised by Captain Williams that he did not have to make a statement and that any statement he made might be used against him. During the questioning Boulden was given food and he had access to a bathroom where water was available. He was allowed to smoke. He was not abused or manhandled and there were no marks on his body. The next time he saw Boulden was in the Morgan County Courthouse in Decatur early on the morning of May 2nd, when Boulden was advised as to his constitutional rights in the presence of his parents and other members of his family. He did not have a lawyer at that time but he was told that he or his family could employ a lawyer and that if they were unable to do so that a lawyer would be appointed for him and that he would be permitted to confer freely with his family and his lawyer. The next time witness saw Boulden was around noon on May 6th just before the trip back to the scene of the crime. During the trip *29 Boulden sat in the back seat between witness and Captain Williams. Boulden did not cry or make any protest. No one hit him or abused him or talked to him in a loud voice or cursed him. No one promised him anything or told him what to say. Boulden talked freely and laughed during the trip. He said some members of his family had been to see him while he was in Kilby Prison.
Counsel for Boulden started to examine him concerning the confession on this occasion while the jury was excluded but changed his mind when the trial court ruled that if he did so examine him Boulden, under our case of Fikes v. State, 263 Ala. 89, 81 So. 2d 303, would be subject to being questioned by the State as to his participation in the crime.
The trial court determined outside the presence of the jury that the State had shown prima facie that the confession about which Watts was to testify was voluntarily made. The jury was recalled and the Solicitor proceeded to question Watts concerning the confession, after having elicited from him in the presence of the jury a negative answer to the question whether he or anyone in his presence on the way to the scene of the crime from Kilby Prison, or after reaching the scene, offered Boulden any reward, inducement or promise to get him to make a statement or threatened him or abused him in any way to get him to make a statement.
Watts explained in detail what occurred after he, Captain Williams, Boulden and the other occupants of the car reached the scene of the crime on the afternoon of May 6th. We will not set out his evidence in detail. Suffice it to say that it shows that Boulden admitted that he shot and cut the deceased. On cross-examination, counsel for defendant brought out testimony tending to show that Boulden also made statements to the effect that he had raped Ann Burnett prior to the killing. On redirect the State went into that phase of the case.
Captain Williams was also called as a witness by the State to testify as to the confession made by Boulden at the scene of the crime on the afternoon of May 6th. This is the same confession about which Lieutenant Watts had testified. There was no request made by counsel for Boulden that the jury be removed from the courtroom while the voluntariness of the confession was determined. This witness was asked substantially the same questions by the Solicitor as had been asked Watts as to whether Boulden had been threatened, abused or mistreated in any way or had been offered any reward to make a statement. He gave negative answers to all such questions. Captain Williams was then permitted to state without objection the statements made by Boulden wherein he admitted his guilt. Williams' testimony in regard to the confession was substantially the same as that given by Watts. On cross-examination Williams was asked if he told Boulden on May 1st, May 2nd or May 6th that there were people who wanted to kill him and if he would confess, witness would guarantee his safety. Williams denied making any such statement.
We have here no evidence of physical brutality or threats thereof, or of reward or promise of reward; no evidence that Boulden was removed from jail to jail at night for questioning in secluded places. There is no evidence that Boulden was ever required to disrobe or to stand on his feet for long periods during questioning or denied food, sleep or bathroom facilities. There is no evidence of protracted questioning. As far as this record discloses Boulden was never placed under a high-powered light during questioning or questioned in a place containing any such device. Boulden was not deprived of the services of a lawyer prior to the time the confession was made. He had made no effort to obtain the services of a lawyer, although he had been advised to do so.
True, Boulden was an eighteen-year-old Negro boy who was charged with the murder of a white man in Alabama. If *30 those facts alone make his confession inadmissible, then some federal court will have to so declare. We will not. Boulden was not, according to this record, mentally deficient, although he and his mother testified that he occasionally had fits and was nervous. He is not illiterate. He was in the ninth grade at the time of the crime.
We have given careful consideration to the State's evidence as it pertains to the circumstances and conditions shown by the record to have existed from the time Boulden was arrested to the time the confession was made, and we are of the opinion that they were not such as to be inherently coercive or to have deprived Boulden of his free will to choose either to admit his guilt, to deny it or to remain silent. We think the trial court correctly admitted the confession in evidence under the decisions of the Supreme Court of the United States cited in Phillips v. State, 248 Ala. 510, 28 So. 2d 542. Nor do we think our holding there is in conflict with Watts v. State of Indiana, 338 U.S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801; Payne v. State of Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975; Gallegos v. State of Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325; Haley v. State of Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224; Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037; Blackburn v. State of Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242; Turner v. Com. of Pennsylvania, 338 U.S. 62, 69 S. Ct. 1352, 93 L. Ed. 1810; Johnson v. Com. of Pennsylvania, 340 U.S. 881, 71 S. Ct. 191, 95 L. Ed. 640.
We think the facts and circumstances here, in their totality, are different from those in the cases cited above. It would be meaningless to further lengthen this opinion by attempting to make a comparison of the facts in the cited cases and the facts in this case, in that the Supreme Court of the United States has frequently stated that, when faced with the question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession that court must make an independent determination on the undisputed facts. Stroble v. State of California, 343 U.S. 181, 72 S. Ct. 599, 96 L. Ed. 872. That court has said that no exact formula for determining whether a confession was voluntary can be established and takes the case-by-case approach and declares legal principles only in the context of specific factual situations. The result is almost one of frustration to state courts and judges.
Under the facts of this case, we do not think that the holding of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, discussed at length in Duncan v. State, 278 Ala. 145, 176 So. 2d 840, requires a reversal of the judgment below because a lawyer was not present at the time the confession was made. Also see Lokos v. State, 278 Ala. 586, 179 So. 2d 714, and Sanders v. State, 278 Ala. 453, 179 So. 2d 35, this day decided. The evidence shows that shortly after his arrest on the night of May 1, 1964, while being held in the Limestone County Jail, Boulden was told by Captain Williams that he did not have to make a statement and that any statement he made might be used against him. And, as we have shown heretofore, Judge Bloodworth on the following morning took great pains to explain to Boulden, in the presence of members of his family, his constitutional rights, saying in part:
"You have a right, under the Constitution, to have a lawyer to represent you if you choose to hire one of your own choice. If you don't choose to hire one, unable, if you are too poor to hire one, then the Court appoints one for you at the State's expense. That lawyer would either be appointed by the other circuit judge, Judge Powell, or myself. This hearing today is not to appoint a lawyer, but to explain to you your rights. You also have a right, a privilege, under the Constitution, *31 against self-incrimination; that is, you do not have to say anything to the court today or any other time, or any officers of the law or anybody, say anything that might tend to incriminate you; that is, something that might connect you with these offenses. You don't have to say that, you understand. You can claim your privilege against self-incrimination. You can claim you don't want to say anything and you have a right to that. * * *"
On the same occasion the following transpired:
Thereafter the Court made the following statement to those present:
As we have heretofore shown, despite the advice given by Judge Bloodworth, neither Boulden nor his family sought to obtain the services of a lawyer, nor did Boulden request a lawyer before making the confession. Hence, we say again that the holding in Escobedo does not apply to this case under the "totality of circumstances" doctrine or otherwise.
We hold that the evidence does not support a finding that the confession was coerced.
After Watts had testified as to the confession made by Boulden at the scene of the crime on the afternoon of May 6th, counsel for Boulden on re-cross examination elicited from him testimony to the effect that a tape recorder was used at the scene of the crime while the confession *32 was being made "to reduce the confession to a tape at the time it was actually uttered." Watts was then questioned by the State Solicitor concerning the use of the recorder. Watts said that he heard the entire conversation as it went on the tape and stated that unknown to Boulden, he had an "FM wireless microphone with him with which to broadcast to a receiver." The conversation was then put on a tape recorder from the receiver. The State thereupon offered in evidence a "transcription" of a part of the statement made by Boulden on the afternoon of May 6th at the scene of the crime. The "transcription" was shown to have been made from the tape recorder under Watts' supervision. Boulden's counsel objected to the introduction of the transcription on the sole ground that Boulden was not aware of the presence of the microphone. The objection was overruled and a copy of the "transcription" was admitted in evidence and read to the jury by the witness Watts
The State then introduced in evidence without objection a copy of a "transcription" of another part of the conversation or statement made by Boulden on the afternoon of May 6th at the scene of the crime. It was shown to have been made at a place different from that where the first conversation occurred. The witness Watts read that statement to the jury.
Watts was later recalled to the stand in connection with the State's effort to have the tapes played before the jury. Before permitting this to be done the trial court excluded the jury from the courtroom and the trial judge, counsel for the State and for Boulden, and the court reporter went to a witness room where the tapes were played. After the playing of the tapes outside the hearing of the jury, counsel for Boulden objected to them being played in the hearing of the jury on the following grounds: (1) The recordings were not taken voluntarily; (2) Boulden was not aware of the presence of the microphone which was secreted on the person of the witness Watts; (3) that a portion or portions of the recordings were inaudible and not understandable. The trial court overruled the objection. The trial judge, counsel for the State and for Boulden, and the court reporter returned to the courtroom, as did the jury. The two tapes were then played in the presence of the jury.
There is no merit in the contention that the statements made by Boulden which were transmitted through the microphone to the receiver and thence to the recorder were not shown to have been made voluntarily if we are correct in our holding that the record before us shows that the confession as testified to by Watts and Williams was made voluntarily, inasmuch as the tape recording was but the actual statements made by Boulden which were summarized in the testimony of Watts and Williams. The predicate which was laid for the introduction of the testimony of Watts and Williams in regard to the confession served to show the voluntary character of the recorded confession or statements.
Nor were such statements inadmissible simply because Boulden at the time he was making them did not know that Watts had a microphone concealed on his person. See State v. Alleman, 218 La. 821, 51 So. 2d 83; State v. Lorain, 141 Conn. 694, 109 A.2d 504; People v. Bodkin, 196 Cal. App. 2d 412, 16 Cal. Rptr. 506; Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322; On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967, 96 L. Ed. 1270. Boulden was not entrapped or tricked to make the statements. He was perfectly aware of the effect of what he said and he had been told it could be used against him in court. Moreover, there could be no prejudicial error in this matter for, as shown above, Watts testified that he was present during the recordings and he further testified that the tape as played was what he heard. People v. Bodkin, supra.
The trial court did not err in overruling the objection interposed to the *33 playing of the tapes in the hearing of the jury on the ground that a portion or portions of them were unaudible. The transcriptions which were introduced in evidence show that in only four instances was a stenographer unable to understand what was said. When these transcriptions are considered in their entirety in connection with the testimony of Watts and Boulden's testimony, we cannot see how Boulden could have been hurt by the playing of the tapes in the hearing of the jury. State v. Salle, 34 Wash. 2d 183, 208 P.2d 872; Lindsay v. State, 41 Ala.App. 85, 125 So. 2d 716, petition for cert. stricken, 271 Ala. 549, 125 So. 2d 725. The trial judge, as we have heretofore shown, heard the tapes played outside the presence of the jury and decided that they were sufficiently audible to be played in the hearing of the jury. We hold that reversible error is not made to appear in the trial court's rulings in permitting the transcriptions to be admitted in evidence and the tapes to be played in the hearing of the jury.
In this case the trial court passed on the question as to the voluntariness of the confession outside the presence of the jury when a request was made for that procedure to be followed, so we do not think there was a violation of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908.
But at the hearing to determine the voluntariness of the confession outside the hearing of the jury, the trial court refused to permit Boulden to testify as to the facts and circumstances surrounding the taking of the confession without thereby subjecting himself to cross-examination as to matters pertaining to guilt or innocence, sanity or insanity. In so ruling the trial court followed the holding of this court in Fikes v. State, 263 Ala. 89, 81 So. 2d 303. Boulden's trial was held before our decision in Duncan v. State, supra. In the opinion in the case last cited we did not expressly overrule Fikes v. State, supra, as to that point but we think the opinion has that effect. If this case had been tried after Duncan v. State, supra, was decided and if the trial court had followed the procedure which we suggested where a request is made that the trial judge determine the voluntariness of the confession away from the jury, then Boulden would have been permitted to take the stand and testify for the limited purpose of giving his version of the facts and circumstances surrounding the taking of the confession without waiving his right to decline to take the stand in his own defense on the trial in chief or waiving any other right stemming from his choice not to testify.
But we do not think that the ruling of the trial court here under consideration should work a reversal, although the holding in Fikes v. State, supra, to which we have alluded above and which the trial court, no doubt, considered binding, is no longer to be followed.
Boulden became a witness in his own behalf and testified substantially in accordance with his confession. He did not claim that he had ever been mistreated in any way. He did say, in substance, that on the afternoon of May 1, 1964, at the scene of the crime, Captain Williams told him that some of the policemen did not like what had happened, wanted to do something about it, wanted to kill him, and that the only way Williams could get him out of there alive was for him to confess. But the confession did not come until May 6th and was entirely unconnected with the statement which Boulden says Williams made on May 1st, and cannot be considered as an inducement to the confession. State v. Jacques, 30 R.I. 578, 76 A. 652. If the alleged statement of Williams was the only thing upon which Boulden could rely as an inducement to the confession, and we assume it was, then it is clear that the trial court would not have reached a different conclusion concerning the voluntary character of the confession if Boulden had testified at the hearing held outside the presence of the jury for the purpose of determining that question.
*34 If the holding of the Supreme Court of the United States in Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150, is still the law, then the conclusion we have reached above will withstand the onslaughts of the federal courts. We say the same about Wheeler and Patton v. United States, 82 U.S.App.D.C. 363, 165 F.2d 225, cert. denied, Patton v. United States, 333 U.S. 830, 68 S. Ct. 448, 92 L. Ed. 1115. Neither of the cases last cited above has been expressly overruled in so far as we are advised, but they may have been overruled sub silentio in Fahy v. State of Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171. We are not certain of the full import of the Fahy case, supra.
We are familiar with recent decisions of the Supreme Court of the United States which hold, in effect, that if a coerced or compelled confession is introduced at the trial, a judgment of conviction will be set aside even though the evidence, apart from the confession, might have been sufficient to sustain the jury's verdict. Lyons v. State of Oklahoma, 322 U.S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481; Malinski v. People of State of New York, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029; Stroble v. State of California, 343 U.S. 181, 72 S. Ct. 599, 96 L. Ed. 872. Whether the rule of those cases applies to a judicial confession we do not know. It is our view that we have not said anything that runs counter to that rule. We have found the confession to have been voluntarily made. We are not here saying that error in admitting an involuntary confession was cured by the admissions of Boulden as a witness in his own behalf. We are saying that the record before us supports no reasonable conclusion but that the trial court would have made the same ruling concerning the voluntariness of the confession if Boulden had testified at the hearing held outside the presence of the jury.
We will observe that this court, along with others, has applied the harmless error doctrine to assertions made that the introduction of evidence of confessions should not work a reversal where the defendants had taken the stand and given testimony substantially in the language of the confessions. Wheeler and Patton v. United States, supra; Dyer v. State, 241 Ala. 679, 4 So. 2d 311; Smith v. State, 253 Ala. 220, 43 So. 2d 821; Hardie v. State, 260 Ala. 75, 68 So. 2d 35; Commonwealth v. McNeil, 328 Mass. 436, 104 N.E.2d 153; McKnight v. State, 171 Miss. 152, 157 So. 351; People v. Combes, 56 Cal. 2d 135, 14 Cal. Rptr. 4, 363 P.2d 4; State v. Freeman, 232 Or. 267, 374 P.2d 453; State v. Fouquette, 67 Nev. 505, 221 P.2d 404. The cases just cited are all death cases. The cases from this and other jurisdictions which have applied the same rule in non-death cases are legion. However, it may be that those cases have been or will be overturned by the Supreme Court of the United States in keeping with what seems to be a determination to set aside practically all convictions where a confession is involved, particularly where the death sentence is imposed.
The case of Hamilton v. State of Alabama, 364 U.S. 931, 81 S. Ct. 388, 5 L. Ed. 2d 364, may be an indication that the Supreme Court of the United States will not permit the application of the harmless error doctrine in a capital case.
As excuse for the crime, the burden was on Boulden to prove clearly to the reasonable satisfaction of the jury that he was so afflicted by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product solely of such mentally diseased condition. Aaron v. State, 271 Ala. 70, 122 So. 2d 360, and cases cited.
The issue, therefore, of insanity as excuse for the crime was for the determination of the jury. This issue was determined adversely to Boulden. We think *35 the verdict was well founded. The testimony offered by Boulden to support his plea of not guilty by reason of insanity was that of himself and his mother that he had been nervous and was subject to having fainting spells and fits.
Duly mindful of our duty in cases of this character, we have carefully examined the record for any reversible error, whether pressed upon our attention or not. We have here dealt with all questions calling for treatment. We find no reversible error in the record and the cause is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, MERRILL, COLEMAN and HARWOOD, JJ., concur. | September 30, 1965 |
e1fe5d1b-5a5e-4231-b918-799a51f6fd1b | Mottershaw v. Ledbetter | N/A | 1110959, 1110962 | Alabama | Alabama Supreme Court | Rel: 11/8/13
Rel: 1/17/14 as modified on denial of rehearing
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1110959
____________________
Dr. Ann M. Mottershaw
v.
Shannon Ledbetter, as administrator of the estate of Venoria
Womack, deceased
____________________
1110962
____________________
The Radiology Group, LLC
v.
Shannon Ledbetter, as administrator of the estate of Venoria
Womack, deceased
Appeals from Barbour Circuit Court
(CV-10-12)
1110959, 1110962
BRYAN, Justice.
Dr. Ann M. Mottershaw and The Radiology Group, LLC,
appeal separately from the trial court's order granting a
motion for a new trial filed by the plaintiff, Shannon
Ledbetter, as administrator of the estate of Venoria Womack,
deceased. These appeals primarily concern whether the trial
court exceeded its discretion in ordering a new trial based on
the jury's exposure to certain evidence that the trial court
had excluded by an order granting a motion in limine.
On May 11, 2007, Womack underwent a CT scan of her
sinuses. Dr. Mottershaw, a radiologist employed by The
Radiology Group, read the CT scan. Evidence at trial
indicated that Dr. Mottershaw, in reading the CT scan, failed
to detect a cancerous mass in Womack's sinuses. Two weeks
later, on May 25, 2007, Womack underwent another CT scan. The
radiologists who read that scan also failed to detect the mass
in
Womack's
sinuses.
Unlike
Dr.
Mottershaw,
those
radiologists were not employees of The Radiology Group. A few
months later, on August 6, 2007, Womack underwent an MRI of
her head. The radiologist who read the MRI detected the
cancer in Womack's sinuses. Womack subsequently underwent
2
1110959, 1110962
treatment for her cancer at Shands Medical Center in
Gainesville, Florida. However, on March 6, 2008, Womack died.
In April 2009, Ledbetter, as administrator of Womack's
estate, sued various health-care providers, alleging medical
malpractice and wrongful death. The complaint alleged that
the defendants breached the applicable standard of care by
failing to timely diagnose Womack's cancer. Among the
defendants were Dr. Mottershaw and her employer, The
Radiology
Group. Eventually, all the defendants except Dr. Mottershaw
and The Radiology Group were dismissed.
On September 6, 2011, Ledbetter filed a motion in limine
seeking, among other things, to prevent reference to or
presentation of any evidence indicating "[t]hat other health
care providers [besides Dr. Mottershaw and The Radiology
Group]
allegedly
failed
to
detect
Venoria
Womack's
nasopharyngeal cancer." The trial court granted the motion in
limine insofar as it requested that restriction, among other
restrictions not relevant here.
On October 3, 2011, the case against Dr. Mottershaw and
The Radiology Group proceeded to trial. During opening
statements, Dr.
Mottershaw's
attorney
noted that
Dr.
3
1110959, 1110962
Mottershaw had read the CT scan of May 11, 2007. Dr.
Mottershaw's attorney then stated that "[t]wo weeks later
there was another set of images done." At that point,
Ledbetter's attorney asked to approach the bench and an off-
the-record discussion was held. During the trial, Dr.
Mottershaw's attorney asked Dr. Kendall Jones, who provided
expert testimony for Ledbetter:
"Q.
Now, you got not only the May 11 images that we
have talked about that were done by Dr.
Mottershaw, but you also got other images from
[Ledbetter's] lawyer, right?
"A.
Yes.
"Q.
And you got a study that was done two weeks
later. May 25, right?"
At that point, Ledbetter's attorney asked to approach the
bench, and the following discussion occurred outside the
presence of the jury:
"MRS.
TAYLOR
[Ledbetter's
attorney]:
Your
Honor,
that reference to the May 25 [scan] is strictly in
opposition to Your Honor's order on motion in
limine. He has been instructed not to mention May
25 studies.
"He was instructed in the order on motion in
limine, initially. He was instructed in the middle
of opening statement. And here we go again. And we
don't know what to say other than it's in blatant
violation.
4
1110959, 1110962
"MR. HINTON [Dr. Mottershaw's attorney]: Well,
Judge, I don't recall being told don't talk about
May 25.
"....
"THE COURT: I ruled that the May 25th stuff
doesn't come in.
"MR. HINTON: Nothing about May 25 comes in?
"THE COURT: No.
"MR. HINTON: My case is completely gutted.
"THE COURT: ... [Y]our case is about whether
there
was
malpractice
committed
when
[Dr.
Mottershaw] missed the stuff on ... May 11th.
"....
"THE COURT: ... The [May] 25th study gets in to
accusing another doctor of missing something.
That's not what we are here for.
"....
"THE COURT: ... The 25th is out, again."
Later at trial, Dr. Mottershaw submitted a copy of
Womack's medical records
from Shands Medical Center, which was
labeled as Defendant's Exhibit 7. Defendant's Exhibit 7,
which was admitted without objection, contained information
about the May 25 CT scan. Specifically, the records stated,
in pertinent part:
5
1110959, 1110962
"05/25/2007: She underwent a CT of the head at an
outside facility. The report is unavailable for
review, but on review of the actual images, there is
a mass in the right nasopharynx. The neck was not
imaged.
"....
"IMAGING REVIEW: Dr. [Jeffrey] Bennett reviewed an
outside CT dated 05/25/2007. This shows a mass in
the central nasopharynx and a large positive right
retropharyngeal lymph node."
After Defendant's Exhibit 7 was admitted, Ledbetter's
attorney reminded the trial court that references to the May
25 CT scan in the exhibit needed to be redacted to comply with
the trial court's order in limine:
"MRS. CHAMBERS [Ledbetter's attorney]: We need
to make sure those records are redacted that you put
in.
"....
"MRS. CHAMBERS: We've redacted ours.
"THE COURT: We've got to redact –– Let's see.
"I wrote down th[at] Defense Exhibit 6 has got
to be redacted.
"....
"THE COURT: And 7.
"....
6
1110959, 1110962
"THE COURT: Now, Defense 6 and 7 are two that
y'all need to look through to make sure they're
redacted."
Before closing arguments, Matt Griffith, an attorney for
Dr. Mottershaw, told the trial court that, pursuant to the
order granting the motion in limine, "we have redacted Defense
Exhibit 5, 6, and 7." However, the references to the May 25
CT scan were not redacted from Defendant's Exhibit 7.
After closing arguments, the trial court asked the court
reporter if "the exhibits in the trial have been looked at by
both sides" and whether "they are ready to go back." The
court reporter responded affirmatively. The trial court then
asked whether "[b]oth sides have looked at those," and the
attorneys for both sides responded affirmatively. The case
went to the jury on October 6, 2011. After deliberating for
approximately 30 minutes, the jury sent a written question to
the trial court: "Can we have a copy of the judge's
instruction (charge) [a]nd what about the test from the 25th?"
(Emphasis added.) Up to that point, the parties and the trial
court were unaware that the references to the May 25 CT scan
had not been redacted from Defendant's Exhibit 7. In response
to the question about "the test from the 25th," the trial
7
1110959, 1110962
court answered: "All of the properly admitted exhibits have
been provided to you." After a few hours of deliberation, the
jury returned a verdict in favor of Dr. Mottershaw and The
Radiology Group. On October 31, 2001, the trial court entered
a judgment on the jury verdict.
At some point after the jury returned its verdict,
Ledbetter's attorney reviewed the exhibits that had been sent
to the jury-deliberation room. Ledbetter's attorney then
discovered that the two references to the May 25 CT scan in
Defendant's Exhibit 7 had not been redacted despite the order
granting the motion in limine.
Ledbetter moved for a new trial, asserting several
grounds. Following a hearing, the trial court entered an
order granting a new trial. After discussing the pertinent
procedural history of the case, the order stated, in part:
"[Ledbetter] contends this unredacted evidence
was considered by the jury, and that it was
prejudicial
to
[Ledbetter]
in
the
jury's
deliberations that resulted in a verdict for [Dr.
Mottershaw and The Radiology Group]. It is a
well-settled principle of law, and, further, it is
fundamental to a fair trial, that jurors should
consider only the evidence properly admitted at
trial. It is error for a jury to receive an exhibit
not admitted into evidence. Ex parte Troha, 462 So.
2d 953, 954 (Ala. 1984). ... Although the Court
received Defendant's Exhibit 7 into evidence, it
8
1110959, 1110962
excluded the evidence within that exhibit of the May
25th CT scan. Thus, the jury's receipt of the
unredacted Exhibit that contained evidence that was
never admitted into evidence by the Court was error.
"The Court
recognizes
that
not
every
instance
of
juror misconduct requires or warrants a new trial.
Reed v. State, 547 So. 2d 596 (Ala. 1989). 'Each
case involving juror misconduct must be judged by
its own peculiar facts, and the conduct, when found
to be prejudicial, will require a reversal.' Dawson
v. State, 710 So. 2d 472, 474 (Ala. 1997). As a
general matter, issues of jury misconduct arise
where a juror allegedly is exposed to outside
influences such as extraneous evidence, reviews
unadmitted exhibits, or engages in unauthorized
communications. There is no allegation of juror
misconduct per se in this case. ... The allegation
is that the jury was improperly exposed to
extraneous material in the medical records that was
ordered to be redacted.
"... [C]ases involving the introduction of
unadmitted exhibits warrant a new trial when one of
two requirements is met: (1) the extraneous material
is of such a nature as to constitute prejudice as a
matter of law; or (2) the jury verdict is shown to
have been actually prejudiced by the extraneous
material. Ex parte Apicella, 809 So. 2d 865, 870
(Ala. 2001). ... Having considered the specific
circumstances of this case, the Court concludes that
the jury's exposure to and consideration of
extraneous information in the form of the unredacted
medical records which evidenced the May 25th scan
resulted in prejudice as a matter of law and in
actual prejudice to [Ledbetter] requiring a new
trial.
"In some cases, the character and nature of the
extraneous material constitute prejudice as a matter
of law and no showing that the jury is in fact
influenced thereby in arriving at their verdict is
9
1110959, 1110962
necessary. Ex parte Arthur, 835 So. 2d 981, 984
(Ala. 2002). Presumed prejudice, or prejudice as a
matter of law, applies only in a case in which the
jury's consideration of the extraneous material was
crucial in resolving a key material issue in the
case. Dawson v. State, 710 So. 2d 472, 475 (Ala.
1997) ....
"The jury's consideration of the references to
the May 25th scan was crucial in resolving a key
material issue in this case. [Ledbetter] had moved
in limine to preclude any evidence that other health
care providers allegedly failed to detect Venoria
Womack's cancer. [Ledbetter] anticipated that [Dr.]
Mottershaw would argue that the radiologist who took
the May 25th scan with contrast also failed to
detect the cancer. The Court granted [the] motion
in limine and specifically told Dr. Mottershaw's
counsel not to reference the May 25th scan. There
is no dispute that extraneous material was actually
received by the jurors. Obviously, the jurors were
aware of the May 25th scan and thought it should be
considered because they specifically requested it
after they began deliberating. Defendant's Exhibit
7, which contained unredacted references to the May
25th scan, was relevant to a key material issue in
the case. This extraneous information resulted in
prejudice as a matter of law.
"Even if the extraneous information had not
resulted in prejudice as a matter of law, the Court
would grant the motion for new trial because the
extraneous information resulted in actual prejudice
to [Ledbetter]. When a court is determining whether
a juror's conduct has caused actual prejudice, the
standard applied is whether the extraneous material
might have influenced that juror and others with
whom he deliberated. Ex parte Dobyne, 805 So. 2d
763, 771 (Ala. 2001) ('the test is whether the
[movant] might have been prejudiced, not whether he
actually was prejudiced, by such misconduct'),
overruled in part on other grounds by Ex parte
10
1110959, 1110962
Burgess, 21 So. 3d 746 (Ala. 2008). ... No single
fact or circumstance will determine whether the
verdict rendered in a given case might have been
unlawfully influenced by a juror's misconduct. Reed
v. State, 547 So. 2d 596, 598 (Ala. 1989). Rather,
it is a case's own peculiar set of circumstances
that will decide the issue. ...
"....
"Having observed the unredacted exhibit and all
of the evidence properly admitted, the Court is in
the best position to assess the possible prejudicial
effect the unredacted May 25th references may have
had on the jury. The Court finds that the jury's
receipt of extraneous material in the unredacted
Defendant's Exhibit 7 which involved the May 25th
scan with contrast might have unlawfully influenced
the
jury's
verdict
for
the
Defendants.
All
references to the May 25th scan had been excluded by
order of the Court. There is no doubt that the jury
considered the extraneous material in Defendant's
Trial Exhibit 7 as evidenced by the jury's question.
The jury asked to see a copy of the report from the
25th after they started deliberating. The reference
to a May 25th scan might have influenced all of the
jurors. ...
"....
"Having concluded that [Ledbetter] is entitled
to a new trial based on the jury's consideration of
an exhibit that was not admitted into evidence, this
Court concludes that it is not necessary to reach
[Ledbetter's] remaining grounds for new trial."
Dr. Mottershaw and The Radiology Group filed separate
appeals, which we consolidated for the purpose of writing one
opinion. On appeal, The Radiology Group adopted Dr.
11
1110959, 1110962
Mottershaw's brief. For ease of discussion, we will refer
simply to the arguments of "Dr. Mottershaw," with the
understanding that those arguments have been adopted by The
Radiology Group.
On appeal, Dr. Mottershaw argues that the trial court
erred in ordering a new trial based on the jury's
consideration of the unredacted evidence regarding the May 25
CT scan. Initially, we note that Dr. Mottershaw argues at
various points that this case is not, as the trial court
stated, an "extraneous-material" case; thus, she says, the
cases relied on by the trial court are inapplicable. She
seems to draw a distinction between cases in which jurors
themselves brought extraneous materials into the jury-
deliberation room and the facts of this case, in which the
jurors were inadvertently exposed to material that should
have
been redacted. However, she does not point to any case
relying on such a distinction for purposes of evaluating the
effect of improper exposure. In both types of cases, the key
point is that jurors were exposed to material they should not
12
1110959, 1110962
have
seen,
i.e.,
"extraneous
material."
Thus,
Dr.
Mottershaw's argument is largely one of semantics.
1
Dr. Mottershaw first argues that, in ordering a new
trial, the trial court failed to give the required deference
to the jury's verdict. Dr. Mottershaw cites cases generally
indicating that a jury's verdict is presumed to be correct and
should be set aside only if the verdict is "palpably wrong or
manifestly unjust." Bradford v. Kimbrough, 485 So. 2d 1114,
1116 (Ala. 1986). In making this argument, Dr. Mottershaw
essentially confuses, on the one hand, the standard for
reviewing a motion for a new trial grounded on the argument
that the verdict is against the great weight of the evidence
with, on the other hand, the standard for reviewing a motion
for a new trial grounded on the argument that the jury
considered extraneous evidence. This Court has stated that
Dr. Mottershaw asks: "If this were an 'extraneous
1
material' case, where are the affidavits to prove it?" Dr.
Mottershaw's brief at 57. Rule 606(b), Ala. R. Evid.,
generally prohibits juror testimony impeaching a verdict, but
jurors may testify as to "whether extraneous prejudicial
information was improperly brought to the jury's attention."
The mere absence of jury affidavits in this case does not
establish that
there was
not
"extraneous prejudicial
information" in this case.
13
1110959, 1110962
the trial court has discretion in cases such as this one and
that we must give deference to the trial court's decision:
"Where a motion for a new trial is granted for
reasons 'other than, or in addition to, a finding
that the verdict [was] against the great weight or
preponderance of the evidence,' this Court applies
a standard of review that is more deferential to the
trial court's determination that a new trial is
warranted. Curtis v. Faulkner Univ., 575 So. 2d
1064, 1065 (Ala. 1991). Where a trial court grants
a motion for a new trial for grounds other than, or
in addition to, that the verdict is against the
great weight of the evidence, this Court's review is
limited:
"'"It is well established that a
ruling on a motion for a new trial rests
within the sound discretion of the trial
judge. The exercise of that discretion
carries
with
it
a
presumption
of
correctness, which will not be disturbed by
this Court unless some legal right is
abused and the record plainly and palpably
shows the trial judge to be in error."'
"Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d
693, 694 (Ala. 1989) (quoting Hill v. Sherwood, 488
So. 2d 1357, 1359 (Ala. 1986))."
Beauchamp v. Coastal Boat Storage, LLC, 4 So. 3d 443, 449-50
(Ala. 2008). Because Dr. Mottershaw relies on the incorrect
standard in her first argument, i.e., the standard applicable
to a sufficiency-of-the-evidence argument, her first argument
is unavailing. The main issue, which Dr. Mottershaw
tangentially addresses in some of her arguments, is whether
14
1110959, 1110962
the trial court exceeded its discretion in ordering a new
trial; the main issue does not involve whether the verdict is
supported by sufficient evidence.
We next address the underlying standard informing the
trial court's discretion in this case. Generally, the
introduction of extraneous materials warrants a new trial if
either "1) the jury verdict is shown to have been actually
prejudiced by the extraneous material; or 2) the extraneous
material is of such a nature as to constitute prejudice as a
matter of law." Ex parte Apicella, 809 So. 2d 865, 870 (Ala.
2001). In this case, the trial court found both actual
prejudice and prejudice as a matter of law. Regarding the
concept of "actual prejudice," this Court has stated:
"'The test of vitiating influence is not
that it did influence a member of the jury
to act without the evidence, but that it
might
have
unlawfully
influenced
that
juror
and others with whom he deliberated, and
might
have
unlawfully
influenced
its
verdict rendered.'
"[Roan v. State,] 225 Ala. [428,] 435, 143 So. [454,] 460
[(1932)].
"On its face, this standard would require
nothing more than that the defendant establish that
juror misconduct occurred. ...
15
1110959, 1110962
"However,
as
other
Alabama
cases
establish,
more
is required of the defendant. In Reed v. State, 547
So. 2d 596, 598 (Ala. 1989), this Court addressed a
similar case of juror misconduct:
"'We begin by noting that no single
fact
or
circumstance
will
determine
whether
the verdict rendered in a given case might
have been unlawfully influenced by a
juror's [misconduct]. Rather, it is a
case's own peculiar set of circumstances
that will decide the issue. ...'
"It is clear, then, that the question whether
the jury's decision might have been affected is
answered not by a bare showing of juror misconduct,
but rather by an examination of the circumstances
particular to the case."
Ex parte Apicella, 809 So. 2d at 871.2
The circumstances of this case indicate that the trial
court did not exceed its discretion in concluding that the
unredacted references to the May 25 CT scan in Defendant's
Exhibit 7 might have improperly influenced the jury. After
deliberating
for
about 30 minutes, the jury specifically asked
The cases addressing the jury's consideration of
2
extraneous materials often use the term "juror misconduct" in
describing how the materials came before the jury. In this
case, there was no "juror misconduct," but, just as in juror-
misconduct cases, the jury had before it material that should
have been excluded, and that is the salient point. Thus, the
same standard for determining prejudice would apply in juror-
misconduct cases as well as in cases not actually concerning
juror misconduct, like this case. See, e.g., Gold Kist, Inc.
v. Tedder, 580 So. 2d 1321 (Ala. 1991), discussed infra.
16
1110959, 1110962
the trial court: "[W]hat about the test from the 25th?" The
trial court, unaware that references to the May 25 CT scan had
not been redacted from the exhibit, answered: "All of the
properly admitted exhibits have been provided to you." The
jury's question, coupled with the trial court's answer,
suggests that the jury considered information that had
actually been prohibited by the order granting the motion in
limine. Evidence indicating that a May 25 CT scan showed that
Womack had cancer –– but that the cancer remained undetected
–– reasonably could have influenced the jury in determining
the liability of Dr. Mottershaw, who read the earlier CT scan
of May 11 and failed to detect the cancer. Dr. Mottershaw
argues that the trial court's determination that there was
actual prejudice is based on speculation; however, the
circumstances need to indicate only that there might have been
prejudice. Ex parte Apicella. Based on the circumstances,
the trial court did not exceed its discretion in determining
that the jury might have been improperly influenced by
extraneous material, i.e., that there was so-called "actual
prejudice." Because the trial court did not exceed its
discretion in finding actual prejudice, we need not consider
17
1110959, 1110962
whether the trial court exceeded its discretion in finding
prejudice as a matter of law.
Dr. Mottershaw also argues that the trial court erred in
ordering a new trial because, she says, "the jury's
consideration of the existence of the date of the May 25
images was not 'crucial in resolving a key material issue in
the case.'" Dr. Mottershaw's brief at 42. By arguing that
the material was not "crucial in resolving a key material
issue in the case," Dr. Mottershaw refers to the test for
determining whether the extraneous material caused "prejudice
as a matter of law." See Ex parte Apicella, 809 So. 2d at 872
("Generally, a presumption of prejudice [as a matter of law]
applies only in a case in which the jury's consideration of
the extraneous material was '"crucial in resolving a key
material issue in the case."'" (quoting other cases)). The
trial court found both prejudice as a matter of law and actual
prejudice in this case. Because we conclude that the trial
court did not exceed its discretion in finding actual
prejudice, we need not address the trial court's alternate
finding of prejudice as a matter of law. Thus, we do not
18
1110959, 1110962
address Dr. Mottershaw's argument that there was no prejudice
as a matter of law.
The deferential standard of review in this case is well
illustrated in Gold Kist, Inc. v. Tedder, 580 So. 2d 1321
(Ala. 1991), a case similar to this one. In Gold Kist, the
jury returned a verdict in favor of the defendant in a
negligence/wantonness case arising out of an automobile
accident. The trial court granted a motion for a new trial on
the ground that the jury may have been improperly influenced
by an unadmitted exhibit that was left in the courtroom while
the jury deliberated there.
At the trial in Gold Kist, one of the issues was whether
the automobile accident caused the plaintiff's hip condition.
As defenses, the defendant attempted to prove that the
plaintiff had previously injured her hip, that she had a
previous hip condition that had begun to affect her hip before
the accident, and that the plaintiff's alcoholism had
contributed to the hip condition. During the trial, the
defendant
constructed
a
chronology of
medical
events
concerning the plaintiff, including her earlier hip problems
and treatment for alcohol abuse. That chronology was listed
19
1110959, 1110962
on a large paper tablet and was placed on a easel in the
courtroom. The list was referenced during trial but was never
offered or admitted into evidence. However, it was left
within sight of the jury during its deliberations, despite the
trial court's instruction to the parties to remove their
materials. In moving for a new trial, the plaintiff argued
that the jury had been impermissibly influenced by the list,
and the trial court granted the new trial.
In affirming the trial court's order, this Court noted
that the grant or denial of a motion for a new trial lies
"largely within the discretion of the trial court," that it is
presumed correct, and that it will not be reversed "unless
some legal right was abused and the record plainly and
palpably shows that the trial court was in error." 580 So. 2d
at 1322. This Court then concluded that the trial court did
not err in granting a new trial based on the trial court's
conclusion "that the jury might have been unlawfully
influenced by having the easel in the room where it
deliberated." 580 So. 2d at 1323. See also Padgett v.
Hughes, 535 So. 2d 140, 143 (Ala. 1988) (stating that a trial
court did not exceed its discretion in ordering a new trial
20
1110959, 1110962
after the jury was exposed to improper evidence and noting
that "[t]he trial court could not, nor can we, speculate as to
what effect this improper evidence may have had on the jury").
Dr. Mottershaw presents several other arguments. She
argues that the trial court wrongly excluded mention of the
May 25 CT scan in the first place. In making that argument,
Dr. Mottershaw notes that the complaint, which was never
amended, also alleged claims against a radiologist who read
the May 25 CT scan but failed to detect the cancer. However,
the claims against that radiologist were later dismissed; the
only claims that went to trial were those against Dr.
Mottershaw and her employer, The Radiology Group. Dr.
Mottershaw also notes that the trial court allowed testimony
by Dr. Jeffrey Bennett, Womack's physician, regarding the May
25 CT scan to be presented as an offer of proof. She argues
that the "[t]he use of those images ... for diagnosis and
treatment [purposes] was then made clear" and, "[w]ith that
revelation, it became further clear that the Court's ...
ruling excluding the May 25 images was erroneous." Dr.
Mottershaw's brief at 31-32. Although it is unclear, the gist
of Dr. Mottershaw's argument seems to be that the trial court
21
1110959, 1110962
erred by determining that the potential prejudicial impact of
the fact of the existence of the May 25 scan substantially
outweighs its probative value. However, her argument is
conclusory,
and
she
does
not
present
any
authority
establishing that the order granting the motion in limine is
erroneous given the particular facts of this case. "It is
well established that it is not the function of an appellate
court to create, research, or argue an issue on behalf of the
appellant." Gonzalez v. Blue Cross/Blue Shield of Alabama,
760 So. 2d 878, 883 (Ala. Civ. App. 2000). Thus, her
argument is unpersuasive.
Dr. Mottershaw also argues that Ledbetter's argument for
a new trial was not "preserved." Dr. Mottershaw's argument
seems to have two prongs. First, Dr. Mottershaw notes that
Ledbetter did not object to the admission of Defendant's
Exhibit 7, the medical records that included references to the
May 25 CT scan. Dr. Mottershaw cites caselaw in which this
Court has held that a trial court exceeded its discretion by
ordering a new trial based on bad jury charges in the absence
of a timely objection to those jury charges. See, e.g.,
Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So. 2d 1196,
[substituted p. 22]
1110959, 1110962
1210 (Ala. 2006). However, that is not the situation we have
here. Although Ledbetter did not object to the admission of
Defendant's Exhibit 7 –– the medical records that included
references to the May 25 CT scan –– the trial court had
already ruled in its order granting the motion in limine that
references to the May 25 scan would be excluded. The trial
court reminded the parties that parts of Defendant's Exhibit
7 needed to be redacted to comply with the order in limine.
Dr. Mottershaw cites no authority indicating that a failure to
object under these circumstances precludes the trial court
from considering Ledbetter's argument for a new trial, which
relied on the order granting the motion in limine. This is
not a case where a party failed to properly object and thereby
waived any argument in support of a new trial.
In the second prong, Dr. Mottershaw argues Ledbetter
waived her argument on which she based her motion for a new
trial because she failed to object when Dr. Bennett made a
passing reference to the May 25 CT scan at trial. At trial
Dr. Bennett testified:
"Q.
[By
Ledbetter's
attorney:]
And
in
your
deposition,
you
describe
the
progression
involving the carotid sheath from May 11th
until when you saw it in August, didn't you?
23
1110959, 1110962
"A.
No.
"I described the progression from May 25th
to the August 16th CT, because you can't
evaluate it on this May 11th study.
"....
"Q.
You didn't see narrowing of the carotid artery
on May 11th, did you?
"A.
On the subsequent contrast enhanced study, I
did not."
Again, Dr. Mottershaw cites general authority regarding the
waiver of objections to jury instructions; that authority does
not establish that Ledbetter waived her argument in support of
a motion for a new trial, which relied on the order granting
the motion in limine, based on the facts of this case.
In a similar argument, Dr. Mottershaw argues that
Ledbetter could have asked for a curative instruction "when
the May 25 records/images were mentioned." Dr. Mottershaw's
brief at 32. It appears that Dr. Mottershaw refers to Dr.
Bennett's reference at trial to "May 25th," quoted above.
Even if the jury had been instructed to disregard Dr.
Bennett's testimony about May 25 that would not have changed
the fact that there were
[substituted p. 24]
1110959, 1110962
inadvertently unredacted references to the May 25 CT scan in
Defendant's Exhibit 7. Further, Dr. Mottershaw cites no
authority indicating that failure to seek a curative
instruction regarding Dr. Bennett's testimony would somehow
preclude the trial court from ordering a new trial based on
the jury's exposure to the inadvertently unredacted material
in Defendant's Exhibit 7.
Dr. Mottershaw also argues that failure to redact the
references to the May 25 CT scan in Defendant's Exhibit 7 was
harmless error because, she says, that evidence had already
been admitted without objection. See Rule 45, Ala. R. App. P.
("No judgment may be reversed ... unless ... it should appear
that the error complained of has probably
injuriously
affected
substantial rights of the parties."). In support of her
argument,
Dr.
Mottershaw
cites
Dr.
Bennett's
testimony,
quoted
above. She also cites "mention of May 25 by [Dr.
Mottershaw's] counsel," which apparently refers to this
question that was posed by Dr. Mottershaw's attorney to Dr.
Jones: "And you got a study that was done two weeks later.
May 25, right?" After this question was posed to Dr. Jones,
Ledbetter's attorney asked to approach the bench, and a
25
1110959, 1110962
discussion was held outside the presence of the jury
concerning the order granting the motion in limine. The mere
reference to the May 25 CT scan by Dr. Jones is not the
equivalent of medical records referencing the May 25 CT scan.
Further, Dr. Bennett's cryptic reference to "May 25th" is not
the equivalent of medical records referencing the CT scan
performed on that date.
Dr. Mottershaw also argues that, if there was error in
this case, it was caused by Ledbetter, i.e., it was invited
error. "'[A] party may not induce an error by the trial
court and then attempt to win a reversal based on that error.
"A party may not predicate an argument for reversal on
'invited error,' that is, 'error into which he has led or
lulled the trial court.'"'" White Sands Group, L.L.C. v. PRS
II, LLC, 998 So. 2d 1042, 1057 (Ala. 2008) (quoting Mobile
Infirmary Med. Ctr. v. Hodgen, 884 So. 2d 801, 808 (Ala.
2003), quoting other cases). The thrust of Dr. Mottershaw's
argument is that Ledbetter should have discovered that
Defendant's Exhibit 7 had not been redacted before it went to
the jury. This is not invited error because Ledbetter did not
lull the trial court into making an error. Rather, both
26
1110959, 1110962
Ledbetter and Dr. Mottershaw simply failed to notice that Dr.
Mottershaw's exhibit had not been redacted as ordered. In
addition to general law regarding invited error, Dr.
Mottershaw cites McCormick v. Badham, 204 Ala. 2, 85 So. 401
(1919). Without going into unnecessary detail, we note that
the holding of that case simply does not appear to be grounded
on invited error; rather, there was no error in the first
place.
Dr. Mottershaw also argues that the trial court erred by
striking her attorney's affidavit, which Dr. Mottershaw
submitted in opposition to Ledbetter's motion for a new trial.
Rule 59, Ala. R. Civ. P, provides, in part:
"(c) Time for Serving Affidavits. When a motion
for new trial is based upon affidavits, they shall
be served with the motion. The opposing party has
fifteen (15) days after such service within which to
serve opposing affidavits, which period may be
extended for an additional period not exceeding
twenty (20) days either by the court for good cause
shown or by the parties by written stipulation. ..."
On November 30, 2011, Ledbetter filed a motion for a new
trial, which she supported with a brief and affidavits. On
January 23, 2012, Dr. Mottershaw filed a response to the
motion for a new trial. On January 25, 2012, the trial court
held a hearing on the motion for a new trial. More than two
27
1110959, 1110962
weeks after the hearing, on February 9, 2012, Dr. Mottershaw
filed the affidavit of one of her attorneys, Matt Griffith, in
opposition to the motion for a new trial. Ledbetter moved to
strike the affidavit, and the trial court granted the motion
to strike on February 13, 2012. That same day, the trial
court granted a new trial.
In this case, Dr. Mottershaw filed her attorney's
affidavit on February 9, 2012, 71 days after Ledbetter filed
her motion for a new trial on November 30, 2011. Thus, Dr.
Mottershaw's affidavit was filed well after the period for
doing so established by Rule 59(c). In Elliott v. Elliott,
372 So. 2d 846, 850 (Ala. 1979), this Court stated that the
time requirements in Rule 59(c) may be relaxed in the trial
court's discretion. Dr. Mottershaw argues that the trial
court exceeded its discretion by striking the affidavit
because, she says, (1) she was given no opportunity to argue
against the motion to strike and (2) the affidavit was a
reasonable and timely response in light of the arguments made
at the hearing two weeks earlier. Dr. Mottershaw then
contends, without further elaboration, that the affidavit
"gives clarity to the context of the unredacted exhibit issue,
28
1110959, 1110962
the responsibility for it, and bears explicit pertinence to
the erroneous assumptions made by the trial court in ...
grant[ing] ... a new trial." Dr. Mottershaw's brief at 66.
Dr. Mottershaw does not explain how the affidavit would have
changed the result. Dr. Mottershaw argues that the trial
court's discretion should be exercised liberally to receive
affidavits, but the cases cited by her for that proposition do
not exactly say that. Quite simply, the trial court may allow
or disallow untimely affidavits at its discretion, Elliott,
and there is no indication that the trial court exceeded its
discretion by striking the untimely affidavit in this case.
Dr. Mottershaw also argues that the trial court exceeded
its discretion in denying her Rule 54(d), Ala. R. Civ. P.,
petition to tax costs. After the jury returned a verdict in
her favor, Dr. Mottershaw petitioned the trial court to tax
costs, and the trial court denied the motion. Rule 54(d)
provides, in part, that "costs shall be allowed as of course
to the prevailing party unless the court otherwise directs
...." (Emphasis added.) Further, "[t]he taxation of costs
under Rule 54(d) rests in the discretion of the trial court,
and its decision will not be reversed in the absence of a
29
1110959, 1110962
clear abuse of discretion." Miller v. Thompson, 844 So. 2d
1229, 1233 (Ala. Civ. App. 2002). The trial court did not
exceed its discretion in denying Dr. Mottershaw costs,
especially considering that the trial court has now granted
Ledbetter a new trial and that we are affirming that decision.
That is, Dr. Mottershaw is no longer the prevailing party.
See White Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5, 21
(Ala. 2009) ("Because we are reversing the summary judgment
for PRS II, Sterling, and Asfour, we must vacate the PRS II
costs order and the Sterling/Asfour costs order."); and White
v. American Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir.
1990) ("[I]n light of our conclusion that a new trial is
required, we vacate the district court's award of costs
because plaintiff is not a 'prevailing party' within the
meaning of Fed. R. Civ. P. 54(d) and therefore is not entitled
to costs.").
In her brief, Ledbetter argues, in the alternative, that
the trial court could have granted a new trial on two grounds
asserted by Ledbetter before the trial court but specifically
pretermitted by the trial court in its order granting a new
trial. Dr. Mottershaw, in her reply brief, addresses those
30
1110959, 1110962
alternative grounds. In support of her arguments regarding
those alternative grounds, Dr. Mottershaw attached to her
reply brief three exhibits –– the deposition testimony and
related exhibits of certain doctors –– that are not in the
record but were made as an offer of proof. Dr. Mottershaw
also filed a motion under Rule 10(f), Ala. R. App. P., to
supplement the record with those three exhibits. In
3
response, Ledbetter filed a motion to strike those three
exhibits attached to the reply brief. Of course, those three
exhibits are irrelevant in light of our resolution of this
appeal. Because the question whether to include the exhibits
in the record concerns issues we have not considered in
resolving this appeal, whether to supplement the record is
basically a moot issue. Thus, we deny both the motion to
supplement and the motion to strike.
1110959 –– MOTIONS DENIED; AFFIRMED.
1110962 –– AFFIRMED.
Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw,
Main, and Wise, JJ., concur.
Dr. Mottershaw also filed in the trial court a motion to
3
supplement the record, and the trial court denied that motion.
31 | January 17, 2014 |
a639c62c-b844-4417-b1d8-94551c90297d | Streeter v. State | 177 So. 2d 826 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 826 (1965)
Samuel STREETER
v.
STATE of Alabama.
6 Div. 192.
Supreme Court of Alabama.
August 12, 1965.
*827 Crampton Harris, Birmingham, for appellant.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Appellant, Samuel Streeter, was indicted for murder in the first degree by a grand jury of Jefferson County. He was unable to employ counsel, so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed one of the most experienced members of the Jefferson County Bar to represent him.
Upon arraignment, Streeter pleaded not guilty and not guilty by reason of insanity. The court-appointed attorney was present at arraignment. Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114.
The jury found Streeter guilty of murder in the second degree and fixed his punishment at imprisonment in the penitentiary of this state for a term of fifty years. He was so sentenced.
The attorney who represented Streeter in the trial court was appointed to represent him on this appeal. He has filed a brief on behalf of Streeter.
Before the trial jury was selected, counsel for Streeter objected to the presence of a special prosecutor in the case. The objection was overruled. Under the uniform holdings of the appellate courts of this state, the objection was overruled without error. Handley v. State, 214 Ala. 172, 106 So. 692; Owens v. State, 40 Ala.App. 36, 109 So. 2d 141, affirmed on certiorari, Owens v. State, 268 Ala. 506, 109 So. 2d 144; Johnson v. State, 13 Ala.App. 140, 69 So. 396, cert. denied, 193 Ala. 682, 69 So. 1020.
We see no occasion to set out the evidence, as Streeter did not request the affirmative charge or file a motion for a new trial. It is sufficient to say that the State presented evidence of an eyewitness concerning the difficulty between Streeter and Williams which resulted in the latter's death from stab wounds.
Evidence for the State tended to show that Streeter was the aggressor and guilty of unlawful homicide. Evidence for Streeter tended to show that deceased was the aggressor and that Streeter struck in self-defense. A question for jury decision was thus presented.
Under his plea of not guilty by reason of insanity the burden was on Streeter to clearly prove to the reasonable *828 satisfaction of the jury that he was so afflicted by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product solely of such diseased mind. Aaron v. State, 271 Ala. 70, 122 So. 2d 360, and cases cited. Streeter offered no testimony to meet the burden which was upon him to prove his plea of not guilty by reason of insanity. Mere temporary mania, not the result of a disease of the mind, does not constitute insanity. Grant v. State, 250 Ala. 164, 33 So. 2d 466, and cases cited.
Consistent with our duty under the statute, we have searched the record for error and find none. § 389, Title 15, Code 1940.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | August 12, 1965 |
7610f9e9-5b1f-4400-a267-0256a7659778 | Lake Cyrus Development Company, Inc. v. Bessemer Water Service | N/A | 1090948 | Alabama | Alabama Supreme Court | REL:01/10/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1090948
____________________
Lake Cyrus Development Company, Inc.
v.
Attorney General of the State of Alabama ex rel. Bessemer
Water Service
Appeal from Jefferson Circuit Court, Bessemer Division
(CV-97-378)
BOLIN, Justice.1
This case was mistakenly placed on this Court's
1
administrative docket in September 2011. It was not assigned
to Justice Bolin until October 31, 2013. We regret the delay
in the issuance of a decision in this appeal.
1090948
Lake Cyrus Development Company, Inc. ("LCDC"), appeals
from the trial court's denial of its motion to alter, amend,
or vacate a judgment in favor of Bessemer Water Service
("BWS") or, in the alternative, its motion for a new trial.
We reverse and remand.
I. Facts and Procedural History
This case involves a dispute between BWS and LCDC over a
contract referred to as the "1998 water agreement." In
Bessemer Water Service v. Lake Cyrus Development Co., 959 So.
2d 643 (Ala. 2006)("Bessemer I"), this Court determined that
the 1998 water agreement was entered into in violation of §
39-2-2, Ala. Code 1975, which mandates that all public-works
contracts in excess of $50,000 be advertised for sealed bids.
The relevant facts and much of the procedural history of this
appeal are set forth in Bessemer I:
"The 1998 water agreement was entered into on
April 30, 1998. The contract was signed by the then
mayor of Bessemer, Quitman Mitchell, who by statute
also served as the manager of Bessemer Utilities,
and by Charles Givianpour, the president of LCDC. It
was the product of two months of negotiations that
began when Mayor Mitchell and Charles Nivens,
operations
manager
for
Bessemer
Utilities,
approached Givianpour and asked him to use BWS,
instead of Birmingham Water Works, as the provider
of water to the new Lake Cyrus residential
development in Hoover. BWS was interested in
2
1090948
providing water to Lake Cyrus not only to increase
its customer base, but also to further its reach.
Toward that end, BWS expressly negotiated for LCDC
to increase the size of the main water line within
the development (running from Highway 150 to
Parkwood Road) from a 12–inch line to a 16–inch line
to allow for future expansion.
"The 1998 water agreement obligated BWS
"'to
provide
potable
water
to
all
residential, industrial and commercial
areas within the [Lake Cyrus] development
at the same rates and upon the same terms
and conditions (as modified by the terms
and provisions of this agreement) as BWS
provides water service to all other
residential, industrial and commercial
customers, respectively, of BWS.'
"(Emphasis added.) The terms and provisions of the
1998 water agreement had been modified; they were
not the terms and provisions of the typical BWS
water-services contract. Nivens and Terry Hinton,
water-distribution superintendent at BWS, testified
that it was BWS's standard procedure to fund the
cost of a water-main extension for a residential
development to the point of the entrance to the
development and that the developer customarily paid
all costs associated with bringing water from that
point
into
the
development,
including
the
construction of the interior main extension, the
submain, and the lateral lines. However, under the
1998 water agreement, BWS agreed to pay LCDC
$273,000 as 'a partial deferment' of the costs LCDC
incurred in installing the interior 16–inch main
extension, the submains, and the associated water
valves. Moreover, BWS agreed to reimburse LCDC on a
monthly basis for all costs and expenses LCDC
incurred in installing the lateral water lines
within the development.
3
1090948
"It was also standard BWS practice to charge a
'tap fee' to each new customer that requested water
service. The tap fee was used to offset the cost of
extending the water main to the entrance of a new
development and the cost of maintaining the water
lines in the development after the lines were
installed and tendered by the developer for BWS's
acceptance. However, the 1998 water agreement
required BWS to remit to LCDC, on a monthly basis,
100% of the tap fees collected in the development.
"Aside from the provisions mandating a $273,000
payment to LCDC, the reimbursement of LCDC's
lateral-line construction costs, and the transmittal
to LCDC of 100% of the collected tap fees, BWS also
identified the following requirements in the 1998
water agreement as deviating from the terms and
conditions of its standard water-services contract:
1) BWS was to provide and install all fire hydrants;
2) LCDC was to retain an option to repurchase all of
the waterworks in the development after they were
tendered to BWS; 3) BWS was required to keep the
contents of the 1998 water agreement confidential;
and 4) all late payments by BWS accrued interest at
the rate of 18%.
"In 2002, Edward May was elected mayor of
Bessemer. May replaced Mayor Mitchell and began his
term on October 7, 2002. Mayor May initially
continued to sign the reimbursement checks being
sent to LCDC under the 1998 water agreement.
However, in approximately May 2004, after reviewing
a copy of the contract, Mayor May began to doubt the
legality of the 1998 water agreement. After
consulting with the City's attorney, Mayor May sent
LCDC a letter, dated August 9, 2004, informing it of
the City's position that the 1998 water agreement
was void and requesting that legal counsel for the
City and for LCDC meet and discuss the options.
"The relationship between LCDC and BWS rapidly
disintegrated. Because BWS would not pay LCDC
4
1090948
$202,990 in reimbursements LCDC was claiming under
the 1998 water agreement for finishing the interior
16–inch water-main extension through the back of the
subdivision to complete the connection with the main
BWS line at Parkwood Road, LCDC refused to complete
the work. BWS was anxious to have the extension
completed because the connection at Parkwood Road
would 'loop' the system. In response, BWS delayed
approving water lines connecting the remaining
sector of the Lake Cyrus development, causing delays
in residential construction.
"On December 6, 2004, BWS filed its cross-claim
seeking, among other relief, relief from the
allegedly invalid provisions in the 1998 water
agreement that required it: 1) to remit to LCDC
$71,540, the outstanding balance of the $273,000
partial-deferment payment; 2) to further reimburse
LCDC for costs and expenses associated with
constructing lateral lines; 3) to turn over to LCDC
100% of the tap fees that were collected in the
development; 4) to sell LCDC all the water lines in
the development if LCDC elected to exercise the
purchase option; and 5) to keep the terms of the
1998 water agreement confidential. BWS also asked
the trial court to enforce the valid portions of the
1998 water agreement so as to allow BWS to continue
to provide water to the Lake Cyrus development.
Finally, BWS asked the trial court to determine if
it could recover any of the funds previously paid to
LCDC under the 1998 water agreement and to declare
that BWS was the owner of all of the waterworks
within
the
Lake
Cyrus
development
that
had
previously been tendered by LCDC and accepted by
BWS.
"LCDC thereafter filed a 'motion for emergency
expedited and injunctive relief,' asking the trial
court to order BWS to supply water to the final
sector of the Lake Cyrus development as promised and
to pay LCDC the money LCDC was claiming under the
5
1090948
1998 water agreement. LCDC further asked the court
to enjoin BWS from future breaches of the contract.
"The trial court held a bench trial on all
pending matters in the case from February 28, 2005,
through March 3, 2005. On March 7, 2005, the trial
court entered an order finding the entire 1998 water
agreement to be valid and entering a judgment in
favor of LCDC. On March 8, 2005, the trial court
entered an amended order, ordering BWS to pay LCDC
$224,979.83 in damages. BWS appeals."
959 So. 2d at 646-48 (emphasis in original; footnotes
omitted).
In Bessemer I, this Court concluded that the trial court
had exceeded its discretion in holding that the 1998 water
agreement was a valid binding contract and in awarding LCDC
$224,979.83 because, we held, the agreement was entered into
violation of § 39-2-2 and was therefore void:
"Because the 1998 water agreement involved a
public-works project (in an amount in excess of
$50,000), BWS was required by § 39–2–2 to advertise
for sealed bids before entering into the contract
calling for it to expend public funds on the
project. BWS did not do so. By way of the 1998 water
agreement, BWS and LCDC effectively bypassed the
bidding process entirely so as to award the contract
directly to LCDC. This violated § 39–2–2 and,
pursuant to § 39–2–2(c), the 1998 water agreement is
accordingly 'null, void, and violative of public
policy.' The trial court therefore erred in holding
that it was a valid binding contract. Moreover,
because § 39–5–6 and § 39–5–1(a)[, Ala. Code 1975,]
forbid a party from receiving any payment in
connection with a contract awarded in violation of
6
1090948
the competitive bid law, regardless of the party's
culpability, the trial court also erred in awarding
LCDC $224,979.83 for BWS's alleged breach of
contract. Because the 1998 water agreement was
entered
into
in
violation
of
the
mandatory
provisions of § 39–2–2, LCDC is not entitled to
recover any payment for the work it performed under
that contract."
959 So. 2d at 651. In addition to holding that LCDC was not
entitled to recover any payments for the work it had performed
under the 1998 water agreement, we also held (1) that any
invalid provisions of the 1998 water agreement were not
subject to severance; (2) that because LCDC did not hold a
valid option to repurchase the waterlines previously tendered
to BWS under the 1998 water agreement, those lines were the
property of BWS and the lines that LCDC had not yet tendered
to BWS remained the property of LCDC; and (3) that any action
to recover payments made by BWS to LCDC under the 1998 water
agreement could be brought only by the attorney general or any
other interested person for the benefit of BWS, § 39-5-3, Ala.
Code 1975. For the foregoing reasons, this Court reversed the
judgment of the trial court and remanded the cause for
proceedings consistent with this Court's opinion.
II. Proceedings on Remand
7
1090948
On December 18, 2006, the trial court entered an order
setting aside its March 8, 2005, judgment in favor of LCDC and
awarding LCDC $224,979.83. On January 10, 2007, then Attorney
General Troy King intervened, pursuant to § 39-5-3, on BWS's
2
behalf and filed a complaint against LCDC seeking to recover
the payments BWS had made to LCDC under the 1998 water
agreement. On August 27, 2007, Attorney General King, on
behalf of BWS, filed (1) a motion for a partial judgment in
the amount of $224,979.83 and (2) a motion for a summary
3
judgment, asserting that BWS was entitled to recover
$1,093,727.96--the amount BWS claimed it had paid LCDC under
the 1998 water agreement. The trial court granted BWS's
motion for a partial judgment but denied its motion for a
summary judgment. The trial court thereafter conducted a
hearing for the purpose of determining (1) whether, pursuant
While this case was pending on appeal, Luther Strange
2
succeeded Troy King as attorney general. By virtue of Rule
43(b), Ala. R. App. P., Attorney General Strange was
automatically substituted as a party.
The $224,979.83 represents the amount the trial court
3
awarded LCDC in its March 8, 2005, order. BWS deposited the
money with the clerk of the circuit court, and the money was
thereafter disbursed to LCDC. This Court ordered LCDC to
restore the money to the clerk of the circuit court. However,
LCDC had already spent the money, so the clerk of the circuit
court accepted a property bond in lieu of cash.
8
1090948
to § 39-5-3, Attorney General King was entitled to recover on
behalf of BWS the payments BWS had made under the 1998 water
agreement and (2) which waterlines in the Lake Cyrus
development had been tendered to BWS.
On November 13, 2009, the trial court entered a judgment
in favor of Attorney General King for the benefit of BWS:
"(1) That judgment is rendered in favor of the
Intervenor Troy King, as Attorney General of the
State of Alabama for the benefit of [BWS] and
against [LCDC], in the amount of $1,093,727.96.
"(2) That all water lines in question wherein
[LCDC] or a customer has requested water services
from [BWS] and the lines are interconnected with the
public water system and are devoted to public
services have been 'tendered' by [LCDC] to [BWS] and
are the property of [BWS]."
LCDC thereafter filed a postjudgment motion requesting
that the trial court alter, amend, or vacate its judgment or,
in the alternative, that it order a new trial. The trial
court denied the motion. LCDC appealed.
III. Standard of Review
"Our
standard
of
review
for
rulings
on
postjudgment motions is well settled:
"'In general, whether to grant or to
deny a posttrial motion is within the sound
discretion of the trial court, and the
exercise of that discretion will not be
disturbed on appeal unless by its ruling
9
1090948
the court abused some legal right and the
record plainly shows that the trial court
erred. See Green Tree Acceptance, Inc. v.
Standridge, 565 So. 2d 38 (Ala. 1990).'"
Hitt v. State of Alabama Pers. Bd., 873 So. 2d 1080, 1085
(Ala. 2003) (quoting Flagstar Enters., Inc. v. Foster, 779 So.
2d 1220, 1221 (Ala. 2000)).
IV. Discussion
1. Section 39-5-3, Ala. Code 1975
The first issue presented by LCDC is whether the trial
court's judgment in favor of Attorney General King, acting on
behalf of BWS, was supported by clear and convincing evidence
that Charles Givianpour, the president of LCDC, knew before
the 1998 water agreement was executed that the agreement was
being entered into in violation of § 39-2-2.
Section 39-5-3 provides:
"An action shall be brought by the Attorney
General or may be brought by any interested citizen,
in the name and for the benefit of the awarding
authority, to recover paid public funds from the
contractor, its surety, or any person receiving
funds under any public works contract let in
violation of or contrary to this title or any other
provision of law, if there is clear and convincing
evidence that the contractor, its surety, or such
person knew of the violation before execution of the
contract. The action shall be commenced within three
years of final settlement of the contract."
10
1090948
(Emphasis added.)
As previously noted, Attorney General King intervened in
this case on behalf of BWS to recover payments BWS had made to
LCDC under the 1998 water agreement. It is undisputed (1)
that Attorney General King was an appropriate party to bring
an action on behalf of BWS under § 39-5-3, (2) that the 1998
water agreement constituted a contract for public works as
determined in Bessemer I, and (3) that BWS had made payments
to LCDC under the 1998 water agreement. The only issue left
4
for our determination is whether the record
demonstrates
clear
and convincing evidence that Givianpour knew before the 1998
water agreement was executed that the agreement was being
entered into in violation of § 39-2-2. The evidence is this
case was presented to the trial court ore tenus.
"'[W]hen evidence is presented ore
tenus in a nonjury case, a judgment based
on that ore tenus evidence will be presumed
correct and will not be disturbed on appeal
unless it is plainly and palpably wrong or
against the great weight of the evidence.
Eagerton v. Second Econ. Dev. Coop. Dist.
of Lowndes County, 909 So. 2d 783, 788
(Ala. 2004). Nevertheless, this rule is not
The parties do not address the timeliness of the action
4
brought by the attorney general, i.e., whether the action was
"commenced within three years of final settlement of the
contract."
11
1090948
applicable
where
the
evidence
is
undisputed
or where the material facts are established
by undisputed evidence. Salter v. Hamiter,
887 So. 2d 230, 233–34 (Ala. 2004).
Additionally,
when
the
trial
court
"improperly applies the law to the facts,
the presumption of correctness otherwise
applicable to the trial court's judgment
has no effect." Ex parte Bd. of Zoning
Adjustment of Mobile, 636 So. 2d 415, 418
(Ala. 1994).'"
Bessemer I, 959 So. 2d at 648 (quoting Hartford Cas. Ins. Co.
v. Merchants & Farmers Bank, 928 So. 2d 1006, 1009 (Ala.
2005)).
As stated in Bessemer I, the 1998 water agreement was the
product of two months of negotiations that began when Quitman
Mitchell, then mayor of the City of Bessemer, and Charles
Nivens, operations manager for Bessemer Utilities, approached
Givianpour and asked him to use BWS instead of Birmingham
Water Works as the provider of water services to the Lake
Cyrus development. The 1998 water agreement was signed by both
Mayor Mitchell on behalf of the City of Bessemer and
Givianpour as president of LCDC; both parties
were represented
by attorneys.
The only witnesses who testified at the hearing were
Givianpour; Nivens; Fred Hinton, a supervisor at BWS; and
12
1090948
Terry Edwards, a supervisor at BWS. Givianpour testified that
he had been in the "land construction development" and
"construction" business for over 20 years and that, during
that time, he had never been involved with a government
contract. Givianpour testified that Steven R. Monk of Bradley
& Arant, LLC, had represented him in negotiating the 1998
water agreement. Givianpour testified that Monk specifically
told him that the City of Bessemer had represented and
certified that it had the right to enter into the agreement,
and he stated that, according to Monk, the contract was valid.
It is BWS's position that Monk told Givianpour that the 1998
water agreement violated the competitive-bid law, i.e., § 39-
2-2, but that Givianpour chose to enter into the agreement in
hopes that that would not present a problem. BWS relies
heavily on the fact that Monk did not testify regarding the
legality of the 1998 water agreement, that Givianpour had
failed to bring a legal-malpractice action against Monk, and
that Givianpour had continued to use Monk as an attorney for
other matters even after Attorney General King had intervened
in the case.
Givianpour testified as follows:
13
1090948
"Q. Let me ask you this: Do you recall finding out–-
do you recall when you found out that you had been–-
that [LCDC] had been sued?
"A. The only thing I know was that I heard that the
mayor goes to the council and tell[s] the council
that [the 1998 water agreement was going to] court
[to] get [the] judge's opinion on that contract,
that whether that contract is good by–-by the
mayor's signature or [should the 1998 water
agreement have the] city council's signature on it.
That's what I was told that this whole thing was
about.
"....
"A. And then it evolved from that.
"Q. But when it evolved, what did you do? Did you
contact anybody?
"....
"A. I talked to Steve Monk, and, you know, he is
not a litigator, so I had to get someone that, you
know, can [represent me in court]. He doesn't go to
court and litigate.
"....
"A. I believe when originally this [came] up there
was no question of bid laws. It was question of
whether [the] council had to sign or not.
"....
"A. I [had a] conversation with [Steve Monk], and
over and over and over again he [told] me that this
[1998 water agreement] is good even with [the
Supreme Court] not calling it [in Bessemer I]. He
stated that [the Supreme Court] was misled; they
made their own decision; and we're still good. ...
14
1090948
"Q. And nobody has ever told you that you would
have a malpractice suit?
"....
"A. ... There is no possible way that [BWS] could
have bid this project. And that's the technicality
that everybody is hanging their hat on.
"....
"This project could have never been bid. ...
"But the only thing was that it was–-they came
to me as a favor to them. This was not a profit
center. No one made any money on it. No one was
going to make any money on it.
"The only thing here was, they ask me to upgrade
this pipe that I was putting in the ground from 12-
inch to 16-inch. And they said that we calculated
our cost from US Pipe. ... They paid no labor. I
even subsidized the taxes.
"So how could they bid anything to anyone out
there that whoever is doing it is going to lose
money on it? There was no profit here. ... It was
a favor that I did for Bessemer ..., and here I'm
getting burned because of it.
"Since then, we lost most of our net worth. I
lost my retirement money on it. I lost some of my
net worth that I worked thirty, forty years. My
kids going to college? Now [there is a threat] that
they [will] not be able to register next time. And
all of that happened just because of a technicality.
"....
"Q. And so you're telling me that [Steve Monk]
never once told you that this is in violation of the
15
1090948
bid law; I'll set up this contract for you, and
we'll just see how it goes?
"A. No. He still thinks that, you know, everything
was done right and we got caught in some kind of
technicality.
"But, no, I think that [Steve Monk] is a very
honorable man, and I back him up a hundred percent.
"....
"Q. Was the City of Bessemer represented by any
attorney?
"A. Calvin Biggers.
"Q. Did you rely on this [1998 water agreement]?
"A. We borrowed money on it.
"Q. Before you entered into this agreement, did
anyone ever tell you or did you have any knowledge
that the contract should have been bid out?
"A. No. It could not have been bid out. It's
humanly not possible."
There was no other evidence or testimony presented to
dispute Givianpour's testimony that he had no
knowledge before
the 1998 water agreement was executed that the agreement was
being entered into in violation of § 39-2-2. Fred Hinton
testified primarily regarding the repairs BWS had made in the
Lake Cyrus development from 1998 through 2004 and the costs
involved in making those repairs. Terry Edwards testified
16
1090948
primarily regarding the amount of work BWS had performed in
the Lake Cyrus development between 1998 and 2006. Charles
Nivens testified about the specific payments alleged to be
owed by LCDC under the 1998 water agreement, about the
procedure BWS customarily used to inherit and/or receive
ownership of waterlines, about the waterlines LCDC had
tendered to BWS, and about the fact that BWS had worked on the
waterlines
within
the
Lake
Cyrus
development
without
procuring
any easements. The testimony provided from Edwards, Hinton,
and Nivens was unrelated to the issue whether Givianpour had
knowledge before its execution that the 1998 water agreement
violated § 39-2-2.
Section 39-5-3 requires a showing by "clear and
convincing
evidence"
that
Givianpour
knew
before
its
execution
that the 1998 water agreement violated § 39-2-2. Clear and
convincing evidence is defined as follows:
"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. Proof 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."
17
1090948
Ala. Code 1975, § 6-11-20(4) (emphasis added).
The record does not support a showing of any evidence,
much less clear and convincing evidence, that Givianpour had
knowledge before its execution that the 1998 water agreement
was in violation of § 39-2-2. Accordingly, BWS is not
entitled, pursuant to § 39-5-3, to recover any money it paid
to LCDC under the agreement. When the trial court improperly
applies the law to the facts, the presumption of correctness
otherwise applicable to the trial court's judgment is not
applicable. Bessemer I, 959 So. 2d at 648. Because the trial
court improperly applied the law to the facts of this case,
its judgment awarding BWS $1,093,727.96 in damages is due to
be reversed.
2. Ownership of the Waterlines
In Bessemer I, this Court addressed the ownership of the
waterlines as follows:
"The last remaining issue relates to ownership
of the waterlines that are currently in place in the
Lake Cyrus development. The 1998 water agreement
contained a purchase option purporting to allow LCDC
to repurchase all the waterlines previously tendered
to BWS [in the event of a default by BWS] if it
elected to do so. BWS has asked this Court to
declare BWS the owner of those waterlines. Because
we have held that the 1998 water agreement is void
pursuant to § 39–2–2(c), LCDC does not hold a valid
18
1090948
option to repurchase the waterlines previously
tendered to BWS pursuant to the 1998 water
agreement; those lines are thus the property of BWS.
However, all lines that LCDC has not yet tendered to
BWS remain the property of LCDC. LCDC may hereafter
elect to tender those lines to BWS; however, because
we have held that the 1998 water agreement is void,
LCDC is under no legal obligation to do so."
959 So. 2d at 652 (emphasis added).
Bessemer I addressed ownership of the waterlines that
were "currently" in place at the Lake Cyrus development.
Bessemer I specifically held that because LCDC did not hold a
valid option to repurchase the waterlines "previously"
tendered to BWS under the 1998 water agreement, those lines
remained the property of BWS and all lines LCDC had not yet
tendered to BWS remained the property of LCDC. On remand, the
trial court held a hearing to determine, among other things,
which waterlines had actually been tendered to BWS. In his
opening statement to the trial court, BWS's attorney stated:
"The Supreme Court stated that those lines that
had already been tendered to Bessemer Water Services
belong to Bessemer Water Services and that those
lines that had not been tendered to Bessemer Water
Services belong to the Lake Cyrus Development
Company.
"There's yet to be a determination as to what
lines have been tendered. ..."
19
1090948
In Bessemer I, however, this Court did not address how a
"tender" occurred in the absence of a valid written agreement.
Therefore, before the trial court could properly make a
determination regarding which waterlines had actually been
tendered to BWS, it had to determine how a tender could be
accomplished.
Charles
Nivens,
operations
manager
for
Bessemer
Utilities, testified as follows:
"Q. And is there something that happens when
someone develops a subdivision, as far as if they
install the lines, what's the procedure for Bessemer
receiving those waterlines?
"A. They normally pressure-test [the lines] to our
satisfaction and disinfect the lines to our
satisfaction. And then we, as utilities, inherit
the lines based on a main-extension agreement.
"Q. Were the lines in Lake Cyrus Development, had
they been pressure-tested, and any other kind of
requirements that Bessemer requires, have all those
requirements been met?
"A. Yes.
"....
"... Other than sections 16A and 16B inside the Lake
Cyrus Development Company [sic], have any lines ever
been tendered as far as the main-extension lateral
agreement? Has it ever been signed by [LCDC] and
transferring those lines to [BWS]?
"A. Not that I'm aware of.
20
1090948
"Q. So it's your testimony that those lines have
never been transferred to [BWS]?
"A. The lines were disinfected, pressure-tested and
signed off by our–-by our lab. And because of past
practice and customs and agreements that we've had
over numerous years, that was when [BWS] took over
responsibility for those lines and made the
appropriate taps on those lines.
"Q. To the best of your knowledge, had [BWS] ever
entered [into] an agreement with anyone like they
did [LCDC]?
"A. No, that was the first.
"....
"Q. Is that your common pattern and practice, is to
have a development complete a document that states
they're transferring the lines to [BWS]?
"A. [Nivens:] Again, we have what we call a main-
extension agreement. It's where the contractor
submits plans to us for their subdivision.
"It's reviewed by [BWS] ....
"It's approved and signed off on and then–-and
sent back to the individual.
"And in that document--the main-extension
agreement states that those lines would become
property of [BWS].
"....
"Q. You were asked earlier if you–-if the Lake
Cyrus Development had any–-I'm sorry, if [BWS] had
easements over those waterlines in the Lake Cyrus
Development Company [sic], and you said no. Why did
you say no?
21
1090948
"....
"A. I've requested ... for years to get mapping of
Lake Cyrus. And in order to get easements, you have
to have the mapping so that easements can be
recorded with the court system.
"Q. Are you aware that in the [1998 water
agreement]
there
was
a
provision
there
for
easements?
"A. Yes.
"Q. And is it your understanding that there was a
question of whether or not there was an easement
within the development after this Supreme Court
opinion came out?
"A. It's my understanding that the minute that we
accepted the lines as being pressure-tested and
disinfected and approved by our environmental group
that the lines were ours based on the contract."
(Emphasis added.)
To reiterate, Nivens testified regarding the procedure
BWS customarily used to inherit waterlines from a developer.
Specifically, Nivens testified that once waterlines are
pressure-tested and disinfected to BWS's satisfaction, BWS
inherits the lines based on a main-extension agreement.
Nivens also testified that, in this case, it was his
understanding "that the minute that we accepted the lines as
being pressure-tested and disinfected and approved by our
environmental group that the lines were ours based on the
22
1090948
contract." The contract to which Nivens refers is the 1998
water agreement, which this Court in Bessemer I held was void.
Nivens further acknowledged that he was unaware of any other
waterlines, other than those lines in sections 16A and 16B of
the Lake Cyrus development that had been tendered to BWS
pursuant to a main-extension agreement. Givianpour also
testified that in 2008 he signed a main-extension agreement
with the City of Bessemer for sections 16A and 16B and that
the agreement was presented to him by Aaron Killings, the
attorney for BWS.
Despite the undisputed evidence adduced at the hearing
concerning BWS's customary pattern and practice of receiving
tender of waterlines from a developer, the trial court held,
without citation to authority or any basis therefor:
"(2) [t]hat all waterlines in question wherein the
developer or a customer has requested water services
from [BWS] and the lines are interconnected with the
public water system and are devoted to public
services have been 'tendered' by [LCDC] to [BWS] and
are the property of [BWS]."
On appeal, LCDC argues, in part, that the trial court's
judgment is unsupported by the evidence. We agree. As
previously stated, in order to determine which waterlines had
been tendered, the trial court was tasked with determining how
23
1090948
a "tender" of those lines is accomplished. The trial court's
judgment regarding how a tender is accomplished is both
ambiguous and unsupported by the evidence. Specifically, the
judgment is silent regarding the procedure BWS customarily
uses to inherit waterlines from a developer; the judgment
neither
references
a
main-extension
agreement
nor
excludes
it.
Moreover, the judgment, among other things, refers to
waterlines being "devoted to public services." There was no
testimony presented during the hearing regarding the devotion
of waterlines to "public services," nor is there any record of
such argument being made to the trial court. The trial
court's judgment neither defines the phrase "devoted
to
public
services" nor cites any authority for the meaning of the
phrase. There is simply nothing in the record to support the
trial court's finding that a tender is accomplished "once the
developer or a customer has requested water services" and "the
lines are interconnected with the public water system" and
"are devoted to public services." Moreover, the trial
5
We note that it appears from the transcript that,
5
following the hearing, the trial judge instructed the parties
to "brief the matters." The post-hearing briefs are not
included in the record. It appears, however, that, based on
the terminology used by BWS in its brief on appeal, the trial
court took BWS's position in fashioning its judgment. Because
24
1090948
court's judgment is silent regarding which waterlines had
actually been tendered; the undisputed evidence was that only
those waterlines in sections 16A and 16B had been tendered.
We hold, under the undisputed facts of this case, that a
"tender" occurs between LCDC and BWS when LCDC signs a main-
extension agreement after BWS's testing protocol. The
undisputed evidence is that LCDC signed a main-extension
agreement for only those waterlines in sections 16A and 16B of
the Lake Cyrus development. This Court's holding in Bessemer
I that LCDC may elect to "tender" additional lines to BWS, but
that it is under no obligation to do so, remains the law of
the case. 959 So. 2d at 652. Additionally, in the absence of
a written agreement between BWS and LCDC, any "tender" of
waterlines to BWS post-Bessemer I, under the evidence
submitted to the trial court, should have been pursuant to a
signed main-extension agreement in accordance with BWS's
customary practice of inheriting waterlines from a developer.
Because the trial court's judgment regarding the manner for a
"tender" not only is ambiguous, but also is unsupported by the
the testimony regarding the procedure customarily used by BWS
for inheriting waterlines was undisputed, our review of the
evidence is de novo and the trial court's judgment is not
accorded any presumption of correctness. Bessemer I.
25
1090948
evidence, its judgment concerning ownership of the waterlines
is due to be reversed. See Scott v. McGriff, 222 Ala. 344,
346, 132 So. 177, 179 (1930) ("The rule that the finding and
conclusion of the trial court on testimony given ore tenus
will be accorded the weight of the verdict of a jury, and will
not be disturbed unless contrary to the great weight of the
evidence, is without application, where the evidence is
without dispute and but one conclusion can be drawn from
it.").
V. Conclusion
The trial court's finding that Givianpour, LCDC's
president, had knowledge before the 1998 water agreement was
executed that the agreement was in violation of the
competitive-bid law, § 39-2-2, Ala. Code 1975, was not
supported by clear and convincing evidence. Further, the
trial court's finding regarding how a "tender" of waterlines
occurred in the absence of a valid written agreement was not
supported by the evidence. Accordingly, the trial court's
denial of LCDC's postjudgment motion seeking relief from the
November 13, 2009, judgment is due to be reversed and the case
remanded
for
further
proceedings
consistent
with
this
opinion.
26
1090948
REVERSED AND REMANDED.
Stuart, Shaw, Main, Wise, and Bryan, JJ., concur.
Murdock, J., concurs specially.
Moore, C.J., and Parker, J., concur in the result.
27
1090948
MURDOCK, Justice (concurring specially).
I question the holding of the Court in Bessemer Water
Service v. Lake Cyrus Development Co., 959 So. 2d 643 (Ala.
2006) ("Bessemer I"), that waterlines installed by a private
developer on what, at the time of installation, was the
developer's privately owned land constituted a "public works"
on "public property" under §§ 39-5-1(4) and (5), Ala. Code
1975. That decision, however, is res judicata and is not, in
6
its own right, before this Court today. Nonetheless, based in
part on the foregoing, I certainly agree with the main opinion
that the evidence does not indicate that LCDC knew —- indeed,
For that matter, I do not understand how the contractual
6
arrangement at issue lent itself in any practical or logical
way to the letting of public bids. It was a contract between
a provider of a utility service and a single customer
describing the terms and conditions under which the provider
would provide a utility service to that single customer
through transmission lines to be installed by that customer on
its own property. It was, in its essence, simply an agreement
for the provider to reimburse that single customer for some of
the costs that customer would incur to install waterlines on
its own property, this being partial consideration for that
private party's choosing to receive water through those lines
from that provider rather than some other provider. There was
no other party to bid on the terms and conditions of this one-
on-one arrangement. It certainly was not for BWS to decide
whether to engage some third party to install such lines; this
was a decision belonging solely to LCDC, the sole owner of the
property and the transmission lines at the time of the
installation.
28
1090948
I submit that, before the Court's decision in Bessemer I, it
had no reason to know —- that its installation of waterlines
within the boundaries of its own property under the
circumstances presented would be in violation of some public-
bid law, e.g., § 39-2-2.
29 | January 10, 2014 |
93183de6-1feb-4c6b-936e-babe61431554 | The City of Alabaster v. Shelby Land Partners, LLC | N/A | 1120677 | Alabama | Alabama Supreme Court | Rel: 01/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1120677
_________________________
The City of Alabaster et al.
v.
Shelby Land Partners, LLC, and Alabaster Land Company, LLC
Appeal from Shelby Circuit Court
(CV-10-900144)
MAIN, Justice.
This is a zoning case. Shelby Land Partners, LLC
("Shelby Land"), and Alabaster Land Company, LLC ("Alabaster
Land"), each own a 50% undivided interest in a 19.4-acre
parcel of undeveloped real property located within the
1120677
2
municipal limits of the City of Alabaster ("the City"). In
2004, at the request of Shelby Land, the property was zoned as
a "community business district," permitting only commercial
uses. In 2009, Shelby Land petitioned the City to rezone the
land to permit multifamily residential use in order to pursue
the development of a low-income apartment complex for senior
citizens on the property. The Alabaster City Council ("the
City Council") denied Shelby Land's rezoning application.
Shelby Land and Alabaster Land then brought this action
seeking relief from the denial of the rezoning request. The
trial court entered a summary judgment in favor of Shelby Land
and Alabaster Land and ordered the City and the City Council
to rezone the land to permit multifamily residential
development. The City and the members of the City Council,
who were sued in their official capacities, appeal. We
reverse and remand.
I. Facts & Procedural History
In June 2003, the City adopted a community-renewal plan
("the plan"). The plan called for redevelopment of more than
300 acres of underdeveloped or undeveloped land near the
intersection of Highway 31 and Interstate 65 at Exit 238 in
1120677
3
Alabaster ("the project area"). The 19.4-acre parcel is
within the project area. The plan noted that the older homes,
mobile homes, and buildings existing in the project area
portrayed an image of decay and blight and expressed concern
that the blight might spread to adjoining residential areas.
In addition to alleviating the perceived blight, the plan
sought to encourage commercial development at the project area
"in order to increase employment opportunities, promote a
diversified economy and expand the City's tax base." The plan
further sought to improve the safe and efficient flow of
traffic through and near the project area. Although the plan
indicated the potential for mixed-use development, including
residential use, the plan stated that "it is projected that
the entire Project Area is best suited for General Business
District development and it is the plan to redevelop the
entire Project Area as a General Business District." An
attached "proposed land use map" indicated that the entire
project area would be zoned "B-3 General Business." The City
Council approved and adopted the plan on June 16, 2003.
In furtherance of the plan, the City entered into a
redevelopment agreement with Shelby Land. The City agreed
1120677
4
that it would acquire certain properties included within the
project area that were not already owned by Shelby Land and
convey those properties to Shelby Land. In return, Shelby
Land agreed to convey a parcel of land to the City to be used
as a site for the construction of City facilities. The City
also agreed to construct a road, Alabaster Boulevard, through
the project area. The agreement recited the City's aspiration
that the redevelopment project would stimulate residential
construction and aid in the development of more desirable
neighborhoods in the City. The agreement also required that
Shelby Land develop the property in conformity with the plan.
In order to implement the plan, it was necessary that the
land encompassed by the project area be rezoned from an
agricultural
designation
to
a
zoning
classification
permitting
the planned commercial use. In July 2004, Shelby Land applied
to
the
Alabaster
Planning
Commission
("the
planning
commission") to have the entirety of the project area zoned as
a B-3 "community business district." According to Shelby
Land, the uniform B-3 zoning classification throughout the
project area was selected because, at that time, it was
uncertain as to the amount of acreage needed for a planned
1120677
5
commercial development. With its application, Shelby Land
stated:
"The zoning of the balance of our property to B-3
will allow us to pursue commercial uses consistent
with the concept of highest and best use and
therefore enable us to maximize the economic
potential of the property for us, the City of
Alabaster, developers and future property owners.
While we have a Master Plan, it is not possible to
know what future uses we may have and accordingly we
understand it may be necessary to change zoning to
lower classifications at a later date."
The rezoning request went through the City's standard
zoning
process,
and,
after
receiving
a
favorable
recommendation from the planning commission, Shelby Land's
request that the entire project area be rezoned as a B-3
community business district was approved by the City Council.
Redevelopment of a portion of the project area moved forward,
and the developed site now contains a large commercial
development known as the Colonial Promenade, which includes a
Wal-Mart Super Center; a 14-auditorium movie theater; a Bed,
Bath & Beyond home-goods store; a Books-a-Million bookstore;
and a number of other retailers and restaurants. The area
represents
Alabaster's
largest
commercial
and
retail
development.
1120677
6
The current commercial development, however, does not
encompass the entirety of the project area, and several
parcels of property totaling approximately 195 acres remain
undeveloped. The undeveloped areas include the 19.4-acre site
made the basis of this appeal. That property fronts the
eastern side of Alabaster Boulevard. The contiguous parcels
also remain undeveloped. The only developed properties
fronting Alabaster Boulevard are a restaurant, a hotel, and a
church. With the exception of the church constructed at the
northern end of Alabaster Boulevard, all properties fronting
Alabaster Boulevard remain zoned B-3, and all development
within the project area has been commercial.
In November 2009, Shelby Land filed an application for
rezoning of the 19.4-acre site. The application sought to
rezone the property from a B-3 community business district to
a multifamily residential R-6 designation, which allows for
multifamily
residential
uses,
such
as
apartments,
condominiums, and assisted-living facilities. The request to
rezone the property was made in anticipation of developing a
potential apartment community for senior citizens proposed for
the 19.4-acre site. The proposed senior apartment complex was
1120677
7
to consist of 144 units, which would be limited to residents
aged 55 and older. Children were to be excluded from living
in the apartments. Along with its application, Shelby Land
included the conclusions of a traffic study conducted by a
retained consultant. The study indicated that senior
apartment communities generate five times less traffic than
conventional apartment complexes and thus concluded that the
apartment-complex development would have a negligible affect
on the public roadways surrounding the proposed development.
On November 24, 2009, the planning commission held a
hearing
on
Shelby
Land's
rezoning
application.
Representatives from Shelby Land and the developer of the
proposed apartment complex made a presentation. In the
presentation it was noted that, as a senior apartment
community, which prohibited children from residing in the
complex, the project would have no impact on the City's
schools; that similar senior citizens' apartments have
negligible crime rates; and that seniors drive 25% less than
their younger counterparts, thus limiting the effect of the
development on area traffic. It was further stated in the
presentation that the developers intended to seek financing
1120677
8
for the project from the State of Alabama, which required a
30-year land-use restriction limiting the use of the project
to senior housing and also required rent controls.
Alabaster's City planner, Harry Still, submitted a
memorandum to the planning commission recommending that the
rezoning request be denied. The memorandum stated:
"Shelby Land Partners LLC is requesting to rezone
19.40 acres from B-3 (Community Business District)
to R-6 (Multi-Family District).
"The proposed rezoning will take property that has
the potential to create jobs for the community and
put revenue back into the economy and create more
rooftops, something that our community has more than
enough of. More residential development in this
area will create traffic that will frustrate the
intent of Alabaster Boulevard which is to make the
Colonial Promenade and the surrounding commercial
property a convenient place to do business, not a
convenient place to live.
"Staff recommends against down-zoning any property
in this area."
During the hearing, the planning commission expressed
concern with regard to the requirement that the apartment
complex remain a low-income senior complex for 30 years. One
member generally expressed concern in permitting any type of
apartment complex at the proposed location. The planning
commission indicated that it did not "want to back off the
1120677
9
hope of this property being an all-commercial corridor one
day." Accordingly, the planning commission unanimously voted
to
recommend
that
the
City
Council
deny
the
zoning
application.
On January 21, 2010, the City Council heard Shelby Land's
rezoning request. The minutes of the council meeting indicate
that representatives of Shelby Land and the developer spoke in
favor of the rezoning request. Several members of the public
spoke against the rezoning. The City Council voted 4-3 to
deny the rezoning request.
On February 2, 2010, Shelby Land and Alabaster Land filed
this action against the City and the individual members of the
City Council in their official capacities. The complaint
sought relief from the City Council's denial of the rezoning
request and specifically sought a judgment declaring that the
City's failure to rezone the property constituted a violation
of Shelby Land and Alabaster Land's constitutional rights; an
injunction prohibiting the City from preventing Shelby Land
and Alabaster Land from developing the property under an R-6
zoning classification; and an order directing the City to
1120677
10
approve Shelby Land's application to rezone the property to an
R-6 classification.
On September 20, 2010, the parties filed cross-motions
for a summary judgment. Shelby Land and Alabaster Land argued
that they were due a summary judgment because the City Council
failed to demonstrate that the reason for the denial of the
rezoning request was a substantially related to the health,
safety, morals, or general welfare of the citizens of the
City. Shelby Land and Alabaster Land further argued that the
City's denial of the rezoning application was arbitrary and
capricious. The City, on the other hand, argued that it had
a "fairly debatable" reason for denying the rezoning
application and that, under the highly deferential standard
for judicial review of its zoning decisions, it was due a
summary judgment.
In support of their respective motions, the parties
submitted evidence and affidavits. Shelby Land and Alabaster
Land submitted the affidavit of James Jackson, the managing
member of Shelby Land, who testified that the City's
redevelopment agreement with the Shelby Land contemplated that
the project area would contain mixed uses, including
1120677
11
residential. Shelby Land and Alabaster Land also submitted
the affidavit of a former member of the City Council, who
testified that the City and the developer had always intended
the project area to include mixed uses, including multifamily
residential. Shelby Land and Alabaster Land also submitted a
proposed-use map that was attached to Shelby Land's 2003
redevelopment agreement with the City. That map indicated a
proposed residential use of the 19.4-acre property. Finally,
Shelby Land and Alabaster Land submitted an affidavit of an
expert real-estate appraiser, who testified that there
appeared to be no current demand for commercial use of the
19.4-acre parcel and that the proposed apartment complex would
be a good use of the property.
The City submitted affidavits of the four members of the
City Council who voted against the rezoning request.
Generally, each indicated that he or she was opposed to zoning
a relatively small parcel of the community-business-district
area as multifamily residential. They also noted the
speculative nature of the proposed senior housing complex and
questioned
the
enforceability
of
the
residential
age
restriction. They noted that without such restrictions they
1120677
12
could not be certain that the apartments would not have an
adverse impact on traffic and the City's schools. Each member
testified
that
he
or
she
listened
to
Shelby
Land's
presentation with an open mind and voted in accordance with
what he or she thought was in the best interest of the health,
safety, and welfare of the citizens of the City. The City
also submitted an affidavit of an expert real-estate
appraiser, who testified that the highest and best use of the
property in question would be the permissible uses allowed
under the current B-3 community-business-district zoning
classification.
A hearing on the motions for a summary judgment was held,
and on October 31, 2012, the trial court entered a summary
judgment in favor of Shelby Land and Alabaster Land and denied
the City and the City Council members' cross-motion for a
summary judgment. The trial court held:
"3.
Under the City of Alabaster's zoning ordinance,
Plaintiffs' requested change in the Property zoning
classification from B-3 to R-6 is a reasonable
request which does not contravene the public
interest.
"4.
The
City's
denial
of
Plaintiffs'
zoning
application, which requested a change in the
Property zoning from B-3 to R-6, was arbitrary,
capricious, unreasonable and had no relationship to
1120677
13
the health, safety, morals, or general welfare of
the City of Alabaster, and is contrary to law.
"5.
The City's denial of Plaintiffs' request to
change the zoning of the Property is an arbitrary
restriction of the use of the Property; improperly
deprives Plaintiffs of their reasonable use of the
Property without just compensation or due process of
law; and is, therefore, a violation of Plaintiffs'
constitutional rights.
"6.
Plaintiffs have the legal right to use the
Property pursuant to the R-6 zoning classification.
"7.
The City, its elected officials and their
successors in office are enjoined and restrained
from interfering with or preventing Plaintiffs from
using or developing the Property under the R-6
zoning classification.
"8.
The City, its elected officials and their
successors in office are enjoined and restrained
from enforcing or attempting to enforce the present
B-3 zoning classification against the Property, and
the use of the Property can be no more restrictive
than
that
allowed
under
the
R-6
zoning
classification.
"9.
Defendants
shall
approve
Plaintiffs'
application
to
rezone
the
Property
from
the
B-3
zoning
classification to the R-6 zoning classification so
that the Plaintiffs may reasonably use the Property,
subject to Plaintiffs' compliance with the other
orders, ordinances, rules, and regulations of the
City
of
Alabaster
regarding
the
development,
construction, maintenance and operation of the
Property."
1120677
14
Following the denial of the their postjudgment motions,
the City and the individual members of the City Council
appealed.
II. Standard of Review
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Ala. v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III. Analysis
"Judicial review of municipal decisions regarding zoning
ordinances is severely limited." H.H.B., L.L.C. v. D & F,
L.L.C., 843 So. 2d 116, 120 (Ala. 2002).
1120677
15
"'It is settled law that the Alabama Legislature
has delegated to municipal legislative bodies, such
as city councils, the power and authority to enact
zoning ordinances. Section 11-52-76, Ala. Code
[1975], provides that "[t]he legislative body of
such municipality shall provide for the manner in
which such [zoning] regulations and restrictions and
the
boundaries
of
such
districts
shall
be
determined, established and enforced." The power to
amend, supplement, or change zoning ordinances "as
may be necessary" from "time to time" is also
delegated to municipal legislative bodies. Id. See
BP Oil Co. v. Jefferson County, 571 So. 2d 1026,
1028 (Ala. 1990), citing Village of Euclid, Ohio v.
Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71
L.Ed. 303 (1926).
"'In Homewood Citizens Association v. City of
Homewood, 548 So. 2d 142 (Ala. 1989), this Court
discussed the law applicable to a court's review of
a city's action in zoning cases, stating that
"[w]hen a municipal body acts either to adopt or to
amend a zoning ordinance, it acts in a legislative
capacity and the scope of judicial review of such
action is quite restricted." 548 So. 2d at 143.
The restrictions on this Court's review of the
validity of a zoning ordinance have been explained
as follows:
"'"'Zoning is a legislative matter,
and, as a general proposition, the exercise
of the zoning power should not be subjected
to judicial interference unless clearly
necessary. In enacting or amending zoning
legislation, the local authorities are
vested with broad discretion, and, in cases
where the validity of a zoning ordinance is
fairly
debatable,
the
court
cannot
substitute its judgment for that of the
legislative authority. If there is a
rational and justifiable basis for the
enactment and it does not violate any state
1120677
16
statute
or
positive
constitutional
guaranty,
the
wisdom
of
the
zoning
regulation is a matter exclusively for
legislative determination.
"'"'In
accordance
with
these
principles, it has been stated that the
courts should not interfere with the
exercise of the zoning power and hold a
zoning
enactment
invalid,
unless
the
enactment, in whole or in relation to any
particular property, is shown to be clearly
arbitrary, capricious, or unreasonable,
having no substantial relation to the
public health, safety, or welfare, or ...
plainly contrary to the zoning laws.'"
"'Homewood Citizens Association, 548 So. 2d at 143
(quoting 82 Am. Jur. 2d Zoning and Planning, 338
(1976)). The Court further stated in Homewood
Citizens Association that "[t]he burden is upon the
party seeking relief from an ordinance to show that
the ordinance was not a fairly debatable issue
before the municipal governing body." 548 So. 2d
144.'"
H.H.B., L.L.C., 843 So. 2d at 120-21 (quoting American
Petroleum Equip. & Constr., Inc. v. Fancher, 708 So. 2d 129,
131 (Ala. 1997)).
In zoning cases, we have noted that there are two
applicable rules: the "substantial relationship rule" and the
"fairly debatable rule." We explained the applicability of
these two rules in BP Oil Co. v. Jefferson County, 571 So. 2d
1026 (Ala. 1990):
1120677
17
"'The substantial relationship rule is a substantive
law, and may be simply stated as follows: In order
for a zoning ordinance or regulation to be valid, it
must have some substantial relationship to the
promotion of the public health, safety, morals, or
general welfare. When correctly applied, this rule
is not in any manner modified by the fairly
debatable rule. The latter rule, being a rule of
procedure or application, may be simply stated as
follows:
If
the
application
of
a
zoning
classification to a specific parcel of property is
reasonably subject to disagreement, that is, if the
application
is
fairly
debatable,
then
the
application of the ordinance by the zoning authority
should not be disturbed by the courts. Of course,
it is always a matter for the court to determine
whether a zoning authority acted reasonably or
fairly, or whether capriciously or arbitrarily. The
fairly debatable rule applies to the application of
the ordinance and does not modify the requirement
that the ordinance itself and the application
therefore must have a reasonable relationship to the
health, safety, morals, or general welfare.'"
571 So. 2d at 1028-29 (quoting Byrd Cos. v. Jefferson Cnty.,
445 So. 2d 239, 247 (Ala. 1983)). We have further described
the "fairly debatable" rule as follows:
"'The "fairly debatable" rule concerns the
application of a zoning classification to a specific
parcel of property. Byrd Companies v. Jefferson
County, 445 So. 2d 239, 247 (Ala. 1983). "'[I]f the
application of a zoning classification to a specific
parcel
of
property
is
reasonably
subject
to
disagreement, that is, if its application is fairly
debatable, then the application of the ordinance by
the zoning authority should not be disturbed by the
courts.'" Id., quoting Davis v. Sails, 318 So. 2d
214 (Fla. Dist. Ct. App. 1975). Thus, if the zoning
ordinance is "subject to controversy or contention"
1120677
18
or "open to question or dispute," it is "fairly
debatable" and should not be disturbed by the
courts. Aldridge v. Grund, 293 Ala. 333, 343, 302
So. 2d 847, 854 (1974); Cudd v. City of Homewood,
284 Ala. 268, 271, 224 So. 2d 625, 628 (1969).'"
H.H.B., L.L.C., 843 So. 2d at 121 (quoting American Petroleum,
708 So. 2d at 131).
Shelby Land and Alabaster Land argue that the judgment of
the trial court is due to be affirmed because, they say, the
City and the City Council members failed to prove that the
denial
of
Shelby
Land's
rezoning
application
bore
a
substantial relationship to the health, safety, morals, and
general welfare of the City. Thus, they argue that the
inquiry ends in their favor, and there is no need to analyze
whether the City's denial of their rezoning request was
"fairly debatable." This misstates the inquiry. Rather, when
reviewing a city's denial of rezoning petition, the court must
determine whether the existing zoning classification, in this
case a B-3 community business district, is substantively valid
and bears a reasonable relationship to the promotion of the
health, safety, morals, or general welfare of the community
before turning to the "fairly debatable" analysis. See
Pollard v. Unus Props., LLC, 902 So. 2d 18, 31-32 (Ala. 2004)
1120677
19
(See, J., concurring specially). In other words, if the
existing
zoning
classification
bears
a
substantial
relationship to the health, safety, morals, and general
welfare, the "substantial relationship" test is satisfied.
Moreover, the burden of proving a zoning ordinance
invalid rests squarely on the party challenging the ordinance.
This is because the passage of a zoning ordinance is a
legislative act, which is presumed to be valid and reasonable.
Pollard, 902 So. 2d at 24. Therefore, a property owner
challenging the denial of its rezoning petition on the ground
that the existing zoning classification is no longer
reasonable bears the burden of clearly demonstrating that the
existing classification is no longer valid or reasonable.
See, e.g., St. Clair Cnty. Home Builders Ass'n v. City of Pell
City, 61 So. 3d 992, 1008 (Ala. 2010) ("It is ... axiomatic
that 'an ordinance enacted by a local governing body "is
presumed reasonable and valid, and that the burden is on the
one
challenging
the
ordinance
to
clearly
show
its
invalidity."'" (quoting Brown v. Board of Educ. of Montgomery,
863 So. 2d 73, 75 (Ala. 2003))).
1120677
20
In the present case, the evidence was overwhelming, and
apparently undisputed, that the 2004 zoning ordinance, which
placed the entirety of the project area within a B-3 zoning
classification, was reasonable and substantially related to
the general welfare of the community. That zoning ordinance,
made at the request of Shelby Land, was adopted in accord with
the plan previously approved by the City Council in 2003. The
plan provided that a purpose of the redevelopment project was
"to increase employment opportunities, promote a diversified
economy and expand the City's tax base." As such, it was
determined that "the entire Project Area is best suited for
General Business District development and it is the plan to
redevelop the entire Project Area as a General Business
District," and the plan reflected that determination. The
record before us does not disclose any new factors suggesting
that the B-3 classification is no longer substantively valid,
other than the fact that a landowner has presented a
reasonable
alternative
multifamily
residential
use
for
certain
property now within that B-3 classification. The mere fact
that a proposed new zoning classification is reasonable,
however, does not itself invalidate a likewise reasonable
1120677
21
existing zoning classification. The purposes for which the B-
3 zoning classification was adopted in 2004 were, and remain,
substantially related to the health, safety, morals, and
general welfare of the community. Thus, we conclude that the
trial court erred in holding the current B-3 zoning of the
property had no relationship to the health, safety, morals, or
general welfare of the City.
Nor does the evidence support a conclusion that the
City's denial of the rezoning application was arbitrary or
capricious. Shelby Land and Alabaster Land's chief argument
in this regard is that there was no evidence before the trial
court indicating that the City Council gave the rezoning
application a fair debate. Shelby Land and Alabaster Land
contend that the trial court was limited to consideration of
the minutes of a meeting of the City Council -- a one-
paragraph entry describing the request to rezone the property,
those speaking in favor and against the rezoning request, a
notation of a "lengthy discussion," and a record of the
members of the City Council voting for and against the
rezoning request. Shelby Land and Alabaster Land argue that
a city council "can only speak through its record minutes,"
1120677
22
and, therefore, they assert the court cannot consider ex post
facto affidavits of the City Council members or the City and
the City Council members' expert to justify the denial of the
rezoning application. Thus, Shelby Land and Alabaster Land
argue that, because there is no evidence contained in the
minutes of the City Council's meeting of a debate or the
grounds for denying Shelby Land's application to rezone the
property, we are left with no choice but to conclude that the
denial of the rezoning application was arbitrary. We
disagree.
Zoning ordinances are not validated or invalidated based
on the quality of the minutes of a council meeting. Rather,
they are invalidated because they lack a "fairly debatable"
purpose or application. Moreover, courts are free to consider
evidence that was not before the governmental body at the time
of the decision, so long as it is relevant to the issues
considered by the governmental body when making its decisions.
In the present case, Shelby Land's rezoning request went
before the planning commission, which, after hearing a
presentation from Shelby Land, unanimously recommended that
the petition be denied on the ground that the planning
1120677
23
commission did not "want to back off the hope of this property
being an all-commercial corridor one day." Shelby Land's
petition to rezone the property was then heard by the City
Council, which considered Shelby Land's application and
presentation, public comments, and the recommendation of the
planning commission. The City Council then denied the
rezoning application by a 4-3 vote. The testimony submitted
to the trial court indicated that the members of the City
Council who voted against the rezoning request were concerned
with zoning a relatively small parcel of property located in
a business district as multifamily residential and questioned
the enforceability of the age-limit restrictions of the
proposed senior apartment complex. Given the highly
deferential standard we must apply, we cannot say that the
City's decision to deny the application to rezone a portion of
the City's largest commercial area for multifamily residential
use was not "fairly debatable," particularly given the
expressed desire to maintain the commercial character of the
community business district.
"Although the trial court obviously found reasons to
disagree with the city council's decision, it is not the
1120677
24
province of the court to substitute its judgment for that of
a legislative body vested with the power to make such
decisions." Pollard, 902 So. 2d at 29. As we did in Pollard,
we find the following language from Episcopal Foundation of
Jefferson County v. Williams, 281 Ala. 363, 202 So. 2d 726
(1967), applicable:
"While the court is given the power to review
the validity vel non of an ordinance or other
legislative act, it is not given the power to review
the wisdom or unwisdom, or the rightness or
wrongness of laws passed by the legislative power
delegated to the City Council or the City of
Birmingham, or like bodies. ...
"'Every intendment is to be made in favor of the
zoning ordinance and the matter was largely in the
legislative discretion of the municipal authorities.
... Here, the city Commission is acting in the
exercise of a legislative function and with a wide
degree of discretion.' ...
"In the instant case, the City Council of the
City of Birmingham, although without recommendation
of the Zoning Advisory Committee, in our judgment,
acted within constitutional bounds and did not take
arbitrary, unreasonable or unlawful action. The
Council had a superior opportunity to know and
consider varied conflicting interests involved, to
balance the burdens and the benefits, and to
consider the general welfare of the area involved.
There was procedural compliance with the requirement
for a public hearing.
"The courts should be slow to set up their own
opinions as against those charged with and in
position rightfully to perform such duty. The fact
1120677
25
that the complainants (appellees) may suffer some
financial loss and depreciation in the value of
their
property
is
not
a
test
of
the
constitutionality of the zoning ordinance; nor is it
a test to determine if the zoning ordinance is
arbitrary,
capricious,
inequitable
and
discriminatory. ...
"The question is
whether
the
reclassification
of
[the property at issue] is sound and fair. If the
question is fairly debatable, the court will not
substitute its judgment for that of the City Council
... in exercise of its legislative power. ...
"The duties of the local authorities ...,
charged with zoning property, are evidently arduous
and of a delicate character, requiring sensitive
insight and perspicuity as to the public health,
safety, morals and general welfare incident to
zoning. We cannot say that their judgment is always
free from error, but before the courts will
interfere, it must be made to appear that such an
ordinance passes the bounds of reason and assumes
the character of a merely arbitrary fiat.
"We think that men may reasonably differ as to
the advisability of a zoning change or in a change
affecting zoning districts. We are unwilling in the
instant case to substitute our opinion for that of
the City Council upon whom the responsibility of
weighing all factors devolved, and who had access to
full information and acted accordingly. We have no
reason to say that the City Coun[cil] did not act
with enlightened judgment in consideration of the
ordinance here under attack."
281 Ala. at 367, 202 So. 2d at 729-30.
Based on the evidence before us and the "severely
limited" judicial review of legislative zoning ordinances, we
1120677
26
conclude that the trial court erred in entering a summary
judgment in favor of Shelby Land and Alabaster Land.
IV. Conclusion
We reverse the judgment of the trial court, and we remand
this cause to the trial court for that court to grant the
cross-motion for a summary judgment filed by the City and the
members of the City Council.
REVERSED AND REMANDED WITH DIRECTIONS.
Stuart, Bolin, and Wise, JJ., concur.
Murdock and Shaw, JJ., concur specially.
Moore, C.J., and Parker and Bryan, JJ., concur in the
result.
1120677
27
MURDOCK, Justice (concurring specially).
In discussing the interplay between the so-called
"substantial relationship rule" and the "fairly debatable
rule," the main opinion at one juncture states that "the court
must determine whether the existing zoning classification ...
bears a reasonable relationship to the promotion of the
health, safety, morals, or general welfare of the community
before turning to the 'fairly debatable' analysis." ___
So. 3d at ___. Although I concur in the main opinion, I write
separately to state my understanding that the "substantial
relationship rule" is the rule that governs the decision of
the legislative body and that the Court's evaluation of that
decision as it relates to either an existing classification of
property or the legislative body's decision in response to a
request to change that classification is governed by the
"fairly debatable rule." I would state the matter as follows:
It is for the Court to assess whether the legislative body has
correctly determined whether a "substantial relationship"
exists between a given zoning designation and the promotion of
the public health, safety, morals, or general welfare, and the
Court may not disturb the legislative body's decision in this
regard if that decision is "fairly debatable."
Shaw, J., concurs. | January 24, 2014 |
333dfa4c-44da-4fa3-b471-dcdd70195946 | Woodall v. City of Gadsden | 179 So. 2d 759 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 759 (1965)
Marvin WOODALL
v.
CITY OF GADSDEN et al.
7 Div. 688.
Supreme Court of Alabama.
August 12, 1965.
Rehearing Denied November 18, 1965.
*760 Nabors & Torbert, Gadsden, for appellant.
Martin & Floyd, Gadsden, for appellees.
SIMPSON, Justice.
An election was held on August 31, 1964, for the purpose of determining whether or not a certain area contiguous to the City of Gadsden should be annexed to that city.
The results of the election were declared to be against annexation by a vote of 77 to 75. The appellant filed a contest. The individual appellees, all residents of the area to be annexed, intervened. A trial was held in the Probate Court at the conclusion of which the court found that two persons who voted against annexation were not qualified to vote, that their votes should not be counted, resulting in a 75-75 tie. The court further held that since a majority of the voters within the area involved did not vote for annexation that the area was not annexed to the City of Gadsden.
The appellant contends that several persons whose votes were counted against annexation were not qualified voters and hence the trial court erred in failing to discount their votes as well as the others which he found to be disqualified. Only four such votes are here involved:
It is contended that Mrs. Eula B. Gray and Mrs. Allene Gray Parnell were improperly registered in that a qualified elector did not vouch for their qualifications; that Columbus Franklin Goggans had not paid his poll tax and was therefore ineligible to vote; and that Maybrene Wagnon lived outside the territory proposed to be annexed.
In order, the arguments are as follows:
C. G. Voss vouched for voters Gray and Parnell. His vote was also challenged and the court found that he was ineligible to vote in that he had not been a resident of the state for more than one year before the election was held. Without going into whether or not this was a proper conclusion, the question here is assuming that it was, does his disqualification in turn disqualify Mrs. Gray and Mrs. Parnell for whom he vouched at the time they were registered to vote. We think not. Whether or not each prospective voter who presents himself for registration must be "vouched" for by a qualified elector is a rule of the local Board of Registrars. The evidence in this regard is to the effect that the Board of Registrars of Etowah County required an affidavit by a supporting witness on the back of the application of each applicant for registration; that this supporting witness must be a resident of the state and county. The chairman of the Board of Registrars testified that the Board had a rule which was not "a written rule" which required the supporting witness to be a qualified elector of Etowah County. Without deciding whether these rules are deserving of judicial sanction, suffice it to say that the subsequent finding that the witness is not a qualified elector will not render the vote of the persons for whom he vouched ineligible, assuming that they are otherwise qualified under the laws of this state.
It is not contended that these ladies were disqualified for any reason other than they were not properly vouched for. However, they were not informed at the time they sought to register that their witness was unacceptable. On the contrary, his name appeared on the list of registered voters maintained in the Probate Office of the county. He was subsequently ruled ineligible in this contest on a question of fact as to the length of time he had lived in the county, having returned there from Tennessee at a time which the court below found to be insufficient to render him eligible to vote in this election. The question *761 being one of fact we do not disturb the court's conclusion on all of the evidence presented on this issue.
The registration officials accepted the application of these voters and placed their names on the rolls of qualified electors. It is the established law in this state that:
We might add that this principle applies with equal force when he has made a substantial effort to comply with the rules of the local Board of Registrars.
For the same reasons, we think the court below properly ruled that the vote of Columbus Franklin Goggans should be counted. The custodian of the voting records of Etowah County testified that he was registered to vote in Etowah County of July 10, 1964, but his "card" was placed in an "inactive" file until poll tax was marked paid or an exemption was claimed. The voter testified and exhibited a poll tax exemption certificate issued to him by the Probate Court of Etowah County in 1946 indicating that he was exempt from the payment of poll tax under the provisions of § 194½ of the Constitution of Alabama (the veteran's exemption). It seems that Goggans originally registered to vote in Etowah County in 1946 and claimed his exemption at that time. He later moved to St. Clair County where he also registered to vote and claimed his exemption. When he re-registered in Etowah in 1964 he did not again go to the Probate office to claim his exemption but exhibited his exemption certificate to the registration officials. We can see no reason other than purely artificial and technical ones why one should be required to claim the exemption more than one time in each county in which he registers to vote. This is a permanent exemption granted by the Constitution. If a voter is a veteran and entitled to the exemption in 1946, he remains a veteran entitled to it from then on. It is not an exemption based upon an event which might change from year to year. It seems to us that it would be a simple matter for the registration officials to know what exemptions are on file in the Probate office.
The only other vote assailed is that of Mrs. Maybrene Wagnon. It appears that a part of her home is within the area to be annexed and a part is without the area. The trial court found that under the provisions of Title 17, § 18, Code of 1940, recompiled 1958, that Mrs. Wagnon was allowed to elect which area she preferred to be in. We agree. This statute was enacted to abrogate the artificial and technical rules existing under case law under these circumstances. We think it is clear that she made her election by voting in this election. We are not persuaded that this legislature intended to provide a remedy only when the home of the person was situated on a county or precinct line, but rather we think it was intended to apply in any case where a political line is so drawn that the residence is situated partly on one side and partly on another.
No error is made to appear in the rulings below.
Affirmed.
LAWSON, GOODWYN, and COLEMAN, JJ., concur. | August 12, 1965 |
9b5c95d4-994f-45fb-a85f-a44ff33a59dc | Mastin v. FIRST NATIONAL BANK OF MOBILE, ETC. | 177 So. 2d 808 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 808 (1965)
Eleanor Chase MASTIN et al.
v.
FIRST NATIONAL BANK OF MOBILE, etc., et al.
1 Div. 253, 253-A.
Supreme Court of Alabama.
August 5, 1965.
*811 Thornton & McGowin, Mobile, for appellants.
Lyman F. Holland, Jr., Chas. B. Arendall, Jr., Geo. E. Stone, Jr., Inge, Twitty, Duffy & Prince, Ralph Kennamer and Vincent F. Kilborn, Mobile, for appellees.
MERRILL, Justice.
These appeals are from decrees construing the wills of Dr. William McDowell Mastin, deceased, and of his unmarried daughter, Zemma Crawford Mastin, deceased. The reporter will include certain designated items from these wills in the report of the cases.
The appellants here are the widow and children of Dr. Mastin's nephew, Edward Vernon Metcalfe Mastin, the devisee mentioned in Item Twenty-Second of his will. The appellees are the executor Bank, certain devisees, legatees and next of kin.
The First National Bank of Mobile, as executor of the wills of Dr. Mastin and his daughter Zemma, filed a bill of complaint praying that the court interpret and determine the validity and meaning of Items Ninth and Twenty-Fourth of Dr. Mastin's will, and Articles Second and Twelfth of Zemma's will, in order that the executor "may administer the wills of Dr. Mastin and Zemma Mastin in such a manner as to effectuate the true intentions of both testators." This bill was filed on December 14, 1962, and after appropriate pleadings, a hearing was had in April and May, 1964, and the final decrees in 1 Div. 253 and 1 Div. 253-A were rendered on June 30, 1964.
We consider first the decree in 1 Div. 253-A because a determination of the validity of the City of Mobile trust, a part of that decree, will also be determinative of appellants' status and claims because that trust consists of the residue of both the estates after the payment of all other devises. The decree also holds valid a $100,000 Rotary Club trust, but we defer discussion of it until later.
The pertinent parts of the decree in 1 Div. 253-A are that Dr. Mastin died on February 3, 1933, leaving his widow and one adult, unmarried daughter Zemma; that his will was duly probated; that Zemma and First National Bank of Mobile *812 were appointed executors under the will; that the widow died intestate in December, 1938, and Zemma died testate on July 6, 1962, leaving no lineal descendants surviving her; that all of Dr. Mastin's property was not disposed of by his will, but under the laws of intestacy, became vested in his daughter Zemma and, upon her death, became a part of her estate; and that "Item Twelfth of the last Will and Testament of the said Zemma C. Mastin establishes and creates a valid trust for the use and benefit of the respondent City of Mobile to consist of the net remainder and residue of the estate of Miss Mastin, real, personal and mixed, after providing for the charitable bequest referred to in Paragraph 2 above (The Rotary Trust) and the specific bequests provided for in her said Will and the Codicils thereto, and the payment of the costs of administration of this proceeding, including the attorney's fees hereinafter set forth, and it is hereby directed that said trust fund shall be used for the purpose of carrying out the terms and conditions of said trust for the use and benefit of the Respondent City of Mobile as expressed in Item Ninth of the Will of Dr. Mastin and Item Twelfth of the Will of Zemma Crawford Mastin, deceased, which fund shall be administered in accordance with the terms and provisions of said Items Ninth and Twelfth for the purpose of constructing and completing one and the same building under the terms provided for in the respective Items of the Wills of the two decedents, and in view of the fact that the City of Mobile, Alabama, has already constructed a public auditorium in said City of Mobile, the said remainder shall be applied to the erection of an important building in the City of Mobile, Alabama, and that, in compliance with the above referred to respective Twelfth Item of her said Will, this Court does hereby name and appoint a committee of three prominent businessmen of the City of Mobile, namely, W. L. Hammond, J. Finley McRae and Cabell Outlaw, Jr., to act with the said The First National Bank of Mobile jointly in carrying out the said provisions of the said Wills with respect to determining the character or form of the said important building in the City of Mobile, Alabama; PROVIDED, HOWEVER, THAT THE NAMED COMMITTEE, together with the First National Bank of Mobile, Alabama, shall report to the Circuit Court of Mobile County, Alabama, of its determination or selection of the important building to be erected, but such consultation or other activity shall be exclusive of this Final Decree, and shall in no way affect the status of this Decree as being final."
Appellants assigned as error the holding that the trial court erred in failing to hold that the residue of Zemma's estate was undisposed of by her will; and that Item Twelfth of Zemma's will created a valid trust for the use and benefit of the City of Mobile.
Dr. Mastin was a successful physician practicing in Mobile. He and his wife had three children. A son died at the age of nine in 1892, and a daughter aged five died in 1893. Zemma, the other daughter, never married and survived both her parents.
At Dr. Mastin's death in 1933, his estate was worth about $285,000. Zemma had an estate in her own name worth over $174,000 prior to the time Dr. Mastin made his will. The bequests in Item Seventeenth and other small bequests were paid in 1933, and the bequests to Spring Hill College, $15,000, (Item 16), and the University of Pennsylvania, $10,000, (Item 25), were paid in 1936, but after these payments his estate was worth over $350,000. In April, 1964, both estates aggregated over $750,000.
During the life of Dr. Mastin's widow, she and Zemma never did anything about effectuating Item Twenty-Fourth of his will, and after the widow's death, his executors, Zemma and the First National Bank of Mobile, did not get past the discussion stage. Subsequent to Zemma's death, the bill in this cause was filed by the Bank seeking a construction of both wills. The contested sections are ambiguous *813 and the surviving executor was well advised in seeking a construction of the will.
At the conclusion of the hearing, the beneficiaries under the contested items, City of Mobile, Providence Hospital and the Rotary Group, through their attorneys, entered into a stipulation to the effect that, so far as they were concerned, the trial court could enter a decree that the Rotary Trust under Item Second of Zemma's will would be recognized in the amount of $100,000; that a trust under Item Twenty-Fourth of Dr. Mastin's will be recognized to Providence Hospital in the amount of $50,000, and that the trust in the amount of the residuary estate of both Dr. Mastin and Zemma Mastin be recognized in favor of the City of Mobile for that balance.
We approach the questions to be decided with certain principles that are settled in this state:
(1) The intention of the testator is always the polestar in the construction of wills, and the cardinal rule is to ascertain the intention of the testator and give it effect if not prohibited by law. Betts v. Renfro, 226 Ala. 635, 148 So. 406; O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81.
(2) The intention of the testator may be ascertained not only by the writing itself, but from the light of attending facts and circumstances. Wiggins v. Wiggins, 241 Ala. 333, 2 So. 2d 402; Patterson v. First National Bank of Mobile, 261 Ala. 601, 75 So. 2d 471, and cases there cited.
(3) And in arriving at that intention, the court should consider the instrument as a whole. Wilson v. Skelton, 262 Ala. 504, 80 So. 2d 633; Smith v. Nelson, 249 Ala. 51, 29 So. 2d 335.
(4) In construing a trust created by a will, where the trust is susceptible to more than one construction, the court will favor that interpretation of the will which will make the trust valid and effective. Ramage v. First Farmers & Merchants Nat. Bank of Troy, 249 Ala. 240, 30 So. 2d 706; Thurlow v. Berry, 247 Ala. 631, 25 So. 2d 726.
(5) Charitable trusts are especially favored in equity, and all reasonable intendments, consistent with the terms and purpose of the gift, will be made in support of their validity. Sparks v. Woolverton, 210 Ala. 669, 99 So. 102; and courts of equity "will sustain them by the application of the doctrine of equitable approximation, if need be." Noble v. First National Bank, 236 Ala. 499, 183 So. 393; Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835.
We think there can be little question but that Dr. Mastin intended to provide for the care and maintenance of his wife and daughter, and that he thought there would be more than enough property to do this, and that there would be enough over and above that care and maintenance, and the special bequests he had made, to provide a wing, bay or "pavilion" for Providence Hospital, where he preferred to practice, to provide a fund for helping the Rotary Club in its work for crippled children, and to leave what was left for a building for the use of the City of Mobile.
Zemma Mastin's will likewise reflects an intention to carry out the provisions of her father's will which she and the other executor, First National Bank of Mobile, had never effectuated.
We do not understand that appellants contest these evidenced intentions, but that the words Dr. Mastin and his daughter used in their wills failed to effect their intentions.
We revert to appellants' assignment of error that the court erred in failing to hold that the residue of Zemma's estate was undisposed of by her will.
It should be borne in mind that Zemma had made other bequests of both small and substantial sums before she reached Item Twelfth of her will, which either did or did not dispose of the residue of her estate.
*814 There is no equivocation in the words of finality used. She directs that "the remainder and residue of my estate, real, personal and mixed shall be held by the First National Bank of Mobile" on certain terms; and later in the item she says, "it being my intention that said remainder and residue of my estate, together with that of my Father's estate, shall be used in the construction and completion of one and the same building" as provided in Item Ninth of Dr. Mastin's will.
In order to create a trust, it is not necessary that the word "trust" be used; nor is it necessary that the testator should have in his mind the idea of a trust by that appellation. It is sufficient if he intended that his will should follow the property after his death, and imperatively control or limit its use. Fitzgerald v. Rogers, 223 Ala. 576, 137 So. 661, 5 Page on Wills, § 40.4.
We have approved language that three things are necessary to create a power in the nature of a trust: (1) there must be certainty in the subject; (2) there must be certainty in the object; and (3) the power must be imperative. Baker v. Wright, 257 Ala. 697, 60 So.2d 825[14]. In the instant case, (1) the subject is certain, being the residue of Zemma's estate; (2) the objects are certain as a class, the people in the City of Mobile; (3) the very language used shows that it is imperative, as the word "imperative" is used and understood in our quotation from 80 A.L.R. 504-505, in Baker v. Wright, 257 Ala. 697, 60 So. 2d 825.
We conclude that the trial court correctly held that Zemma Mastin did not die intestate as to any part of the remainder and residue of her estate.
That brings us to the assignment of error that the court erred in holding that Item Twelfth of Zemma's will created a valid trust for the use and benefit of the City of Mobile.
Involved here are Item Ninth of Dr. Mastin's will and Item Twelfth of Zemma's will. Item Ninth never became effective because the condition, that his widow outlive his daughter, never occurred. But Item Ninth does show Dr. Mastin's intention as to the disposition of the remainder of his estate if Zemma died before his widow and he had no lineal descendants. He was concerned with the remainder and residue of his estate.
We do not understand that appellants contest the finding of the trial court that the remainder and residue of Dr. Mastin's estate was not disposed of by will, but passed to Zemma, his only child, and at her death, became a part of her estate.
Then Zemma, in Item Twelfth of her will, realizing that there would be a substantial remainder and residue in her estate at her death after the payment of various bequests she made, looked back to her father's recorded will and adopted the plan of her father as stated in Item Ninth of his will to dispose of the balance and residue of her estate.
We concede that her will shows that she considered that the residue of her father's estate was separate from hers and this is demonstrated in the four references to the remainder "of my Father's estate" in Item Twelfth of her will. But she had already inherited the remainder of her father's estate and the remainders of both estates were hers to do with as she saw fit. And she saw fit to adopt the same plan her father had outlined in Item Ninth of his will.
This reference to her father's will is permissible because we have held that any paper incorporated by reference in a properly executed will and identified by clear and satisfactory proof as the paper referred to, takes effect as part of the will. Arrington v. Brown, 235 Ala. 196, 178 So. 218, and cases there cited.
Appellants argue that "a building equally important as a public auditorium *815 is not a charitable use." This is in connection with the use of the money in Item Ninth of Dr. Mastin's will "for the purpose of constructing a public auditorium or other equally important building in the City of Mobile."
A public auditorium had already been built in Mobile and appellants argue that any "other equally important building" made it a private and not a public trust. We cannot agree.
We think the word "public" is descriptive of the word "auditorium" and the word "building" and shows a clear intention that if an auditorium is not built then some other public building shall be built in accordance with the agreement of the executor Bank and the "three prominent businessmen" appointed by the court.
The rule for charities was set out in Johnson v. Holifield, 79 Ala. 423:
Restated in Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835. And Restatement, Second, Trusts, § 368, says: "Charitable purposes include * * * (e) governmental or municipal purposes; (f) other purposes the accomplishment of which is beneficial to the community."
We hold that the erection of a public building in the City of Mobile for the benefit of the city is within our definition of charities and is an apt purpose for a charitable trust.
Appellants also argue that even if we hold this to be a charitable trust, it is void for want of a clearly defined class of beneficiaries.
Item Ninth provides that the property shall be held by the trustee Bank "for the benefit of the City of Mobile, Alabama for the purpose of constructing a public * * * building in the City of Mobile, * * *." We hold, under the authority of Mayor and Aldermen of Huntsville v. Smith, 137 Ala. 382, 35 So. 120, that the bequest is not void for uncertainty.
Appellants argue that even if we hold the trust to be charitable, it is still void because it violates the rule against perpetuities and because the second paragraph of Item Twelfth is in violation of the statute against accumulations, Tit. 47, § 146, Code 1940, which provides in pertinent part:
The rule against perpetuities is not concerned with the time the estate begins, but only with its vesting. Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835; Thurlow v. Berry, 247 Ala. 631, 25 So. 2d 726. The first sentence of Item Twelfth of Zemma's will vested the residuary estate in the First National Bank of Mobile immediately for the construction of a public building for the benefit of the City of Mobile. The three individuals to advise the trustee have been appointed by the court and it is clear that there are to be no accumulated earnings unless the trust estate "be not sufficient to complete worthily such building." That condition presents no problem in the instant case. Moreover, the rule against perpetuities, Tit. 47, § 16, Code 1940, does not affect "a trust for charities so long as the property vests in the trustee immediately, even though its charitable use may be postponed." Thurlow v. Berry, 247 Ala. 631, 25 So. 2d 726.
*816 The holdings in Thurlow v. Berry, supra; Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835, and Tumlin v. Troy Bank & Trust Co., 258 Ala. 238, 61 So. 2d 817, discuss fully the question of accumulations and the rule against perpetuities as related to charitable trusts and it suffices to say that those authorities show that the charitable trust in this case is not void for either of the reasons urged.
Able counsel for appellants opened and closed his oral argument with the proverb that "The end does not justify the means." We have not sought to reach an end by any means and we do not think the trial court sought so to do. Since 1862 (Williams v. Person, 38 Ala. 299), this has been the rule:
Other assignments of error in this case are concerned with the $50,000 bequest in Item Second of Zemma's will and the $50,000 bequest in Item Twenty-Fourth of Dr. Mastin's will for a memorial to his two deceased children, the income from which Zemma bequeathed to the Rotary Club of Mobile for its work with crippled children.
Appellants agree that a valid trust of $50,000 was set up in Zemma's will, but argued that the $50,000 provided for in Dr. Mastin's will was void, and that Zemma's will only provided for a valid bequest of $50,000 instead of $100,000.
There is no need to discuss the various legal points raised as to the Rotary Trust. Having already decided that the remainder and residue of Dr. Mastin's estate passed to Zemma, and the remainder and residue of her estate passed to the City of Mobile, appellants have no valid claim to it and any dispute over the $50,000 involved in this feature of the case would be between the City of Mobile and other named legatees.
But any probable dispute between the City of Mobile and the other legatees has been settled. This settlement was effected by the stipulation referred to supra, that the court could enter a decree that the Rotary Trust was $100,000, that the trust in favor of Providence Hospital amounted to $50,000, and the trust in the amount of the remainder was to be recognized in favor of the City of Mobile.
This procedure was and is appropriate. In Thorington v. Hall, 111 Ala. 323, 21 So. 335, this court approved a construction and interpretation of the will in question in which all the interested beneficiaries joined, even to the extent of agreeing that certain words in the will be considered as omitted.
Since appellants have no right to any funds in either estate involved in this case, the decree in 1 Div. 253-A is affirmed.
Affirmed.
The decree in this case held that Item Twenty-Fourth of Dr. Mastin's will validly created a memorial in the nature of a charitable bequest in the sum of $50,000 to be used as determined by Providence Hospital.
Since we reached the result stated in 1 Div. 253-A, any dispute over this $50,000 is between the City of Mobile and Providence *817 Hospital and that prospective dispute was settled by the stipulation. It results that as between the parties before this court, the decree in 1 Div. 253 should be, and is, affirmed.
Assignments of error in both this case and 1 Div. 253-A charged error in the allowance of attorneys' fees to the attorneys for the City of Mobile, the Rotary Club, the Providence Hospital and to counsel for appellants.
Since we have held that appellants have no interest in the funds out of which the fees will be paid, we are constrained to hold that, as to them, the question is purely abstract and will not be decided.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, COLEMAN and HARWOOD, JJ., concur. | August 5, 1965 |
a5527410-e267-469e-b596-6556d138a398 | Rice v. Hill | 178 So. 2d 168 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 168 (1965)
Everett F. RICE
v.
Joseph C. HILL et al.
1 Div. 285.
Supreme Court of Alabama.
September 2, 1965.
Wilters & Brantley, Bay Minette, for appellant.
C. Lenoir Thompson, Bay Minette, for appellees.
MERRILL, Justice.
This appeal is from a decree which permanently enjoined appellant from interfering with the usage of a road which runs across appellant's property, and which ordered appellant to remove the obstructions he had placed in the road to render it impassable.
Appellees and respondent were adjoining landowners and appellees filed their bill of complaint seeking a permanent injunction against appellant to prohibit him, his servants or others from blocking or continuing to block the road in question which passed through appellant's land to that of appellees. The evidence showed that appellant had closed the road through his property and had also placed obstructions on it, rendering it impassable.
The trial court found that the road was a public road and granted the relief sought.
Appellant argues assignments of error 8 through 20 together. Assignment 8 reads: "The Court erred in examining Mrs. Dawson.", *169 (a witness); and assignments 9 through 20 read the same except that in each instance a different witness is named.
The main question before the trial court was whether the road was a public road. The witnesses were asked about its use by the public. There was no objection to any of these questions asked by the trial court.
The trial judge has the right to propound such questions to witnesses as may be necessary to elicit certain facts, Lackey v. Lackey, 262 Ala. 45, 76 So. 2d 761; and it not only is the court's prerogative to so act, but its duty, if the court deems it necessary to elicit proper evidence bearing on the issues. Luker v. State, 39 Ala.App. 548, 105 So. 2d 834.
Here, the trial court did not abuse his discretion in asking the witnesses if the road was used by the public and no reversible error appears as a result of his questions.
Moreover, there was no objection to any of the questions although he asked them of thirteen different witnesses. Where no objection was made or exception taken to any remark or question by the trial judge, nothing is presented here for review. State v. Boyd, 271 Ala. 584, 126 So. 2d 225; Neumiller v. Jenkins, 270 Ala. 231, 117 So. 2d 402; Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553. These assignments of error are without merit.
Appellant argues assignments of error 1 through 6 together. They are not related and it appears that none is meritorious. We mention only number 2, which reads: "The Court erred in finding that there is a public road over the property of Everett F. Rice.", (appellant).
Whether the road was a public road was in conflict, but the weight of the evidence was in favor of the trial court's finding that it was a public road. When the evidence is heard orally by the trial court, that court's finding has the effect of a jury's verdict and will not be disturbed on appeal unless plainly erroneous or manifestly wrong. And this rule applies both in equity and in law. Lamar v. Lamar, 263 Ala. 391, 82 So. 2d 558, and cases there cited. We are not convinced that the ruling of the trial court was wrong or unjust.
It is not necessary to show why the other five assignments of error are without merit because of the rule that where several unrelated assignments of error are argued together in brief, and one is without merit, the others will not be considered. Andrews v. May, 277 Ala. 248, 168 So. 2d 619; 2A Ala.Dig., Appeal & Error.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | September 2, 1965 |
3de2ff0e-18a8-45f5-9bec-b016d79dacf0 | Banks v. Spray | N/A | 1121338 | Alabama | Alabama Supreme Court | REL: 02/28/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121338
____________________
Ex parte State Farm Mutual Automobile Insurance Company
PETITION FOR WRIT OF MANDAMUS
(In re: Sandra H. Banks
v.
Robert Gary Spray and State Farm Mutual Automobile Insurance
Company)
(Clarke Circuit Court, CV-12-900012)
STUART, Justice.
State Farm Mutual Automobile Insurance Company ("State
Farm") petitions this Court for a writ of mandamus directing
1121338
the Clarke Circuit Court to vacate its order dated July 8,
2013, denying State Farm's motion to transfer this action
from the Clarke Circuit Court to the Mobile Circuit Court and
to enter an order granting the motion. We grant the petition
and issue the writ.
Facts and Procedural History
The underlying action arises out of an automobile
accident that occurred in Mobile County on February 8, 2010.
Sandra H. Banks, a resident of both Clarke County and Mobile
County, sued Robert Gary Spray, a resident of Baldwin County,
and State Farm, an Illinois corporation authorized to do
business in Alabama, in Clarke County. In her complaint,
Banks alleged that she suffered injuries as a result of the
wrongful, negligent, and/or wanton conduct of Spray when the
vehicle he was driving and owned struck her vehicle.
Additionally, Banks alleged that at the time of the accident
she had a policy of insurance with State Farm, which included
uninsured-/underinsured-motorist coverage, and that she was
due proceeds under her coverage.
On March 4, 2013, State Farm moved to transfer the action
to Mobile County pursuant to the doctrine of forum non
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conveniens. In its motion, State Farm argued that both the
convenience of the parties and the witnesses and the interest
of justice required that the action be transferred to Mobile
County because, it said, the accident occurred in Mobile
County, most of the witnesses were located in Mobile County,
and the action had a strong connection to Mobile County.
State Farm attached to its motion an affidavit from David
Jones, a law-enforcement officer who investigated the
accident. Jones stated that "[i]t would be significantly more
convenient for [him] if this action [was] transferred to
Mobile County." Jones averred that he understood that he
would be called as a witness at trial and that Mobile County
would be a more convenient venue for him because he lived
approximately 8 miles from the Mobile County courthouse
whereas he lived approximately 100 miles from the Clarke
County courthouse. On July 8, 2013, the trial court denied
State Farm's motion to transfer venue.
On August 16, 2013, State Farm petitioned this Court for
a writ of mandamus directing the Clarke Circuit Court to
vacate its July 8, 2013, order denying State Farm's motion to
transfer this action and to enter an order granting the
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motion. On December 10, 2013, this Court ordered the filing
of answers and briefs. Neither the Clarke Circuit Court judge
nor Banks filed an answer and brief within the time provided;
therefore, our decision is based solely upon application of
the law to the materials provided by State Farm in support of
its petition.
Standard of Review
"'A petition for a writ of mandamus is
the appropriate "method for obtaining
review of a denial of a motion for a change
of venue" pursuant to § 6–3–21.1[, Ala.
Code 1975]. Ex parte National Sec. Ins.
Co., 727 So. 2d 788, 789 (Ala. 1998)....
"'....
"'"A party moving for a transfer under
§ 6–3–21.1 has the initial burden of
showing, among other things, one of two
factors: (1) that the transfer is justified
based on the convenience of either the
parties or the witnesses, or (2) that the
transfer is justified 'in the interest of
justice.'" Ex parte Indiana Mills & Mfg.,
Inc., 10 So. 3d 536, 539 (Ala. 2008).
Although we review a ruling on a motion to
transfer to determine whether the trial
court exceeded its discretion in granting
or denying the motion, id., where "the
convenience of the parties and witnesses or
the interest of justice would be best
served by a transfer, § 6–3–21.1, Ala. Code
1975, compels the trial court to transfer
the action to the alternative forum." Ex
parte First Tennessee Bank Nat'l Ass'n, 994
4
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So. 2d 906, 912 (Ala. 2008) (emphasis
added).'
"Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 573
(Ala. 2011)."
Ex parte Waltman, 116 So. 3d 1111, 1114 (Ala. 2013).
Discussion
State Farm contends that the trial court exceeded the
scope of its discretion in refusing to transfer this action
from Clarke County to Mobile County because, it says, both the
"convenience of parties and witnesses" and the "interest of
justice" prongs of the doctrine of forum non conveniens compel
the transfer of this action to Mobile County. It is
undisputed that venue of this action is proper both in Clarke
County and in Mobile County.
Section 6-3-21.1, Ala. Code 1975, provides, in pertinent
part:
"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.)
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"Essentially,
the
doctrine
of
forum
non
conveniens allows a court that has jurisdiction and
that is located where venue is proper to refuse to
exercise its jurisdiction when, for the convenience
of the parties and witnesses, and in the interests
of justice and judicial economy, the case could be
more appropriately tried in another forum. The
prevailing question of whether a case should be
entertained or dismissed depends upon the facts of
the particular case and is addressed to the sound
discretion of the trial judge. In determining
whether
to
exercise
or
decline
to
exercise
jurisdiction, the trial judge should consider the
location where the acts giving rise to the action
occurred, the relative ease of access to sources of
proof,
the
location
of
the
evidence,
the
availability
of
compulsory
process
for
the
attendance of unwilling witnesses, the cost of
obtaining the attendance of willing witnesses, the
possibility of a view of the premises, if a view
would be appropriate to the action, and any other
matter in order to assess the degree of actual
difficulty and hardship that would result to the
defendant in litigating the case in the forum chosen
by the plaintiff. If, with an eye toward the goal
of achieving a fair trial and after weighing all of
the pertinent factors, the judge finds that the
balance is strongly in favor of the defendant, he
may decline to exercise jurisdiction and dismiss the
complaint. Ex parte Southern Ry., 556 So. 2d 1082
(Ala. 1989); Ex parte Auto–Owners Ins. Co., [548
So. 2d 1029 (Ala. 1989)]."
Ex parte Ben–Acadia, Ltd., 566 So. 2d 486, 488 (Ala. 1990).
However, this Court has recognized that although the trial
court exercises discretion in ruling on a motion to transfer
based on forum of non conveniens, "the Legislature in adopting
§ 6-3-21.1, intended to vest in the trial courts, the Court of
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Civil Appeals, and this Court the power and the duty to
transfer a cause when 'the interest of justice' requires a
transfer." Ex parte First Family Fin. Servs., Inc., 718 So.
2d 658, 660 (Ala. 1998). In Ex parte Indiana Mills &
Manufacturing, Inc., 10 So. 3d 536, 542 (Ala. 2008), we
further explained:
"[A]lthough the trial court 'has a degree of
discretion in determining whether the factors listed
in the statute ... are in favor of transferring the
action,' this degree of discretion is not unlimited
and 'must be considered in light of the fact that
the Legislature used the word "shall" instead of the
word "may" in § 6-3-21.1.' [Ex parte First Family
Fin. Servs.,] 718 So. 2d at 660 (emphasis added).
This statute, we have subsequently noted, is
'compulsory,' Ex parte Sawyer, 892 So. 2d 898, 905
n. 9 (Ala. 2004), and the use of the word 'shall' is
'imperative and mandatory.' Ex parte Prudential
Ins. Co. of America, 721 So. 2d 1135, 1138 (Ala.
1998)(comparing the use of the word 'shall' in
Alabama's interstate forum non conveniens statute,
Ala. Code 1975, § 6-5-430, with its use in § 6-3-
21.1)."
First, State Farm contends that "the convenience of the
parties and witnesses" requires that this action be
transferred to Mobile County. In Ex parte Swift Loan &
Finance Co., 667 So. 2d 706, 708 (Ala. 1995), this Court
recognized that "[t]he transferee forum must be significantly
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more convenient than the forum in which the action was
brought, as chosen by the plaintiffs, to justify a transfer."
The materials before us indicate that State Farm
satisfied its burden of showing that Mobile County is a
significantly more convenient forum for this action than is
Clarke County. In her responses to State Farm's request for
admissions, Banks admitted that she had residences in both
Clarke County and Mobile County and that she resided "in both
counties according to the months and what [was] occurring in
my and my husband's life." She further admitted that her
Mobile residence is less than 20 miles from the Mobile County
courthouse, that the accident occurred in Mobile County, that
she was transported from the scene of the accident to Mobile
Infirmary by Mobile Fire and Rescue, and that the passenger in
her car at the time of the accident is a resident of Mobile
County. Additionally, the affidavit of David Jones, an
officer for the Mobile Police Department who investigated the
accident, notes that it would be more convenient for him for
the case to be tried in Mobile County because he lives 8 miles
from the Mobile County courthouse and over 100 miles from the
Clarke County courthouse.
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Because State Farm submitted materials establishing that
the accident occurred in Mobile County, that the accident
investigators and health-care providers are located in Mobile
County, and that other potential witnesses are located in
Mobile
County, State Farm satisfied its burden of
establishing
that Mobile County is a significantly more convenient forum
for this action than is Clarke County. Therefore, the trial
court exceeded the scope of its discretion in denying State
Farm's motion to transfer the case to Mobile County in this
regard.
State Farm further contends that the "interest of
justice" requires that this action be transferred to Mobile
County because, it says, Mobile County has a strong connection
to this action.
"'The "interest of justice" prong of
§ 6-3-21.1 requires "the transfer of the
action from a county with little, if any,
connection to the action, to the county
with a strong connection to the action." Ex
parte National Sec. Ins. Co., 727 So. 2d
[788,] 790 [(Ala. 1998)]. Therefore, "in
analyzing the interest-of-justice prong of
§ 6-3-21.1, this Court focuses on whether
the 'nexus' or 'connection' between the
plaintiff's action and the original forum
is strong enough to warrant burdening the
plaintiff's forum with the action." Ex
parte First Tennessee Bank Nat'l Ass'n, 994
9
1121338
So. 2d 906, 911 (Ala. 2008). Additionally,
this Court has held that "litigation should
be handled in the forum where the injury
occurred." Ex parte Fuller, 955 So. 2d 414,
416 (Ala. 2006). Further, in examining
whether it is in the interest of justice to
transfer a case, we consider "the burden of
piling court services and resources upon
the people of a county that is not affected
by the case and ... the interest of the
people of a county to have a case that
arises in their county tried close to
public view in their county." Ex parte
Smiths Water & Sewer Auth., 982 So. 2d 484,
490 (Ala. 2007).'
"Ex parte Indiana Mills & Mfg., Inc., 10 So. 3d 536,
540 (Ala. 2008)."
Ex parte Waltman, 116 So. 3d 1111, 1115 (Ala. 2013).
The trial court exceeded the scope of its discretion in
denying State Farm's motion to transfer the action to Mobile
County because State Farm demonstrated that having the case
heard in Mobile County would better serve the interests of
justice. First and foremost, the accident occurred in Mobile
County. The Mobile Police Department and Mobile Fire and
Rescue responded to the scene of the accident. Banks was
treated at Mobile Infirmary. The passenger in Banks's car is
a resident of Mobile County. Thus, Mobile County has a strong
"nexus" or "connection" with this action. Where an automobile
accident resulting in injury occurred in a county and the
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majority of witnesses reside in the county where the accident
occurred, this Court has generally held "the interests of
justice" merit a transfer to the county where the accident and
the injury occurred. Ex parte Waltman, supra; Ex parte
Southeast Alabama Timber Harvesting, LLC, 94 So. 3d 371 (Ala.
2012); Ex parte Autauga Heating & Cooling, LLC, 58 So. 3d 745
(Ala. 2010); and Ex parte Indiana Mills & Mfg., Inc., supra.
Clarke County, on the other hand, has a weak "connection"
or "nexus" to this case. From the materials presented to this
Court, it appears that the only connections this case has to
Clarke County are that Banks resides there part of the time
and that State Farm does business in Clarke County. None of
the witnesses, other than Banks, resides in Clarke County, and
none of the relevant facts in this action involves Clarke
County. Nothing before us establishes a need for Clarke
County to be burdened with an action that arose in Mobile
County simply because Banks resides there on a part-time
basis. Instead, Mobile County clearly has a strong connection
with this action. Therefore, we conclude that having this
action heard in Mobile County would "more serve the interest
of justice." Ex parte Indiana Mills & Mfg., 10 So. 3d at 542.
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1121338
Because both the "convenience of parties and witnesses"
and the "interest of justice" prongs of the doctrine of forum
non conveniens compel the transfer of this action from Clarke
County to Mobile County, the trial court exceeded the scope of
its discretion in refusing to transfer the action.
Conclusion
State Farm has established a clear, legal right for this
action to be transferred to Mobile County. Therefore, we
grant State Farm's petition and issue a writ directing the
Clarke Circuit Court to vacate its order dated July 8, 2013,
denying State Farm's motion to transfer this action from the
Clarke Circuit Court to the Mobile Circuit Court and to enter
an order granting the motion.
PETITION GRANTED; WRIT ISSUED.
Bolin, Parker, and Bryan, JJ., concur.
Murdock and Main, JJ., concur in the result.
Moore, C.J., dissents.
Wise, J., recuses herself.
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MURDOCK, Justice (concurring in the result).
I previously have expressed concern as to the types of
circumstances to which this Court in recent years has applied
the "interest of justice" prong of our forum non conveniens
statute. See, e.g., Ex parte Southeast Alabama Timber
Harvesting, LLC, 94 So. 3d 371, 377 (Ala. 2012) (Murdock, J.,
dissenting). I write separately today to comment on the
standard of appellate review now employed by this Court in
such cases.
As the main opinion acknowledges, a trial court should
employ the doctrine of forum non conveniens to transfer a case
from a forum chosen by the plaintiff in which venue is proper
only when "'the balance is strongly in favor of the
defendant.'" ___ So. 3d at ___ (quoting Ex parte Ben-Acadia,
Ltd., 566 So. 2d 486, 488 (Ala. 1990)). Furthermore, as the
main opinion also acknowledges, the trial court's decision in
this regard is to be considered by an appellate court as a
matter of "discretion" for the trial court. Id. (quoting Ex
parte Waltman, 116 So. 3d 1111, 1114 (Ala. 2013)). Despite
these acknowledgments, I am concerned that the main opinion
then concludes its discussion of the standard of review by
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articulating, at least for interest-of-justice cases, a
standard of appellate review that, improperly in my opinion,
is closer to a de novo standard than an excess-of-discretion
standard. See ___ So. 3d at ___ (employing quotations from
Ex parte First Family Services, Inc., 718 So. 2d 658, 660
(Ala. 1998), and Ex parte Indiana Mills & Mfg., Inc., 10
So. 3d 536, 542 (Ala. 2008)).
That said, in this particular case, I concur in the
result reached by the main opinion because I agree that the
trial court did exceed its discretion in not transferring this
case to the Mobile Circuit Court based on the convenience-of-
the-parties-and-witnesses
prong
of
§
6-3-21.1,
Ala.
Code
1975.
I see no need in this case to reach the interest-of-justice
prong of the statute.
14 | February 28, 2014 |
2bda904a-77ec-4f74-b061-6fb7d1b4d57a | Sachs v. Sachs | 179 So. 2d 46 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 46 (1965)
Margaret Alexandrina Day SACHS
v.
George SACHS.
6 Div. 141.
Supreme Court of Alabama.
September 30, 1965.
*47 Wm. M. Acker, Jr., Smyer, White, Reid & Acker and J. N. Holt, Holt & Cooper, Birmingham, for appellant.
John Tucker, Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from a final decree of divorce in favor of the husband, dated October 29, 1963.[*] A motion to set the decree aside was filed November 27, 1963, and later overruled.
When appellee filed his bill on the ground of cruelty, he alleged that he "is a bona fide resident citizen of the State of Alabama and has been for the length of time required by law, residing in Birmingham, Alabama." He testified that he was a bona fide resident of Birmingham, gave his address, stated *48 that he was a property owner, having purchased it after he moved to the city, and that he was a medical doctor and assistant professor at the University of Alabama School of Medicine in Birmingham. He alleged that his wife resided in London, Ontario, Canada.
His wife was served by registered mail as required by Equity Rule 5, Subdivision 2(b), and the record contains a photostatic copy of the return receipt, "bearing the signature" of respondent and it was filed September 23, 1963. A decree pro confesso was taken October 28, 1963; testimony of appellee was taken before a commissioner and the decree was rendered October 29.
The decree not only granted the divorce but granted custody of the two minor children to appellee, and ordered appellee to pay $25 per month for the support and maintenance of said child, "until the complainant, the father, gains physical possession of the said minor children."
Appellant filed a motion to set aside the decree on the ground that it was void for lack of jurisdiction because there was no allegation and proof that appellant had been a "bona fide resident of this State for one year next before the filing of the bill," as required by statute. Tit. 34, § 29. Code 1940, as amended, reads:
Prior to 1945, the section concluded with the word "proved," but in 1945, the proviso was added.
We think that the allegations and proof show that appellee was a resident of this State when he filed his bill, but there is no allegation or proof that he had been such resident for "one year next before the filing of the bill."
The decree in this case was not void, because the court had jurisdiction of the marital res, one party being a resident of Alabama. Gee v. Gee, 252 Ala. 103, 39 So. 2d 406; Hartigan v. Hartigan, 272 Ala. 67, 128 So. 2d 725.
But we are met at the threshold of this case with the question of waiver. Although appellant made no appearance until she moved to set aside the final decree after it had been entered based upon the decree pro confesso, she did not limit that appearance in any way and she questioned both the jurisdiction of the court and the merits of the bill of complaint (ground 5). Had the appearance been limited, we could have held that it was a limited appearance as we held in Ex parte Haisten, 227 Ala. 183, 149 So. 213.
If the decree was void on the face of the proceedings, we could have held the motion to set it aside was not a general appearance as we held in Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184. But since there was no limited or special appearance in the motion to set aside the decree, we must hold that this constituted a general appearance. In Aetna Ins. Co. v. Earnest, 215 Ala. 557, 112 So. 145, we approved the following:
"`As to the immediate parties to the action, a general appearance validates *49 a judgment that was theretofore absolutely void for want of jurisdiction.'
In Levy v. Levy, 256 Ala. 629, 56 So. 2d 344, we said:
The statement quoted supra from Levy v. Levy, 256 Ala. 629, 56 So. 2d 344, appears in Volin v. Volin, 272 Ala. 85, 128 So. 2d 490, and Hilley v. Hilley, 275 Ala. 617, 157 So. 2d 215. But, in every one of the cases (Gee, Levy, Volin and Hilley), the nonresident either appeared voluntarily and filed a general appearance or was personally served in this State. That fact leads us to conclude that the 1945 amendment to Tit. 34, § 29, was intended to apply only where the nonresident was personally served in this State or voluntarily submitted to the jurisdiction of the Alabama court by filing a general appearance; and does not apply where some form of substituted service, such as by publication or by registered mail, was employed.
This position is fortified by our holding in Richardson v. Richardson, 258 Ala. 423, 63 So. 2d 364. There, the husband who claimed to have been domiciled in Alabama all his life, sued his wife for divorce. She was a nonresident and had been served by publication. She appeared specially and filed a plea in abatement alleging that her husband had not been a bona fide resident of Alabama for twelve months next preceding the filing of the bill, but had been a resident of Alexandria, Virginia, until six days before he filed his bill for divorce in Alabama. We said:
But appellant did make a general appearance when she did not limit her appearance at the time she filed her motion to set aside the decree and included other than jurisdictional grounds. This general appearance cured any defects in the service of appellant prior to that time. It follows that the amendment to Tit. 34, § 29, does apply to the parties in this cause since both of them were before the court by virtue of voluntary and general appearances.
We think it fitting to add that appellant had the right to appeal from the final decree. In Ex parte Helbling, 278 Ala. 234, 177 So. 2d 454, we held that even though a decree pro confesso is not challenged before final decree, the orderly procedure is to move to set aside the final decree by applying for a rehearing as provided by Equity Rule 62. If, as here, the rehearing is not granted, the movant may appeal from the final decree.
Appellant also urges error on the part of the court in awarding custody of the two children to appellee. We agree. The only references to the children in the bill of complaint are in paragraph 2: "There *50 were two (2) children born of the marriage, namely: MARK SACHS, age 3 years; and PHILIP ADRIAN SACHS, age 2 years. The said children are in the custody of the mother, the Respondent."; and a sentence in the prayer of the bill: "That the Court will fix and/or approve an amount of money to be paid to the respondent as support and maintenance for the minor children of the parties." The proof consisted of this statement:
We do not consider this proof sufficient to justify the taking of two children of such tender years from the custody of their mother when no proof is made of her unfitness. But we do not reach the proof. There are no allegations in the bill which would remotely put the mother on notice that the custody of the children was questioned in any respect.
An allegation that "the respondent, their mother, is a proper person to have custody and control of said minor children and she desires custody of said children" was sufficient to invoke the jurisdiction of the court over the children in a divorce case. Butler v. Butler, 254 Ala. 375, 48 So. 2d 318. The third sentence in the proof quoted supra would have been sufficient to invoke the court's jurisdiction had it been made in the bill. But of long standing is the rule that proof of a fact not alleged in a bill is as unavailing for relief as is averment without proof, Salmon v. Wynn, 153 Ala. 538, 45 So. 133; and proof without allegation cannot be considered. Myers v. Moorer, 273 Ala. 18, 134 So. 2d 168. In W. T. Smith Lumber Co. v. Foshee, 277 Ala. 71, 167 So. 2d 154, we said:
We are constrained to hold that there was no allegation in the bill in the instant case which invoked the jurisdiction of the court over the children. This in no way conflicts with the rule that "Any pleading which shows upon its face that the welfare of an infant requires an order with respect to its custody or support is sufficient to invoke the jurisdiction of equity." Scott v. Scott, 247 Ala. 598, 25 So. 2d 673. As already demonstrated, the only allegations respecting the children would lead one to think that no question of custody would arise unless by an answer of respondent or an amendment by complainant.
Appellant argues that service by registered mail was not sufficient service. In Opinion of the Justices, 259 Ala. 202, 66 So. 2d 174, four justices of this court, in considering Equity Rule 5, Subdivision 2 (b), Code 1940, Tit. 7, Appendix, opined:
"It is our view that since the passage of the 1919 Act, which, in part, at least, is embodied in the present Section *51 340, Tit. 7 of the 1940 Code of Alabama, service on non-resident defendants in divorce cases, when perfected according to statute by registered mail, is efficacious to confer jurisdiction on the circuit courts, in equity, in divorce proceedings. See Cullars v. Callan, 257 Ala. 224, 59 So. 2d 614."
The two justices not agreeing withheld their opinions because they were of the opinion that this court should give advisory opinions on constitutional questions only.
No question of constitutionality is raised here. We hold that service on non-resident defendants in divorce cases, when perfected according to statute by registered mail, is efficacious to confer jurisdiction on the circuit courts, in equity, in divorce proceedings. See Odem v. McCormack, 266 Ala. 465, 97 So. 2d 574, where we upheld service by registered mail.
Appellant argues that appellee did not conform with Rule 55 of the Rules of Court of the Tenth Judicial Circuit. The objection borders on the frivolous, and we understand that nonconformance with the rules would not invalidate a decree, since they are directory only insofar as a litigant is concerned.
It follows that the decree must be modified and affirmed. We affirm paragraphs "FIRST," "SECOND," "THIRD" and "FIFTH" of the decree because the trial court had jurisdiction of the complainant, he being a resident of Alabama when the bill for divorce was filed, and jurisdiction of respondent, who even though a non-resident, waived any defects as to personal service by making a general appearance.
The decree is modified by striking paragraph "FOURTH" therefrom because there was no allegation in the bill invoking the jurisdiction of the court as to the custody of the children. Mason v. Mason, Fla.App., 122 So. 2d 577.
Modified and affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, COLEMAN and HARWOOD, JJ., concur.
[*] The decree is as follows:
"* * * it is ordered, adjudged and decreed by the Court as follows:
"FIRST: That the bonds of matrimony heretofore existing between the Complainant and Respondent are dissolved, and the said Dr. George Sachs is forever divorced from the said Margaret Alexandria Day Sachs.
"SECOND: That neither the Complainant nor the Respondent shall again marry except to each other until sixty (60) days after the date of this decree. If an appeal from this decree is taken within sixty (60) days neither the Complainant nor the Respondent shall marry again except to each other during the pendency of said appeal.
"THIRD: That the costs of Court accrued herein are hereby taxed against the Respondent for the collection of which let execution issue and if returned `no property found' then let execution for costs issue against the Complainant.
"FOURTH: That the care, custody and control of the minor children of the parties, namely; Mark Sachs and Philip Adrian Sachs, be and hereby is awarded to the complainant, the father.
"FIFTH: That the complainant, the father, shall pay to the respondent, the mother, the sum of Twenty-five Dollars ($25.00) per month for the support and maintenance, commencing December 1, 1963, for each of the minor children, and until the complainant, the father, gains physical possession of the said minor children." | September 30, 1965 |
7973e5e3-e7c1-4dbf-b9cd-cf598eb2e841 | Ex Parte Dekle | 178 So. 2d 85 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 85 (1965)
Ex parte Thomas DEKLE et al.
6 Div. 190.
Supreme Court of Alabama.
August 5, 1965.
Rehearing Denied September 2, 1965.
*86 Whitmire, Morton & Coleman, Birmingham, for petitioners.
Crampton Harris and Robt. G. Esdale, Birmingham, for respondent.
SIMPSON, Justice.
This is an original petition to this Court for Writ of Prohibition to prohibit the Honorable William C. Barber, one of the judges of the Circuit Court, Tenth Judicial Circuit of Alabama, in Equity, from taking further testimony in the case entitled George C. Vann, Jr. and Edith M. Vann, Complainants vs. Thomas Dekle and Virginia Dekle, Respondents, being case number 132-499 on the docket in said court and to prohibit Judge Barber from acting in respect to the decree entered in the foregoing proceeding on February 5, 1965, from which an appeal has been taken to this court.
The initial proceeding between these parties arises out of the allegation on the part of the complainants in the case below that because of a wall having been built along the property line which divides the property of the complainants and respondents, by the respondents, surface water from heavy rains backs up and floods the house of the complainants. In the decree entered by the Circuit Court sitting in equity on February 5, 1965, the respondents (petitioners here) were ordered to "remove that portion of the wall, now existing on the property line between complainants and respondents, which obstructs the natural flow of surface water across or upon complainant's property."
Subsequently, after the decree was entered and the appeal was taken, additional flooding occurred causing the complainant's property to be again inundated with water. After the happening of these events these complainants sought to have the court enforce its decree on February 5. The petitioners herein contend that the court is without jurisdiction to entertain this motion on the part of complainants for the reason that an appeal is pending in this court from the decree sought to be enforced. *87 On this theory the petitioners seek this Writ of Prohibition.
Except for the fact that no supersedeas bond was filed by petitioners upon taking their appeal, they might be right in the position they take here. However, by statute, the complainants in the case below have a right to enforce the decree entered in their favor. Section 792, Title 7, Code of 1940 permits an appeal upon the appellant giving security for costs, without a supersedeas bond. When such an appeal is taken without giving a supersedeas bond, the right of the appellee to enforce the judgment is not suspended during the appeal, and whatever measures are necessary for the execution of the judgment, it is the duty of the court to pursue on application of the party in interest, as if the appeal had not been taken. See Ohio Cas. Ins. Co. v. Gantt, 256 Ala. 262, 54 So. 2d 595 and cases there cited.
See also Seamon v. Tatum, 246 Ala. 310, 20 So. 2d 596, where it is noted:
We think it is clear that the court below has jurisdiction to take whatever measures he deems necessary to enforce the decree of his court heretofore entered, and in light of the emergency facing the parties to this litigation, we believe he is abundantly authorized to hear testimony on the question of what remedy would most effectively render justice to the parties under the circumstances.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur. | August 5, 1965 |
8622b84d-21b5-4177-ab2c-2ba850693314 | City of Birmingham v. Alexander | N/A | 1121264 | Alabama | Alabama Supreme Court | REL: 05/02/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1121264
_________________________
Ex parte City of Birmingham
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: City of Birmingham
v.
Ernest Alexander)
(Jefferson Circuit Court, CV-11-900892.80;
Court of Civil Appeals, 2120188)
WISE, Justice.
1121264
We granted the petition for a writ of certiorari filed by
the City of Birmingham ("the City") asking us to review the
Court of Civil Appeals' affirmance in City of Birmingham v.
Alexander, [Ms. 2120188, July 19, 2013] ___ So. 3d ___ (Ala.
Civ. App. 2013), of a summary judgment in favor of the
plaintiff, Ernest Alexander, in light
of this Court's
decision
in Ervin v. City of Birmingham, [Ms. 1101555, March 22, 2013]
___ So. 3d ___ (Ala. 2013). For the reasons set forth below,
we reverse the judgment of the Court of Civil Appeals.
Facts and Procedural History
On June 4, 2009, the Jefferson County District Court
("the district court") issued a search warrant
for
Alexander's
residence based on an affidavit by Officer Robert Walker of
the Birmingham Police Department ("BPD"). The warrant was
executed on June 5, 2009, by a joint task force of officers
from the BPD's narcotics unit and agents from the Federal Drug
Enforcement Administration ("DEA"). During the search,
officers recovered marijuana, $38,675 in cash, cocaine, a
firearm, and digital scales. The cash was originally taken to
the BPD's facility, where a drug-detecting dog alerted on the
cash. Detective John Walker of the BPD, who had also been
2
1121264
deputized as a DEA task-force officer by the federal
Department of Justice, then took the cash, sealed it in a DEA
evidence bag, and placed it in an overnight drop box at the
DEA's district office in Birmingham. Walker later took the
cash to a bank, obtained a $38,675 cashier's check payable to
the United States Marshal, and gave the check to Federal Agent
James Langnes.
In October 2009, a complaint for the civil forfeiture of
the $38,675 was filed in the United States District Court for
the Northern District of Alabama ("the federal court"). After
being served with the complaint, Alexander failed to respond
to the complaint or to take any action to reclaim the money.
The federal court entered a default judgment of forfeiture as
to the money on August 10, 2010.
On March 16, 2011, Alexander filed a complaint in the
Jefferson Circuit Court ("the trial court") seeking
the
return
of the $38,675. He argued that the money had been seized
pursuant to § 20-2-93, Ala. Code 1975, but that no state
forfeiture or condemnation proceeding had been filed as
required by § 20-2-93. The City filed a motion to dismiss or,
in the alternative, for a summary judgment, arguing, in part,
3
1121264
that the trial court did not have jurisdiction over this
matter. Specifically, it contended that, at all relevant
times, the money had been in the possession of federal agents
who had participated in the search and who had delivered the
cash to the DEA. Alternatively, the City argued that, even if
the money had initially been seized by an officer of the BPD,
the doctrine of adoptive forfeiture would be applicable in
this case. Subsequently, Alexander filed a cross-motion for
a summary judgment and argued that, because the money was
seized by BPD officers pursuant to a warrant issued by the
district court, exclusive jurisdiction over the cash vested
in
the district court; that, because the district
court
exercised
jurisdiction first, all other courts and agencies were barred
from assuming jurisdiction over the money; that the district
court and the trial court had jurisdiction over the money;
that the district court never relinquished its jurisdiction
over the money; and that the federal forfeiture order was
moot. After conducting a hearing, the trial court entered a
summary judgment in favor of the City, and Alexander appealed
that judgment to the Court of Civil Appeals.
4
1121264
On appeal in the Court of Civil Appeals, Alexander argued
that, because the money was seized pursuant to a warrant
issued by the district court, jurisdiction over the property
was vested in the state court rather than the federal court.
Thus, he argued, the federal court could not validly exercise
in rem jurisdiction over the money to find that the money
should be forfeited to the United States. The Court of Civil
Appeals agreed with Alexander, stating:
"The record in this case indicates that
jurisdiction of this matter vested in the state
court upon the issuance of the warrant issued by the
Jefferson District Court, see Garrett[ v. State],
739 So. 2d [49,] 51-52 [(Ala. Civ. App. 1999)]. The
city failed to present sufficient evidence from
which to find, as a matter of law, that the federal
court had obtained jurisdiction over the money at
issue or that the state court had been divested of
jurisdiction in this case; thus the city failed to
meet its burden of demonstrating that there were no
genuine issues of material fact and that it was
entitled to a judgment as a matter of law.
Therefore, we conclude that the circuit court erred
in entering a summary judgment in favor of the
city."
Alexander v. City of Birmingham, 99 So. 3d 1251, 1256 (Ala.
Civ. App. 2012)("Alexander I"), overruled by Payne v. City of
Decatur, [Ms. 2110919, April 19, 2013] ___ So. 3d ___ (Ala.
Civ. App. 2013). The Court of Civil Appeals then reversed the
trial court's judgment and remanded the case for proceedings
5
1121264
consistent with its opinion. The City did not file an
application for rehearing in the Court of Civil Appeals or
petition for certiorari review in this Court. The Court of
Civil Appeals issued a certificate of judgment in that case on
July 18, 2012.
On August 17, 2012, Alexander filed a motion in the trial
court reasserting his previously filed motion for a summary
judgment. On October 4, 2012, the City filed its opposition
to Alexander's summary-judgment motion. The City argued that
there were genuine issues of material fact as to Alexander's
interest in the property; that there were genuine issues of
material fact as to the federal government's involvement and
approval of the federal forfeiture in the case at issue; that
additional discovery would further define the relationship
between the DEA, the United States Attorney's Office, and the
BPD; that the evidence was clear that Walker, the BPD, and
others had acted in good faith during the forfeiture process;
and that Alexander had been afforded due process to assert his
interest in the cash. On October 30, 2012, the trial court
conducted a hearing on Alexander's summary-judgment motion.
6
1121264
On November 5, 2012, the trial court entered an order in which
it found as follows:
"City of Birmingham contends that the summary
judgment should be denied on the following grounds;
(1) there is an issue of fact as to whether the
funds were illegally obtained; (2) Alabama Code
1975, § 15-5-14, allowed the seizing officer to
retain the property for trial in federal court; and
(3) the federal court had jurisdiction.
"The Court finds there is no evidence there was
a decision by any state or local official that
forfeiture was not possible under state law or that
it was advantageous for them to transfer the matter
to federal authorities. Therefore, pursuant to
[Alexander I] this Court finds that the motion for
summary judgment by Ernest Alexander is due to be
and is granted."
The trial court then entered a summary judgment in favor of
Alexander for $38,675. After Alexander filed a motion to add
interest to the amount recovered, the trial court granted the
motion and amended its November 5, 2012, judgment to add
interest. The City then appealed the trial court's judgment
to the Court of Civil Appeals.
While the City's appeal was pending in the Court of Civil
Appeals, this Court, on March 22, 2013, released its decision
in Ervin v. City of Birmingham.
7
1121264
On July 19, 2013, the Court of Civil Appeals issued its
decision in this case. In its opinion, the Court of Civil
Appeals stated:
"Two of the issues the city raises in this
appeal were addressed in Alexander [I], namely: (1)
whether the state court had exclusive in rem
jurisdiction over the property that was seized
pursuant to the search warrant; and (2) whether
federal adoption was perfected in this case. In
Alexander [I], this court held that '[t]he city
failed to present sufficient evidence from which to
find, as a matter of law, that the federal court had
obtained jurisdiction over the money at issue or
that
the
state
court
had
been
divested
of
jurisdiction in this case.' Alexander [I], 99 So.
2d at 1256. Furthermore, after quoting from Green
v. City of Montgomery, [55 So. 3d 256 (Ala. Civ.
App. 2009)], and [Ex parte] Bingham, [[Ms. 2100676,
Jan. 6, 2012] ___ So. 3d ____ (Ala. Civ. App.
2012)], regarding the procedure for a federal
adoptive forfeiture, this court also determined that
'there is no evidence indicating that the adoptive-
seizure process was ever begun, much less brought to
fruition.' Id.
"'"'[U]nder the "law of the case" doctrine,
"whatever is once established between the same
parties in the same case continues to be the law of
that case, whether or not correct on general
principles, so long as the facts on which the
decision was predicated continue to be the facts of
the case."'"' Walden v. ES Capital, LLC, 89 So. 3d
90, 107 (Ala. 2011) (quoting Miller & Miller Constr.
Co. v. Madewell, 920 So. 2d 571, 572-73 (Ala. Civ.
App. 2003), quoting in turn other cases) (emphasis
added). '"'The law-of-the-case doctrine provides
that when a court decides upon a rule of law, that
rule should continue to govern the same issues in
subsequent stages in the same case, thereby
hastening an end to litigation by foreclosing the
8
1121264
possibility of repeatedly litigating an issue
already decided.'"' Id. (quoting Martin v. Cash
Express, Inc., 60 So. 3d 236, 249 (Ala. 2010),
quoting in turn Belcher v. Queen, 39 So. 3d 1023,
1038 (Ala. 2009)); see also Blumberg v. Touche Ross
& Co., 514 So. 2d 922, 924 (Ala. 1987)(same).
"The record indicates that, on remand, the
parties did not submit new evidence for the trial
court's consideration. Furthermore, our holdings as
to the issues decided in Alexander [I] remain the
law of the case. The city did not seek a rehearing
of our decision, and it did not file a petition for
a writ of certiorari with our supreme court.
Consequently, this court will not at this point
reconsider those issues decided in Alexander [I].
"....
"In its reply brief, the city argues that the
supreme court's holding in Ervin v. City of
Birmingham, [Ms. 1101555, March 22, 2013] ___ So. 3d
___ (Ala. 2013), requires reversal of the trial
court's judgment in this case. In Ervin, our
supreme court affirmed a summary judgment entered in
favor of the city, holding that 'Ervin's action
[seeking the return of cash seized in a federal
forfeiture proceeding] amount[ed] to a collateral
attack in state court on a final judgment entered by
a federal court. ... As the successor in title to
the forfeited property, the [city was] entitled to
the res judicata benefit of that final judgment.'
Ervin, ___ So. 3d at ___. As discussed, however,
this court has already held in this case that '[t]he
city failed to present sufficient evidence from
which to find, as a matter of law, that the federal
court had obtained jurisdiction over the money at
issue or that the state court had been divested of
jurisdiction in this case.' Alexander [I], 99 So.
2d at 1256. The city failed to seek a rehearing or
petition our supreme court for a writ of certiorari;
therefore, that holding became the law of the case
and is not subject to further appellate review.
9
1121264
"Furthermore, because of the procedural posture
of this case, we find NHS Management, LLC v. Wright,
24 So. 3d 1153 (Ala. Civ. App. 2009), to be
applicable. In that case, NHS Management, LLC
('NHS'), operated a nursing home in which Viola
Jenkins was a patient. Jenkins died while in the
care of the nursing home, and Peter Wright, as the
administrator of Jenkins's estate, filed a complaint
alleging numerous claims against NHS. Id. at 1154.
"NHS moved to compel arbitration. On April 3,
2007, the trial court held a hearing on the motion.
Wright did not attend the hearing, and the trial
court entered an order granting the motion to compel
arbitration and staying all proceedings. Wright did
not appeal from the order. Id.
"Several months later, the trial court ordered
the parties to provide it with a written status
update within 30 days or face dismissal of the
action. Ultimately, Wright filed a motion asking
the trial court to reconsider its order compelling
arbitration in light of a May 4, 2007, supreme court
decision that, Wright said, changed the law on which
the trial court had based its prior decision. The
trial court granted the 'motion to reconsider' and
set aside its earlier order compelling arbitration.
NHS appealed from that order. Id.
"This court treated the 'motion to reconsider'
as a motion filed pursuant to Rule 60(b)(5), Ala. R.
Civ. P., which allows a court to set aside a final
judgment or order if a prior judgment on which it is
based has been reversed or otherwise vacated, among
other things. This court determined that Wright was
not entitled to relief from the order compelling
arbitration, noting that Rule 60(b)(5) '"'"does not
authorize relief from a judgment on the ground that
the law applied by the court in making its
adjudication has been subsequently overruled or
declared
erroneous
in
another
and
unrelated
proceeding."'"' Id. at 1156 (quoting Kupfer v. SCI-
10
1121264
Alabama Funeral Servs., Inc., 893 So. 2d 1153, 1157
(Ala. 2004), quoting in turn other authorities).
"In this case, a certificate of judgment was
issued as to this court's judgment in Alexander [I]
holding that the federal court did not have
jurisdiction over the money seized in the search of
Alexander's residence. The city did not seek a
rehearing of that decision, and it did not petition
our supreme court for a writ of certiorari. The law
this court relied on in reaching its holding was
subsequently overruled or declared erroneous, but in
another,
unrelated
proceeding,
i.e.,
Ervin.
Accordingly, on the authority of NHS Management and
the cases cited therein, the city is not entitled to
relief from this court's holding in Alexander [I].
This conclusion is consistent with the law-of-the-
case doctrine."
City of Birmingham v. Alexander, [Ms. 2120188, July 19, 2013]
___ So. 3d ___, ___ (Ala. Civ. App. 2013) ("Alexander
II")(footnote omitted).
The City petitioned this Court for a writ of certiorari.
In its petition, the City appears to argue that the Court of
Civil Appeals' application of the law-of-the-case doctrine to
this case conflicted with prior Alabama caselaw.
Discussion
The City argues that the Court of Civil Appeals
erroneously
applied
the
law-of-the-case
doctrine
in
this
case.
In Ex parte Discount Foods, Inc., 711 So. 2d 992 (Ala.
1998) ("Discount Foods I"), this Court, in a plurality
11
1121264
opinion, held that the tort claims asserted by Discount Foods,
Inc., against the defendants could not be arbitrated because
the arbitration provision in that case could not be construed
to
encompass
Discount
Foods'
intentional-tort
claims.
Subsequently, in Ex parte Discount Foods, Inc., 789 So. 2d 842
(Ala. 2001)("Discount Foods II"), this Court concluded that
this Court's opinion in Discount Foods I had been predicated
on a wrongly decided plurality opinion. In footnote 4 of the
opinion in Discount Foods II, this Court explained:
"This Court is not required under the doctrine
of 'law of the case' to adhere to the decision in
Discount Foods I. Generally, the law-of-the-case
doctrine provides that when a court decides upon a
rule of law, that rule should continue to govern the
same issues in subsequent stages in the same case.
The purpose of the doctrine is to bring an end to
litigation
by
foreclosing
the
possibility
of
repeatedly litigating an issue already decided. See
Murphy v. FDIC, 208 F.3d 959 (11th Cir. 2000); see,
also, Blumberg v. Touche Ross & Co., 514 So. 2d 922
(Ala. 1987). However, the law-of-the case doctrine
does not in all circumstances require rigid
adherence to rulings made at an earlier stage of a
case. The doctrine directs a court's discretion; it
does not limit a court's power. The law-of-the-case
doctrine is one of practice or court policy, not of
inflexible law, and it will be disregarded when
compelling
circumstances
call
for
the
redetermination of a point of law on a prior appeal;
and this is particularly true when the court is
convinced that its prior decision is clearly
erroneous or where an intervening or contemporaneous
change in the law has occurred by an overruling of
former decisions or when such a change has occurred
12
1121264
by
new
precedent
established
by
controlling
authority. See State v. Whirley, 530 So. 2d 861
(Ala. Crim. App. 1987), rev'd on other grounds, 530
So. 2d 865 (Ala. 1988); Callahan v. State, 767 So.
2d 380 (Ala. Crim. App. 1999); Murphy v. FDIC,
supra; United States v. Escobar–Urrego, 110 F.3d
1556 (11th Cir. 1997); Heathcoat v. Potts, 905 F.2d
367 (11th Cir. 1990)."
789 So. 2d at 846 n.4 (emphasis added).
"This
Court
recently
addressed
the
law-of-the-case doctrine in Belcher v. Queen, 39 So.
3d 1023 (Ala. 2009):
"'The law-of-the-case doctrine provides
that when a court decides upon a rule of
law, that rule should continue to govern
the same issues in subsequent stages in the
same case, thereby hastening an end to
litigation by foreclosing the possibility
of repeatedly litigating an issue already
decided. Ex parte Discount Foods, Inc.,
789 So. 2d 842, 846 n. 4 (Ala. 2001). The
law-of-the-case
doctrine
may
be
disregarded
if the court is convinced its prior
decision was clearly erroneous or there has
been an intervening change in the law ....'
"39 So. 3d at 1038."
Martin v. Cash Express, Inc., 60 So. 3d 236, 249 (Ala.
2010)(some emphasis added). Additionally,
"[t]he general rule is that a case pending on
appeal will be subject to any change in the
substantive law. The United States Supreme Court has
stated, in regard to federal courts that are
applying state law: '[T]he dominant principle is
that nisi prius and appellate tribunals alike should
conform their orders to the state law as of the time
of the entry. Intervening and conflicting decisions
13
1121264
will thus cause the reversal of judgments which were
correct when entered.' Vandenbark v. Owens–Illinois
Glass Co., 311 U.S. 538, 543, 61 S. Ct. 347, 85 L.
Ed. 327 (1941). See also United States v. Schooner
Peggy, 1 Cranch 103, 5 U.S. 103, 2 L. Ed. 49 (1801).
Thus, courts are required to apply in a particular
case the law as it exists at the time it enters its
final judgment:
"'[I]t has long been held that if there is
a change in either the statutory or
decisional law before final judgment is
entered, the appellate court must "dispose
of [the] case according to the law as it
exists at the time of final judgment, and
not as it existed at the time of the
appeal." This rule is usually regarded as
being
founded
upon
the
conceptual
inability
of a court to enforce that which is no
longer the law, even though it may have
been the law at the time of trial, or at
the
time
of
the
prior
appellate
proceedings.'
"Note,
Prospective
Overruling
and
Retroactive
Application in the Federal Courts, 71 Yale L.J. 907,
912 (1962) (quoting Montague v. Maryland, 54 Md.
481, 483 (1880))."
Alabama State Docks Terminal Ry. v. Lyles, 797 So. 2d 432, 438
(Ala. 2001).
Finally, in Norandal U.S.A., Inc. v. Graben, 133 So. 3d
386, 390 (Ala. Civ. App. 2010), the Court of Civil Appeals
stated:
"Although we recognize that an intervening
change in the law may warrant deviation from the
law-of-the-case doctrine, see Ex parte Discount
Foods, Inc., 789 So. 2d 842, 846 n. 4 (Ala.
14
1121264
2001)[Discount Foods II], the change generally must
be such that the original decision is now clearly
erroneous due to reliance on the old law. See
Wright et al., Federal Practice & Procedure;
Jurisdiction 2d § 4478 n. 59 (2002)."
After the Court of Civil Appeals decided Alexander I, and
while the present case was pending on appeal in the Court of
Civil Appeals, this Court issued its opinion in Ervin, supra.
In Ervin, Ervin filed a complaint in an Alabama state court
seeking the return of property that had been seized pursuant
to a warrant issued by a state court and that had been the
subject of
forfeiture
proceedings in a federal district court.
Ervin had previously waived any challenges in the federal
district court proceedings. In his subsequent state court
complaint seeking the return of property, Ervin
"alleg[ed] that it had been seized under § 20–2–93,
Ala. Code 1975, and that forfeiture proceedings
should have occurred in accordance with that
statute.
Ervin
alleged
that,
because
such
forfeiture proceedings had never been instituted, he
was entitled to the return of the subject property."
Ervin, ___ So. 3d at ___ (footnote omitted). After the City
filed a motion to dismiss or for a summary judgment on the
ground that the property had been forfeited through the
federal
district
court
proceedings,
Ervin
filed
a
cross-motion
for a summary judgment. In his cross-motion for a summary
15
1121264
judgment, Ervin argued that the federal district court's
judgment was void because that court never acquired
jurisdiction over the subject property. The trial court
granted the City's motion for a summary judgment, and Ervin
appealed to this Court.
On appeal, this Court noted:
"In the present action, Ervin contends that the cash
was initially seized by the Birmingham Police
Department ('the BPD'), not by the Drug Enforcement
Agency
('the
DEA'),
and
that
the
cash
was
subsequently transferred by 'unknown Birmingham
police officers ... to the DEA to commence
forfeiture or condemnation proceedings' in the
federal court. Ervin alleges that neither the
Jefferson County District Attorney nor the Alabama
Attorney General was notified of the seizure of the
cash by the BPD. Ervin also emphasizes that the
warrant to search his vehicle was issued by a
Jefferson Circuit Court judge."
Ervin, ___ So. 3d at ___. This Court addressed Ervin's claims
as follows:
"Ervin's action amounts to a collateral attack
in state court on a final judgment entered by a
federal court. Ervin asserts a right to property
given to the State by the federal government. The
federal government, however, obtained ownership of
that property as against Ervin pursuant to the 2008
judgment of the federal district court. Ervin filed
no postjudgment motions challenging that judgment,
nor did he appeal from it. To the contrary, as he
stated in his motion to withdraw his claim for the
cash filed in the federal court, Ervin 'consent[ed]
to the forfeiture of the subject property.'
Accordingly, the judgment of the federal district
16
1121264
court became a final judgment. As the successor in
title to the forfeited property, the State is
entitled to the res judicata benefit of that final
judgment. Henderson v. Scott, 418 So. 2d 840, 841-
42 (Ala. 1982) (holding that a successor in interest
is entitled to res judicata benefit of prior
judgment awarding property to its predecessor).
"Ervin nevertheless contends that the cash was
seized pursuant to a search warrant issued by a
State judge under the auspices of § 20-2-93, Ala.
Code 1975, that State law-enforcement officials
initially seized the cash, and that they improperly
transferred the cash to federal officials. Even if
all these contentions were correct, they amount
only to an attack on the authority of the federal
district court to exercise jurisdiction over the res
in an in rem action, not an attack on the subject-
matter jurisdiction of the federal court over a
forfeiture action brought under federal law. As
such, they come too late and are being advanced in
the wrong court. See Porsche Cars North America,
Inc. v. Porsche.net, 302 F.3d 248, 256 (4th Cir.
2002)
(distinguishing
between
objections
to
subject-matter jurisdiction and objections to a
court's exercise of jurisdiction over the res in an
in rem action, and explaining that, as with in
personam jurisdiction, 'in ... civil forfeiture
cases, for years courts have held that objections to
in rem jurisdiction may be waived' and citing cases
in support); United States v. Nineteen Thousand
Eight Hundred Fifty Five ($19,855.00) Dollars in
United States Currency (No. 2:12-CV-146-WKW, Nov.
19, 2012) (not selected for publication in F. Supp.
3d) note 6 and accompanying text (M.D. Ala. 2012)
(explaining that objections to in rem jurisdiction
may be waived if not timely asserted). See also
Edney v. City of Montgomery, 960 F. Supp. 270, 273
(M.D. Ala. 1997):
"'After the city seized the currency
at issue, the DEA adopted the city's
seizure by authorizing the city to seize
17
1121264
the money on behalf of the DEA and to
transfer the money to the DEA. "[U]nder
the 'adoptive forfeiture' doctrine, the
United States' adoption of the State's
seizure of [the plaintiffs'] cash has the
same effect as if the government had
originally seized the currency." U.S. v.
$119,000 in U.S. Currency, 793 F. Supp.
246, 249 (D. Haw. 1992). That is, "[o]nce
the federal government has taken
custody of
property under 21 U.S.C. § 881, such
property is not repleviable, subject only
to
orders
from
the
court
having
jurisdiction
over
the
forfeiture
proceeding." Id. And it is the federal
district
court
that
has
original
jurisdiction
of
a
federal
forfeiture
action. 28 U.S.C. § 1355(a).'
"(Emphasis added.)"
Ervin, ___ So. 3d at ___.
The facts in this case are substantially similar to the
facts in Ervin. Additionally, in this case, Alexander argued
that the default judgment in the
federal
forfeiture proceeding
was void because the district court first exercised
jurisdiction over the property in question, which was seized
pursuant to a search warrant issued by the district court.
Ervin raised the same argument in his case. However, in
Ervin, this Court rejected Ervin's arguments and held that
Ervin's action in that case amounted to a collateral attack in
a state court on a final judgment entered by a federal court;
18
1121264
that Ervin's arguments amounted only to an attack on the
authority of the federal district court to exercise
jurisdiction over the res in an in rem action rather than an
attack on
the
subject-matter jurisdiction of the federal court
over a federal forfeiture action; and that Ervin's claims came
too late and were filed in the wrong court. Based on this
Court's intervening decision in Ervin, the Court of Civil
Appeals' holding in Alexander I that the federal court did not
have jurisdiction to enter the default judgment in the federal
forfeiture case was clearly erroneous. In fact, in Payne v.
City of Decatur, supra, which was decided almost three months
before the decision in the present case was released, the
Court of Civil Appeals stated:
"In order to reconcile our recent caselaw with
the decision in Ervin, we disavow the rationale of
Bingham and we accept the City's invitation to
overrule Alexander v. City of Birmingham, 99 So. 3d
1251 (Ala. Civ. App. 2012) [Alexander I]. In
Alexander [I], the claimant filed an action in the
Jefferson Circuit Court on March 26, 2011, seeking
the return of cash that had been seized from him and
transferred to the DEA by officers of the Birmingham
Police Department. The claimant acknowledged that
previously, on August 10, 2010, a federal district
court had entered a final judgment forfeiting the
cash to the United States, but, he argued, the
federal court had no authority to exercise in rem
jurisdiction because the state court had had
preexisting in rem jurisdiction by virtue of its
19
1121264
having issued the warrant for the search whose
execution resulted in the seizure of the cash. The
circuit court entered a summary judgment in favor of
the City of Birmingham. A majority of this court
concurred to reverse the judgment, concluding that
the municipality had 'failed to present sufficient
evidence from which to find, as a matter of law,
that the federal court had obtained jurisdiction
over the money at issue or that the state court had
been divested of jurisdiction.' 99 So. 3d at 1256.
That conclusion
erroneously permitted the claimant's
'collateral attack in state court on a final
judgment entered by a federal court' and did not
give the City of Birmingham 'the res judicata
benefit' of the federal court's final judgment of
forfeiture. See Ervin, ___ So. 3d at ___."
Payne, ___ So. 3d at ___(emphasis added). Thus, in its prior
decision in Payne, the Court of Civil Appeals also recognized
that its decision in Alexander I was erroneous and overruled
that decision.
In its opinion in the present case, the Court of Civil
Appeals relied heavily on its prior decision in NHS
Management, LLC v. Wright, 24 So. 3d 1153 (Ala. Civ. App.
2009), in determining that the City was not entitled to relief
from the Court of Civil Appeals' holding in Alexander I. In
NHS, Viola Jenkins was a patient at a nursing home operated by
NHS Management, LLC, and Northport Health Services, Inc.,
d/b/a Tallassee Health and Rehabilitation, LLC. A family
member who did not have power to represent Jenkins in any
20
1121264
legal capacity signed an admission agreement that included an
arbitration agreement. Subsequently, Jenkins died while in
the nursing home. Peter Wright, the administrator of
Jenkins's estate, sued NHS Management, LLC, Northport Health
Services, Inc., d/b/a Tallassee Health and Rehabilitation,
LLC, and Ouida Gandy (hereinafter collectively referred to as
"NHS"). On August 2, 2006, NHS moved the trial court to
compel arbitration and to stay the proceedings. Ultimately,
on April 3, 2007, the trial court entered an order granting
NHS's motion to compel arbitration and staying all the
proceedings. Wright did not appeal that order. However, on
December 14, 2007, Wright filed a Rule 60(b), Ala. R. Civ. P.,
motion seeking relief from the order granting the motion to
compel arbitration, in which he argued that this Court's
decision in Noland Health Services, Inc. v. Wright, 971 So. 2d
681 (Ala. 2007), changed the law upon which the trial court
had based its decision. The trial court granted Wright's
motion.
On appeal, NHS argued that, because Wright did not appeal
the April 3, 2007, order compelling arbitration, the trial
court erred when it granted Wright's Rule 60(b) motion and set
aside that order. The Court of Civil Appeals interpreted
21
1121264
Wright's motion as a motion for relief from an order pursuant
to Rule 60(b)(5), Ala. R. Civ. P. Rule 60(b)(5) provides, in
pertinent part:
"On motion and upon such terms as are just, the
court may relieve a party or a party's legal
representative from a final judgment, order, or
proceeding for the following reasons: ... (5) the
judgment
has
been
satisfied,
released,
or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have
prospective application ...."
In addressing NHS's argument, the Court of Civil Appeals
stated:
"'In Patterson v. Hays, 623 So. 2d
1142, 1145 (Ala. 1993), [the Alabama
Supreme] Court stated:
"'"Although
relief
from
a
judgment may be granted under
Rule 60(b)(5) if a prior judgment
upon which the judgment is based
has been reversed or otherwise
vacated, or if it is no longer
equitable
that
the
judgment
should
have
prospective
application,
'[Rule
60(b)(5)]
does not authorize relief from a
judgment on the ground that the
law applied by the court in
making its adjudication has been
subsequently
overruled
or
declared erroneous in another and
unrelated proceeding.' 7 Jerome
Wm.
Moore,
Moore's
Federal
Practice par. 60.26(3)(1991)."
22
1121264
"'623 So. 2d at 1145. See also City of
Daphne v. Caffey, 410 So. 2d 8, 10 (Ala.
1982) ("Rule 60 is not a substitute for an
appeal."); McLeod v. McLeod, 473 So. 2d
1097, 1098 (Ala. Civ. App. 1985) ("We first
note that Rule 60(b) is an extreme remedy
to be used only under extraordinary
circumstances."); Marsh v. Marsh, 338 So.
2d 422, 423 (Ala. Civ. App. 1976)("The
cases applying Rule 60(b), though seeking
to accomplish justice, have indicated
careful consideration for finality of
judgment[s]. In that regard, they have
required the movant to show good reason for
failure to take appropriate action sooner
...
and
to
show
a
good
claim
or
defense.").'
"Kupfer v. SCI-Alabama Funeral Servs., Inc., 893 So.
2d 1153, 1156-57 (Ala. 2004). See also Harris v.
Martin, 834 F.2d 361, 364 (3d Cir. 1987) ('[T]he
"prior judgment" clause of Rule 60(b)(5)[, Fed. R.
Civ. P.,] "does not contemplate relief based merely
upon
precedential
evolution."
Mayberry
[v.
Maroney], 558 F.2d [1159,] 1164 [(3d Cir. 1977)];
see also 11 C. Wright & A. Miller, Federal Practice
and Procedure § 2863 (1973); Comment, Federal Rule
of Civil Procedure 60(b): Standards for Relief from
Judgments Due to Changes in Law, 43 U. Chi. L. Rev.
646, 652-56 (1976). Its operation "is limited to
cases in which the present judgment is based on the
prior judgment in the sense of res judicata or
collateral estoppel." Marshall [v. Board of Ed. of
Bergenfield, N.J.], 575 F.2d [417,] 424 [(3d Cir.
1978)] (quoting 11 C. Wright & A. Miller, Federal
Practice and Procedure § 2863 (1973)).').
"....
"In this case, as in Kupfer, Wright did not
appeal
the
trial
court's
order
compelling
arbitration, and the Alabama Supreme Court issued
its opinion in Noland [Health Services, Inc. v.
23
1121264
Wright], 971 So. 2d 681 (Ala. 2007),] before the
time had run for Wright to file a notice of appeal.
Therefore, Wright cannot now use Rule 60(b)(5) to
substitute for an appeal. See [Ex parte] Dowling,
477 So. 2d [400,] 404 [(Ala. 1985)] ('A motion to
reconsider cannot be used as a substitute for an
appeal.'). Moreover, the Alabama Supreme Court's
decision in Noland does not justify the trial
court's grant of Wright's Rule 60(b)(5) motion. See
Patterson v. Hays, 623 So. 2d 1142, 1145 (Ala. 1993)
('"[Rule 60(b)(5)] does not authorize relief from a
judgment on the ground that the law applied by the
court
in
making
its
adjudication
has
been
subsequently overruled or declared erroneous in
another and unrelated proceeding."' (quoting Jerome
Wm. Moore, Moore's Federal Practice ¶ 60.26(3)
(1991))). Therefore, the trial court exceeded its
discretion when it granted Wright's Rule 60(b)
motion and set aside its prior order compelling
arbitration."
24 So. 3d at 155-57.
In NHS, Wright did not appeal from the trial court's
order compelling arbitration, so that order became a final
order for res judicata purposes. Because NHS involved a final
judgment, Wright filed a Rule 60(b)(5) motion. It is clear
that the Court of Civil Appeals' decision in NHS was based on
cases that limited the availability of relief under Rule
60(b)(5). However, this case does not involve an appeal from
the denial of a Rule 60(b)(5) motion. Rather, this case
involves a timely appeal from the trial court's order granting
Alexander's summary-judgment motion that, for res judicata
24
1121264
purposes, was not yet final. Thus, NHS is clearly
distinguishable from this case. Additionally, this Court has
specifically stated that the law of the case will be
disregarded in situations where the prior determination was
clearly erroneous or where there has been an intervening
change in law. See Discount Foods II, supra.
Based on the intervening change of law set forth in
Ervin, the Court of Civil Appeals' decision in Alexander I was
clearly erroneous. Therefore, the Court of Civil Appeals
erred when it relied on the law-of-the-case doctrine and on
its prior decision in NHS in determining that its decision in
Alexander I was not subject to appellate review and that the
City was not entitled to relief based upon this Court's
decision in Ervin. For these reasons, the Court of Civil
Appeals erred when it in affirmed the trial court's summary
judgment in favor of Alexander. Accordingly, we reverse the
25
1121264
Court of Civil Appeals' judgment and remand this case for
proceedings consistent with this opinion.1
REVERSED AND REMANDED.
Stuart, Bolin, Parker, Shaw, and Main, JJ., concur.
Murdock, J., concurs specially.
Moore, C.J., dissents.
Based on our disposition of this issue, we pretermit
1
discussion of the remaining arguments raised in the briefs of
the parties.
26
1121264
MURDOCK, Justice (concurring specially).
I fully concur in the main opinion. I write separately to
comment further upon what distinguishes this case from NHS
Management, LLC v. Wright, 24 So. 3d 1153 (Ala. Civ. App.
2009). As the main opinion indicates, in NHS no appeal was
taken. Consequently, the trial court's appealable order in
NHS became final and took on a res judicata effect.
2
In contrast, the case before us does not involve a final
judgment with res judicata effect because the judgment at
issue was timely appealed before it took on that character.
This fact makes a postjudgment Rule 60(b)(5), Ala. R. Civ. P.,
motion inapposite, while simultaneously opening the door for
a law-of-the-case argument. For the reasons explained in the
main opinion, ___ So. 3d at ___, however, I agree that that
law-of-the-case argument fails.
Because the trial court's order in NHS became an
2
unappealed, final judgment, Rule 60(b)(5), Ala. R. Civ. P.,
became relevant, but, as explained in the main opinion, the
precedent that was overruled in a collateral case was not the
type of "prior judgment upon which the [current] judgment is
based" that, if reversed, warranted relief under Rule
60(b)(5). See ___ So. 3d at ___.
27 | May 2, 2014 |
17237305-b22c-442e-8887-00b238ddc23f | Pennsylvania National Mutual Casualty Insurance Company v. Allen | N/A | 1121284 | Alabama | Alabama Supreme Court | Rel: 01/10/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1121284
_________________________
Pennsylvania National Mutual Casualty Insurance Company
v.
Roger D. Allen et al.
Appeal from Jefferson Circuit Court
(CV-12-902576)
MAIN, Justice.
Pennsylvania National Mutual Casualty Insurance Company
("Penn National") brought this action against Roger D. Allen,
Homeland Vinyl Products, Inc. ("Homeland Vinyl"), and Deric
Miner, individually and as the personal representative of the
estate of Jane Miner, in the Jefferson Circuit Court seeking
1121284
a judgment declaring that it owed no duty of defense or
indemnity to Allen for claims arising out of a fatal
automobile accident that occurred in New Jersey. Allen, a New
Jersey resident, moved the trial court to dismiss the claims
against him for lack of personal jurisdiction. In response,
the trial court dismissed the case in its entirety. Penn
National appeals; we affirm.
I. Facts and Procedural History
On April 9, 2010, Allen and his girlfriend, Jane Miner,
were involved in an automobile accident in Trenton, New
Jersey. The couple was returning to their home in Trenton
from a pleasure trip to Atlantic City, New Jersey. Allen was
driving the vehicle at the time of the accident, although the
vehicle was a company car issued to Miner by her employer. He
claimed something crossed the interstate in front of him; he
swerved to avoid the object but lost control of the vehicle.
The vehicle left the roadway and overturned. Miner died as a
result of the accident.
Both Allen and Miner were residents of Trenton, New
Jersey. Miner had moved from Alabama to New Jersey
approximately nine months before the accident. At the time
2
1121284
she moved to New Jersey, Miner was employed as a sales
representative for Homeland Vinyl, an Alabama corporation
headquartered in Birmingham. Miner continued to work for
Homeland Vinyl following her move to New Jersey. Homeland
Vinyl provided Miner with a company car, the vehicle involved
in the April 2010 accident. At the time of the accident, the
vehicle was registered in Alabama and bore an Alabama license
plate. The vehicle, however, had been garaged in New Jersey
for the nine months following Miner's move to New Jersey. The
vehicle was insured by Penn National through a business
automobile-liability policy issued to Homeland Vinyl.
On April 5, 2012, Miner's son, Deric Miner, individually
and as personal representative of Miner's estate, filed a
wrongful-death action against Allen in the Superior Court of
New Jersey. The action alleged that Allen had operated the
vehicle in a negligent or reckless manner and that his
negligence or recklessness had caused the accident. When
served with the New Jersey wrongful-death action, Allen
notified his personal automobile-liability insurance carrier,
Allstate Insurance Company ("Allstate"). According to Allen,
Allstate informed Allen that "they would take care of it."
3
1121284
Initially, rather than obtain counsel to represent Allen
in the wrongful-death action, Allstate tendered Allen's
defense to Penn National. We note that Penn National is a
Pennsylvania corporation with its principal place of business
in Pennsylvania. On May 9, 2012, an Allstate claims
representative sent the following correspondence to Penn
National at its address in Harrisburg, Pennsylvania:
"Allstate NJ Insurance Company is the personal
automobile insurance carrier for Roger D. Allen who
was the permissive driver of a vehicle owned by
Homeland Vinyl Products and reportedly insured by
Penn National Insurance.
"Our insured has been served with the enclosed
lawsuit by the attorney representing the Estate of
Jane Miner relative to the above captioned matter.
"As the primary insurance carrier for coverage in
this matter, kindly assign the lawsuit to counsel to
provide a defense of Roger D. Allen.
"Your prompt response and attention to this matter
is appreciated."
On August 15, 2012, Penn National filed this declaratory-
judgment action in the Jefferson Circuit Court seeking a
judgment declaring that it owed no duty to defend or to
indemnify Allen in the New Jersey wrongful-death action.
Specifically, the complaint asserted that Homeland Vinyl's
guidelines with regard to the use of its company vehicles
4
1121284
authorized only Miner to drive the vehicle and expressly
prohibited use of the vehicle by any other person. Penn
1
National further asserted that, because Allen was not
authorized to operate the vehicle, he did not qualify as a
permissive user entitled to coverage under the Penn National
policy issued to Homeland Vinyl. Penn National named Allen,
Homeland Vinyl, and Deric Miner, individually and as the
personal representative of Miner's estate, as defendants to
its declaratory-judgment action. Of the parties, only
Homeland Vinyl is an Alabama resident.
On February 26, 2013, Allen filed a Rule 12(b)(2), Ala.
R. Civ. P., motion to dismiss Penn National's action against
him on the ground that the Jefferson Circuit Court lacked
personal jurisdiction over him. In support of his motion,
Allen submitted affidavits evidencing his lack of contacts
with Alabama. According to Allen's affidavit, he owns no real
or personal property in Alabama; he does not work in Alabama;
he does not pay taxes in Alabama; he has not entered into any
The allegedly applicable guideline provided: "Only those
1
employees that have been specifically authorized are allowed
to drive Company vehicles. No member of an employee's family
is authorized to drive a company vehicle under any
circumstance."
5
1121284
contracts in Alabama; he conducts no business in Alabama; and
he generally denied that he had any contacts with Alabama. To
the contrary, he attested, he is a long-time citizen of New
Jersey who lives, works, and pays taxes in New Jersey. Allen
testified that Miner's company vehicle had been garaged in New
Jersey continuously since Miner's move to New Jersey. He
further attested that the accident made the basis of this
action occurred in New Jersey and that the underlying
wrongful-death action is pending in New Jersey.
Penn National opposed Allen's motion to dismiss. It
argued that the Jefferson Circuit Court held
specific
personal
jurisdiction over Allen because, at the time of the accident,
he was operating a vehicle registered in Alabama and because,
following the filing of the underlying wrongful-death action,
his insurance company demanded coverage on his behalf under
the Penn National policy –- a policy that had been issued for
delivery in Alabama to an Alabama-based named insured
corporation.2
After the filing of Penn National's declaratory-judgment
2
action, Allen filed a third-party complaint in the underlying
New Jersey wrongful-death action, seeking a declaration that
Penn National, in fact, owes him defense and indemnity for
claims arising from the accident.
6
1121284
The trial court initially denied Allen's motion to
dismiss. Allen moved the trial court to reconsider its
ruling. Following additional briefing by Allen and Penn
National and oral arguments, the trial court vacated its
previous order and dismissed Penn National's declaratory-
judgment action without prejudice as to all the defendants.
3
This appeal followed.
II. Standard of Review
A Rule 12(b)(2), Ala. R. Civ. P., motion tests the
court's exercise of personal jurisdiction over a defendant.
"'An appellate court considers de novo a trial court's
judgment on a party's motion to dismiss for lack of personal
jurisdiction.'" Ex parte Lagrone, 839 So. 2d 620, 623 (Ala.
2002) (quoting Elliott v. Van Kleef, 830 So. 2d 726, 729 (Ala.
2002)). But see Allsopp v. Bolding, 86 So. 3d 952, 957-58
(Ala. 2011) (recognizing that deference is due to pertinent
Although Allen's Rule 12(b)(2), Ala. R. Civ. P., motion
3
sought dismissal of only the claims against him, the trial
court
dismissed
Penn
National's
declaratory-judgment
action
in
its entirety. Whether the trial court properly dismissed the
case in its entirety, or whether the trial court should have
limited its dismissal to only the claims against Allen, is not
an issue raised or addressed by the parties on appeal.
Accordingly, that issue is not before us. The only appellee's
brief filed on appeal is Allen's.
7
1121284
trial court factual findings to the extent those findings are
based on ore tenus evidence).
Additionally, the appropriate analysis and the parties'
respective burdens in
a
case testing personal jurisdiction are
well settled. "'"The plaintiff has the burden of proving that
the
trial
court
has
personal
jurisdiction
over
the
defendant."'" Ex parte McNeese Title, LLC, 82 So. 3d 670, 674
(Ala. 2011) (quoting Ex parte Excelsior Fin., Inc., 42 So. 3d
96, 103 (Ala. 2010), quoting in turn J.C. Duke & Assocs. Gen.
Contractors, Inc. v. West, 991 So. 2d 194, 196 (Ala. 2008),
citing in turn Ex parte Covington Pike Dodge, Inc., 904 So. 2d
226 (Ala. 2004)).
"'"'In considering
a Rule 12(b)(2), Ala.
R. Civ. P., motion to
dismiss
for
want
of
personal jurisdiction,
a court must consider
as true the allegations
of
the
plaintiff's
c o m p l a i n t
n o t
controverted
by
the
defendant's affidavits,
Robinson v. Giarmarco &
Bill, P.C., 74 F.3d 253
(11th Cir. 1996), and
C
a
b
l
e
/
H
o
m
e
Communication Corp. v.
Network
Productions,
Inc.,
902
F.2d
829
8
1121284
(11th Cir. 1990), and
"where the plaintiff's
complaint
and
the
defendant's affidavits
conflict, the ... court
must
construe
all
reasonable
inferences
in
favor
of
the
plaintiff." Robinson,
74 F.3d at 255 (quoting
Madara
v.
Hall,
916
F.2d 1510, 1514 (11th
Cir. 1990)).'"
"'Wenger Tree Serv. v. Royal Truck &
Equip., Inc., 853 So. 2d 888, 894 (Ala.
2002) (quoting Ex parte McInnis, 820 So. 2d
795, 798 (Ala. 2001)). However, if the
defendant makes a prima facie evidentiary
showing that the Court has no personal
jurisdiction,
"the
plaintiff
is
then
required
to
substantiate
the
jurisdictional
allegations in the complaint by affidavits
or other competent proof, and he may not
merely
reiterate
the
factual
allegations
in
the complaint." Mercantile Capital, LP v.
Federal Transtel, Inc., 193 F. Supp. 2d
1243, 1247 (N.D. Ala. 2002)(citing Future
Tech. Today, Inc. v. OSF Healthcare Sys.,
218 F.3d 1247, 1249 (11th Cir. 2000)). See
also Hansen v. Neumueller GmbH, 163 F.R.D.
471,
474-75
(D.
Del.
1995)("When
a
defendant files a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(2), and
supports that motion with affidavits,
plaintiff is required to controvert those
affidavits with his own affidavits or other
competent evidence in order to survive the
motion.") (citing Time Share Vacation Club
v. Atlantic Resorts, Ltd., 735 F.2d 61, 63
(3d Cir. 1984)).'
9
1121284
"Ex parte Covington Pike Dodge, Inc., 904 So. 2d
226, 229-30 (Ala. 2004)."
Ex parte Excelsior Fin., Inc., 42 So. 3d at 103 (emphasis
omitted).
III. Analysis
Penn National contends that the trial court erred when it
dismissed the claims against Allen on a personal-jurisdiction
ground. Penn National argues the Jefferson Circuit Court
properly
had
specific
personal
jurisdiction
over
Allen
because
at the time of the accident: (1) Allen was operating a vehicle
registered in Alabama and owned by an Alabama corporation,
Homeland Vinyl, and (2) Allen, or someone acting on his
behalf, sought insurance coverage under the automobile-
liability policy Penn National had issued to Homeland Vinyl.
We must decide whether these "contacts" with Alabama are
sufficient to permit this state to constitutionally exercise
personal jurisdiction over Allen.
We have previously summarized an Alabama court's ability
to exercise personal jurisdiction over a foreign defendant as
follows:
"The extent of an Alabama court's personal
jurisdiction over a person or corporation is
governed by Rule 4.2, Ala. R. Civ. P., Alabama's
10
1121284
'long-arm rule,' bounded by the limits of due
process under the federal and state constitutions.
Sieber v. Campbell, 810 So. 2d 641 (Ala. 2001).
Rule 4.2(b), as amended in 2004, states:
"'(b) Basis for Out–of–State Service.
An appropriate basis exists for service of
process outside of this state upon a person
or entity in any action in this state when
the person or entity has such contacts with
this state that the prosecution of the
action against the person or entity in this
state
is
not
inconsistent
with
the
constitution
of
this
state
or
the
Constitution of the United States....'
"In accordance with the plain language of Rule
4.2, both before and after the 2004 amendment,
Alabama's long-arm rule consistently has been
interpreted by this Court to extend the jurisdiction
of Alabama courts to the permissible limits of due
process. Duke v. Young, 496 So. 2d 37 (Ala. 1986);
DeSotacho, Inc. v. Valnit Indus., Inc., 350 So. 2d
447 (Ala. 1977). As this Court reiterated in Ex
parte McInnis, 820 So. 2d 795, 802 (Ala. 2001)
(quoting Sudduth v. Howard, 646 So. 2d 664, 667
(Ala. 1994)), and even more recently in Hiller
Investments Inc. v. Insultech Group, Inc., 957 So.
2d 1111, 1115 (Ala. 2006): 'Rule 4.2, Ala. R. Civ.
P., extends the personal jurisdiction of the Alabama
courts to the limit of due process under the federal
and state constitutions.' (Emphasis added.)"
Ex parte DBI, Inc., 23 So. 3d 635, 643 (Ala. 2009). See also
Ex parte McNeese Title, 82 So. 3d at 673.
"'Two types of contacts can form a
basis for personal jurisdiction: general
contacts and specific contacts. General
contacts, which give rise to general
personal jurisdiction, consist of the
11
1121284
defendant's contacts with the forum state
that are unrelated to the cause of action
and
that
are
both
"continuous
and
systematic." Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414
n. 9, 415, 104 S. Ct. 1868, 80 L.Ed.2d 404
(1984); [citations omitted]. Specific
contacts, which give rise to specific
jurisdiction, consist of the defendant's
contacts with the forum state that are
related to the cause of action. Burger
King Corp. v. Rudzewicz, 471 U.S. 462,
472–75, 105 S. Ct. 2174, 85 L.Ed.2d 528
(1985). Although the related contacts need
not be continuous and systematic, they must
rise to such a level as to cause the
defendant to anticipate being haled into
court in the forum state. Id.'
"Ex parte Phase III Constr., Inc., 723 So. 2d 1263,
1266 (Ala. 1998) (Lyons, J., concurring in the
result). Furthermore, this Court has held that, for
specific in personam jurisdiction, there must exist
'a clear, firm nexus between the acts of the
defendant and the consequences complained of.' Duke
v. Young, 496 So. 2d 37, 39 (Ala. 1986). See also
Ex parte Kamilewicz, 700 So. 2d 340, 345 n. 2 (Ala.
1997).
"In the case of either general in personam
jurisdiction or specific in personam jurisdiction,
'[t]he
"substantial
connection"
between
the
defendant and the forum state necessary for a
finding of minimum contacts must come about by an
action of the defendant purposefully directed toward
the forum State.' Asahi Metal Indus. Co. v.
Superior Court of California, 480 U.S. 102, 112, 107
S.Ct.
1026,
94
L.Ed.2d
92
(1987).
This
purposeful-availment requirement assures that a
defendant will not be haled into a jurisdiction as
a result of '"the unilateral activity of another
person or a third person."' Burger King, 471 U.S.
12
1121284
at 475, 105 S.Ct. 2174, quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
"Only after such minimum contacts have been
established does a court then consider those
contacts in the light of other factors –- such as
the burden on the defendant of litigating in the
forum state and the forum state's interest in
adjudicating the dispute, Burger King, 471 U.S. at
476-77, 105 S.Ct. 2174 -- to determine whether the
exercise
of
personal
jurisdiction
over
the
nonresident defendant comports with '"traditional
notions of fair play and substantial justice."'
Brooks v. Inlow, 453 So.2d 349, 351 (Ala. 1984),
quoting International Shoe [Co. v. Washington], 326
U.S. [310,] at 316, 66 S.Ct. 154 [(1945)]. See also
Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174."
Elliott v. Van Kleef, 830 So. 2d 726, 730–31 (Ala. 2002).
A defendant is constitutionally amenable to specific
jurisdiction in a forum if the defendant possesses sufficient
minimum contacts with the forum to satisfy due-process
requirements and if the exercise of jurisdiction by the forum
comports with "'traditional notions of fair play and
substantial justice.'" International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S.
457, 463 (1940)). See Ex parte Kohlberg Kravis Roberts & Co.,
78 So. 3d 959, 972 (Ala. 2011) (quoting Ex parte McInnis, 820
So. 2d 795, 802–03 (2001)). This two-part test embodies the
controlling due-process principle that a defendant must have
13
1121284
"fair warning" that a particular activity might subject it to
the jurisdiction of a foreign sovereign. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985). See Ex parte Kohlberg
Kravis Roberts & Co., 78 So. 3d at 970.
In the present case, Penn National concedes that Allen
lacks the "continuous and systematic" contacts with Alabama
sufficient
to
confer
general
personal
jurisdiction
over
Allen.
Rather, it contends that trial court may exercise specific
personal jurisdiction based on the following contacts: (1) at
the time of the accident Allen was driving a car registered in
Alabama; (2) the car was owned by an Alabama company; (3) the
insurance policy covering the vehicle was issued to an Alabama
named insured and was delivered to that insured in Alabama;
and (4) Allen has made a claim for coverage under that
"Alabama" policy.
We have recently summarized the test for determining
whether sufficient minimum contacts exist for the purpose of
exercising specific personal jurisdiction:
"Over the course of the development of minimum-
contact analysis following International Shoe Co.
and its progeny, this Court, in Elliott v. Van
Kleef, supra, and its progeny, has essentially
formulated a test for ascertaining whether there are
sufficient minimum contacts for a court to exercise
14
1121284
specific personal jurisdiction over a nonresident
defendant:(1) The nonresident defendant's contacts
must be related to the plaintiff's cause of action
or have given rise to it. Ex parte Kohlberg Kravis
Roberts & Co., 78 So. 3d at 971 (citing Burger King
Corp. v. Rudzewicz, 471 U.S. at 472). (2) By its
contacts
the
nonresident
defendant
must
have
purposefully availed itself of the privilege of
conducting business in the forum state. Ex parte
City Boy's Tire & Brake, Inc., 87 So. 3d 521, 529
(Ala. 2011). See Hanson v. Denckla, 357 U.S. 235,
253 (1958); see also Burger King, 471 U.S. at
474-75. (3) The nonresident defendant's contacts
with the forum must be 'such that the nonresident
defendant "'should reasonably
anticipate
being haled
into court'" in the forum state.' Ex parte
Excelsior Fin., Inc., 42 So. 3d at 101 (quoting
Burger King Corp., 471 U.S. at 473, quoting in turn
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 295 (1980)). See, e.g., Elliott v. Van Kleef,
supra."
Ex parte Alamo Title Co., [Ms. 1111541, March 15, 2013] __ So.
3d ___, ___ (Ala. 2013) (footnote omitted).
First we note that the connections between Penn
National's declaratory-judgment action and Allen's supposed
contacts with Alabama are tenuous. In its action, Penn
National seeks a judgment declaring its coverage obligations
related to another lawsuit pending in the Superior Court of
New Jersey arising from an automobile accident that occurred
in New Jersey, involving New Jersey residents. The only real
connection between this action and Alabama appears to be the
15
1121284
fact that Penn National's named insured is located in Alabama,
where the insurance policy was delivered. This contact,
however, cannot be attributed to any purposeful action by
Allen.
Indeed, there is no indication that Allen "purposely
availed" himself of the protection of Alabama's laws. Allen
has had no direct connection to Alabama –- there is no
evidence indicating that he entered into any contracts in
Alabama, that he committed any tortious conduct in Alabama, or
that he directed any conduct or communication toward Alabama.
At best, Allen's contact with Alabama was indirect –- at the
time of the accident he was driving a car owned by an Alabama
company and registered in Alabama. Although this car bore an
Alabama license plate, it was a company car issued to Miner,
who had kept the vehicle in New Jersey for nine months
preceding the accident. It cannot be said that an isolated
intrastate use of this vehicle in New Jersey by Allen was a
purposeful availment by Allen of Alabama's laws or that such
use should have caused Allen to reasonably expect to be haled
into the Jefferson Circuit Court.
16
1121284
Nor can we conclude that Allen's request for a defense in
the New Jersey wrongful-death action was "purposeful" in the
jurisdictional sense. Penn National argues that because the
policy under which he was requesting the defense was issued in
Alabama, it will be governed by Alabama law. Thus, Penn
National contends that when Allen demanded a defense under
this "Alabama" policy, he purposefully availed himself of the
protection of Alabama's laws. This argument confuses choice-
of-law issues with jurisdictional analysis. In fact, Alabama
law might not apply if the case was filed in a jurisdiction
applying different choice-of-law rules. See Gilbert Spruance
Co. v. Pennsylvania Mfrs. Ass'n Ins. Co., 134 N.J. 96, 102,
629 A.2d 885, 888 (1993) (rejecting the lex loci contractus
rule in favor of a "most significant connections" approach).
Furthermore, Allen argues that he never even requested a
defense from Penn National; he merely forwarded the complaint
in the underlying New Jersey wrongful-death action to his
insurer, Allstate. Allstate's New Jersey claims office then
tendered
Allen's
defense
request
to
Penn
National's
Pennsylvania home office. Even if Allstate's defense tender
is attributed directly to Allen, however, there is no evidence
17
1121284
indicating that this claim for coverage involved any
communication or affirmative act directed at Alabama.
Rather,
the claim was made directly to Penn National's Pennsylvania
office. Although the insurance contract was formed in
Alabama, under these particular circumstances, we do not find
that Allen's request for a defense in the New Jersey wrongful-
death action evidences purposeful availment. Accordingly, we
hold that Allen's demand for a defense from Penn National in
the underlying New Jersey wrongful-death action does not give
rise to specific personal jurisdiction in Alabama. See
Hartford Cas. Ins. Co. v. JR Marketing, LLC, 511 F.Supp.2d
644, 650 (E.D. Va. 2007) (holding that a request for defense
did not constitute purposeful conduct toward the
forum
state).
Allen's contacts with Alabama were no more than indirect
and tangential, and the "'nature and quality and the
circumstances
of
their
commission'
create
only
an
'attenuated'
affiliation with the forum." Burger King Corp., 471 U.S. at
476 n. 18 (quoting International Shoe, 326 U.S. at 318).
Accordingly, we conclude that Allen's contacts with Alabama
do
not support a finding of purposeful activity invoking the
benefits and protections of Alabama law. Based on our
18
1121284
analysis
of
the
specific-personal-jurisdiction-minimum-
contacts factors and the record before us, we conclude that
the trial court correctly dismissed the claims against Allen
for lack of personal jurisdiction.
IV. Conclusion
Based on the above, we affirm the trial court's order
dismissing Penn National's declaratory-judgment action.
AFFIRMED.
Moore, C.J., and Bolin, Murdock, and Bryan, JJ., concur.
19 | January 10, 2014 |
26c5606c-2f9c-4008-8b92-14d4dc35726f | Poiroux v. Rich | N/A | 1120734 | Alabama | Alabama Supreme Court | Rel: 3/14/14
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120734
____________________
Clement David Poiroux et al.
v.
Ashley Rich et al.
Appeal from Montgomery Circuit Court
(CV-12-900854)
BRYAN, Justice.
Clement David Poiroux, Lamar Sanders Osborne, Travis Kyle
Blair, Christopher Raybon, Sara Hawkins, Brian Williams,
Levorish Hudson, Joseph Gardner Johnson, Jr., Nicholas Cain
McNeil, and Willie James Walker II (hereinafter collectively
referred to as "the criminal defendants"), and McNeil &
1120734
Stokley Enterprises, LLC, d/b/a Metro Bonding Co., Bay Area
Bail Bonds, LLC, A-Plus Bonding, Inc., Alternative Justice
Bail Bonding, Inc., A-Advantage Bonding, LLC, Affordable Bail
Bond, Inc., and Allstar Bail Bonds, Inc. (hereinafter
collectively
referred
to
as
"the
bail-bond
companies"),
appeal
the dismissal of their claims against various district
attorneys, circuit court clerks, and other state officials
1
2
3
The district attorneys named in the action include:
1
Ashley Rich, district attorney for Mobile County; Ellen
Brooks, district attorney for Montgomery County; Douglas A.
Valeska, district attorney for Henry and Houston Counties;
Tommy Chapman, district attorney for Monroe and Conecuh
Counties; Hallie Dixon, district attorney for Baldwin County;
and Randall V. Houston, district attorney for Autauga,
Chilton, and Elmore Counties. Steve Wadlington was
substituted for Chapman as a party to the action after he
replaced Chapman as district attorney for Monroe and Conecuh
Counties in October 2012. See Rule 25(d), Ala. R. Civ. P.
The circuit court clerks named in the action include:
2
Jody Wise Campbell, circuit clerk of Baldwin County; Jojo
Schwarzauer,
circuit
clerk
of
Mobile
County;
Florence
Cauthen,
circuit clerk of Montgomery County; Carla H. Woodall, circuit
clerk of Houston County; William R. McMillan, circuit clerk of
Monroe County; and Whit Moncrief, circuit clerk of Autauga
County.
The other state officials named in the action include:
3
Sam Cochran, sheriff of Mobile County; D.T. Marshall, sheriff
of Montgomery County; Andy Hughes, sheriff of Houston County;
Thomas Tate, sheriff of Monroe County; Huey "Hoss" Mack,
sheriff of Baldwin County; James "Herbie" Johnson, sheriff of
Autauga County; Marquita Davis, director of the Alabama
Department of Finance; Michael Sparks, director of
the
Alabama
Department of Forensic Sciences; and John Hixon, Jr.,
2
1120734
(hereinafter collectively referred to as "the defendants").
We affirm the judgment in part, reverse it in part, and remand
the cause for further proceedings.
Facts and Procedural History
On July 6, 2012, several of the criminal defendants and
of
the
bail-bond
companies
sued
the
defendants
and
4
fictitiously named parties in the Montgomery Circuit Court,
alleging claims related to Act No. 2012-535, Ala. Acts 2012,
codified as § 12-14-31 and § 12-19-311, Ala. Code 1975. The
5
criminal defendants and the bail-bond companies argued, among
other things, that the fee assessed pursuant to § 12-19-
311(a)(1)a., Ala. Code 1975 ("the filing fee"), and the fee
assessed pursuant to § 12-19-311(a)(1)b., Ala. Code 1975 ("the
back-end fee"), are unconstitutional. According to the
original and amended complaints, each of the criminal
defendants had been assessed either a filing fee or a back-end
executive director of the Alabama Peace Officers' Annuity
Benefit Fund.
Williams, Hudson, Johnson, McNeil, Walker, and Allstar
4
Bail Bonds, Inc., were actually added plaintiffs in the
amended complaint filed in November 2012.
Section 12-14-31 is not at issue in this appeal.
5
3
1120734
fee, and each of the bail-bond companies had paid filing fees
on behalf of various clients.
With the exception of minor traffic cases, the filing fee
and the back-end fee are "imposed on every bail bond in all
courts of [Alabama]." § 12-19-311(a)(1). The filing fee, if
collected by the official executing the bond, is collected "at
the execution of the bond or at the time of release," or, if
the circuit clerk collects the bond, the filing fee can also
be collected "within two business days of release." § 12-19-
311(b). The back-end fee is "assessed to the defendant and
... imposed by the court when the defendant appears in court
for adjudication or sentencing." § 12-19-311(e)(1).
The filing fee is assessed "in the amount of thirty-five
dollars ($35) on each bond executed." § 12-19-311(a)(1)a.
The back-end fee is set forth in § 12-19-311(a)(1)b., which
provides, in pertinent part:
"For a misdemeanor offense, a bail bond fee in the
amount of 3.5 percent of the total face value of the
bail bond or one hundred dollars ($100), whichever
is greater, but not to exceed four hundred fifty
dollars ($450). For a felony offense, a bail bond
fee of 3.5 percent of the total face value of the
bail bond or one hundred fifty dollars ($150),
whichever is greater, but not to exceed seven
hundred fifty dollars ($750). ... For purposes of
this section, face value of bond shall mean the bond
4
1120734
amount set by court or other authority at release,
not the amount posted at release on bail."
Section 12-19-313, Ala. Code 1975, provides:
"If the charge against a defendant in a case is
disposed of by a finding of not guilty, no bill,
dismissal or nolle prosequi without conditions, the
fees imposed in the case pursuant to [§ 12-19-
311(a)(1)b.] shall not be assessed. In all other
cases wherein the charge against a defendant is
disposed of by conviction, a finding of guilty, or
dismissal or nolle prosequi upon conditions to pay
costs and fees, the fees pursuant to [§ 12-19-
311(a)(1)b.] shall be assessed. If the defendant is
admitted to a pretrial diversion program or to a
specialty court program, the fee shall be assessed
as with other court costs and fees."
No such provision appears to apply to the filing fees.
The filing and back-end fees are distributed as follows:
"(f) The court clerks shall distribute on a
monthly basis as other fees are distributed, the
[filing] fees ... as follows: Ten percent from each
fee shall be distributed either to the county
general fund to be earmarked and distributed to the
Sheriff's Fund, administered by the sheriff, in the
county where the bond was executed or, where the
bond is executed by the municipality, to the
municipality; 45 percent of the fee to the court
clerk's fund where the bond was executed or where
the bond is executed by the municipal court, to the
municipality; 45 percent of the fee to the
Solicitor's Fund in the county where the bond was
executed. The bail bond fee records shall be
audited by the Department of Examiners of Public
Accounts.
"(g) The court clerks shall distribute on a
monthly basis as other fees are distributed, the
5
1120734
[back-end] fees ... as follows: Twenty-one dollars
and fifty cents ($21.50) from each fee shall be
distributed to the county general fund which shall
be earmarked and distributed to the Sheriff's Fund,
administered by the sheriff, in the county where the
bond was executed or, where the bond was executed by
a municipality, to the municipality; 40 percent of
the remainder of the fee to the court clerk's fund
where the bond was executed or where the bond is
executed
by
the
municipal
court,
to
the
municipality; 45 percent of the remainder of the fee
to the Solicitor's Fund in the county where the bond
was executed; five percent to the State General Fund
and ten percent to the Alabama Forensic Services
Trust Fund. The bail bond fee records shall be
audited by the Department of Examiners of Public
Accounts."
§ 12-19-311.
The criminal defendants and the bail-bond companies asked
the circuit court to certify a class under Rule 23, Ala. R.
Civ. P., and for a judgment declaring that the circuit court
had jurisdiction over the matter and that § 12-19-311 violated
the Alabama Constitution and the United States Constitution.
They also asked for a declaration that the defendants' acts
and practices were "unlawful" and sought "injunctive and
equitable relief in accord with the declarations of this
Court." The criminal defendants and the bail-bond companies
asked the circuit court to "award [them] damages and the cost
of this matter" and "a reasonable attorney fee."
6
1120734
On July 26, 2012, the defendants, with the exception of
the sheriffs named in the action ("the defendant sheriffs"),
moved the circuit court to dismiss the criminal defendants and
bail-bond companies' claims against them or, in the
alternative, for a summary judgment or, in the alternative, to
deny the criminal defendants and bail-bond companies' request
for injunctive relief. On August 7, 2012, Sheriff D.T.
Marshall moved the circuit court to dismiss the claims against
him, and, on August 10, 2012, Sheriff Thomas Tate and Sheriff
Huey "Hoss" Mack moved for dismissal of the claims against
them. In a separate motion, Sheriff Sam Cochran also asked
the circuit court to dismiss the claims against him. Each
sheriff's motion alleged that he was entitled to sovereign
immunity, pursuant to Art. I, § 14, Ala. Const. of 1901.
In August 2012, after a hearing, the circuit court denied
the criminal defendants and bail-bond companies' request for
a temporary restraining order and a preliminary injunction.
In October 2012, the circuit court stayed discovery pending a
ruling on the motions to dismiss. In November 2012, the
criminal defendants and the bail-bond companies amended their
complaint, adding several plaintiffs and an additional claim
7
1120734
for relief under the Fifth and Fourteenth Amendments to the
United States Constitution. The criminal defendants and the
bail-bond companies also filed objections to the circuit
court's order staying discovery and a response to the motions
to dismiss. The defendants filed various motions to dismiss
the amended complaint, to which the criminal defendants and
the bail-bond companies responded.
On February 15, 2013, the circuit court dismissed the
criminal
defendants and
bail
bond
companies' claims,
determining that, pursuant to this Court's decision in
Citizenship Trust v. Keddie-Hill, 68 So. 3d 99 (Ala. 2011), it
did not have jurisdiction over the claims in this action and
that the criminal defendants and the bail-bond companies
lacked standing. The criminal defendants and the bail-bond
companies appeal that judgment.
Standard of Review
"A ruling on a motion to dismiss is reviewed
without a presumption of correctness. This Court
must accept the allegations of the complaint as
true. Furthermore, in reviewing a ruling on a
motion to dismiss we will not consider whether the
pleader will ultimately prevail but whether the
pleader may possibly prevail."
8
1120734
Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003)
(citations omitted). "Matters of subject-matter jurisdiction
are subject to de novo review." DuBose v. Weaver, 68 So. 3d
814, 821 (Ala. 2011). "'"When a party without standing
purports to commence an action, the trial court acquires no
subject-matter jurisdiction."'" Blevins v. Hillwood Office
Ctr. Owners' Ass'n, 51 So. 3d 317, 321 (Ala. 2010) (quoting
Riley v. Pate, 3 So. 3d 835, 838 (Ala. 2008), quoting in turn
State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028
(Ala. 1999)).
Analysis
We turn first to the criminal defendants and bail-bond
companies' argument that the circuit court erred
in
concluding
that "[the circuit court] lack[ed] jurisdiction to consider
[their] claims pursuant to the authority of [Keddie-Hill]."
In Keddie-Hill, this Court addressed claims by Mary Kathleen
Keddie-Hill, Cheryl Tillman, and Justin Hammond, alleging,
among other things, that the provision in Act No. 2009-768,
Ala. Acts 2009, allowing a portion of the DNA-database fee to
be distributed to the Citizenship Trust was unconstitutional.
Keddie-Hill and Tillman had pleaded guilty to traffic
9
1120734
violations and paid the fines and court costs assessed against
them in their respective cases, including the DNA-database
fee. However, they paid the DNA-database fee under protest,
arguing that the provision for distribution of the fee to the
Citizenship Trust was unconstitutional but that they could
not
afford a lawyer to challenge the allegedly unconstitutional
portion of the fee. Hammond had also received a traffic
citation, but, at the time he filed his claims in Keddie-Hill,
he had not yet pleaded guilty or been ordered to pay any fines
or court costs. Instead, he argued that "'[s]hould I plea[d]
or be found guilty I anticipate being ordered to pay fines and
court costs assessed against me,'" including the allegedly
unconstitutional portion of the DNA-database fee. Keddie-
Hill, 68 So. 3d at 103.
The Court first addressed Keddie-Hill's and Tillman's
claims, stating:
"Keddie-Hill and Tillman seek an order declaring
unconstitutional Act No. 2009-768, under which they
... were required to pay a $12 DNA database fee.
They seek an injunction remedying the payment of the
allegedly unconstitutional fine by ordering the
defendants to refund the fees or, alternatively, an
order making distribution of those fees pursuant to
the cy pres doctrine. Thus, the present proceeding
is a collateral proceeding to secure relief from
criminal sentences on constitutional grounds. See
10
1120734
Rule 26.11(c) and (j), Ala. R. Crim. P. ('Docket
fees and other costs in criminal cases shall be
assessed upon conviction. ... Court costs shall be
deemed part of the penalty and the same procedures
provided herein for nonpayment of fines shall apply
for nonpayment of costs.')."
Keddie-Hill, 68 So. 3d at 104. The Court went on to hold:
"[B]ecause this is a civil proceeding collaterally attacking
the judgments in criminal cases, it falls within the scope of
Rule 32, Ala. R. Crim. P." 68 So. 3d at 105 (citing, among
other things, Rule 32.4, Ala. R. Crim. P. ("A proceeding under
[Rule 32] displaces all post-trial remedies except post-trial
motions under Rule 24[, Ala. R. Crim. P.,] and appeal. Any
other post-conviction petition
seeking
relief
from
a
conviction or sentence shall be treated as a proceeding under
this rule.")). The Court went on to note that Rule 32
prohibited the circuit court from addressing petitions for
postconviction relief that involve more than one judgment
entered in more than one trial or guilty-plea proceeding. See
Rule 32.1, Ala. R. Crim. P. ("A petition that challenges
multiple judgments entered in more than a single trial or
guilty-plea
proceeding
shall
be
dismissed
without
prejudice."). The Court then dismissed Keddie-Hill's and
Tillman's claims without prejudice.
11
1120734
Turning to Hammond's claims, the Court stated:
"[T]he issue before us is the propriety of a
preliminary injunction entered in aid of an action
seeking declaratory and injunctive relief as to the
alleged
unconstitutionality
of
a
penalty
in
Hammond's pending criminal proceeding. The trial
court was without subject-matter jurisdiction,
however, to grant such preliminary relief or to
entertain the underlying action brought by Hammond.
'The general rule is that a court may not interfere
with the enforcement of criminal laws through a
civil action. ...' Tyson v. Macon County Greyhound
Park, Inc., 43 So. 3d 587, 589 (Ala. 2010) (holding
that, with exceptions not applicable here, courts
are
without
subject-matter
jurisdiction
to
adjudicate in civil proceedings matters that should
be decided in criminal proceedings or related
forfeiture actions for which the legislature has
provided). See 22A Am. Jur. 2d Declaratory
Judgments § 57 (2003) ('A declaratory judgment will
generally not be granted where its only effect would
be to decide matters which properly should be
decided in a criminal action.' (quoted with approval
in Tyson, 43 So. 3d at 589)). Accordingly, the
trial court was without subject-matter jurisdiction
over the action brought by Hammond. The trial
court's order granting preliminary injunctive relief
and denying class certification is due to be
vacated; Hammond's action, as well as the present
appeal, are due to be dismissed without prejudice."
Keddie-Hill, 68 So. 3d at 106.
The criminal defendants and the bail-bond companies
purport to seek relief from both the filing fee and the back-
end fee. However, it is not until their reply brief that they
make any specific arguments regarding the back-end fee.
12
1120734
"Arguments made for the first time in a reply brief are not
properly before this Court." Baldwin Cnty. Elec. Membership
Corp. v. City of Fairhope, 999 So. 2d 448, 458 n.12 (Ala.
2008). Moreover, only two of the criminal defendants, Walker
and Johnson, have alleged injuries from the imposition of the
back-end fee. As the defendants note, Walker successfully
challenged on appeal the back-end fee assessed against him in
his criminal proceeding. See Walker v. State, [Ms. CR-12-
0036, July 12, 2013] ___ So. 3d ___ (Ala. Crim. App. 2013)
(finding that Walker could not be charged the back-end fee
because he was not released on bail). No specific argument is
made regarding alleged error in the circuit court's judgment
as it relates to the back-end fee assessed against Johnson.
Thus, the criminal defendants and the bail-bond companies have
not demonstrated any error in the circuit court's judgment as
it applies to the claims regarding the back-end fee.
With regard to the filing fee, the criminal defendants
and the bail-bond companies argue that Keddie-Hill is
distinguishable and that it does not require dismissal of
their claims. We agree. None of the criminal defendants and
the bail-bond companies in this case is seeking "relief from
13
1120734
[a] criminal sentence[] on constitutional grounds," Keddie-
Hill, 68 So. 3d at 104, or "collaterally attacking the
judgments in criminal cases," 68 So. 3d at 105, related to the
filing fee. Pursuant to § 12-19-311(a)(2), the filing fee is
assessed at "the issuance, reissuance, or reinstatement
of
the
bond," and not as part of a sentence or final judgment entered
against the criminal defendants or the bail-bond companies.
Indeed, the bail-bond companies' obligations to pay
the
filing
fees do not arise in any such proceedings. Thus, the criminal
defendants and bail-bond companies' claims related to the
filing fee are not precluded under this Court's first holding
in Keddie-Hill.
This Court's second holding in Keddie-Hill, which related
to Hammond's request for relief from a fine that had not yet
been assessed against him, likewise does not apply. Hammond
had been cited for speeding in Jefferson County, but, at the
time the underlying action in Keddie-Hill was filed, criminal
proceedings were still pending against him, and no judgment
had been entered. This Court held that, under "'[t]he general
rule ... that a court may not interfere with the enforcement
of criminal laws through a civil action,'" the trial court did
14
1120734
not have subject-matter jurisdiction over Hammond's claim.
Keddie-Hill, 68 So. 3d at 106 (quoting Tyson v. Macon Cnty.
Greyhound Park, Inc., 43 So. 3d 587, 589 (Ala. 2010)).
As noted, however, the filing fee, unlike the DNA-
database fee, which was assessed upon conviction or entry of
a guilty plea, is, in most cases, "assessed at the issuance,
reissuance, or reinstatement of the bond," § 12-19-311(a)(2),
6
and is not dependent on any judgment or sentence meted out by
the trial court or by any determination of guilt. Thus, the
criminal defendants and bail-bond companies' claims regarding
the filing fee do not ask the circuit court to "adjudicate in
[a] civil proceeding[] [a] matter[] that should [or would] be
decided in [a] criminal proceeding[]," Keddie-Hill, 68 So. 3d
at 106 (citing Tyson, 43 So. 3d at 589), or to enter a
Section 12-19-311(b), Ala. Code 1975, provides that,
6
"[i]f a person is released on own recognizance, judicial
public bail, or non-custodial offense pursuant to Rule 20[,
Ala. R. Jud. Admin.], the [filing] fee shall be assessed at
the time of adjudication or at the time that any other fees
and costs are assessed." Rule 26.11(c), Ala. R. Crim. P.,
provides that "[d]ocket fees and other costs in criminal cases
shall be assessed upon conviction." Under
such circumstances,
the filing fee could be considered part of a criminal
defendant's sentence or judgment. However, none of the
parties argues that this provision applies to any of the
filing fees paid by the criminal defendants or the bail-bond
companies here.
15
1120734
declaratory judgment "'where its only effect would be to
decide matters which properly should be decided in a criminal
action.'" Id. (quoting 22A Am. Jur. 2d Declaratory Judgments
§ 57 (2003)). Thus, this Court's second holding in Keddie-
Hill is also distinguishable, and the circuit court erred in
determining that the claims related to the filing fee were due
to be dismissed for lack of subject-matter jurisdiction,
pursuant to that case.
The defendants argue, however, that, even assuming the
inapplicability of Keddie-Hill, the criminal defendants and
bail-bond companies' claims for monetary relief were due to be
dismissed because such claims are barred by the doctrine of
sovereign immunity. Article I, § 14, Ala. Const. of 1901,
provides "[t]hat the State of Alabama shall never be made a
defendant in any court of law or equity." This Court has
stated:
"'To determine whether an action against a
State officer is, in fact, one against the
State, this Court considers
"'"whether 'a result favorable to
the
plaintiff
would
directly
affect a contract or property
right of the State,' Mitchell [v.
Davis, 598 So. 2d 801, 806 (Ala.
1992)], whether the defendant is
16
1120734
simply a 'conduit' through which
the plaintiff seeks recovery of
damages from the State, Barnes v.
Dale, 530 So. 2d 770, 784 (Ala.
1988), and whether 'a judgment
against
the
officer
would
directly affect the financial
status of the State treasury,'
Lyons [v. River Road Constr.,
Inc.], 858 So. 2d [257] at 261
[(Ala. 2003)]."
"'Haley [v. Barbour County], 885 So. 2d
[783] at 788 [(Ala. 2004)]. Additionally,
"[i]n
determining
whether
an
action
against
a state officer is barred by § 14, the
Court considers the nature of the suit or
the relief demanded, not the character of
the office of the person against whom the
suit is brought." Ex parte Carter, 395 So.
2d 65, 67–68 (Ala. 1980). [Alabama Dep't of
Transp. v. Harbert Int'l, Inc., 990 So. 2d
831, 839-40 (Ala. 2008).]'
"....
"'... [C]ertain causes of
action are not barred by § 14:
"'"'There are four general
categories of actions which in
Aland v. Graham, 287 Ala. 226,
250 So. 2d 677 (1971), we stated
do
not
come
within
the
prohibition of § 14: (1) actions
brought to compel State officials
to perform their legal duties;
(2) actions brought to enjoin
State officials from enforcing an
unconstitutional law; (3) actions
to compel State officials to
perform ministerial acts; and (4)
17
1120734
actions
brought
under
the
Declaratory Judgments Act ...
seeking construction of a statute
and its application in a given
situation. 287 Ala. at 229–230,
250 So. 2d 677. Other actions
which are not prohibited by § 14
are:
(5)
valid
inverse
condemnation
actions
brought
against State officials in their
representative capacity; and (6)
actions for injunction or damages
brought against State officials
in their representative capacity
and individually where it was
alleged
that they
had
acted
fraudulently,
in
bad
faith,
beyond their authority or in a
mistaken
interpretation
of
law.[ ] Wallace v. Board of
7
Education of Montgomery County,
280 Ala. [635] at 639, 197 So. 2d
428 [(1967)]; Unzicker v. State,
Later in Ex parte Moulton, 116 So. 3d 1119 (Ala. 2013),
7
this Court restated the sixth "exception" to the sovereign-
immunity bar under § 14 as follows:
"(6)(a) actions for injunction brought against State
officials in their representative capacity where it
is alleged that they had acted fraudulently, in bad
faith, beyond their authority, or in a mistaken
interpretation of law, and (b) actions for damages
brought against State officials in their individual
capacity where it is alleged that they had acted
fraudulently, in bad faith, beyond their authority,
or in a mistaken interpretation of law, subject to
the limitation that the action not be, in effect,
one against the State."
116 So. 3d at 1141 (citations omitted).
18
1120734
346 So. 2d 931, 933 (Ala. 1977);
Engelhardt v. Jenkins, 273 Ala.
352, 141 So. 2d 193 (1962).'"
"'Drummond Co. v. Alabama Dep't
of Transp.,
937 So. 2d 56, 58 (Ala. 2006) (quoting [Ex
parte] Carter, 395 So. 2d [65,] 68 [(Ala.
1980)]) (emphasis omitted). These actions
are sometimes referred to as "exceptions"
to § 14; however, in actuality these
actions are simply not considered to be
actions "'against the State' for § 14
purposes." Patterson v. Gladwin Corp., 835
So. 2d 137, 142 (Ala. 2002). This Court
has qualified those "exceptions," noting
that "'[a]n action is one against the
[S]tate when a favorable result for the
plaintiff would directly affect a contract
or property right of the State, or would
result in the plaintiff's recovery of money
from the [S]tate.'" Alabama Agric. & Mech.
Univ. v. Jones, 895 So. 2d 867, 873 (Ala.
2004) (quoting Shoals Cmty. Coll. v.
Colagross, 674 So. 2d 1311, 1314 (Ala. Civ.
App. 1995)) (emphasis added in Jones).'"
Ex parte Moulton, 116 So. 3d 1119, 1130-32 (Ala. 2013)
(quoting Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990
So. 2d 831, 840 (Ala. 2008)).
In Patterson v. Gladwin Corp., 835 So. 2d 137 (Ala.
2002), this Court addressed whether a party that had
successfully challenged the constitutionality of corporate
franchise taxes collected pursuant to § 40-14-40, Ala. Code
1975, before that Code section was repealed, could get a
19
1120734
refund of taxes paid under that statute. The Court
determined:
"A direct action for a refund of taxes paid to
the State is essentially 'a common law action of
indebitatus assumpsit against the State.' J.R.
Raible Co. v. State Tax Comm'n, 239 Ala. 41, 44, 194
So. 560, 561 (1939). Clearly, a judgment in favor
of the class, which seeks tax refunds totaling
approximately
$1
billion,
would
'affect
the
financial status of the state treasury.'"
Patterson, 835 So. 2d at 143 (quoting State Docks Comm'n v.
Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932)). This
Court then went on to note that several statutory remedies had
been set forth to allow a refund of improperly paid taxes but
ultimately found that the appellants in that case had not
pursued those remedies. Therefore, the Court concluded:
"[T]he Taxpayers' class action seeking a refund of
franchise taxes paid pursuant to Alabama's invalid
statutory scheme is an action against the State as
that concept is expressed in § 14. ... Because the
circuit court was without jurisdiction to entertain
this action, we vacate the trial court's class-
certification order and dismiss the action."
Patterson, 835 So. 2d at 154.
The criminal defendants and the bail-bond companies in
this case, like the taxpayers in Patterson, request a refund
of fees paid under allegedly unconstitutional provisions of §
12-19-311. They have also requested the payment of costs and
20
1120734
attorney fees. Recovery on those claims, like the taxpayers'
claims in Patterson, would "affect the financial status of the
state treasury," Patterson, 835 So. 2d at 143, and would
"'result in the ... recovery of money from the [S]tate.'"
Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d 867, 873
(Ala. 2004) ("However, '[a]n action is one against the [S]tate
when a favorable result for the plaintiff would directly
affect a contract or property right of the State, or would
result in the plaintiff's recovery of money from the
[S]tate.'" (quoting Shoals Cmty. Coll. v. Colagross, 674 So.
2d 1311, 1314 (Ala. Civ. App. 1995)) (emphasis omitted)).
Such claims are barred by the doctrine of sovereign immunity.
See Patterson, supra; see also Ex parte Town of Lowndesboro,
950 So. 2d 1203, 1211-12 (Ala. 2006) (holding that "an award
of interim attorney fees and expenses impacts the State
treasury and divests it of funds in the very way forbidden by
§ 14"). Therefore, the circuit court properly dismissed the
8
The criminal defendants and the bail-bond companies cite
8
Ex parte McCurley, 412 So. 2d 1236, 1238 (Ala. 1982), for the
proposition that "'[t]o petition for the return of a fine and
of costs imposed on the basis of unlawful authority is no more
a suit against the state barred by sovereign immunity than to
petition or file for the return of money paid to the
government as income tax in excess of the amount due. To make
more of the action than that offends common sense and severely
21
1120734
criminal
defendants
and
bail-bond
companies'
claims
insofar
as
they sought monetary relief.9
The defendant sheriffs argue that all the criminal
defendants and bail-bond companies' claims against them are
barred by the doctrine of sovereign immunity.
"'A sheriff is entitled to State immunity because of
his status as a constitutional officer as detailed
in Art. V, § 112, Ala. Const. 1901. Suits against
such officers for actions taken in the line and
scope of their employment inherently constitute
actions against the State, and such actions are
prohibited by § 14.'"
Ex parte Donaldson, 80 So. 3d 895, 898 (Ala. 2011) (quoting Ex
parte Shelley, 53 So. 3d 887, 895 (Ala. 2009)).
"Exceptions to State immunity for sheriffs (and
their deputies) that have been recognized ...
include actions brought
distorts the image of justice as fairness.'" (Quoting State v.
Piekkola, 90 S.D. 335, ___, 241 N.W.2d 563, 565 (1976)).
However, Ex parte McCurley is inapposite here, because it was
in the nature of a criminal action –- specifically, a petition
for the writ of habeas corpus –- asking the trial court to
vacate an improper conviction and sentence, which included
fines and court costs, whereas the criminal defendants and the
bail-bond companies have sought by civil action to recover
allegedly improper fees collected by the State.
Our decision in this regard renders unnecessary any
9
consideration of the criminal defendants and bail-bond
companies' request for an accounting or to hold the funds in
escrow.
22
1120734
"'"(1) to compel him to perform his duties,
(2) to compel him to perform ministerial
acts, (3) to enjoin him from enforcing
unconstitutional laws, (4) to enjoin him
from acting in bad faith, fraudulently,
beyond his authority, or under mistaken
interpretation of the law, or (5) to seek
construction of a statute under the
Declaratory Judgment Act if he is a
necessary party for the construction of the
statute."'"
Ex parte Donaldson, 80 So. 3d at 898 n.1 (quoting Alexander v.
Hatfield, 652 So. 2d 1142, 1143 (Ala. 1994), quoting in turn
Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987)).
The defendant sheriffs argue that none of the five
exceptions to immunity applies here because "sheriffs do not
collect, administrate, or enforce any of the bail bond fees."
Brief of Sheriffs Hughes, Tate, and Mack, at 13. We agree.
Nothing in § 12-19-311 indicates that sheriffs
are
responsible
for assessing, enforcing, or collecting the filing fee or that
the sheriff is a necessary party for the construction of the
statute. The criminal defendants and the bail-bond companies
make no argument to the contrary; instead, they insist that
because "the Circuit Court did not issue a ruling on whether
or not the [defendant s]heriffs should be afforded immunity
and dismissed from the case, the issue is not properly before
23
1120734
this Honorable Court for a decision." The criminal defendants
and bail-bond companies' reply brief, at 17. However, "[t]he
assertion of State immunity [under § 14] challenges the
subject-matter jurisdiction of the court; therefore, it
may
be
raised at any time by the parties or by a court ex mero motu."
Atkinson v. State, 986 So. 2d 408, 411 (Ala. 2007). Thus,
this Court may address the defendant sheriffs' argument,
regardless of whether that issue was addressed by the circuit
court.
Because the criminal defendants and bail-bond companies'
claims against the defendant sheriffs do not fall within any
of the recognized exceptions to the sovereign immunity
accorded sheriffs, see Ex parte Donaldson, supra, the circuit
court did not have subject-matter jurisdiction over those
claims, and its judgment is due to be affirmed as it applies
to the claims against the defendant sheriffs.
We turn now to the criminal defendants and bail-bond
companies' argument that the circuit court erred
in
concluding
that they did not have standing to bring their claims against
the defendants. This Court has recently noted: "[T]he
concept [of standing] appears to have no necessary role to
24
1120734
play in respect to private-law actions, which, unlike public
cases ..., come with established elements that define an
adversarial relationship and 'controversy' sufficient to
justify judicial intervention." Ex parte BAC Home Loans
Servicing, LP, [Ms. 1110370, September 13, 2013] ___ So. 3d
___,
___
(Ala.
2013).
Public-law
actions
involve
"constitutional or other challenges to the actions of
officials or administrative agencies." BAC Home Loans, ___
So. 3d at ___; see also Black's Law Dictionary 1350-51 (9th
ed. 2009) (defining "public law" as "[t]he body of law dealing
with the relations between private individuals and the
government, and with the structure and operation of the
government itself; constitutional law, criminal law, and
administrative law taken together").
The underlying action is brought by private individuals
and companies against various state officials, and the claims
relate to the constitutionality of the fees imposed pursuant
to § 12-19-311, Ala. Code 1975. Thus, this action falls
within the definition of a public-law case, and the concept of
standing applies.
25
1120734
In Town of Cedar Bluff v. Citizens Caring for Children,
904 So. 2d 1253, 1256-57 (Ala. 2004), this Court stated:
"In Jones v. Black, 48 Ala. 540 (1872), this
Court first articulated a test for determining
whether a party has the necessary standing to
challenge the constitutionality of an act of the
Legislature. We stated then:
"'A party who seeks to have an act of
the legislature declared unconstitutional,
must not only show that he is, or will be
injured by it, but he must also show how
and in what respect he is or will be
injured and prejudiced by it. Injury will
not be presumed; it must be shown.'
"48 Ala. at 543. In Alabama Alcoholic Beverage
Control Board v. Henri–Duval Winery, LLC, 890 So. 2d
70, 74 (Ala. 2003), a party challenged the
constitutionality of Alabama's Native Farm Winery
Act, § 28–6–1 et seq., Ala. Code 1975. In that
case, this Court effectively restated the standard
articulated in Jones, using language adopted from
the Supreme Court of the United States:
"'A party establishes standing to
bring
a
challenge
[on
constitutional
grounds]
when
it
demonstrates
the
existence
of
(1)
an
actual,
concrete
and
particularized "injury in fact" –- "an
invasion of a legally protected interest";
(2) a "causal connection between the injury
and the conduct complained of"; and (3) a
likelihood
that
the
injury
will
be
"redressed by a favorable decision."'"
(Quoting Henri–Duval Winery, 890 So. 2d at 74, quoting in turn
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).)
26
1120734
As noted previously, "[a] ruling on a motion to dismiss
is reviewed without a presumption of correctness. This Court
must accept the allegations of the complaint as true.
Furthermore, in reviewing a ruling on a motion to dismiss we
will not consider whether the pleader will ultimately prevail
but whether the pleader may possibly prevail." Newman, 878
So. 2d at 1148-49 (citations omitted). The criminal
defendants and the bail-bond companies alleged in the
complaint and amended complaint that they were required to pay
the allegedly unconstitutional filing fee and that many of the
criminal defendants were held in custody until the filing fee
was paid. Accepting those allegations as true, the criminal
defendants and the bail-bond companies have alleged "an
actual, concrete and particularized 'injury in fact'" arising
from or related to the allegedly unconstitutional filing fee.
Town of Cedar Bluff, supra. The criminal defendants and the
bail-bond companies have requested relief in the form of a
judgment declaring, among other things, that § 12-19-311 is
unconstitutional; "permanent injunctive and equitable relief"
related to the requested declaratory relief; and damages,
costs, and reasonable attorney fees. The criminal defendants
27
1120734
and the bail-bond companies specify that the damages would
include a refund of the filing fees paid under the allegedly
unconstitutional statute.
We have determined that the criminal defendants and bail-
bond companies' claims for monetary relief are barred by the
doctrine of sovereign immunity. Therefore, those
funds
cannot
act as redress for the alleged injuries. The defendants argue
that "[t]o the extent a [criminal defendant] has paid the
[filing] fee in the past, he has no standing to seek
prospective injunctive relief. The existence of a filing fee
does not impose any real or immediate threat of future injury
to any of them, making their claims for future relief
speculative." Defendants' brief, at 25. The defendants cite
10
City of Los Angeles v. Lyons, 461 U.S. 95 (1988), and O'Shea
v. Littleton, 414 U.S. 488 (1974), in support of these
arguments. In Lyons, the United States Supreme Court stated:
The defendants do not appear to make this argument with
10
regard to the bail-bond companies' claims for injunctive
relief; indeed, they cannot. Section 12-19-311(a) provides
that the filing fee will be "imposed on every bail bond in all
courts of this state." Thus, the bail-bond companies are
likely to suffer the injury alleged in the complaint and
amended complaint, i.e., the payment of the allegedly
unconstitutional filing fee, for each future client for whom
they agree to pay the bond. Thus, their claims for injunctive
relief are not based solely on past wrongs.
28
1120734
"In [O'Shea], we dealt with a case brought by a
class of plaintiffs claiming that they had been
subjected to discriminatory enforcement of the
criminal law. Among other things, a county
magistrate and judge were accused of discriminatory
conduct in various respects, such as sentencing
members of plaintiff's class more harshly than other
defendants. The Court of Appeals reversed the
dismissal of the suit by the District Court, ruling
that if the allegations were proved, an appropriate
injunction could be entered.
"We reversed for failure of the complaint to
allege a case or controversy. 414 U.S., at 493.
Although it was claimed in that case that particular
members of the plaintiff class had actually suffered
from the alleged unconstitutional practices, we
observed that '[p]ast exposure to illegal conduct
does not in itself show a present case or
controversy regarding injunctive relief ... if
unaccompanied by any continuing, present adverse
effects.' Id., at 495–496. Past wrongs were
evidence bearing on 'whether there is a real and
immediate threat of repeated injury.' Id., at 496.
But the prospect of future injury rested 'on the
likelihood that [plaintiffs] will again be arrested
for and charged with violations of the criminal law
and will again be subjected to bond proceedings,
trial, or sentencing before petitioners.' Ibid.
The most that could be said for plaintiffs' standing
was 'that if [plaintiffs] proceed to violate an
unchallenged law and if they are charged, held to
answer, and tried in any proceedings before
petitioners,
they
will
be
subjected
to
the
discriminatory
practices
that
petitioners
are
alleged to have followed.' Id., at 497. We could
not
find
a
case
or
controversy
in
those
circumstances: the threat to the plaintiffs was not
'sufficiently real and immediate to show an existing
controversy simply because they anticipate violating
lawful criminal statutes and being tried for their
offenses....' Id., at 496. It was to be assumed
29
1120734
'that [plaintiffs] will conduct their activities
within the law and so avoid prosecution and
conviction as well as exposure to the challenged
course
of
conduct
said
to
be
followed
by
petitioners.' Id., at 497."
Lyons, 461 U.S. at 102-03 (emphasis added).
The Supreme Court went on to apply the rationale in
O'Shea to Lyons's request for "a preliminary and permanent
injunction against the City [of Los Angeles ('the City')]
barring the use of control holds," including chokeholds, by
the City's police officers. 461 U.S. at 98. Lyons alleged
that he had been injured when police officers from the City
applied a chokehold to him during a traffic stop, even though,
Lyons argued, "[he] offered no resistance or threat
whatsoever" to the officers. 461 U.S. at 97. The Supreme
Court determined:
"Lyons' standing to seek the injunction requested
depended on whether he was likely to suffer future
injury from the use of the chokeholds by police
officers. Count V of the complaint alleged the
traffic stop and choking incident five months
before. That Lyons may have been illegally choked
by the police on October 6, 1976, while presumably
affording Lyons standing to claim damages against
the individual officers and perhaps against the
City, does nothing to establish a real and immediate
threat that he would again be stopped for a traffic
violation, or for any other offense, by an officer
or officers who would illegally choke him into
unconsciousness
without
any
provocation
or
30
1120734
resistance on his part. The additional allegation
in the complaint that the police in Los Angeles
routinely apply chokeholds in situations where they
are not threatened by the use of deadly force falls
far short of the allegations that would be necessary
to establish a case or controversy between these
parties.
"In order to establish an actual controversy in
this case, Lyons would have had not only to allege
that he would have another encounter with the police
but also to make the incredible assertion either,
(1) that all police officers in Los Angeles always
choke any citizen with whom they happen to have an
encounter, whether for the purpose of arrest,
issuing a citation or for questioning or, (2) that
the City ordered or authorized police officers to
act in such manner. Although Count V alleged that
the City authorized the use of the control holds in
situations where deadly force was not threatened, it
did not indicate why Lyons might be realistically
threatened by police officers who acted within the
strictures of the City's policy. If, for example,
chokeholds were authorized to be used only to
counter resistance to an arrest by a suspect, or to
thwart an effort to escape, any future threat to
Lyons from the City's policy or from the conduct of
police officers would be no more real than the
possibility that he would again have an encounter
with the police and that either he would illegally
resist arrest or detention or the officers would
disobey their instructions and again render him
unconscious without any provocation."
Lyons, 461 U.S. at 105-06 (some emphasis added). The Supreme
Court determined that, pursuant to O'Shea, this possibility
was not sufficient to give Lyons standing to bring his claims
for injunctive relief. See Lyons, 461 U.S. at 110 ("Our
31
1120734
conclusion is that the [United States] Court of Appeals [for
the Ninth Circuit] failed to heed O'Shea ... and other
relevant authority, and that the District Court was quite
right
in
dismissing
[Lyons's
claims
for
injunctive
relief].").
As the criminal defendants and the bail-bond companies
note, this case, unlike Lyons, involves an "official policy"
of the State. Section 12-19-311(a) provides that the filing
fee will be "imposed on every bail bond in all courts of this
state," and the criminal defendants or their sureties –- the
bail-bond companies –- can be held in contempt for failing to
pay those fees. See § 12-19-311(c), Ala. Code 1975. Also,
unlike the plaintiff in Lyons, the criminal defendants and the
bail-bond
companies
have
sought
to
be
certified
as
representatives of a class of plaintiffs who have allegedly
suffered the same injuries.
However, O'Shea also involved a class of plaintiffs and,
like the plaintiffs in that case, future harm to the criminal
defendants here "rests on the likelihood that [the criminal
defendants] will again be arrested for and charged with
violations of the criminal law and will again be subjected to
bond proceedings." O'Shea, 414 U.S. at 496; see also Lyons,
32
1120734
461 U.S. at 105 ("That Lyons may have been illegally choked by
the police on October 6, 1976, while presumably affording
Lyons standing to claim damages against the individual
officers and perhaps against the City, does nothing to
establish a real and immediate threat that he would again be
stopped for a traffic violation, or for any other offense, by
an officer or officers who would illegally choke him into
unconsciousness without any provocation or resistance on his
part."). This is true even under the official policy in this
case. The criminal defendants and the bail-bond companies
have not meaningfully distinguished Lyons or O'Shea in this
regard.
The criminal defendants and the bail-bond companies also
argue that, "[u]nlike the O'Shea plaintiffs, [the criminal
defendants and the bail-bond companies] do not have to violate
the law to be again subject to the unconstitutional [filing]
fee. Instead, they only need to be arrested and be released
on bail, which is not always equivalent to breaking the law."
Criminal defendants and bail-bond companies' brief, at 57.
However, the United States Supreme Court in O'Shea did not
state that the plaintiffs' alleged future injury
depended
upon
33
1120734
actual violations of the law but upon being arrested and
charged with violations of the law. Instead, the Supreme
Court stated: "[H]ere the prospect of future injury rests on
the likelihood that respondents will again be arrested for and
charged with violations of the criminal law and will again be
subjected to bond proceedings, trial, or sentencing before
petitioners." O'Shea, 414 U.S. at 496. As noted previously,
the prospect of future harm to the criminal defendants here
rests on the same assumption –- that the criminal defendants
will be arrested and subjected to bond proceedings.11
Pursuant to the Supreme Court's decision in O'Shea, the
criminal defendants and the bail-bond companies have not
demonstrated that the circuit court erred in determining that
the criminal defendants lacked standing to bring their claims
The
criminal defendants
and
the
bail-bond companies also
11
argue that O'Shea is distinguishable because, they argue,
"unlike the plaintiffs in O'Shea, the [criminal defendants
here] do allege a specific injury from the challenged actions:
specifically, the payment of the [filing] fee." Criminal
defendants and bail-bond companies' brief, at 57. However,
the Supreme Court in O'Shea noted that, "[a]t oral argument,
respondents' counsel stated
that some of the named plaintiffs-
respondents, who could be identified by name if necessary, had
actually
been
defendants
in
proceedings
before
petitioners
and
had suffered from the alleged unconstitutional practices."
O'Shea, 414 U.S. at 495. Thus, the criminal defendants and
the bail-bond companies have failed to demonstrate a
meaningful distinction in this regard as well.
34
1120734
for injunctive relief. Similarly, the criminal defendants'
claims for declaratory relief would not redress their alleged
injuries where, as here, the likelihood of future harm is
speculative. Thus, the circuit court correctly dismissed
those claims for lack of standing, see Town of Cedar Bluff,
supra, and the circuit court's judgment is due to be affirmed
with regard to the criminal defendants' claims for both
declaratory and injunctive relief.
The defendants do not argue that the bail-bond companies
lack standing pursuant to O'Shea and Lyons. Instead, they
argue that the bail-bond companies lack standing because,
"while the statute does not require the [bail-]bond
companies to pass the [filing] fee on to their
customers, they apparently do so: All the [criminal
defendants and the bail-bond companies] argue with
fervor that the [filing] fee 'comes out of the
criminal
defendants'
pockets.'
([Criminal
defendants and bail-bond companies' brief,] at 47.)
Taking them at their word, the [bail-]bond companies
have no injury from the [filing] fee."
Defendants' brief, at 31. However, the statement from the
criminal defendants and the bail-bond companies' brief was
made in the context of their argument that the criminal
defendants had suffered a monetary injury, even where a bail-
bond company or other individual had paid the filing fee on
35
1120734
their behalf. The criminal defendants and the bail-bond
companies do not argue that the bail-bond companies have
recouped the filing fees paid on behalf of their clients or
that they will be able to recoup those fees from future
clients.
As noted previously, pursuant to the provision in § 12-
19-311(a) that the filing fee be "imposed on every bail bond
in all courts of this state," the bail-bond companies are
likely to suffer the injury alleged in the complaint and
amended
complaint
–-
the
payment
of
the
allegedly
unconstitutional filing fee -– for bonds paid on behalf of
future clients. Thus, the bail-bond companies have alleged an
injury caused by the allegedly unconstitutional statute that
would be redressed by the requested declaratory
and
injunctive
relief. Therefore, the circuit court erred in dismissing
those claims based on an alleged lack of standing. See Town
of Cedar Bluff, 904 So. 2d at 1256-57.
Moreover, as noted previously, our decision in Keddie-
Hill does not apply to the bail-bond companies, which do not
pay the filing fee as part of a criminal proceeding, and the
doctrine of sovereign immunity does not bar "actions brought
36
1120734
to enjoin State officials from enforcing an unconstitutional
law" or "actions brought under the Declaratory Judgments Act
... seeking construction of a statute and its application in
a given situation." See Ex parte Moulton, 116 So. 3d at
12
1131. Thus, the circuit court's judgment is due to be
reversed insofar as it dismissed the bail-bond companies'
claims for declaratory and injunctive relief, except those
claims asserted against the sheriff defendants.
The defendants also argue that, "[e]ven if the circuit
court had jurisdiction [over the criminal defendants
and
bail-
bond companies' claims], the judgment should be affirmed
because [the] defendants are due to prevail on the merits."
In Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1211
12
n.5 (Ala. 2006), this Court noted that a declaratory-judgment
action is not barred by the doctrine of sovereign immunity
"'when an officer of the State is confronted with an
uncertain problem of what the law means which
requires certain acts on his part, or whether the
law is valid, and he proposes to pursue a certain
course of conduct in that connection, which would
injuriously affect the interests of others who
contend that he has no legal right thus to act
....'"
(Quoting State v. Louis Pizitz Dry Goods Co., 243 Ala. 629,
633, 11 So. 2d 342, 345 (1943), superseded, in part, on other
grounds, Ala. Code 1940, tit. 7, § 167 (now Ala. Code 1975, §
6–6–221) (emphasis added).)
37
1120734
Defendants' brief, at 32. However, as noted previously, "in
reviewing a ruling on a motion to dismiss we will not consider
whether the pleader will ultimately prevail but whether the
pleader may possibly prevail." Newman, 878 So. 2d at 1149
(emphasis added). Thus, we will not address the merits of the
bail-bond companies' surviving claims at this time.
Conclusion
For the foregoing reasons, we affirm the circuit court's
dismissal of all claims regarding the back-end fees, all
claims seeking monetary relief, and all claims against the
defendant sheriffs. We also affirm the dismissal of the
criminal defendants' claims for declaratory and injunctive
relief. We reverse the circuit court's judgment insofar as it
dismissed the bail-bond companies' claims for declaratory and
injunctive relief against the defendants other than the
defendant sheriffs. The cause is remanded for further
proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Moore, C.J., and Stuart, Bolin, Parker, Main, and Wise,
JJ., concur.
Murdock, J., concurs specially.
Shaw, J., concurs in the result.
38
1120734
MURDOCK, Justice (concurring specially).
I concur in the main opinion. I write separately to
offer two comments.
First, in reference to footnote 12 of the main opinion,
___ So. 3d at ___, I would simply note that the case cited,
Ex parte Town of Lowndesboro, 950 So. 2d 1203 (Ala. 2006), was
not a case in which the plaintiff's claim for a declaratory
judgment implicated the State's treasury. Insofar as we
reinstate the bail-bond companies' claim for a declaratory
judgment in the present case, the same is true. Compare
Ex parte Alabama Dep't of Transp., 978 So. 2d 17, 25 (Ala.
2007) (holding that a claim seeking a declaratory judgment
should have been dismissed on sovereign-immunity grounds
because, among other things, a judgment in favor of the
plaintiff would "directly affect a contract right of [the
State] and would 'necessarily open the doors of the State
treasury to legal attack'" (quoting Lowndesboro, 950 So. 2d at
1211)).
Second, in the final paragraph of its "Analysis," the
main opinion considers the defendants' argument that "'[e]ven
if the circuit court had jurisdiction ..., the judgment should
39
1120734
be affirmed because [the] defendants are due to prevail on the
merits.'" ___ So. 3d at ___. I do not foreclose the
possibility that some of the alternative grounds offered by
the defendants in support of the circuit court's judgment are
valid, alternative legal grounds -- grounds allegedly
entitling the defendants to a judgment as a matter of law
based
on
facts
that
are
not
genuinely
disputed.
Notwithstanding that possibility, I have no objection to
returning this case to the circuit court for it to consider
those grounds in the first instance.
40 | March 14, 2014 |
4a67a6ed-d733-47c7-9fde-2a251f2313d9 | Lokos v. State | 179 So. 2d 714 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 714 (1965)
Dezso John LOKOS
v.
STATE of Alabama.
2 Div. 463.
Supreme Court of Alabama.
September 30, 1965.
Rehearing Denied November 18, 1965.
*716 John W. Drinkard, Linden, for appellant.
Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
LAWSON, Justice.
The appellant, Dezso John Lokos was indicted for murder in the first degree by a grand jury of Sumter County on February 11, 1964. He was unable to employ counsel, so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed an experienced member of the Marengo County Bar to represent him.
Upon arraignment, Lokos pleaded not guilty and not guilty by reason of insanity. The court-appointed attorney was present at arraignment. Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114.
There was a verdict of guilty of murder in the first degree and imposition of the death penalty. Judgment and sentence were in accord with the verdict.
The appeal here is under the automatic appeal law applicable to cases where the death sentence is imposed. Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cum. Pocket Part to Vol. IV, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, § 382(1) et seq.
The attorney who represented Lokos in the trial court was appointed to represent him on this appeal and he has filed a brief on behalf of Lokos in this court.
On February 14, 1964, the day of arraignment, counsel for appellant filed two motions on his behalf, a motion for a change of venue and a motion for the appointment of specialists to examine appellant concerning his mental condition. Each of these motions was overruled by the court prior to trial of the main case.
When the motion for change of venue came on for hearing on February 20, 1964, the appellant called several witnesses but all of them gave testimony to the effect that in their opinion the appellant could secure a fair and impartial trial in Sumter County, and the State called a number of witnesses who testified to the same effect. Reversible error is not made to appear in the action of the trial court in overruling the motion for a change of venue. Campbell v. State, 257 Ala. 322, 58 So. 2d 623, and cases cited; Denton v. State, 263 Ala. 311, 82 So. 2d 406.
*717 On February 14, 1964, the day on which counsel for the appellant moved the trial court to appoint "three reputable specialist practitioners, to examine `into' the appellant's `mental and nervous condition'", the trial court refused to pass on the motion but set it down for a hearing on February 20, 1964. Counsel for appellant by the aforementioned motion sought to invoke the authority granted the trial court by the provisions of § 425, Title 15, Code 1940, which reads:
On February 20, 1964, the day set for the hearing on the motion to appoint the specialists in mental and nervous diseases, counsel for appellant sought to introduce a letter from the superintendent of a Wisconsin mental hospital which, although not admitted in evidence, is included in the record, having been marked for identification. The letter shows the appellant's background and contains the following statement:
"Mr. Lokos entered the Winnepago State Hospital on July 25, 1953 under a mentally ill commitment signed by the Racine County Judge. He was conditionally released on October 24, 1953, was returned from conditional release on January 19, 1954. He took unauthorized absence on April 6, 1954, was *718 returned April 11, 1954, again took unauthorized absence on August 12, 1954, was returned August 15, 1954, and was conditionally released on August 14, 1955. His conditional release expired one year later. His diagnosis on all his admissions was Schizophrenic Reaction, Paranoid Type."
While the letter would possibly not have been admissible on the trial on the merits, we think it could have been considered by the trial judge in arriving at a decision as to whether to invoke the provisions of § 425, Title 15, supra.
However, Lokos testified at the hearing and while he was unable to state the nature of his trouble, that is, the diagnosis made by the doctors of his mental condition, he did give evidence as to his several confinements in the Wisconsin mental institution and as to the nature of the treatment given him, which included electric shock treatment and insulin. The State called a Marengo County jailer and a Marengo County deputy sheriff, both of whom were in contact with the appellant while he was confined in the Marengo County jail. The State also called two State transfer agents, who observed the appellant as he was being transferred from one place of confinement to another. Each of those witnesses stated that in his opinion the defendant was sane. The State also called a Marengo County physician, a general practitioner, who talked with the appellant while he was confined in the Marengo County jail and who observed appellant while he was being questioned by the solicitor. Based on those contacts, he expressed the opinion that appellant was sane.
Following the hearing, the trial court overruled the motion for the court to appoint the specialists in mental and nervous diseases to examine the appellant.
The appellant's court-appointed attorney insists in this court that in overruling the motion the trial court erred to a reversal.
However we may have individually acted at nisi prius in view of the fact that the appellant had previously been confined in a mental institution and is a nonresident, who was not only without funds but without family or friends in this state to assist him in securing witnesses in support of his plea of insanity, we cannot under our previous decisions hold that the trial court's action in overruling the motion for the appointment of three experts in the field of mental disorders works a reversal of the judgment below. In Howard v. State, Ala., 178 So. 2d 520, decided on June 30, 1965, we said:
See Aaron v. State, 271 Ala. 70, 122 So. 2d 360.
In brief of counsel for appellant appears the following statement:
*719 The record does show that the defendant was not permitted to have a razor while he was confined in the Marengo County jail awaiting trial. But there is nothing in the record to support the statement that he was unshaven at the time of the trial or to support any of the other assertions made in that part of the brief of appellant quoted above, nor does the record show a motion for mistrial because of such conditions. We are bound by the record and cannot consider statements in appellant's brief not supported by the record. Dannelley v. State, 130 Ala. 132, 30 So. 452; Walker v. State, 223 Ala. 294, 135 So. 438; Dockery v. State, 269 Ala. 564, 114 So. 2d 394.
In Eaton v. State, Ala., 177 So. 2d 444, a companion case, Mr. Justice Harwood, writing for the court, summarized most of the facts bearing on the crime for which appellant, Eaton and two other young men were indicted, as follows:
*720 We reversed Eaton's judgment of conviction because of rulings of the trial court in connection with the Solicitor's argument, hence it was not necessary in the Eaton case to treat with the admissibility of the confessions introduced by the State or any other ruling of the trial court. The errors which brought about a reversal in the Eaton case are not present in this case, hence we must consider the question as to whether the confessions were properly admitted and other matters.
W. T. Jones, a Major in charge of the Division of Criminal Investigation of the State Department of Safety, participated in the investigation of the killing of Mr. Culpepper. He went to Texas after the appellant and his companions were apprehended in that state. He was a witness in this case, called by the State of Alabama. He was asked the following questions by the Solicitor and gave the following answers:
No ojection having been interposed by counsel for the appellant, the witness then proceeded to relate what appellant told witness and the others present concerning the part which he and his companions played in the brutal slaying of Mr. Culpepper. There is no need to set out here all that appellant told witness on that occasion. It is sufficient to say that he admitted that he shot the deceased and helped throw him in the well.
It is well established by our cases that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether or not a confession is voluntary and unless it so appears it should not be admitted. Myhand v. State, 259 Ala. 415, 66 So. 2d 544; Phillips v. State, 248 Ala. 510, 28 So. 2d 542; White v. State, 260 Ala. 328, 70 So. 2d 624; Hines v. State, 260 Ala. 668, 72 So. 2d 296; Goldin v. State, 271 Ala. 678, 127 So. 2d 375; Smitherman v. State, 264 Ala. 120, 85 So. 2d 427.
During the further examination of the witness Jones by the Solicitor the following occurred:
No objection having been interposed or any other ruling of the court having been invoked, the witness told what appellant said to him about the pistol and later on the witness related what appellant said to him about a rifle and a sack of old coins.
It is settled in this state that the accused may, before confessions are admitted in evidence, cross-examine a witness for the State as to their voluntary character and offer outside evidence on voir dire in contradiction of that produced by the State. Peoples v. State, 256 Ala. 612, 56 So. 2d 665; White v. State, supra. It is the right of the accused to controvert evidence in laying such predicate by cross-examination, or by evidence aliunde, but such countervailing evidence impeaching the predicate to be successful must be offered on the voir dire, before the confession is admitted. Lockett v. State, 218 Ala. 40, 117 So. 457; Cook v. State, 16 Ala.App. 390, 78 So. 306; Pope v. State, 183 Ala. 61, 63 So. 71; Jackson v. State, 83 Ala. 76, 3 So. 847. If such countervailing evidence is not offered until after the preliminary question of the admissibility of the confession is passed on by the court, it goes to the jury on the credibility of the confession only. Lockett v. State, supra; Cook v. State, supra.
As we have shown, no objection was interposed to any of the questions propounded to the witness Jones by the Solicitor which we set out above. No request was made for voir dire examination of the witness. No request was made that counsel for defendant be permitted to cross-examine Jones or to offer any witness, the defendant or others, to contradict the testimony of Jones to the effect that the confession and admission of Lokos were voluntarily made.
Under these circumstances, we are of the opinion that reversible error is not made to appear in connection with Jones' testimony under the decisions of this court or those of the Supreme Court of the United States which had been announced at the time this case was tried.
On cross-examination Jones testified to the effect that appellant told him that on the preceding day he and a Ranger "had had some trouble" and appellant bit the Ranger. Jones also testified on cross-examination that Lokos did not tell him he had been beaten up, but did show Jones "some markings on him," but Jones didn't recall the nature of the markings. This testimony, coming after the confession and admissions had been admitted, was proper for the jury's consideration only as to the credibility of the confession and admissions. Lockett v. State, supra. The same is true of the testimony given by the appellant when he took the stand after the State had rested. On that occasion, after freely admitting his guilt, he related somewhat in detail his trouble with the Texas officers. Exactly when this encounter with the Texas officers occurred is not clear, but it seems to have been on some day previous to that on which he made his statements in the presence of Jones. Appellant did not claim that he was mistreated in any way by anyone present when he made the statements *722 testified to by Jones. Captain Godwin, who was present when those statements were made, was called as a witness by appellant and testified on cross-examination that appellant was not abused or threatened in any way in his presence.
Appellant did not claim that he was not in full possession of his mental faculties at the time the confessions and admissions were made. But if there was any testimony to that effect, it would not in and of itself render the confessions and admissions inadmissible. In Goldin v. State, 271 Ala. 678, 681, 127 So. 2d 375, 378, we said:
We come now to a consideration of two cases of the Supreme Court of the United States decided since this case was tried, which most courts are treating as being retroactive.
On June 22, 1964, the Supreme Court of the United States decided the case of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, and in reversing Escobedo's conviction said:
We took cognizance of Escobedo in Duncan v. State, 278 Ala. 145, 176 So. 2d 840, decided on June 30, 1965, and discussed many of the decisions of state and federal courts which have considered it. We will not treat with those cases here other than to say that most of the courts consider Escobedo to be retroactive, but there is wide disagreement as to the interpretation to be placed upon it.
In Duncan v. State, supra, we followed those courts which have held that Escobedo is a controlling precedent only in those cases where the factors specified in Escobedo are present.
Here the predicate laid by the State did not show that a lawyer was present or that appellant was advised that he was entitled to a lawyer or advised that he did not have to make a statement or as to his constitutional rights. Unlike Escobedo, the record in this case does not show that at the time the confession was made appellant had a lawyer who was not permitted to be present.
We realize that the construction which we have placed on Escobedo is apparently not in accord with that placed on Escobedo by some of the federal courts and that in not following the holdings of those courts we place our opinions and judgments in jeopardy of being voided by them in habeas corpus proceedings. But this is a state court of last resort, which is not *723 bound by the decisions of any federal court other than the Supreme Court of the United States, and until that court says our construction and application of Escobedo are wrong, we will stand by them despite the likelihood of being, in effect, "reversed" by the lower federal courts. In so observing we do not intend any offense to any member of those courts. We simply differ with their views as we understand them.
Since our opinion in Duncan v. State, supra, was released several cases which deal with Escobedo have come to our attention. We list them for the benefit of the bench and bar without treating them individually. In re Lopez, Cal., 42 Cal. Rptr. 188, 398 P.2d 380 (January 29, 1965); State v. Kitashiro (Hawaii), 397 P.2d 558; State v. Hall, 88 Idaho 117, 397 P.2d 261; Hayden v. State (Ind.), 201 N.E.2d 329; Carson v. Commonwealth (Ky.), 382 S.W.2d 85; Anderson v. State, 237 Md. 45, 205 A.2d 281; Swartz v. State, 237 Md. 263, 205 A.2d 803; Commonwealth v. McCarthy (Mass.), 200 N.E.2d 264; State v. Vigliano, 43 N.J. 44, 202 A.2d 657; State v. Johnson, 43 N.J. 572, 206 A.2d 737; Pece v. Cox, 74 N.M. 591, 396 P.2d 422; State v. Stinson, 263 N.C. 283, 139 S.E.2d 558; State v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349; Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295; Campbell v. State (Tenn.), 384 S.W.2d 4; Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293.
We do not think Escobedo requires a reversal of this case.
Another case decided by the Supreme Court of the United States on June 22, 1964, after this case was tried below, requires our attention, as it is generally said to be retroactive. It is Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908. It is discussed at length in Duncan v. State, supra, where we said:
We also said in Duncan that we had reached the "inevitable conclusion that the Supreme Court of the United States will not uphold a conviction where the question as to the voluntariness of the confession is presented in the presence of the jury if a request for a hearing outside the presence of the jury is made."
Here no such request was made. There was no conflict in the testimony as to the voluntariness of the confession prior to the time it was admitted. The appellant did not seek to testify as to the circumstances surrounding the taking of the confession prior to its admission or to offer any evidence tending to rebut that offered by the State. Our holding in Fikes v. State, 263 Ala. 89, 81 So. 2d 303, cannot be said to have deterred appellant from asking to be permitted to testify prior to the admission of the confession as to the circumstances surrounding the taking of the confession, because he subsequently took the stand and freely testified to facts showing his guilt.
We hold that under the circumstances here presented Jackson v. Denno, supra, does not require a reversal of the judgment of the trial court here under review.
What we have said above in regard to the confessions and statements about which the witness Jones testified applies to the confessions and statements made by appellant after he was brought back to Alabama.
*724 In the course of the trial the State introduced into evidence a number of articles, including pistols, rifles and a sack of coins, all of which tended to connect appellant with the commission of the crime. They were admitted without objection and no contention was made in the trial court that they came into the hands of the State as a result of an illegal search or seizure so as to render them inadmissible under the holding of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, and no such contention is here made. We hold the exhibits were correctly admitted in evidence.
Mrs. Culpepper, the wife of the deceased, testified in the Eaton case. She did not testify in this case. The record contains the following entry:
The record discloses that all of the testimony given by the witness Mrs. Culpepper in the Eaton case, direct, cross and redirect, was read by the Court Reporter in the presence of the jury.
In Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923, decided by the Supreme Court of the United States on April 5, 1965, it was held that the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution in federal criminal trials is carried into state criminal cases by the Fourteenth Amendment to the United States Constitution. And Section 6 of the Constitution of this state provides that in all criminal prosecutions the accused has a right "to be confronted by the witnesses against him." But we think that right can be waived and that the record in this case shows that it was waived. True, the record only shows a waiver by counsel for appellant rather than an express waiver by the appellant himself, but it certainly shows no protest on the part of appellant and it seems to us that the procedure followed was to the advantage of appellant, since the wife of the deceased, who was herself brutally mistreated by the defendant and his companions, was not before the jury. We have not overlooked the holding of the Supreme Court of the United States in Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408. It is our view that the record before us presents a situation relative to the waiver entirely different from that contained in the Henry case.
As we have indicated above, the appellant took the stand and gave a full, detailed account of his part in the killing of Mr. Culpepper. His testimony shows that he and his companions committed as coldblooded a murder as one can imagine.
As excuse for the crime, the burden was on the defendant to prove clearly to the reasonable satisfaction of the jury that he was so afflicted by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product solely of such mentally diseased condition. Aaron v. State, 271 Ala. 70, 122 So. 2d 360, and cases cited.
The issue, therefore, of insanity as excuse for the crime was for the determination of the jury. This issue was determined adversely to the defendant. We think the verdict was well founded. The only evidence offered by appellant tending *725 to support his plea of not guilty by reason of insanity was his own testimony tending to show that some years ago he had been committed to a mental hospital in Wisconsin, whereas the State, by a medical witness and by a number of nonexpert witnesses, presented evidence tending to show that appellant was sane at the time of the commission of the crime and at the time of trial.
Duly mindful of our duty in cases of this character, we have carefully examined the record for any reversible error, whether pressed upon our attention or not. We have here dealt with all questions calling for serious treatment. We find no reversible error in the record and the cause is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN, MERRILL, COLEMAN and HARWOOD, JJ., concur. | September 30, 1965 |
e0bab692-a281-4a20-b16c-582e000d554e | Davis v. Davis | 178 So. 2d 154 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 154 (1965)
Clyde DAVIS
v.
Lillie Viola DAVIS, Executrix.
6 Div. 201.
Supreme Court of Alabama.
September 2, 1965.
*155 Edwin C. Betts, Birmingham, for appellant.
Izas Bahakal, Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from a decree of the Circuit Court of Jefferson County, rendered on February 8, 1965, in which that court affirmed the orders, judgments and decrees of the Probate Court of Jefferson County, granting letters testamentary to the appellee, as the wife of the deceased testator, and denying letters of administration to the appellant, a brother of deceased, in the estate of Roy Thomas Davis, deceased.
The question before the probate court was whether appellee was the widow of the deceased. The pleadings showed that they had been married over thirty-seven years; that the deceased, on January 12, 1960, executed a will making appellee his beneficiary and naming her his executrix to act without bond; that they were divorced in November, 1962, but at that time, and subsequently thereto, they were living together as husband and wife, and that the deceased had instructed his attorney to have the divorce set aside. The probate court found "that Lillie Viola Davis is the widow of said deceased, and therefore is entitled to Letters Testamentary as Executrix, in accordance with the provisions of the will of the deceased."
The decree of the probate court shows that that court "did hear said petition and the testimony presented." In brief, appellee asserts that a "host of witnesses presented to the Trial Court an abundance of evidence"; that the probate court, "after hearing all the evidence, reached the conclusion" etc., and that the evidence was transcribed by a court reporter but the testimony was not made a part of the record on appeal to the circuit court. Appellant, in his reply brief, does not take issue with the statement.
There is also no bill of exceptions or testimony in the record before us.
The rule is that where no testimony is contained in the record on appeal, a decree which recites that it was granted on pleadings, proofs and testimony will not be disturbed on appeal. Williams v. Clark, 263 Ala. 228, 82 So. 2d 295, 2 Ala.Dig., Appeal & Error. And it will be presumed that the evidence was sufficient to sustain the verdict, finding, judgment, or decree where all the evidence is not in the record. Williams v. Clark, supra; 2A Ala. Dig., Appeal & Error.
A decree of the probate court will not be reversed if the evidence upon which it is made is not set forth, and there is no *156 bill of exceptions, unless it appears in the decree that the court had no jurisdiction. Forrester v. Forrester's Adm'rs, 40 Ala. 557; McAlpine v. Carre, 203 Ala. 468, 83 So. 477. Here, the Probate Court of Jefferson County had jurisdiction of the parties and of the subject matter.
The finding of the probate court, based on the examination of witnesses ore tenus, is presumed to be correct and will not be disturbed on appeal unless palpably erroneous. Cox v. Logan, 262 Ala. 11, 76 So. 2d 169, and cases there cited.
We assume that the circuit court affirmed the decree of the probate court on the principles we have stated supra, and we have no alternative but to affirm the decree of the circuit court on the same authorities.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | September 2, 1965 |
56ee2525-f4bc-4863-b13a-8b200de865eb | Ex Parte Griffith | 178 So. 2d 169 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 169 (1965)
Ex parte John Ike GRIFFITH, Attorney at Law.
6 Div. 194.
Supreme Court of Alabama.
August 12, 1965.
Rehearing Denied September 9, 1965.
*172 Matt H. Murphy, Jr., Birmingham, for petitioner.
Lawrence K. Andrews, General Counsel for Alabama State Bar.
HARWOOD, Justice.
On 10 July 1964, the Grievance Committee of the Alabama Bar Association filed charges against John Ike Griffith, a member of the Bar of this state. These charges allege unprofessional conduct against Griffith because of his activity and participation in obtaining a number of so-called "quickie" divorces in several courts of this state. A list of such cases was filed as an exhibit to the charges.
On 15 January 1965, the original charges and exhibits were amended to include some 41 such divorce cases in Winston County Circuit Court (Haleyville Division) and 269 such divorce cases in Marion County Circuit Court.
Upon filing of a complaint (in this instance by the Grievance Committee of the Alabama State Bar) Rule B(12) of the Rules Governing the Conduct of Attorneys in Alabama, provides that the President shall make and cause to be filed with the Secretary an order fixing a date for the taking of evidence upon the complaint. It is further provided that the evidence may be taken by a Commissioner designated by the President.
On 25 January 1965, Frank J. Tipler, Jr., as President of the Board of Commissioners of the Alabama State Bar, appointed Timothy M. Conway as Commissioner to take testimony upon the charges and specifications, the appointment providing that said Commissioner should take the testimony of John Ike Griffith at the courthouse in Birmingham on 9 February 1965, at 10:00 A.M.
Notice of such hearing was served upon Griffith, and included in the notice was a subpoena duces tecum to Griffith to bring with him and produce:
The notice and subpoena duces tecum was signed by John B. Scott, Secretary of the Alabama State Bar. (See Rules Governing the Conduct of Attorneys in Alabama, Sec. B(19); Title 46, Sec. 35, Code of Alabama 1940.)
On 5 February 1965, Hon. Matt H. Murphy, Jr., as attorney for John Ike Griffith, filed with the Secretary of the Alabama State Bar a motion to quash service of the motion to take the deposition and a motion to quash the service of the subpoena duces tecum.
On the day set for the hearing Mr. Murphy appeared before Mr. Conway, the Commissioner, and again offered the motions to quash as above mentioned. Mr. Griffith was not present on advice of Mr. Murphy. Upon the motions being overruled, Mr. Murphy declined to permit his client to appear before the Commissioner.
Thereupon Mr. Conway, the Commissioner, petitioned the Hon. J. Edgar Bowron, Presiding Judge of the Tenth Judicial Circuit, for an order of attachment for the said Griffith, commanding him to appear instanter before the Commissioner and give testimony. Judge Bowron issued the attachment as prayed.
Service of the attachment was accepted, and the hearing before the Commissioner was resumed. Mr. Griffith was sworn, but again refused to take the stand as a witness. Several grounds were asserted as a basis of Mr. Griffith's action, among which it was asserted that should he testify there could possibly arise a breach of the attorney-client privilege on Mr. Griffith's part.
The matter was then again presented to Judge Bowron. Again a hearing and argument was had before Judge Bowron. Mr. Griffith was ordered by Judge Bowron to take the stand and again he refused, the record in this respect showing:
The court thereupon entered a formal order adjudging Mr. Griffith in continuing contempt for failure to take the stand and ordered his confinement until such time as he is willing to conform to the order of the court. Sentence was suspended, and Mr. Griffith was released on his own recognizance until the order could be reviewed by this court.
At the threshold of our review, we are met with petitioner-appellant's argument that the proceedings before Commissioner Conway are null and void in that neither Mr. Conway, nor the members of the Board of Commissioners of the Alabama State Bar, nor the members of the Grievance Committee had taken the oath of office required by the provisions of Article 16, Section 279 of the Constitution of Alabama of 1901.
Section 279, supra, provides in pertinent part:
The above provision applies only to state officers. State ex rel. Wilkinson et al. v. Lane, 181 Ala. 646, 62 So. 31. Members of the bar of Alabama are members of a private incorporated association. There is no statutory provision requiring any separate oath on their part before entering upon their duties as members of the bar of this state. They are not state officers. Every attorney practicing before the courts of this state is an officer of the court.
Further, by the provisions of Section 39, Title 46, Code of Alabama 1940, every attorney at law, before being permitted to practice, shall take the following oath:
This oath is in all material aspects the same as the oath required of state officers by Section 279 of our Constitution. This in itself would negative appellant's contention, even if, for the sake of argument, attorneys should be regarded as state officers, a status that cannot be logically accepted.
There is therefore no merit in this contention.
Counsel for appellant also argues that he had filed his motions to quash the complaint with Mr. Scott, Secretary of the Alabama State Bar, and this action placed the matter in the hands of Commissioners of the Alabama State Bar, and that a ruling by a quorum of the Commissioners was necessary for a proper ruling on the motions.
*175 This argument overlooks that part of Section 33, Title 46, Code of Alabama 1940, providing that the Board of Commissioners of the Alabama State Bar may designate any person to take testimony under oath in any investigation of charges against an attorney, and further overlooks the provisions of Rule B(12) that evidence may be taken by a Commissioners designated by the President of the Commissioners of the State Bar.
These provisions do not contemplate that a quorum of the Commissioners of the State Bar shall be convened every time a ruling is invoked before the Commissioner designated by the President to hear the evidence in a disciplinary action against a member of the State Bar.
At the taking of testimony before a Commissioner appointed for that purpose, it is not necessary that any objection be made to any testimony, but the Board of Commissioners shall consider only such evidence as is in its opinion relevant, material, or competent. Rule B(18). Further, at any meeting of the Board of Commissioners to consider the evidence theretofore taken, the Board shall hear all parties in interest and their counsel. This of course gives the accused attorney full opportunity to present arguments and question the validity of any ruling by the Commissioner to a quorum of the Commissioners of the State Bar.
The above provisions demonstrate that the argument of the petitioner in the aspect above mentioned is untenable.
Petitioner argues that he was a defendant in the proceedings instituted by the State Bar and that Commissioner Conway had no power or legal warrant to have him subpoenaed as a "witness." Counsel relies upon the statement to be found in Lewis v. Gerald et al., 236 Ala. 91, 181 So. 306, to the effect that:
The investigation by a grievance committee is analogous to an investigation by a grand jury. It is but a preliminary inquisition. Lewis v. Gerald, supra.
But we are not here concerned with the petitioner's appearance before a grievance committee, but with his appearance before a Commissioner duly appointed by the President of the Board of Commissioners of the State Bar to take evidence on charges theretofore preferred by a grievance committee.
Section 35, Title 46, Code of Alabama 1940, provides:
Also, Rule B(19) of the Rules provides that:
Clear authority therefore existed to subpoena the petitioner before Commissioner Conway, unless, as petitioner contends, he could not be compelled to appear as a "witness," he claiming to be a defendant.
Hearings before the Board of Commissioners of the Alabama State Bar, or a commissioner duly appointed to conduct such hearing, is, strictly speaking, neither *176 a civil nor a criminal one. Its sole purpose is to purge the bar of a member, whose conduct has, since his admission, rendered him unfit to remain a member of the bar. Ex parte Thompson, 228 Ala. 113, 152 So. 229, 107 A.L.R. 671; Ex parte Messer, 228 Ala. 16, 152 So. 244.
As stated in Messer, supra:
The petitioner could therefore be lawfully subpoenaed and compelled to testify before Commissioner Conway.
Counsel for petitioner argues that in the proceedings before Judge Bowron the petitioner was on "both horns of a dilemma" in that should he take the stand and testify he would possibly be confronted with violating Section 43(4), Title 46, Code of Alabama 1940, imposing on him the duty of maintaining inviolate and at every peril, the secrets of his cilent, and on the other hand, upon his refusal to testify he would be subject to disbarment for violating Section 50 of Title 46, Code of Alabama 1940, for a wilful disobedience or violation of an order of a court requiring him to do or forbear an act connected with, or in the course of, his profession.
Whether a communication by a client to his attorney is privileged is a question of fact to be determined by the court. A witness, be he attorney or client, is not entitled to decide the question for himself. Thornton on Attorneys at Law, Vol. 1, Section 96, and authorities therein cited.
There are limitations on the application of the rule of privileged communications. As pointed out in Sawyer v. Stanley, 241 Ala. 39, 1 So. 2d 21, the perpetration of a fraud is outside the scope of professional duty of an attorney, and that the great majority of cases hold that the privilege "protecting communications between attorney and client is lost if the relation is abused, as where the client seeks advice that will serve him in the commission of a fraud." The reason for this exception to the general rule is that if a client discloses his fraudulent purpose, and the attorney refuses to be connected with it, there cannot be said to be professional employment, and consequently no privilege accrues; if the client does not disclose his fraudulent purpose, there is no confidential relationship established, and no attaching privilege; if an attorney knowing the facts and fraudulent purpose agrees to aid in the perpetration of the fraud, he then becomes a party to it, and the communications made to him cease to be privileged. Thornton, supra, Sec. 122; 58 Am.Jur., Witnesses, Sec. 517.
Where false allegations are made in pleadings in order to invoke the jurisdiction of a court, and false testimony is presented to support the untrue allegations, monumental fraud is thereby perpetrated upon the court. The relation of attorney and client cannot be used as a cloak to cover wrongdoing. The rule of privilege is defensive, not offensive. If the communication between attorney and client relates to unlawful or fraudulent accomplishment, higher public policy, and the duty of an attorney to society as a whole abrogates the privilege.
Further, communications made by a client to an attorney which the attorney in the discharge of his duty is of necessity obliged to make public are not privileged. See White v. State, 86 Ala. 69, 5 So. *177 674. This rule is applicable to facts communicated by a client which are to be alleged in pleading. Thornton, supra, Sec. 118; 58 Am.Jur. Witnesses, Sec. 491.
In addition to the above doctrines it was specifically held in White v. State, supra, that an attorney may, without violating the rule of confidential communications, be compelled to testify to the fact of his employment; that he was the authorized attorney of a client in a certain transaction; as to any matter manifestly not intended to be private or confidential, but was intended to be communicated to the adverse party; to prove the handwriting of his client, the payment of monies to him; the execution of papers which the attorney attested.
It is therefore manifest that the petitioner in refusing to take the stand and testify assumed for himself the right to determine whether his assertion of the doctrine of confidential communications was valid. This was a matter solely within the province of the court to determine. The petitioner's actions in the premises were premature, and an furnish no justification for his refusal to testify.
Finally, petitioner argues that he is guilty only of a criminal contempt, and that the court's action in committing him to jail until he took the stand as a witness was excessive in view of Section 126, Title 13, Code of Alabama 1940, which limits the punishment for criminal contempt to a fine not exceeding fifty dollars and imprisonment not exceeding five days.
The petitioner cites Ex parte Bullen, 236 Ala. 56, 181 So. 498 in support of his argument under this proposition. In Bullen the contemnor had been sentenced to one hour in jail for contempt because of his refusal to answer a question as to whom he had voted for in a municipal election after being ordered to do so by the court.
The court apparently proceeded only under the theory of criminal contempt, as was its province. This is not to say that the court could not have proceeded against Bullen's conduct as a civil contempt and have compelled obedience to its orders. However, this question was not involved in the Bullen appeal, but solely the question of his criminal contempt.
In United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884, two fines were levied in the contempt proceedings for the same act. The fine levied for past contumacy was held to be for criminal contempt, and the fine to coerce the union into future compliance with the court's order was held to be for civil contempt. As stated by the court: "The same acts may justify a court in resorting to coercive and to punitive measures."
In the present case the lower court saw fit to proceed against the petitioner-contemnor in a civil contempt aspect only.
Our cases make clear the distinction between a criminal contempt and a civil contempt. Our cases hold that statutory limitations on punishment for contempt (Sections 9, 126, and 143 of Title 13, Code of 1940) apply only to criminal contempt, and not to civil contempt. Ex parte King, 263 Ala. 487, 83 So. 2d 241; Ex parte Dickens, 162 Ala. 272, 50 So. 218.
In Ex parte Dickens, 162 Ala. 272, 50 So. 220, it is stated:
In Ex parte Hill, 229 Ala. 501, 158 So. 531, this court wrote:
"It is also said that the limitations provided by statute were not intended to restrict the power of the court to enforce its orders and decrees. That right is called a proceeding to declare a civil contempt. A criminal contempt *178 is one in which the purpose of the proceeding is to impose punishment for disobedience to the orders of the court. A civil contempt invokes the power of the court to commit one who is continuing to violate its orders until he complies with them. This court has held that the statutory limitations do not apply to civil contempts as thus defined. Ex parte Dickens, supra; Ex parte Stickney, 40 Ala. 160."
As stated in 17 Am.Jur.2d Contempt, Section 4:
In the present case the primary purpose of the court's order holding the petitioner in contempt until he took the stand and testified was for the advantage of the party injured by his refusal, i. e., the Commissioners of the Alabama State Bar. The court's order was coercive, and provided in effect that petitioner could purge himself by complying with the court's order to testify. Clearly the contempt was a direct and continuing contempt and the court was fully and legally warranted in treating petitioner's action as a civil contempt and ordering him confined until he complied with the order of the court.
Affirmed.
LAWSON and GOODWYN, JJ., concur. COLEMAN, J., concurs in result. | August 12, 1965 |
02fd85c2-5513-42a1-81d5-175700efd12e | Sayre v. Dickerson | 179 So. 2d 57 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 57 (1965)
Katie SAYRE
v.
Grace Louise DICKERSON.
1 Div. 130.
Supreme Court of Alabama.
September 30, 1965.
*58 J. Terry Reynolds, Jr., and Wm. Lauten, Mobile, for appellant.
Kilborn, Darby & Kilborn, Mobile, for appellee.
COLEMAN, Justice.
For prior decision on this appeal denying motion to strike demand for oral argument, see Sayre v. Dickerson, 275 Ala. 371, 155 So. 2d 327.
The respondent appeals from a decree, in equity, whereby the court gave effect to an agreement allegedly made by the parties in settlement of a suit which arose out of conflicting claims of ownership of a parcel of land sometimes referred to as Point Legere or the Point, on Dog River.
The case may be more easily understood by reference to the following map.
*59
*60 The area shown is part of the land embraced in the map of a subdivision recorded in Map Book 3 at page 530. The parties allege that, in 1937, the map of the subdivision was filed for record by "A. H. Legere," as owner. His title is not disputed. Both parties claim through him.
The recorded map of the subdivision shows lots numbered from 1 to 5, both inclusive, and from 8 to 11, both inclusive, but does not show any lot numbered 6 or 7. The Dr. S. H. Stephens Lot is not numbered. The words Parcel No. 1 and Parcel No. 2 do not appear on the recorded map. The line running from north to south between the two parcels does not appear on the recorded map. The map here shown is the result of a survey made pursuant to the alleged agreement of the parties in the instant case, and the north-south line and the words Parcel No. 1 and Parcel No. 2 were placed on the map according to the survey. On the recorded map of the subdivision, the entire area embraced in Parcel No. 1 and Parcel No. 2, is shown simply as an unnumbered lot bounded by the Dr. S. H. Stephens Lot, the 20' lane, lot 8, and Dog River.
In 1936, Legere conveyed to Seldon H. Stephens the Dr. S. H. Stephens Lot, by a deed which described the boundary by courses and distances.
Complainant alleges, and respondent neither admits nor denies, that, after the recording of the map of the subdivision in 1937, complainant acquired Lot 5; various other persons from time to time acquired the other numbered lots shown on the map; in 1947, complainant acquired the Dr. S. H. Stephens Lot; and Legere still owned the large unnumbered lot which is the area shown as Parcel No. 1 and Parcel No. 2 on the map set out in this opinion.
Complainant alleges that by deed dated July 3, 1947, she purchased from Legere, for $1,000.00, the land embraced in Parcel No. 1 and Parcel No. 2. A copy of the deed is made Exhibit B to the bill of complaint. The description in the deed is as follows:
Complainant alleges:
Respondent denies that complainant bargained to buy the lands embraced in Parcel No. 1 and Parcel No. 2; admits that Legere did sell to complainant "the lands referred to in the deed .... described as Lot seven ...."; denies that the lands conveyed were described as Lot Seven through error or inadvertence; and says that the land conveyed did not extend east so as to include, and Legere did not intend to convey, the land embraced in Parcel No. 1 and Parcel No. 2.
By deed dated November 23, 1949, Legere conveyed to respondent "`any other real property in which the grantor herein has any interest whatever and which property is located in Mobile County, Alabama.'"
Legere died in 1950 leaving a will by which he devised to respondent all his property, except some property not here pertinent.
In brief outline the controversy is this. Complainant claims to own all of Parcel No. 1 and Parcel No. 2 by virtue of the July 3, 1947, deed. She seeks to reform the description in the deed and to quiet her title. Respondent says the July 3, 1947, deed did not convey all of both parcels to complainant, and that respondent, as successor *61 to Legere, owns all of both parcels, or the greater part of them. It is apparent that the controversy results from the description in the deed referring to Lot No. 7, and the absence of any lot so numbered on the recorded map of the subdivision.
The case was set for hearing August 28, 1962. The transcript of the testimony taken on the hearing commences with the statement of counsel that "The parties have reached a settlement." Then, in open court, counsel dictate or recite the terms of the settlement.
The agreement, in short, is that a survey shall be made, to begin at the southeast corner of the Dr. S. H. Stephens Lot, thence run north along east line of said lot 130 feet, thence run east parallel with north line of Section 17 to the average tide line of Dog River. At the middle point of the line from Dr. S. H. Stephens Lot to Dog River, a line is to be run north and south to the river. All of the disputed land east of the north-south line will be the property of respondent and all west of the line will be property of complainant. The agreement, as written by the reporter and signed by the trial judge contains the following recitals:
Apparently, the surveyor agreed upon by the parties completed the survey and filed a map dated September 17, 1962. The map set out in this opinion is taken from the map dated September 17, 1962. By the agreement, Parcel No. 1 goes to respondent, subject to the agreement, and Parcel No. 2 goes to complainant.
On September 27, 1962, counsel, who had hitherto represented respondent, filed a written withdrawal from the cause alleging that respondent has been fully advised and that the withdrawal "is made at her request."
On October 5, 1962, through new counsel, respondent filed motion to set aside the submission, or suspend rendition of decree, or "to revoke the memorandum of settlement allegedly" made August 28, 1962.
As grounds of the motion, respondent says that she objects to and is not satisfied with the agreement; that it deprives her *62 of property without due process; that the agreement was made "over her protest and without her consent or approval"; and that, if the agreement is permitted to stand, she and her successors will be unable to enter her property except by air or water, and that such condition would render her property worthless.
On October 26, 1962, hearing was had on the motion and on December 7, 1962, the court rendered a decree giving effect to the agreement of August 28, 1962.
Respondent appeals from the decree of December 7, 1962, and assigns its rendition as error.
Appellee moves to dismiss the appeal on three grounds.
First, appellee says that there has been no appeal from the "decree of August 28, 1962, and said decree has become final, more than six months having elapsed since the date thereof."
The paper of August 28, 1962, is entitled:
As we read it, it sets out the terms of an agreement and is not a decree. The agreement is "ratified, adopted, affirmed" by the court, but, however final it may be as an agreement, it looks to the subsequent rendition of a decree and is not itself a decree. We do not think it is in such form that an appeal could be taken from it, and hold that the first ground of appellee's motion to dismiss is not well taken.
Second, appellee says that the appeal is an appeal from a consent decree and a consent decree will not support an appeal, citing Payne v. Graham, 20 Ala. App. 439, 102 So. 729, where the court said: "A consent decree or judgment will not support an appeal." The statement was made in answer to the argument that a certain Mississippi decree had been erroneously admitted into evidence. The Court of Appeals pointed out that "... this decree was never offered in evidence." Whether a decree, which was not offered in evidence, would or would not support an appeal was wholly unnecessary to the decision and is dictum.
Appellee cites also Heath v. Hall, 39 Ala.App. 623, 106 So. 2d 38, where the Court of Appeals held that the appeal should be dismissed because there was "no actual controversy" and it was "impossible for this court to grant any relief because of the proceedings below ...." This is the only Alabama case we have found, or have been cited to, where an appeal from a consent judgment was dismissed.
Heath v. Hall, supra, relies on Gunter v. Hinson, 161 Ala. 536, 50 So. 86, where this court affirmed the decree of the trial court. With reference to a consent judgment, this court said:
In McNeil and Skinner v. State, supra, this court did not dismiss the appeal but affirmed a judgment rendered "by the consent of the appellants," in an action at law.
In Adler v. Van Kirk Land & Const. Co., supra, this court did not dismiss the appeal, but reversed and rendered a decree dismissing a bill to set aside a consent decree.
In Gossett v. Pratt, 250 Ala. 300, 34 So. 2d 145, this court affirmed a consent judgment.
In Grigsby v. Liles, 274 Ala. 67, 147 So. 2d 846, we held that the action of the *63 trial court in vacating consent judgment and granting new trial must be regarded as correct unless such action constitutes an abuse of discretion or is plainly and palpably wrong.
In National Bread Co. v. Bird, 226 Ala. 40, 145 So. 462, this court refused to disturb an order granting a new trial.
In City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160, on the cross-assignment, this court said:
The authorities cited support the principle that a party cannot be heard to complain of action of the court which was done with the party's consent.
On the basis of the cases noted, we conclude that the proper disposition of an appeal from a consent judgment, which is truly a judgment rendered by agreement of appellant and not due to be disturbed, is to affirm the judgment and not to dismiss the appeal. The second ground of appellee's motion to dismiss is not well taken.
The third ground of appellee's motion to dismiss is that the December decree, here appealed from, is nothing more than a decree denying appellant's motion to set aside "the consent decree of August 28, 1962," citing Grigsby v. Liles, 41 Ala.App. 627, 147 So. 2d 836, as authority that such decree is not appealable.
As already stated, we do not think that the Memorandum of Settlement Between Parties, dated August 28, 1962, is a decree. It must follow that the December decree is not a decree denying a motion to set aside a final decree. Appellee's third ground is not well taken. The motion to dismiss is denied.
Appellee has filed also a motion to strike the assignments of error for indefiniteness and as complaining of matters not assignable for error. Some of the assignments may be insufficient, but others are adequate. Assignments 1 and 6 recite:
These assignments may not be models of good pleading but, we think, they sufficiently point out the error complained of. They complain of the action of the court in rendering the December decree. The motion to strike is denied.
We come to consider appellant's argument on the merits. She says, first, that the decree ought not to stand because she did not agree to the settlement made in court by her attorney on August 28, 1962, and that, because she did not agree to the settlement, it ought not to be binding on her. She states in brief:
It seems clear that on August 28, 1962, appellant was personally present in open court when the settlement agreement was made and dictated to the reporter by counsel. Later, after appellant had employed new counsel and had filed her motion to revoke the agreement, a hearing on her motion to revoke was held in open court on October 26, 1962.
Appellant testified ore tenus at the October hearing. The record indicates that, at the October hearing, appellant's counsel read aloud to her the Memorandum of Settlement, whereupon she testified on direct examination as follows:
On cross-examination, appellant testified as follows:
The map of Garratt's survey is dated September 17, 1962.
From appellant's testimony, it is apparent that she did not, on October 26, agree to the settlement made in August; but, even on October 26, she admitted, on direct examination, that in August, she had "said `yes,'" although "under protest." On cross-examination in October, she testified that in August she had said: "Well if it has to be it has to be."
We are of opinion that appellant's own testimony shows that she was, on August 28, informed of the terms of the settlement and, at that time, agreed to it, although she agreed reluctantly. We think she did consent in August.
We hold that, because appellant consented to the settlement, her contention, that the decree should be reversed on the ground that she did not consent, is not well taken.
On the merits, appellant's second contention is that the consent decree ought not to be allowed to stand because the agreement on which the decree is based deprives appellant, and her successors in title, of any way of ingress or egress by land and she can reach her parcel only by water or air. She argues to the effect that such an agreement is contrary to the public policy and, therefore, ought not to be enforced by the courts.
In this connection, we note appellant's motion to strike appellee's supplemental brief which was filed after oral argument. Appellant says the brief should be stricken because appellee did not file it within ten days after service of appellant's brief and because the proposition of law argued in the supplemental brief was not argued in appellee's original brief.
During oral argument, this writer inquired of counsel whether a landowner could waive or surrender a way of necessity. Appellee's supplemental brief undertakes to answer that question. Proposition 19 in appellee's original brief asserts that a person may waive the benefit of a statute or even of a constitutional provision enacted for his benefit.
When a party has timely filed his original brief, this court has rarely, if ever, refused to receive a supplemental brief that may be helpful. We do not think we should strike a supplemental brief which is filed in response to a question from the court and by a party who has timely filed all previously required briefs. Appellant's motion to strike supplemental brief is denied.
Appellant has cited many cases which have to do with common law and statutory ways of necessity.
In Dutton v. Taylor, 2 Lutw.R. 1487, one of the grounds, on which the existence of a way of necessity is placed, is that it is for the public good that the land be not unoccupied. Lide v. Hadley, 36 Ala. 627.
At common law, the right to a way of necessity does not arise where there is no privity of title. Trump v. McDonnell, 120 Ala. 200, 24 So. 353. § 56, Title 19, appears to eliminate the requirement of privity of title in certain cases outside corporate limits of a municipality. The law of this state does provide that a landowner shall have certain rights to common law and statutory ways of necessity.
We are not here concerned, however, with the question whether appellant, as owner of the seaward end of the peninsula, has a right to a way of necessity across the inland part of the peninsula. This is not a proceeding to acquire or protect a right of way. This proceeding was brought to settle a dispute as to ownership of the entire peninsula. The parties agreed to settle the dispute by dividing the peninsula between them with the condition that the *68 owner of the seaward end should never have a right of way, either by common law or by statute, across the inland part of the peninsula. The question is whether such an agreement may be ratified by the court, or, is such an agreement that it contravenes public policy and is, for that reason, void and unenforceable. Stated another way, may the owner of the seaward end of a peninsula waive and surrender, for himself and successors, the right to a way by land over the remainder of the peninsula?
We have found little, if any, authority in point. See: Thompson on Real Property, 1961 Replacement, § 368, Vol. 2, page 459; Ways of Necessity, Simonton, 25 Columbia L.R. 571, 584, 33 W.Va.L.Q. 64; 19 Oregon L.R. 363. This court has, with approval, quoted the following statements:
Perhaps the strongest authority on the question is a Massachusetts case where the trial court denied petitioner's claim to certain rights of way. On appeal, the appellate court approved the ruling of the trial court and said:
The court said further that a right of way of necessity over the land of the grantor is implied by law "because that is presumed to be the intent of the parties," and
In Doten v. Bartlett, 107 Me. 351, 78 A. 456, 32 L.R.A.,N.S., 1075, the court held that the defendants were bound by the recitals of a deed and mortgage executed by defendants. The court said:
In Haskell v. Wright, 23 N.J.Eq. 389, 396, the court denied a landowner the unrestricted use of a way, saying, "The defendant having accepted the conveyance of this lot, with a restricted right of way, is barred from claiming a larger way as a necessity."
Where part of a salt meadow was sold for a canal, the court held that the grantor, with respect to the remainder of the meadow, had no right to a way of necessity over and across the canal. The court said:
In Powers v. Heffernan, 233 Ill. 597, 84 N.E. 661, 16 L.R.A.,N.S., 523, the court held that the purchaser had a right to use a stairway on an adjoining lot of the grantor, but the court said:
We think there are expressions in the cases next cited which support the principle that parties may, by express agreement, waive and relinquish the right to a way of necessity, to wit: Chappell v. New York, N. H. & H. R. Co., 62 Conn. 195, 24 A. 997, 17 L.R.A. 420; Baldwin Lumber Co. v. Todd, 124 La. 543, 50 So. 526; Myers v. Dunn, 49 Conn. 71; Bascom v. Cannon, 158 Pa. 225, 27 A. 968; Ewert v. Burtis, (N.J.Ch.), 12 A. 893; Lebus v. Boston, 107 Ky. 98, 51 S.W. 609, *70 52 S.W. 956; Golden v. Rupard, 80 S.W. 162, 25 Ky.L.Rep. 2125.
We note the following provision of the settlement agreement in the instant case, to wit:
This provision leads us to conclude that the peninsula is surrounded by tidewater. All tidal streams are, prima facie, public and navigable. Walker v. Allen, 72 Ala. 456.
In Littlefield v. Hubbard, 124 Me. 299, 128 A. 285, 38 A.L.R. 1306, the court noted the rule that where land borders on the ocean, there exists no way of necessity even over a grantor's land, although such passage by water may not be as convenient as a passage by land. Citation to other cases relating to this rule may be found in the annotation.
We point out that we are not here deciding whether the owner of land bounded on three sides by water can obtain a way of necessity over the adjoining land as at common law or by our statute, § 56, Title 19. We do have to decide whether the agreement of such a landowner to release his right to a way over the adjoining land contravenes public policy. Littlefield v. Hubbard, supra, and similar cases indicate that such an agreement does not offend public policy and are cited for that reason.
One further consideration occurs to us. Suppose Parcel No. 1, on the map set out in this opinion, should be found to contain some valuable deposit which could be obtained and utilized only by removing the entire surface of Parcel No. 1 and causing it to be obliterated or covered by water. In such case, would not the owner of Parcel No. 1 have the right to destroy the entire surface so as to obtain the deposit? We think the owner would have that right, and if she does, then she would have the right to do something less than destroying the surface, that is, to relinquish the right of way by land to Parcel No. 1.
No case or statute of which we know forbids a party from surrendering the right to a way of necessity. The right to such a way at common law rests on the implication that the parties intended and agreed to provide for such a way. If such a right rests on the implied agreement of the parties, then, if they are free to contract as they see fit, they must have the right to provide expressly that no way of necessity shall exist.
We are of opinion that the agreement to divide the peninsula did not offend public policy by imposing on the owner of Parcel No. 1, the condition that the owner, for herself and successors in title, should release the right to a way across Parcel No. 2.
Error not being shown, the decree appealed from is affirmed.
Motions denied.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL and HARWOOD, JJ., concur. | September 30, 1965 |
7048b44d-69f1-40b8-86fc-33fe81f35744 | Alabama Psychiatric Services, P.C. v. A Center for Eating Disorders, L.L.C. | N/A | 1110703 | Alabama | Alabama Supreme Court | Rel: 01/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
_________________________
1110703
_________________________
Alabama Psychiatric Services, P.C., and Managed
Health Care Administration, Inc.
v.
A Center for Eating Disorders, L.L.C.
Appeal from Jefferson Circuit Court
(CV-09-903205)
MAIN, Justice.
Alabama Psychiatric Services, P.C. ("APS"), and Managed
Health Care Administration, Inc. ("MHCA"), the defendants in
this action, appeal from the trial court's order denying their
motions for a judgment as a matter of law ("JML") made at the
1110703
The "Joint Commission" provides nationally recognized
1
accreditation credentials for health-care organizations and
programs in the United States.
2
close of all the evidence. Although the jury entered a
verdict for APS and MHCA, they nonetheless argue that the two
claims that were ultimately tried should not have been
submitted to a jury. APS and MHCA also appeal from the order
entered by the trial court granting a motion for a new trial
filed by A Center for Eating Disorders, L.L.C. ("ACED"), the
plaintiff in this action. The trial court's order overturned
the judgment entered on a jury verdict for APS and MHCA. We
reverse and remand.
I. Factual Background and Procedural History
In its order granting in part the motions for a summary
judgment filed by APS and MHCA, the trial court stated the
facts as follows:
"Plaintiff A Center
for
Eating
Disorders,
L.L.C.
('ACED'), opened on February 23, 2009, providing
partial
hospitalization
treatment
('PHP')
for
individuals suffering from eating disorders. In a
PHP program, patients come to the facility for
various treatment sessions for five or six hours per
day for five or six days per week. ACED is fully
accredited by the Joint Commission.[ ]
1
"Blue Cross Blue Shield of Alabama ('BCBS') is
in the health insurance business. BCBS does not
have a preferred provider network for individual
1110703
3
mental health providers. BCBS utilizes Managed
Health [Care Administration], Inc. ('MHCA') to
manage behavioral health networks for their members.
MHCA is owned mainly by physicians who work for
[Alabama]
Psychiatric
Services,
P.C.
('APS').
Additionally, MHCA is managed by two non-physicians
who are also employed by APS. Rusty Adams has been
the Chief Operating Officer of APS for 20 years and
the Chief Operating Officer of MHCA for 15 years.
Similarly,
Doyle
Stewart
has
been
the
Chief
Financial Officer of both APS and MHCA for the past
10 years. BCBS has testified that it was not aware
of the overlapping ownership between MHCA and APS.
"APS entered into a contract with BCBS in 1986
to manage what is known as Expanded Psychiatric
Services ('EPS'). In 1991, that contract was
transferred from APS to MHCA. MHCA now manages a
number of behavioral health networks for BCBS. BCBS
contracts with members for health insurance and out
of the premiums it receives, BCBS pays MHCA
$3.10/month per member. MHCA is expected to arrange
mental health services for these members for that
monthly payment, and any leftover amount is profit
to MHCA. Many BCBS group health insurance plans and
self-funded group plans administered by MHCA provide
mental health benefits for their members through
three benefit designs that access certain preferred
provider networks: (1) Expanded Psychiatric Services
benefits;
(2)
Expanded
Psychiatric
Services
Exclusive ('EPX') benefits; and (3) Blue Choice
Behavioral benefits ('Blue Choice').
"The services of mental health professionals
covered under BCBS are accessed through EPS and
administered by MHCA. APS operates the [Eating
Disorders Center of Alabama ('the EDCA')], which
provides treatment for patients through a partial
hospitalization program. In a prior trademark suit
filed by APS against ACED, APS alleged that the
services provided by ACED were essentially identical
to the services provided by the EDCA. BCBS members
1110703
4
with EPS benefits in their health plan may obtain
PHP services for eating disorders by accessing their
EPS benefits.
"BCBS has stated that ACED is not an MHCA
provider and that any claims submitted by ACED are
paid as Out of Network benefits, regardless of
whether or not the plan provides access to EPS
benefits. As a result, BCBS members seeking
behavioral health treatment receive no benefit
whatsoever if they choose treatment at ACED. This
places ACED at a clear competitive disadvantage, as
BCBS members with EPS plans constitute 90-95% of the
market. If members wanted any EPS benefits at all
for behavioral health treatment, they were required
to choose treatment at the EDCA, which is operated
by APS and managed by the same individuals who
manage MHCA.
"Before ACED opened, it contacted BCBS about
seeking
Individual
Case
Management
('ICM')
agreements. Under an Individual Case Management
agreement, BCBS and the provider work together to
design an individual contract for services that are
otherwise not covered under the member's health
plan. Individual Case Management Agreements are
discretionary
and
subject
to
the
voluntary
participation of BCBS, the member and the provider.
On most occasions, BCBS declined to agree to an
Individual Case Management Agreement with ACED.
"The contract between Blue Cross and MHCA
requires that if MHCA subcontracts or otherwise
delegates any of its health network functions it
must be done by another contract authorized by BCBS.
The contract also requires that MHCA must have
contractual agreements with any providers it deems
to be 'in-network,' and thus able to receive
benefits from BCBS under the EPS network. APS is
the
only
provider
deemed
by
MHCA
to
be
'in-network.'"
1110703
5
ACED opened its doors under the name Alabama Center for
Eating Disorders and using the acronym ACED. Shortly
thereafter, as the trial court noted, APS filed a trademark-
infringement lawsuit against ACED, arguing that ACED's name
infringed on the name of APS's eating-disorder center. ACED
voluntarily changed its name to A Center for Eating Disorders
so that it could continue to use the acronym ACED, and the
trademark-infringement lawsuit was dismissed. After MHCA
refused to allow ACED to apply as a services provider for the
network of mental-health professionals treating patients
insured by Blue Cross Blue Shield of Alabama ("Blue Cross")
with EPS benefits, ACED filed its own seven-count lawsuit
against APS, MHCA, and Blue Cross. ACED alleged intentional
interference with contractual or business relations (count I);
defamation (count II); fraud, misrepresentation, and deceit
(count III); breach of contract (count IV); interference with
the
health-care-provider/patient
relationship
(count
V);
civil
conspiracy (count VI); and a count seeking declaratory relief
(count VII), in which ACED sought to have the trial court
"enjoin [APS and MHCA], separately and severally, from
employing artificial and improper restrictions on [ACED's]
1110703
6
business
and
patients
seeking
pre-certification
or
coverage/benefits; from engaging in conduct that disparages
[ACED] and/or its staff; [and] from engaging in conduct that
interferes
with
[ACED's]
Health
Care
Provider/Patient
relationship."
APS, MHCA, and Blue Cross initially filed motions to
dismiss ACED's complaint. The trial court denied those
motions as to all counts except count III, which alleged
fraud, misrepresentation, and deceit. As to count III, the
trial court ordered ACED to file a more definite statement.
When ACED filed nothing further, the trial court entered an
order on January 6, 2010, dismissing count III as to all
defendants with prejudice.
APS, MHCA, and Blue Cross then filed motions for a
summary judgment; ACED opposed those motions. All parties
filed evidence supporting their respective positions. The
trial court heard what it described as "extensive oral
arguments" on the summary-judgment motions on April 13, 2011.
On April 19, 2011, the trial court entered a summary judgment
for APS and MHCA as to count II (defamation). On June 29,
2011, the trial court entered detailed orders on the summary-
1110703
7
judgment motions. As to Blue Cross, the trial court entered
a summary judgment in its favor on all counts except count VII
(seeking declaratory relief). As to APS and MHCA, the trial
court entered a summary judgment in their favor as to counts
IV (breach of contract) and V (interference with the health-
care-provider/patient relationship). The trial court denied
the summary-judgment motions as to count I (intentional
interference with contractual/business relations) and count
VI (conspiracy). The trial court made no ruling on count VII,
the count seeking declaratory relief, in its June 29 order.
On October 13, 2011, the trial court entered an order
finding that the evidence before it indicated that there was
no justiciable controversy requiring declaratory relief in
this case because, the court said, "a judgment of this Court
would not affect [ACED's] legal position and would not provide
[ACED] with any relief. Additionally, [ACED] lacks standing
to obtain the requested relief." The trial court then entered
a summary judgment in favor of APS and MHCA as to count VII.
It also entered a summary judgment in favor of Blue Cross as
to count VII and, because no other claims remained pending
1110703
8
against Blue Cross, dismissed Blue Cross as a defendant with
prejudice.
The case then proceeded to trial against APS and MHCA on
counts I and VI of ACED's complaint. Before trial, APS and
MHCA filed an extensive motion in limine as to numerous items;
ACED also filed a motion in limine. On November 9, 2011, the
trial court entered an order responding to the items that were
the subject of the motions in limine. The trial began on
November 14 and concluded with a verdict in favor of APS and
MHCA on November 18. The trial court had denied APS's and
MHCA's motions for a JML made at the close of all the
evidence. The trial court entered a judgment on the jury
verdict on November 18.
ACED then filed a motion for a new trial. ACED argued
that the trial court erred in excluding certain evidence
pursuant to its pretrial order on the parties' motions in
limine. ACED concluded by arguing that the trial court's
exclusion of the evidence discussed in its motion prevented
ACED "from showing the true manipulation of this sham network
by no written agreement and the actual false statements made
in later contracts." After APS and MHCA responded to the
1110703
9
motion for a new trial, the trial court heard argument on the
motion. On January 26, 2012, the trial court entered an order
granting ACED's motion for a new trial and reinstating count
IV (breach of contract) as to which the court had entered a
summary judgment in favor of APS and MHCA. APS and MHCA
appealed.
II. Standards of Review
A. Motion for a JML
"When reviewing a ruling on a motion for a JML,
this Court uses the same standard the trial court
used initially in deciding whether to grant or deny
the motion for a JML. Palm Harbor Homes, Inc. v.
Crawford, 689 So. 2d 3 (Ala. 1997). Regarding
questions of fact, the ultimate question is whether
the nonmovant has presented sufficient evidence to
allow the case to be submitted to the jury for a
factual resolution. Carter v. Henderson, 598 So. 2d
1350 (Ala. 1992). The nonmovant must have presented
substantial evidence in order to withstand a motion
for a JML. See § 12-21-12, Ala. Code 1975; West v.
Founders Life Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala. 1989). A reviewing court must
determine whether the party who bears the burden of
proof has produced substantial evidence creating a
factual dispute requiring resolution by the jury.
Carter, 598 So. 2d at 1353. In reviewing a ruling
on a motion for a JML, this Court views the evidence
in the light most favorable to the nonmovant and
entertains such reasonable inferences as the jury
would have been free to draw. Id. Regarding a
question of law, however, this Court indulges no
presumption of correctness as to the trial court's
ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.
2d 1126 (Ala. 1992)."
1110703
10
Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875
So. 2d 1143, 1152 (Ala. 2003).
B. Motion for a New Trial
"When the court grants a motion for a new trial on
grounds other than a finding that the verdict is
against the great weight or preponderance of the
evidence, this Court's review is limited.
"'"It is well established that a
ruling on a motion for a new
trial rests within the sound
discretion of the trial judge.
The exercise of that discretion
carries with it a presumption of
correctness, which will not be
disturbed by this Court unless
some legal right is abused and
the record plainly and palpably
shows the trial judge to be in
error."'
"Curtis v. Faulkner Univ., 575 So. 2d 1064, 1065-66
(Ala. 1991) (quoting Kane v. Edward J. Woerner &
Sons, Inc., 543 So. 2d 693, 694 (Ala. 1989), quoting
in turn Hill v. Sherwood, 488 So. 2d 1357, 1359
(1986))."
Baptist Med. Ctr. Montclair v. Whitfield, 950 So. 2d 1121,
1125-26 (Ala. 2006).
III. Analysis
The elements of a claim of intentional interference with
business relations are (1) the existence of a protectable
business relationship; (2) of which APS and MHCA were aware;
1110703
11
(3) to which APS and MHCA were strangers; and (4) with which
APS and MHCA intentionally interfered; and (5) damage to ACED.
White Sands Grp., LLC v. PRS II, LLC, 32 So. 3d 5, 14 (Ala.
2009). APS and MHCA first argue that the trial court erred
when it denied their motions for a JML at the close of all the
evidence. Because ACED failed to support each of the elements
of intentional interference with a business relationship with
substantial evidence, they argue, they were entitled to a JML
as to that claim. They further argue that because they are
entitled to a JML as to ACED's claim of intentional
interference with a business relationship, ACED's conspiracy
claim also fails.
The dispositive question presented by this appeal is
whether ACED presented substantial evidence at trial of any
act of intentional interference by APS or MHCA with ACED's
business relationships. APS and MHCA argue that they did not
attempt to manipulate the market so that APS is MHCA's only
in-network
provider
for
eating-disorder
partial-
hospitalization ("PHP") services or to ensure that APS "gets
all the business." APS and MHCA's brief, at 27. Instead,
they say, "MHCA has simply made the business decision that, in
1110703
12
order to provide the appropriate and required treatment to
Blue Cross insureds with [expanded psychiatric services]
benefits, it only needs one eating disorder PHP facility in
its network of providers." APS and MHCA's brief, at 27-28.
APS and MHCA correctly state that this Court has
consistently held that a mere refusal to deal is not an
intentional interference with a business relationship, citing
Axelroth v. Health Partners of Alabama, Inc., 720 So. 2d 880,
886 (Ala. 1998). APS and MHCA also rely on Denton v. Alabama
Cotton Coop. Ass'n, 30 Ala. App. 429, 432-33, 7 So. 2d 504,
507 (1942), in which the Court of Appeals held that "[e]very
person has the right to deal or refuse to deal with whom he
chooses." Moreover, they say, Alabama courts cannot force a
company to do business with another company because, they
argue, Alabama law recognizes that a citizen of this state "is
free to contract in any way he sees fit," citing Kinmon v.
J.P. King Auction Co., 290 Ala. 323, 325, 276 So. 2d 569, 570
(1973). Because the business arrangement between APS and MHCA
is within their rights, they argue, ACED's claims fail as a
matter of law. We agree.
1110703
13
APS and MHCA maintain that ACED failed to offer any
evidence indicating that MHCA was obligated to include ACED in
its
approved-provider
network
for
expanded-psychiatric-
services policy coverage. They argue that ACED's claim
amounts to an argument that it is "not fair" that MHCA did not
approve ACED as an in-network provider, and such a claim, they
argue, does not create a valid cause of action. APS and MHCA
contend that Renee Miller, ACED's clinical director and one of
the two members of the limited liability corporation, admitted
that MHCA had no obligation to do business with ACED and that
she knew what ACED's status with Blue Cross would be before
she formed ACED. Furthermore, they argue, Alabama is not an
"any willing provider" state in which health insurers are
obligated to include all providers in their networks, but,
instead, Alabama law permits health insurers to maintain
exclusive-provider networks, citing Blue Cross & Blue Shield
of Alabama v. Nielsen, 917 F. Supp. 1532 (N.D. Ala. 1996).
Moreover, APS and MHCA say, there is no evidence indicating
that APS or MHCA directed patients away from ACED. They
contend that Miller testified only that she thought Blue
Cross, APS, and MHCA were acting in collusion and that ACED
1110703
"Q. Ms. Miller, what obligates MHCA to do business with
2
your company?
"A.
There is no obligation."
14
failed to present any evidence from patients that could
establish that APS or MHCA had interfered with their access to
ACED.
After reviewing the record in this case, we are unable to
find any evidence to suggest that APS or MHCA intentionally
interfered with ACED's business relationships. During
Miller's cross-examination by one of the attorneys for APS and
MHCA, she testified that she had no evidence to confirm that
APS and MHCA had interfered with ACED's business and had
instructed patients to leave ACED's program and to attend
APS's program. Miller further testified that MHCA had no
obligation to do business with ACED. Based on the record
2
before us, we conclude that ACED simply argues that it is
unfair that APS and MHCA have chosen not to contract with ACED
for preferred in-network provider services. This does not
constitute evidence of intentional interference with an
existing business relationship. Furthermore, APS and MHCA
have no legal obligation to do business with ACED. Axelroth,
720 So. 2d at 886. Consequently, we conclude that, as a
1110703
15
matter of law, ACED's intentional-interference-with-business-
relations claim should not have been submitted to the jury.
APS and MHCA were entitled to a JML as to that claim.
Likewise, because APS and MHCA were entitled to a JML as
to ACED's intentional-interference-with-business-relations
claim, ACED's conspiracy claim should not have been submitted
to the jury. Alabama law is clear that a conspiracy "is not
an independent cause of action; therefore, when alleging
conspiracy, a plaintiff must have a viable underlying cause of
action." Direct Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d
1280, 1290 (Ala. 1993) (citing Allied Supply Co. v. Brown, 585
So. 2d 33, 36 (Ala. 1991)). Because ACED did not prove its
underlying cause of action (intentional interference with
business relations), APS and MHCA also were entitled to a JML
as to ACED's conspiracy claim.
We conclude that ACED failed to present substantial
evidence showing that APS or MHCA intentionally interfered
with ACED's business relations. Because, as a matter of law,
the evidence does not support a finding of intentional
interference, the trial court erred in denying the motion for
a JML filed by APS and MHCA at the close of all the evidence
1110703
16
as
to
ACED's
intentional-interference-with-business-relations
claim and its conspiracy claim. Therefore, those claims
should not have been submitted to the jury, and the trial
court's order denying APS's and MHCA's motions for a JML is
due to be reversed.
We next address whether the trial court should have
granted ACED's motion for a new trial. Because we hold that
the trial court erred when it submitted ACED's two remaining
claims to the jury, we further hold that the trial court erred
when it granted ACED's motion for a new trial and reinstated
ACED's breach-of-contract claim.
IV. Conclusion
We reverse the trial court's order denying APS's and
MHCA's
motions
for
a
JML
as
to
ACED's
intentional-
interference-with-business-relations and conspiracy claims,
and we reverse the trial court's order granting ACED's motion
for a new trial. We remand the cause and direct the trial
court to enter a JML in favor of APS and MHCA on ACED's
remaining two counts. Because we conclude that the trial
court should have entered a JML as to ACED's remaining two
claims, we pretermit consideration of the other arguments made
by the parties.
1110703
17
REVERSED AND REMANDED.
Stuart, Bolin, Parker, Murdock, Shaw, and Bryan, JJ.,
concur.
Moore, C.J., dissents.
Wise, J., recuses herself. | January 24, 2014 |
54cb57e4-aba7-4d13-a173-4b4fc96d19a1 | Coastal States Life Insurance Company v. Gass | 180 So. 2d 255 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 255 (1965)
COASTAL STATES LIFE INSURANCE COMPANY
v.
John I. GASS, as Admr., et al.
8 Div. 199.
Supreme Court of Alabama.
November 18, 1965.
*256 Joe M. Dawson and Jas. S. McGinty, Scottsboro, for appellant.
John B. Tally and H. O. Weeks, Scottsboro, for appellee.
MERRILL, Justice.
Appeal from a decree in favor of complainant making a declaration of rights, enjoining respondent, The First National Bank of Stevenson, from foreclosing a real estate mortgage executed by complainant and his deceased wife, and ordering respondent-appellant, Coastal States Life Insurance Company to pay the amount of the mortgage to the bank and to have the mortgage marked satisfied and discharged.
Complainant-appellee, John I. Gass, filed the bill as an individual and as administrator of the estate of his deceased wife, Pauline Gass. He alleged that he negotiated a $1500 loan from The First National Bank of Stevenson on December 31, 1954. The loan was secured by a real estate mortgage on his homestead. The then vice-president, now president, of the bank, Clyde H. Woodall, stated that he could issue a term life insurance policy to cover the loan. Gass replied that he had adequate insurance coverage but the policy could be issued in his wife's name. Woodall wrote and issued the policy and the premium of $36.00 was paid. Mrs. Gass was in their automobile, parked on the street, and Woodall did not see or talk with her, and no application for insurance was signed by either Gass or his wife.
Mrs. Gass died on July 25, 1955, while the loan was unpaid and the policy was in effect. Complainant filed proof of loss and appellant refused to pay. Complainant asked the bank to collect the amount of the insurance, but it failed to do so and was threatening to foreclose the mortgage.
Complainant prayed for a declaration of rights, that the bank by enjoined from foreclosing the mortgage; that an accounting be had with the bank, the amount owed by Gass ascertained, a judgment in favor of complainant for such amount and for general relief.
Respondents appeared specially and filed pleas in abatement setting up the failure of complainant to name the relatives of his deceased wife as parties. The plea in abatement was overruled and respondents filed demurrers, which were also overruled; and they filed two special pleas challenging the insurability of Mrs. Pauline Gass on the ground (1) that she was not a borrower from the bank and could not be insured; and (2) that she was not in insurable health when the policy was issued.
The trial court found against the appellant on the special pleas, found the policy binding upon appellant and ordered appellant to pay the debt plus interest, and ordered the mortgage marked satisfied. Respondents Woodall and The First National Bank of Stevenson did not appeal.
Appellant argues first that the court erred in overruling the plea in abatement which pointed out that all of Mrs. Gass' relatives by blood or marriage were necessary and indispensible parties to the cause. This argument is based upon Brantley v. Brantley, 258 Ala. 367, 63 So. 2d 29, and *257 Tit. 7, § 166, Code 1940, which provides, in part:
In Trammell v. Glens Falls Indemnity Co., 259 Ala. 430, 66 So. 2d 537, we discussed the Brantley case and construed Tit. 7, § 166, and held that there were necessary parties on each side of the controversy, and even though all persons interested were not made parties, the judgment was not void for want of necessary parties.
Here, the policy provided that after paying the creditor, any balance of the policy should be paid "to any relative by blood, or connection by marriage of Borrower or to the Estate of the Borrower." Mr. Gass was appointed administrator of the estate of his deceased wife and he sued in that capacity.
The heirs of the decedent were not necessary parties. Title to any asset of the estate was in the administrator and it was his authority and duty to realize it. Barnett v. Waddell, 248 Ala. 189, 27 So. 2d 1. The interests of the heirs were protected and represented by the administrator. The plea in abatement was properly overruled.
Appellant's second argument is that the court erred in overruling the demurrer to the bill. This being a bill for declaratory judgment, the demurrer was properly overruled in order that an answer could be filed and a declaration of rights made. City of Mobile v. Jax Distributing Co., 267 Ala. 289, 101 So. 2d 295, and cases cited; 7A Ala.Dig., Declaratory Judgment.
The ground of demurrer that the bill was defective because it was not sworn to as required by Equity Rule 12, since injunctive relief was requested, was not well taken.
A bill is not subject to demurrer for failure to verify it to the extent that it seeks injunctive relief, although a temporary injunction will not be ordered unless it is verified. McKinstry v. Thomas, 258 Ala. 690, 64 So. 2d 808. Since the bill sought other than injunctive relief, the demurrer was properly overruled.
Assignment of error 10 presents the main question in the case. Appellant states in brief: "The principal question for decision in the instant case is whether Pauline Gass was, on the date of the issuance of the certificate, a borrower or debtor of the First National Bank of Stevenson, Alabama, who was eligible for insurance coverage under the Master Policy." The Master Policy and the certificate imply that the only persons eligible for insurance are borrowers or debtors of the bank. It is without conflict that the loan was made to John I. Gass and he alone signed the note. These facts were known to Vice-president Woodall because he handled the loan for the bank and issued the policy of insurance. But the Master Policy also provided:
Vice-president Woodall represented the creditor and he designated Pauline Gass, one of the persons executing the mortgage, "as the Debtor insured" in the certificate and accepted the full premium.
Appellant argues that the note was signed by John I. Gass only. But the mortgage was given at the same time. Where a note and mortgage, although separate instruments, were executed at the same time, in the course of and as parts of the same transaction, and the mortgage refers to the note as evidencing the indebtedness secured by the mortgage, the two instruments *258 are to be read and construed together as one in form. Thompson v. Thompson, 257 Ala. 10, 57 So. 2d 393, and cases there cited.
We have also held that a wife who has a pecuniary or beneficial interest in her husband's property, or would suffer some disadvantage from its loss, has an insurable interest therein. The term "insurable interest" is more extensive than property or estate. Any qualified or limited interest in the subject of insurance is sufficient, and an equitable interest is sufficient to support an insurable interest. American Equitable Assurance Co. v. Powderly Coal & Lumber Co., 225 Ala. 208, 142 So. 37; North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So. 2d 764, 27 A.L.R.2d 1047. Certainly, Mrs. Gass had an interest in not losing her home even though title was in her husband.
We agree with the trial court that the Master Policy gave to Woodall the authority to designate Mrs. Gass "as the Debtor insured" and he did so.
Assignment of error 7 argues that the court erred in failing to sustain its plea that Mrs. Gass was not in insurable health when the policy or certificate was issued.
Mrs. Gass had surgery on her upper jaw in July, 1954, and the diagnosis, both local and a New York laboratory, was that the tissue and bone removed showed a probable malignancy, but not definite. The operation for a small tumor on her jaw was considered successful and when the patient was seen in October, 1954, the "wound had healed completely and the clinical impression was that the tumor had been completely removed," and there was no malignancy. This, or course, was two months before the loan was made. The surgeon saw her again in June, 1955; she had a small tumor on her jaw that grew rapidly into the size of a volley ball and she died on July 25, 1955. The death certificate signed by the surgeon gave the cause of death as "osteogenic sarcoma, right upper jaw" (cancer of the jawbone). It was the surgeon's opinion that Mrs. Gass was completely cured in October, 1954, and that the rapidly growing tumor that caused her death had not been apparent prior to April or March, 1955. This was ample evidence to support the finding of the trial court that she was insurable from a health standpoint in December, 1954.
Assignments of error 11, 12 and 14 challenge the decree in awarding interest at eight per cent on the note and mortgage from the date they were executed. Appellant contends that the interest, if any were due, would be at six per cent and due only from the date the appellant refused to pay the debt owed the bank.
It is true that Tit. 9, § 62, Code 1940, provides that:
But a contract providing for a debt to be paid at a future date with interest, bears interest from date, notwithstanding this section. Southern Inv. Co. v. Galloway, 206 Ala. 445, 90 So. 300; Campbell Printing-Press & Mfg. Co. v. Jones, 79 Ala. 475. Here, the note and mortgage were executed on December 31, 1954, and the debt was payable one-half in twelve months, the remainder in twenty-four months, and bore interest from date of execution.
Damages for breach of a contract should restore the injured party to the condition he would have occupied if the contract had not been violated, or had been fully performed. Kennedy v. Hudson, 224 Ala. 17, 138 So. 282; Nunnally Co. v. Bromberg & Co., 217 Ala. 180, 115 So. 230. Here, the original indebtedness, covered by the policy, was $1500 plus interest from December 31, 1954. No payment had become due or made when appellant became liable under the contract. *259 We find no error in the ruling of the court as to the interest.
Assignments of error 8 and 9 charge that the decree of the court (8) "is contrary to the weight of the evidence", and (9) "is contrary to the preponderance of the evidence." These two assignments present nothing for review. Franklin v. State, ex rel. Trammell, 275 Ala. 92, 152 So. 2d 158; Randolph v. Kessler, 275 Ala. 73, 152 So. 2d 138.
Assignment of error 13 does not complain of any adverse ruling of the court affecting appellant. The alleged error relates to an order affecting the respondent bank, which did not appeal. It was not adverse to appellant. Only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal. Thompson v. State, 267 Ala. 22, 99 So. 2d 198, and cases there cited.
We note that although the events listed occurred in 1954 and 1955, the decree in this case was rendered on October 20, 1964.
No reversible error has been presented.
Affirmed.
LIVINGSTON, C. J., SIMPSON and HARWOOD, JJ., concur. | November 18, 1965 |
95c078ce-b1c1-4ff4-b994-2e61b84fb5a1 | Aldridge v. State | 179 So. 2d 51 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 51 (1965)
Fred Lyndon ALDRIDGE
v.
STATE.
6 Div. 214.
Supreme Court of Alabama.
September 30, 1965.
*53 Nolen & Enslen, Fayette, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
HARWOOD, Justice.
This is an appeal from an order of the Circuit Court of Fayette County denying a petition for a writ of error coram nobis and remanding the petitioner to the Warden of Kilby Prison.
On 27 February 1961, the petitioner, Fred Aldridge, was adjudged guilty of murder in the first degree and sentenced to life imprisonment.
No step looking toward an appeal was taken following petitioner's conviction. While the petitioner testified he had desired to appeal, no steps were taken. His attorney who represented him at his trial testified in the hearing below that an appeal was discussed, and he had told petitioner what his fee would be, but he heard nothing further from petitioner.
The solicitor who prosecuted the case at the trial testified that on a visit to the jail on another matter, after petitioner's conviction, he had seen petitioner and inquired of him if he intended to appeal his conviction and petitioner had replied that he did not so intend. Regardless, the fact remains that no steps were taken to perfect an appeal, and neither the trial judge nor any official representing the state was informed of any desire on petitioner's part to appeal the judgment.
In connection with the coram nobis hearing, the court below ordered that a full transcript of the record of the petitioner's trial in the murder case be prepared and sent to this court along with the transcript of the record made in the coram nobis hearing. In addition, the attorney representing the state in the coram nobis proceeding also introduced in evidence a full transcript of the evidence taken in a habeas corpus proceeding instituted by the petitioner prior to his murder trial, this habeas corpus proceeding having been instituted by petitioner in an effort to gain bail.
We have examined this mass of evidence and proceedings in connection with our review of the coram nobis proceeding.
In the coram nobis proceeding it seems to have been the policy of the court and counsel to give the petitioner full freedom in presenting any and all matters that might occur to him in an effort to support his petition. This was done to the extent that in many instances fundamental rules for the admission of evidence were not invoked to limit petitioner's efforts.
At the petitioner's trial on the murder indictment the petitioner was represented by counsel of his own choice, employed and paid by petitioner or members of his family.
In the coram nobis proceeding petitioner was represented by counsel appointed by the court. Their representation was full, diligent, and competent.
The petitioner has alleged some 24 grounds as a basis for his petition for a writ of error coram nobis. Many of these grounds overlap.
Ground 1 asserts petitioner, in his murder trial, was tried by a prejudiced court; Ground 6 asserts that the trial court made a statement that he knew petitioner was innocent of the charge, but he was afraid petitioner would kill someone else if he did *54 not have him convicted, and Ground 8 asserts that the trial court conspired with the prosecution to have him convicted.
As to Ground 1, appellant's rambling testimony is difficult to interpret, but is to the general effect that something was wrong with his trial in that he was convicted; that numerous people had come to him after his conviction and told him he had gotten a raw deal, and they knew he was innocent. One of these had been to a fortune teller and been told that he was innocent, that he knew of nothing else to say in support of this ground.
As to Ground 6, appellant testified that the trial judge had made such a statement to Edwin Strickland. Strickland denied that the trial judge had ever made a statement, or that he had ever told petitioner that the trial judge had made such a statement.
When asked if he had anything to say as to Ground 8, or any evidence to support the assertions of Ground 8, petitioner stated that he did not write the petition, that another prisoner had prepared it for him.
Ground 2 asserts that his "jury trial was prejudiced and influenced by the state's prosecutor, while" (petitioner) "was not in the courtroom."
This ground is based upon the fact that during the examination of a state's witness, the petitioner momentarily left the courtroom. The state's evidence shows that only one question was asked during petitioner's absence, and upon the court's attention being called to petitioner's absence, the proceedings were suspended until petitioner returned. The question was then repeated to the witness. Clearly the petitioner was not injured by this instance. Further, the petitioner having voluntarily absented himself, he is in no position to complain. An accused cannot by his own voluntary conduct invite error and then seek to profit thereby. It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice. Jackson v. State, 38 Ala.App. 114, 78 So. 2d 665.
Ground 3 asserts that the prosecution did not prove his guilt beyond a reasonable doubt, and that the verdict is contrary to the evidence.
A writ of error coram nobis does not lie to enable the petitioner to question the merits of the case or correct an error of fact which has been adjudicated. Ex parte Seals, 271 Ala. 622, 126 So. 2d 474. However, after our reading of the transcript of the evidence in the murder trial, we are clear to the conclusion that the verdict and judgment are amply supported to the required degree by the evidence presented in the trial.
Ground 4 asserts that petitioner was confined for seven days before a complaint was filed against him.
This matter was not raised in his trial. Additionally, no question of any confession is involved.
Ground 5 alleges that petitioner was not arraigned until the day of his trial; Grounds 7 and 18 assert petitioner was not served with a copy of the indictment against him; Ground 11 asserts that petitioner was not represented by counsel at his arraignment.
The record of the murder trial shows that petitioner, accompanied by his counsel, was arraigned on 27 February 1961, and entered a not guilty plea. At the arraignment, it was stipulated that the defendant and his attorneys agreed to waive a special venire and service of a copy of the indictment, and the state agreed to waive any demand for capital punishment.
The record further shows that the trial was begun on 3 March 1961, some several days after his arraignment. Counsel for petitioner in his murder trial also testified to facts fully substantiating the record matter above mentioned.
*55 Ground 9 asserts that petitioner was not afforded a preliminary hearing. The transcript of the evidence taken at the habeas corpus proceeding shows that it was stipulated that petitioner had waived a preliminary hearing prior to the institution of the habeas corpus proceeding. Both attorneys who represented the petitioner in the murder trial testified that they waived a preliminary hearing, and instead instituted habeas corpus proceedings because they desired a transcript of the testimony of the state's witnesses to be used in the later trial of the murder case.
This aside, no constitutional right of an accused is violated in not giving him a preliminary hearing. Green v. Bomar, (6 Cir.), 329 F.2d 796; Campbell v. State, 278 Ala. 114, 176 So. 2d 242; Woodward v. State, 42 Ala.App. 552, 171 So. 2d 462.
Ground 13 asserts that petitioner was suffering from a physical ailment requiring the taking of medicines at the time of his murder trial and as a result was incapable of making decisions of his own.
In the hearing below the petitioner testified that he knew what was going on during his murder trial; he did not know what was wrong with him physically, but his doctor had told him it was "nerves."
Counsel who represented petitioner in his murder trial testified that petitioner had some sores on his head and private parts when he was arrested. They arranged for a doctor to treat him. Petitioner appeared in possession of all his faculties, and not to be sufficiently disabled for them to ask for a continuance because of any physical disability. Further, the petitioner insisted on a speedy trial and was opposed to any continuance.
Ground 14 asserts that petitioner was deprived of due process of law in that he was not furnished with a transcript of record in his murder trial, and his motion for such transcript was denied by the court.
The records fail to show that petitioner ever requested a transcript of his murder trial. Since no appeal process was ever initiated no occasion arose to prepare such a record. However, as before stated, the lower court did order such record to be forwarded to this court along with the record prepared in the coram nobis proceeding, and such record is before us.
Ground 15 asserts that petitioner was denied due process of law in that "the Grand Jury which returned the indictment against him was drawn from the same venire as the petit jury which tried the case of petitioner."
This point was not raised in the murder case, and was therefore not available to the petitioner in the coram nobis hearing below. Ex Parte Aaron, 275 Ala. 377, 155 So. 2d 334; cert. den. 375 U.S. 898, 84 S. Ct. 177, 11 L. Ed. 2d 126. Further, Section 30, Title 30, Code of Alabama 1940, directs the judge of the court to draw from the jury box at any session the names of not less than fifty persons to supply the grand jury for such session and the petit jury for the first week of the session of court. Since the petitioner had waived a special venire, no right of the petitioner was infringed in this aspect.
Grounds 10, 12, 19, 20, 23, and 24, allege inadequacy of counsel in various ways. These grounds were not supported by the evidence presented below, and a reading of the transcript of the record in the murder trial refutes these grounds. The state presented a number of witnesses, attorneys who had attended the murder trial who testified to the excellence of the representation afforded the petitioner by his counsel. It is to be noted that the last witness presented by the state in the coram nobis proceeding was Mr. C. M. Holder, an attorney of long experience in the Fayette County Bar. Mr. Holder testified he had attended the murder trial throughout, and in his opinion the defense attorneys had represented the petitioner in an excellent manner. At this point the petitioner volunteered the statement *56 "* * * and I do too." When questioned as to the remark, the petitioner stated until the coram nobis hearing there were matters he had not understood, but now he thought his counsel had done a good job.
The fact that an accused is convicted in no wise tends to reflect upon, or establish, any lack of competency or zeal on the part of his counsel. Echols v. State, 276 Ala. 489, 164 So. 2d 486.
Ground 17 is to the effect that the sheriff failed to serve witnesses requested by the petitioner at his murder trial.
As we gather from petitioner's testimony in support of this ground, he thought Mr. Brooks and Mr. Baker, a probation officer who had the deceased under supervision at the time he was killed, should have been subpoenaed. No subpoenas were requested for these two witnesses. Counsel representing petitioner at his murder trial testified that they had driven to Tuscaloosa and interviewed Mr. Baker. He had no personal knowledge of any fact pertaining to the alleged murder, and any information he had was hearsay and inadmissible under any theory of evidence. For this reason no subpoena was requested for Baker.
Mr. Brooks was one of the state's investigators concerned with investigating the killing of the deceased. Defense counsel testified they had free access to all evidence procured by the state, and nothing was held back. It was counsel's view that nothing beneficial to the defense would be secured from calling Mr. Brooks as a defense witness, and no subpoena was requested for Mr. Brooks.
Ground 22 asserts that evidence beneficial to petitioner discovered during the state's investigation, was not made available to the defense and was withheld at the trial.
No evidence tending to support Ground 22 was presented at the hearing below. Counsel who represented petitioner at his murder trial testified they had full access to the evidence discovered by the state, and that no information was withheld from them.
In the hearing below it was sought to establish that a knife taken from petitioner at the time of his arrest, and a pistol given to investigating officers by the wife of the petitioner a few days after the discovery of the murder were improperly received in evidence, since, as now contended these weapons were procured as a result of unlawful searches and seizures.
Upon laboratory examination human blood was found on each weapon.
As before stated, the knife was taken from the person of the petitioner at the time of his arrest. A day or so later investigating officers went to petitioner's home and asked petitioner's wife to deliver to them a pistol. A daughter who was present told her mother (petitioner's wife) to get the pistol. Petitioner's wife went into the house, returned with the pistol, and delivered it to the officers.
No need arises to belabor the legality of petitioner's arrest, nor the validity of the surrender of the pistol to the officers by petitioner's wife.
First, examination of the transcript of the evidence in the murder case discloses that no objection was interposed to the reception of these exhibits in evidence. This point is therefore clearly not now available to petitioner under our decisions. The federal appellate courts do not seem to apply the federal plain error rule to assertions made on appeal that a judgment should be set aside because evidence was admitted in the trial which was obtained by an unlawful search and seizure where there was no motion to suppress nor any objection interposed on that ground at the trial. See Gendron v. United States, 8 Cir., 295 F.2d 897; Robinson v. United States, 8 Cir., 327 F.2d 618.
Secondly, at the murder trial the petitioner testified that the pistol was not his, but belonged to his wife.
*57 The right to protection against an unlawful search is personal, and a defendant in a criminal case who denies any proprietary or possessory interest in seized property has no standing to object to the method of seizure. Shurman v. United States (5th Cir.), 219 F.2d 282; United States v. Serrano (2nd Cir.), 317 F.2d 356; Williams v. United States (10th Cir.), 323 F.2d 90; United States ex rel. Smith v. Reincke, D.C., 239 F. Supp. 887.
Because of the utter lack of petitioner's evidence to establish the grounds asserted in his petition and the strength of the state's countervailing evidence, this appeal might well have been disposed of by a simple affirmance of this judgment without an opinion.
However, the state has spent hundreds of dollars in furnishing full transcripts of the habeas corpus proceeding instituted by the petitioner, of his trial on the murder indictment, and of the present coram nobis proceeding. In addition, the attorneys appointed by the court to represent the petitioner in the coram nobis proceeding, and in this appeal are to be compensated. We have therefore written to each and every point the petitioner has raised. We do this in hopes that this opinion may furnish an answer to any future post conviction reviews this petitioner may undertake. From experience we know that any matters not raised in the original post conviction proceedings are very likely to be the subject of subsequent post conviction proceedings, no matter how trivial or baseless the grounds asserted by the duly convicted prisoner may be.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL, and COLEMAN, JJ., concur. | September 30, 1965 |
cef419c3-929e-4963-9405-23b130549931 | S.S. and K.C. v. Lonzo Bullie and Alicia Campbell (Appeal from Macon Circuit Court: CV-12-900036) Affirmed. No Opinion. | N/A | 1121286 | Alabama | Alabama Supreme Court | Rel: 01/24/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121286
____________________
S.S. and K.C.
v.
Lonzo Bullie and Alicia Campbell
Appeal from Macon Circuit Court
(CV-12-900036)
PER CURIAM.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Moore, C.J., and Stuart, Bolin, Murdock, Shaw, Main,
Wise, and Bryan, JJ., concur.
Parker, J., concurs in part and dissents in part.
1121286
2
PARKER, Justice (concurring in part and dissenting in part).
I concur with the majority's decision to affirm the
summary judgment in favor of Alicia Campbell. I respectfully
dissent from the majority's decision to affirm the summary
judgment in favor of Principal Lonzo Bullie. | January 24, 2014 |
a2e37a13-365a-4ce1-84b0-951f60b49306 | Coon v. State | 179 So. 2d 710 | N/A | Alabama | Alabama Supreme Court | 179 So. 2d 710 (1965)
Clarence Cecil COON
v.
STATE.
2 Div. 474.
Supreme Court of Alabama.
September 30, 1965.
Rehearing Denied November 18, 1965.
*711 Hubbard H. Harvey, Demopolis, for appellant.
Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
HARWOOD, Justice.
This appellant, Clarence Cecil Coon, has been adjudged guilty of murder in the first degree of Leonard Culpepper and sentenced to death.
Coon being unable to employ counsel, the court, prior to appellant's arraignment, appointed a member of the Marengo County bar to represent him.
Upon arraignment, appellant, through counsel, entered pleas of not guilty, and not guilty by reason of insanity.
This appeal is here under our automatic appeal statutes, and the counsel who represented the appellant in the trial below has filed a brief in his behalf in this court.
On the day of arraignment, counsel for appellant filed two motions in appellant's behalf, one for a change of venue, and the other for the appointment of specialists to examine appellant's mental condition. Each of these motions was denied by the court prior to trial.
At the hearing on the motion for a change of venue, the appellant presented some four citizens of Sumter County. Each of such witnesses presented by appellant testified that in their opinion the appellant could secure a fair trial in Sumter County. There was no evidence otherwise. Clearly in this state of the record no reversible error can be said to infect the trial court's action in overruling the motion for a change of venue. Denton v. State, 263 Ala. 311, 82 So. 2d 406.
As to the motion to appoint three reputable specialist practitioners in mental and nervous diseases to examine appellant, we point out at the threshold of our consideration of this point that the court was under no duty to appoint a lunacy commission or to procure a report of the Superintendent of the Alabama State Hospital under the provisions of Section 425, Title 15, Code of Alabama 1940. The court has the right, but not the duty, to seek these aids for advisory purposes when in the discretion of the court it considers such aid will be helpful. Howard v. State, Ala., 178 So. 2d 520, decided 30 June 1965, and cases cited therein.
Further, the only evidence offered in support of his motion for the appointment of three specialists in mental diseases was the testimony of the appellant himself. His testimony took a wide sweep, and was to the effect that his family moved to California when he was a baby and he has spent most of his life in that state; he has had eleven years in school, of which three years were in high school in California. His grades were C's and E's.
He first got into trouble when he was 15 years old when he, his brother and sister, twice broke into a frozen food establishment and took some frozen foods; then he went into the girl's gymnasium at his school and took money out of purses he found therein. For this offense he was sent to something "like a correctional home" and was supposed to stay there until he was 21. However, while at the correctional home, he and two other boys went into a church and took some money. For this offense he was put in a reformatory. After about three months in the reformatory his probation officer placed him in a mental institution near San Francisco. There never were any court proceedings committing him to this mental institution and after about two months he was released to the custody of his parents. At the institution *712 they gave him "block tests and they give you a piece of paper with garbs of ink smeared on it and such as that and they ask you a lot of questions." When he was about 19 years of age he left his home and started "bumming around." In Montana he stole fifteen dollars out of a man's wallet and for this he was given a 30 day suspended sentence and told to "get out of there." He then went to Wyoming where he broke into a creamery and stole some money. He was sentenced to 90 days for this offense. In 1961 he had worked for a T. V. store in Las Vegas, Nevada, and when he left this employment he took the key to the store with him. After about three months he entered this store with the key on four different occasions and took money out of the cash register. He was sentenced to 15 years in the penitentiary for this offense, but after one year he was released from the penitentiary.
After this he worked for various carnivals and in Houston, Texas, while working for the Max Harris shows he and three companions set out for Tennessee. On their travels they burglarized a house in Texas and one in Oklahoma. On their route to Tennessee they drove into Alabama when they concluded they were being followed by a highway patrolman.
While the appellant's testimony tends to show a criminal career on the appellant's part since he was quite young, there is nothing in his testimony of real probative value tending to establish insanity other than his testimony to the effect that he was placed in a mental institution by his probation officer in California. Even so, he was released from this institution after about two months. This evidence is indeed weak in tending to establish legal insanity on the part of the appellant.
In rebuttal to the appellant's evidence presented to establish his insanity, the state presented as witnesses Melvin Stephens, Sheriff of Sumter County, Arthur Guellett and James W. Briggs, transfer agents for state prisoners, and Dr. C. E. Kimbrough, a practicing physician in Marengo County. All of these witnesses testified that they had observed the appellant since he had been returned to Alabama after his arrest in Texas, and that in their opinion he was of sound mind.
It would thus appear that even under the appellant's evidence taken in connection with the motion for the appointment of a lunacy commission to examine the appellant, the lower court was fully justified in denying the motion. However, as before stated, the question of the appointment of medical specialists in mental disorders in response to the motion was solely within the discretion of the trial court.
The record shows beyond a shadow of a doubt that this appellant and his three companions, Dezso John Lokos, Gerald Eaton, and Harold Edwards acted in full and complete concert in the burglarizing of the Leonard Culpepper home and the unprovoked and atrocious murder of Mr. Culpepper during the commission of the burglary. Each of these accomplices was indicted separately for murder in the first degree, and each has been tried separately and found guilty of murder in the first degree and sentenced to death.
In the case of Eaton v. State, Ala., 177 So. 2d 444, we reversed the judgment because of the improper argument of the solicitor to the jury. No such point occurred in the present case. However, in the Eaton case we set out the facts and circumstances of the conduct of the quartet, which of course included this appellant in murdering Mr. Culpepper. We see no purpose in again repeating these facts in that they are equally applicable to this appellant with the exception that in the present case the appellant and his accomplice, Edwards, forced Mrs. Culpepper into the Ford automobile and drove to the well, following the automobile containing Mr. Culpepper and the accomplices, Eaton and Lokos.
*713 These facts clearly establish this appellant's guilt of murder in the first degree.
This court is today handing down its judgment and opinion in the case of Lokos v. State, Ala., 179 So. 2d 714. Every point raised and discussed in the Lokos case is identical with the questions raised by the present record with one or two exceptions which will be adverted to hereafter.
The opinion in the Lokos case was written by Justice Lawson with painstaking care. He has fully discussed each point so raised and the legal principles governing. To write to these points in this opinion would be a mere reiteration of the matters written to in the Lokos opinion, and we will therefore refrain from this unnecessary repetition, by hereby adopting the language of Justice Lawson as applicable to the present case, as to the points written to by him.
In the present case counsel for appellant raises an additional point that this appellant was denied due process of law because he was tried at a Special Session of the 1964 Spring Term in the Circuit Court of Sumter County. In support of this contention counsel for appellant cites only the 14th Amendment of the United States Constitution.
Section 69, Title 30, Code of Alabama 1940 provides:
Our cases are to the effect that on a trial under an indictment charging a capital offense, the record must affirmatively show the defendant was personally present at the time the date of trial was fixed, and must affirmatively show such order. Spicer v. State, 69 Ala. 159; Corbett v. State, 38 Ala.App. 536, 91 So. 2d 503. Such matters are affirmatively shown in the present record.
Terms of court have been abolished. Section 114, Title 13, Code of Alabama 1940. The word "session" as it appears in Section 69, supra, means any period of time fixed by the court for the trial of cases or the transaction of any other business. See Mann v. State, 265 Ala. 441, 91 So. 2d 689.
No error attached to the court's action in setting the trial of this case.
Counsel for appellant also contends that the court erred in denying the appellant's motion for a new trial because it was impossible for the appellant to receive a fair trial in view of the fact that the then sheriff of Sumter County, Mr. W. A. Bratton, died while testifying as a witness at the preliminary hearing accorded the appellant.
Ground 21 of appellant's motion for a new trial is to the effect that the death of Sheriff W. A. Bratton while being cross-examined by defendant's attorney so inflamed the citizens and prospective jurors that a fair trial could not be accorded the appellant.
During the hearing of the motion for the appointment of specialists to examine into the mental condition of the appellant, Melvin Stephens, Sheriff of Sumter County, testified that he had been chief deputy sheriff for W. A. Bratton, who had died 27 December 1963, and that he (Stephens) had been sheriff since 31 December 1963.
This is the only reference in the record as to Sheriff Bratton's death. The circumstances of his death are de hors the record. If evidence was taken on the matter at the hearing on the motion for a new trial, such evidence does not appear in the record.
In this state of the record there is nothing presented for our review in this instance.
Further, since Ground 21 of the motion for a new trial asserts that Sheriff Bratton died while being cross-examined by the defendant's attorney, it must be concluded that Sheriff Bratton was presented as an adversary witness by the state, and was not *714 a witness for the appellant. It would appear that his death would handicap the state rather than the appellant. Whether his death inflamed the citizens and prospective jurors against this appellant is in the realm of speculation and surmise only. No error is made to appear in this instance.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, MERRILL and COLEMAN, JJ., concur. | September 30, 1965 |
c2d2d803-de9f-48d0-8590-b54cd448944f | Hutto v. State | 178 So. 2d 810 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 810 (1965)
Sanford L. HUTTO
v.
STATE of Alabama.
1 Div. 134.
Supreme Court of Alabama.
August 12, 1965.
*811 Thos. M. Haas, Mobile, for appellant.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
COLEMAN, Justice.
From conviction for murder in the second degree defendant appeals.
On Thursday evening, September 20, 1962, three young men met a woman at a restaurant in Saraland. Defendant joined the group and left the restaurant with them some time later. Defendant was driving his automobile. The woman and one of the three young men were in the back seat. Defendant drove to a wooded area in or near Saraland and stopped. Later, the other two of the three young men followed in another car and came to the place where defendant's car had stopped. One or more of the three young men had sexual intercourse with the woman. The three young men drove off and left defendant and the woman together.
In the late afternoon of Friday, September 21, 1962, two boys found the body of the woman and police were notified. The toxicologist testified that a knotted handkerchief was tied tightly around the woman's neck, and that analysis of a sample of blood taken from the woman's body showed "that there was a percentage of alcohol in the blood sufficient to render the person from whom the blood was taken intoxicated."
The assistant coroner testified that he performed an autopsy on the body and that death was due to strangulation brought about by the handkerchief knotted about the neck. Defendant was convicted of murdering this woman.
Counsel for defendant argues the points which call for consideration.
Defendant argues that he should have been granted a continuance on account of an occurrence, which took place while the court was qualifying the venire, as follows:
Under the rule expressed in Fisher v. State, 23 Ala.App. 544, 129 So. 303, it is error to permit the state to show, over defendant's objection, the number of children left by deceased, their ages, etc. Certainly, under that rule, the court would have erred to reversal if the court had permitted the state to show, over defendant's objection, that deceased left children. See Knight v. State, 273 Ala. 480, 142 So. 2d 899. Such evidence has no probative value with respect to the issues before the jury and is prejudicial to defendant because the evidence tends to provoke, in the jury, sympathy for the children of deceased who have lost a parent and animosity against defendant who has allegedly caused the loss. Evidence that deceased had been in the insane asylum is likewise irrelevant and could tend to prejudice defendant.
The statement, however, was made by a juror and not by a witness. If the statement had been volunteered by a witness, defendant could and should have moved the court to instruct the jury to disregard the statement. We think, if defendant thought the statement damaging, he should have so moved the court with respect to the statement here. In view of the nature of the statement, i. e., merely that the speaker knew the children of deceased while she was in the insane asylum, we are of opinion that any prejudicial effect could have been removed by instructions from the court to the jury to disregard the statement. We are not to be understood as holding that the prejudice of a statement going into greater detail could be removed by such an instruction to the jury.
Further, this statement did not come from the witness stand, and the court, in its oral charge, said to the jury:
We hold that denial of continuance was not error.
Defendant argues that the court erred in admitting into evidence state's exhibit 1 over defendant's objection. Exhibit 1 is a photograph of the face, neck, hands, left shoulder, and left arm of deceased. The body is clothed.
The toxicologist testified that the exhibit fairly and accurately shows the way the handkerchief was around the neck of the deceased at the time the witness first observed the body at the scene.
On examining the picture, we are of opinion that the picture meets the test that it must have some tendency to prove or disprove some disputed or material issue, to illustrate some other material fact or evidence, or to corroborate or disprove *813 some other evidence offered or to be offered. It must have some tendency to shed some light on some material inquiry. Rollings v. State, 160 Ala. 82, 49 So. 329; Nichols v. State, 267 Ala. 217, 100 So. 2d 750. Overruling objection to the photograph was not error.
Defendant argues that the court erred in overruling defendant's objections and admitting into evidence two written confessions allegedly made by defendant.
To follow a chronological order, however, we note first the testimony of a patrolman of the Saraland Police Department. The patrolman testified that about 5:00 p. m., on Friday, September 21st, he arrived at the place where the body had been found that day; that he kept vehicles from entering the road; that he remained there until 10:00 p. m.; that, while there, he saw a number of people; and that defendant came there about 5:35 p. m.
The patrolman testified that defendant was not threatened or offered any inducement or hope of reward in order to get him to make a statement, and that no violence was applied to defendant. Over defendant's objection, the patrolman testified that defendant said: "`I did it. Here I am. Lock me up or take me later.'"; that defendant remained where patrolman was for fifteen or twenty minutes; that the patrolman did not arrest defendant; and that the patrolman did not see defendant any more or thereafter participate in the investigation. Defendant does not argue that this oral confession was not voluntary or that evidence to prove it was not admissible.
On voir dire, when the jury was not present, the patrolman testified that he had been present "down in General Sessions Court when a hearing was held in this case" and did not testify and that he did not testify before the grand jury.
After the jury returned to the box, on cross-examination, defendant asked the patrolman whether he had testified before the grand jury or at the preliminary hearing. The state objected to each question and the court sustained the objections. Defendant argues that the court erred in so ruling.
Defendant says the rulings were erroneous because the cross-examination was unduly limited and the jury was entitled to know all the circumstances surrounding the alleged confession.
Whether the patrolman did or did not testify at the preliminary hearing or before the grand jury sheds no light on the issue of defendant's guilt or on the credibility of the patrolman. The question whether he had testified earlier is not the same question as when did he first make known to his superiors the fact that defendant had made the alleged oral confession. It may be that the failure of the witness to come forward with his testimony at the earliest reasonable opportunity would reflect on his credibility. The defendant cross-examined the patrolman as to when he reported the confession to his superiors and the jury had the full benefit of the questions and of the patrolman's answers.
On the other hand, the failure of the patrolman to testify before the grand jury or on preliminary hearing may well have been because the solicitor decided that the patrolman's testimony was unnecessary on those occasions.
We are of opinion that the court did not err in sustaining the objections to the questions asking the patrolman whether he had testified earlier.
Two written confessions allegedly made and signed by defendant were admitted into evidence over defendant's objection, and defendant strenuously insists that the court erred in overruling his objections. In brief, defendant states the circumstances of the confession as follows:
"On the afternoon of September 22, 1962, two or three police officers went to the home of the Appellant in Saraland, Alabama, and took the Appellant *814 to the police station at Saraland. The Appellant was questioned by the Sheriff of Mobile County, Alabama, and one of his deputys, the Chief of Police of the town of Saraland, and perhaps other officers, from about 2:00 P.M., September 22, 1962, until around midnight of the same day. The Appellant made no statement on that day. Around midnight, the Chief of Police of the town of Saraland placed a charge on the docket book of said town against the Appellant, apparently being a charge of vagrancy under some ordinance of the town of Saraland. The Appellant was kept in the town jail and was again questioned from about forty-five minutes to an hour and a half, on Sunday, September 23, 1962. Again, the Appellant made no statement.
The state undertakes to correct defendant's statement of the facts relating to the confessions by noting that Chief Harbin, Deputy Tom Dees, and Sheriff Bridges "testified as to the arrest and questioning of appellant, and that his confession was voluntary"; that instead of volunteering to take a lie detector test, defendant replied affirmatively to a question whether he would take such a test; that defendant "voluntarily went to the Saraland jail for questioning"; that he was first booked on a vagrancy charge and later on a murder charge.
Defendant appears to argue that the written confessions are inadmissible because he was illegally kept under arrest in violation of § 160, Title 15, Code 1940; that is, because the arresting officers failed to carry *815 defendant promptly or forthwith before a magistrate.
At the trial, the state's witnesses appeared to take the view that defendant was not under arrest prior to midnight on Saturday, and, in brief, the state says: "Evidence showed the appellant voluntarily went to the jail for interrogation."
Deputy Dees and two officers of the Saraland Police Department went to defendant's home and defendant went with the three officers to the police station. One of the police officers was a step-brother, and also brother-in-law, of defendant. This officer testified that he asked defendant to come down to the station on Saturday afternoon about 1:30 or 2:00 o'clock, and that defendant said he would.
It may be that defendant went to the station without being arrested. Sheriff Bridges testified that defendant "was officially put on the docket . . . at 8:00 Monday night and charged with murder." This was after defendant had made the first written confession "sometime in the morning or early afternoon" on Monday.
The record contains the following questions and answers during cross-examination of Sheriff Bridges:
We think it is clear that defendant was under arrest not later than 5:00 o'clock Saturday afternoon. There is no evidence as to when, if ever, defendant was taken before a magistrate. It can scarcely be contended that § 160, Title 15, was obeyed.
The McNabb rule excluding any confession obtained while defendant was illegally detained does not apply in Alabama. McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819; Ingram v. State, 252 Ala. 497, 42 So. 2d 36; Duncan v. State, 278 Ala. 145, 176 So. 2d 840.
The rule which renders incompetent confessions obtained by protracted and repeated questioning of ignorant and unlearned persons does apply here. Ingram v. State, supra.
A confession made by a person in custody is not always the result of an overborne will. Yet, neither the mind nor the body of an accused may be twisted until he breaks. The Supreme Court of the *816 United States and "the courts of all the States have agreed in holding permissible the receipt of confessions secured by the questioning of suspects in custody by crimedetection officials." The Fourteeth Amendment does not prohibit a State from such detention and examination of a suspect as, under all the circumstances, is found not to be coercive. Frankfurter, J., in Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037.
Under the Judges' Rules; Archbold, Pleading, Evidence and Practice, §§ 1118-1121; 1 Stone's Justices Manual (92d ed 1960) 353-356; Note 41, Culombe v. State of Connecticut, supra; Home Office Circular No. 31/1964, issued January, 1964; Rodgers v. State, 42 Ala.App. 660, 177 So. 2d 460; in the English courts, if a confession were offered ". . . . in a case. . . . where several hours of questioning could be shownthe trial judge would almost certainly exclude it." Culombe v. State of Connecticut, supra.
Officers questioned defendant for several hours in the instant case, but that circumstance alone is not enough to render the written confessions incompetent.
For comprehensive list of cases, see Davis v. State, 42 Ala.App. 374, ___, 165 So. 2d 918, 923.
In addition to the instant circumstances already stated, the following should be noted.
Defendant conceded that the officers did not hit or strike defendant. We think the record shows that no physical violence or threat of it was employed against defendant.
The Saturday questioning lasted about ten hours from 2:00 p. m. or 3:00 p. m. to midnight. Chief Harbin testified that from time of apprehension until confession, defendant "was fed continuously during this period of time at any meal times"; that defendant "was fed several times"; that, on Saturday evening during the time the witness was talking to defendant, Sheriff Bridges offered to get defendant something to eat; that on Sunday, defendant was questioned for "approximately 45 minutes"; that defendant made the confession on Monday *817 which occurred during a conversation with defendant lasting approximately one hour.
Chief Harbin further testified that on Saturday he did not advise defendant of his right to counsel; that no one was present to advise defendant; that defendant made no confession or statement on Saturday; that, on Monday, the officer Pridgen, defendant's brother-in-law, told the witness that Pridgen had talked to defendant; and that, shortly thereafter, defendant admitted his guilt and made the first written confession.
Chief Harbin testified that Deputy Dees advised defendant that he did not have to give a statement and if he made a statement it could be used in a court of law. The statement signed by defendant and admitted into evidence recites that defendant had been so advised. Chief Harbin also testified as follows:
Chief Harbin further testified that defendant did not complain of having a headache or of being nervous or dizzy but defendant appeared to be nervous; that defendant remained at the Saraland jail until Monday evening between 7:00 and 8:00 p. m. when he was taken to the Mobile County Jail.
Chief Harbin testified that he again talked to defendant at the county jail, in presence of Deputy Does and a secretary on Tuesday morning, September 25, and defendant signed the second written confession; that, to the knowledge of the witness, defendant had not been taken before a magistrate and that the witness did not know whether defendant had been given opportunity to consult an attorney.
Deputy Dees testified that during the Saturday interrogation, "there was breaks and intervals"; that sandwiches were ordered and eaten; that the witness offered to get defendant something to eat or drink; that defendant said he did not want a sandwich but did drink a Coca Cola which witness got for defendant; that the Sunday interrogation lasted "maybe an hour or an hour and a half"; that the first confession was made on Monday about 11:30 in the forenoon.
The ten-hour interrogation on Saturday is the only element which raises any real question, under prevailing standards, whether the first written confession was voluntary. On close examination, we note that defendant came to the jail in company with three officers, one of whom was his brother-in-law; that defendant was questioned at length, but the questioning was not continuous in that there were breaks or intervals, the length of which is not shown; that defendant was not deprived of food or sleep; that he apparently did not ask for a lawyer; that before defendant gave the first written confession he was advised that he did not have to give a statement; that he did not confess on Saturday; that he was questioned not more than an hour and a half on Sunday and did not confess; and that he did confess about noon on Monday during a period of interrogation lasting about an hour.
We are of opinion that, under all the circumstances, the trial court was justified in finding that defendant's will was not overborne and that the written confessions were voluntary.
Affirmed.
*818 SIMPSON, J., concurs.
LAWSON and GOODWYN, JJ., concur specially in opinion which will be filed subsequently.
LAWSON and GOODWYN, Justices (concurring specially).
We have recently undertaken to express our views as to the holdings of the United States Supreme Court in Mapp v. State of Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933; Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A.L.R.3d 1205; and Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977. See Duncan v. State, 278 Ala. 145, 176 So. 2d 840.
We feel inclined to comment briefly as to the effect of those cases on the case at bar.
This record discloses neither a Fourth Amendment (Mapp v. State of Ohio, supra) problem nor any conceivable violation of the principles of voir dire examination laid down in Jackson v. Denno, supra, as we interpreted that opinion in Duncan v. State, supra.
However, we do feel that the state of this record requires some comment on the application of the Escobedo case.
The State introduced several inculpatory statements, as well as two formal confessions, made by the appellant.
While initial police procedures were still in progress at the scene of the crime, accused asked many questions relative to the crime. During this same conversation he made the statement, "I did it. Here I am. Lock me up or take me later." While in police custody he made a formal confession admitting his guilt. The record shows that before the statement was taken a deputy sheriff advised him "* * * of his rights and that he did not have to give a statement, that if he made a statement that it could be used in a court of law." For aught that appears, the appellant never asked for counsel. On the following day, September 25, 1962, the appellant gave another confession. This written confession recites in question and answer form that accused was advised of his rights and did not have to make a statement and that if he made a statement it could be used in a court of law. Other than this documentary recital there is no testimony as to warnings by the interrogating officials. For aught that appears appellant did not ask for counsel.
As to the two inculpatory statements, it is quite obvious from the record that the investigation was still a general inquiry into an unsolved crime and had not begun to focus on a particular suspect. The accusatory stage had not been reached and, therefore, Escobedo, supra, has no application in our opinion. Duncan v. State, supra.
As to the first confession, the record shows that appellant was warned and also that he did not request counsel. Under our interpretation of the Escobedo case in our Duncan case, supra, these facts distinguish the present case from the holding in Escobedo.
As to the second confession, it is our opinion that the warning given as to the first confession was sufficient to cover the second one.
Of course, in view of the recent federal court decisions and the willingness of those courts to override decisions of state trial and appellate courts, no state court can be certain that any trial has been conducted in such a manner as to meet with approval of the federal courts either on direct review or by the use of the federal writ of habeas corpus. However, it is our studied judgment that the appellant in this case was not denied any right guaranteed to him by the federal or state constitutions and that his trial was in all respects conducted in accordance with the laws of this state. | August 12, 1965 |
812f781b-f548-44b2-b3ec-a80338f97b25 | Haghart v. Cooley | 178 So. 2d 226 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 226 (1965)
Willis HAGHART
v.
Charlie COOLEY et al.
8 Div. 197.
Supreme Court of Alabama.
September 2, 1965.
Howell T. Heflin and Chas. D. Rosser, Tuscumbia, Raymond Murphy, Florence, for appellant.
Jesse A. Keller and Robt. M. Hill, Jr., Florence, for appellees.
SIMPSON, Justice.
This is a will contest. From a judgment in favor of contestants, proponent appeals.
*227 The testator in this case, Jimmy Cooley, was a midget whose height was approximately 40 inches, and who was in his midtwenties when he died. The proponent, Willis Haghart, has been in show business for over forty years. He was reared in Cullman. Jimmy was reared in Lauderdale County. Jimmy had a bone disease when he was about six years old, but went to school for some ten years at Rhodesville School in Lauderdale County.
When Jimmy was around sixteen or seventeen, Mr. Haghart went to see his parents about using Jimmy in his show. Jimmy did not go with Haghart at the time but two years later his mother and father wrote to Haghart to come and get him. In March of 1954 or 1955, Haghart went for him. During the next few years the two of them worked the circus, the arrangement being that Mr. Haghart would "work the front", advertising Jimmy as the "world's smallest man", and take up the money. Jimmy would stay inside and give lectures. Jimmy had complete charge of the show and Mr. Haghart had charge of the front.
During the first few years Jimmy and Mr. Haghart spent the winter months with Jimmy's parents in Waterloo. Later, Mr. Haghart bought a trailer which they lived in during the winter months.
In the winter of 1959-60, Mr. Haghart and Jimmy lived in Cullman, parking their trailer next to a Mr. Hayes' service station. While there Jimmy took his meals at a cafe owned by a Mr. Segler. While in Cullman Mr. Haghart talked to Jimmy about making a will. They went together to a Notary Public selected by Mr. Haghart, who drew up wills for the two of them. They made reciprocal wills, Haghart leaving everything to Jimmy and Jimmy leaving everything to Haghart. Each will contained an alternative disposition to a school for handicapped children.
About two years after the wills were executed Mr. Haghart and Jimmy bought a farm for approximately $6,000. Mr. Haghart contended that he paid the entire amount. Title was taken in their joint names. Other than a small amount of money in the bank, the one-half interest in this farm is the only property which Jimmy had at his death in 1964.
Following Jimmy's death, Mr. Haghart offered his will for probate. Jimmy's parents contested on grounds of undue influence and lack of testamentary capacity. The jury returned a verdict for contestants; Mr. Haghart appeals.
Most assignments of error concern the trial court's allowing witnesses for the contestants to testify as to Jimmy's mental capacity when it was shown that these witnesses based their opinions on acquaintance with Jimmy while he attended public school in Rhodesville. These witnesses were for the most part school teachers who had taught Jimmy over the years.
Mrs. Mamie Bevis testified that she had been a school teacher for 28 years and had taught all grades of grammar school; that she had had Jimmy in her classes. Mrs. Bevis testified that she was not able to teach Jimmy like other children; that Jimmy did not have the ability to retain school work; that he was unable to do first grade work when he was in the fifth grade, that he had been given "social promotions" which she explained was a promotion given because of a child's age and not for his ability to do school work. Jimmy was 16 years old when he was in the fifth grade. His teacher testified that he could make out some words in his reading and could print a little but could not stay on the lines. He could add a little but could not subtract, divide or multiply. This witness was of the opinion that Jimmy was definitely mentally retarded. He scored well below average on an achievement test administered to him by this witness. She further testified that Jimmy was easy to manage and easily persuaded. She felt that she could persuade him to do anything. She said that he was loved by all of the other children and was very fond of his parents.
*228 Mr. Floyd Parker testified that he was at the time of trial the principal of Forrest Hills School in Florence. He knew Jimmy while he was principal of Rhodesville School and had taught Jimmy while there; that he had had an intimate relationship with him and that Jimmy was never able to do first grade work and that because he was unable to do school work he gave him little jobs around the school to do. This witness testified that Jimmy was greatly subject to the power of suggestion and would do just about anything anyone asked him to do.
Many other witnesses testified but we can see no reason to set out further testimony. As noted, appellant here objects to this whole line of testimony on the ground that only the mental condition of the testator at the time the will was executed is relevant. It is true, of course, that:
It is equally true, however, that:
We are firmly convinced that there was no error in the trial court's allowing this testimony. This testator is shown to have been retarded from an early age, both physically and mentally. It would be adopting an unrealistic view to hold that these factors have no bearing on his mental condition at the time the will in question was executed. In Price v. Marshall, 255 Ala. 447, 52 So. 2d 149, the trial court excluded testimony from witnesses because he thought proof on the issue of mental capacity should be limited to the time of the execution of the will. The case was reversed, this Court noting:
In the case before us the trial court allowed testimony from witnesses for both proponent and contestants on the issues of mental capacity and undue influence. These witnesses were allowed to give their opinion as to the soundness of mind of the testator at the time the will was executed. This was perfectly permissible. It is well settled that the question of competency or qualification, vel non, of a witness to give an opinion on the subject (of soundness or unsoundness of mind) is one for the trial court, decision of which will not be revised on appeal unless clearly erroneous. Price v. Marshall, supra. Further, as noted in Tucker v. Tucker, supra:
"The rule is, that to authorize a non-expert to give his opinion of the existence of an unsound condition of mind, he must not only have the opportunity *229 to form a judgment but the facts should be stated upon which it is based. The admission of opinion testimony is an exception to the general rule, and the ends of justice require in all cases where the opinion of a non-expert is admissible to show unsoundness of mind, that the facts upon which it is predicated be stated. Vaughn v. Vaughn, 217 Ala. 364, 116 So. 427, 428; Burney v. Torrey, 100 Ala. 157, 14 So. 685; Slagle v. Halsey, 245 Ala. 198, 15 So. 2d 740."
We think this rule was scrupulously observed here as it related to both sides and contrary to appellant's argument it applies with equal force as to opinions of non-experts whether their testimony is to the effect that the testator was of sound or unsound mind.
Appellant describes Assignment of Error No. 11 as "probably appellant's strongest point on this appeal". The assignment urges as error the trial court's sustaining contestants' objection to the following question put to proponent's witness Segler:
The trial court properly sustained objection to this question. It called for a determination by this witness of the exact matter being tried to the jury, and reserved for its determination. As noted in Dersis v. Dersis, 210 Ala. 308, 98 So. 27:
We have carefully considered the record in this case. As stated, the will was contested on grounds of lack of testamentary capacity and undue influence. We think these issues were properly submitted to the jury. If the evidence was not sufficient to show a complete lack of testamentary capacity, it was relevant on the issue of undue influence. It was clearly shown that this testator had below normal intelligence. A general statement at 57 Am. Jur., Wills, § 356 correctly expresses the rule in such cases:
Further, at § 405:
It would unduly extend this opinion to write to other assignments of error, none of which, in our opinion, merit reversal.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | September 2, 1965 |
3fa56e90-7f61-47ce-8e0e-cc4a45b0a7ec | Reynolds Metals Company v. Gray | 178 So. 2d 87 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 87 (1965)
REYNOLDS METALS COMPANY
v.
Clara Mae GRAY et al.
8 Div. 184.
Supreme Court of Alabama.
July 15, 1965.
Rehearing Denied September 2, 1965.
*88 Almon & McAlister, Sheffield, for appellant.
Howell T. Heflin, Tuscumbia, for appellees.
SIMPSON, Justice.
This is a workmen's compensation case brought by the widow and dependent child of McKinley Gray, deceased. The trial court made the following findings here pertinent:
"That on November 10 [sic, 19], 1961 that the relationship of employer and employee existed between the plaintiff and the defendant, and that on said
"The Court, therefore, concludes as follows:
From this finding Reynolds seeks a review. The only issue which separates the parties is whether the cause of death of McKinley Gray was an accident within the meaning of our workmen's compensation statute. Title 26, § 253, Code.
Our review is limited as follows:
This principle clearly indicates that we must construe the facts favorably to the employee in this case, where the evidence allows such a construction, "* * * which is to say, that `if there is any legal evidence on any reasonable view, or reasonable inference therefrom, that supports the facts found and conclusion announced by the court, it is sufficient under the statute, and the judgment rendered will not be disturbed.'" W. T. Smith Lumber Co. v. Raines, 271 Ala. 671, 127 So. 2d 619.
With this predicate we turn to the record. Is there any evidence to support the findings set out above? Clearly there is. A co-worker of the deceased testified that the deceased picked up and put into the furnace eight or ten pieces of magnesium which weighed fifty pounds each, that they were heavy, that they weighed collectively in the neighborhood of four to five hundred pounds which Mr. Gray lifted within *90 a period of eight to ten minutes. He further testified that the heat from the furnace when the door was opened would come out and that the temperature in the furnace was around 1350 degrees fahrenheit, and that a person putting eight or ten magnesium sticks into a furnace would be in front of the door where the temperature would be from 1300 to 1400 degrees fahrenheit for a period of eight to ten and possibly fifteen minutes; that Mr. Gray and he put the fluxing pipes in this furnace just before Mr. Gray complained of pains in his arms and went to the first aid station. He died the following day.
Reynolds argues that there is no accident here since no one occurrence can be pinpointed as having caused the attack. Under the law in Alabama it is not essential that an external traumatic injury occur. Pow v. Southern Construction Company, 235 Ala. 580, 180 So. 288. We have stated in several recent cases that where the proximate cause of the plaintiff's injury was the strain or exertion of his work (as distinguished from exposure), a finding by the trial court that the plaintiff had been subjected to unusual strain or over-exertion was not necessary to support a conclusion that the injury was caused by an accident arising out of his employment and compensable under our workmen's compensation statute. Alabama Textile Products Corporation v. Grantham, 263 Ala. 179, 184, 82 So. 2d 204, 208, noted with approval in Southern Cotton Oil Company v. Wynn, 266 Ala. 327, 96 So. 2d 159.
In this last case we stated that:
See also Davis Lumber Co. v. Self, 263 Ala. 276, 82 So. 2d 291.
This Court has recognized in several cases that heart attacks may be caused by accidents within the meaning of our statute when the employee is shown to have been engaged in strenuous activity connected with his employment prior to or at the time of the fatal attack.
We have carefully studied the record in this case. We find ample evidence to support the findings made by the trial court. It is undisputed that just prior to the time the decedent first complained of pain in his arms he had been engaged in extremely strenuous work and subjected to extreme temperatures. Medical experts testified that a coronary thrombosis (from which decedent died) could be caused from such exertion. These circumstances, along with the presumption in favor of the court's finding, clearly indicate that the judgment appealed from should be affirmed.
We think the language used in Gulf States Creosoting Company v. Walker, 224 Ala. 104, 139 So. 261, is equally appropriate here:
This language is equally appropriate regardless of the type of condition causing death. In the above case the decedent had a hernia.
We recognize that the workmen's compensation statute as enacted in this state *91 does not write a life insurance policy covering every employee covered under it, but we think in cases where it is established that the job killed the worker, the legislature intended that his widow and minor children would be compensated.
Affirmed.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | July 15, 1965 |
6107baff-afb6-42cb-9904-0347203500e1 | Lami v. State | 180 So. 2d 282 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 282 (1965)
William F. LAMI
v.
STATE of Alabama.
1 Div. 318.
Supreme Court of Alabama.
November 18, 1965.
Collins, Galloway & Murphy, Mobile, for petitioner.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., opposed.
SIMPSON, Justice.
Petition of William F. Lami for certiorari to the Court of Appeals to review and revise the judgment and decision in Lami v. State, 180 So. 2d 279 (1 Div. 4).
Writ denied.
LIVINGSTON, C. J., and GOODWYN, MERRILL and HARWOOD, JJ., concur. | November 18, 1965 |
8ad127b1-7c27-4b5e-9a98-f798428853d8 | Duncan v. State | 176 So. 2d 840 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 840 (1965)
James Milford DUNCAN, Sr.,
v.
STATE of Alabama.
7 Div. 614.
Supreme Court of Alabama.
June 30, 1965.
*843 Roy D. McCord, Rowan S. Bone and Hugh H. Smith, Gadsden, for appellant.
Richmond M. Flowers, Atty. Gen., and W. Mark Anderson, III, Asst. Atty. Gen., for the State.
LAWSON, Justice.
Appellant, James Milford Duncan, Sr., was indicted for murder in the first degree by a grand jury of Etowah County. He was unable to employ counsel, so prior to arraignment the trial court, under the provisions of § 318, Title 15, Code 1940, appointed experienced and able criminal trial lawyers of the Etowah County Bar to represent him.
Before arraignment, Duncan, by motion to quash and by demurrer, questioned the sufficiency of the indictment on various grounds
Upon arraignment, Duncan pleaded not guilty and not guilty by reason of insanity. The Court-appointed attorneys were present *844 at arraignment. Hamilton v. State of Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114.
The jury found Duncan guilty of murder in the first degree and imposed the death penalty. Judgment and sentence were in accord with the verdict.
The appeal here is under the automatic appeal law applicable to cases where the death sentence is imposed. Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, § 382(1) et seq.
The attorneys who represented Duncan in the trial court were appointed to represent him on this appeal. They have filed a brief on his behalf and argued the case at time of submission.
The motion to quash pointed out certain alleged defects in the indictment. It was overruled without error in that the proper mode of reaching defects in an indictment is by demurrer and not by motion to quash. Boulo v. State, 49 Ala. 22; Daniel v. State, 149 Ala. 44, 43 So. 22. Moreover, all of the alleged defects pointed out in the motion to quash are raised in the demurrer.
An indictment for murder in compliance with Form 79, § 259, Title 15, Code 1940, is sufficient. Noles v. State, 24 Ala. 672; Aiken v. State, 35 Ala. 399.
The indictment against Duncan is in substantial compliance with that form except that it charges, in the alternative, the means by which the offense was committed. As pertinent, the indictment charges that Duncan "* * * unlawfully and with malice aforethought killed Sandy Ann Scott by placing her in a branch or a lake whereby she was drowned. * * *"
In Rogers v. State, 117 Ala. 192, 23 So. 82, we said:
Counsel for appellant insist that the indictment insofar as it charges that Duncan killed Sandy Ann Scott by placing her in a "branch" whereby she was drowned, is insufficient in that the word "branch" could have reference to "a limb, off-shoot, or ramification; any member or part of a body or system; a local operating division of a business house; a line of family descent; a group." But the word "branch" has also been defined as "a small stream; a creek." Danielley v. City of Princeton, 113 W.Va. 252, 167 S.E. 620; Lee v. Grupe (Tex.Civ. App.), 223 S.W.2d 548. In Dardenne Realty Co. v. Abeken (St. Louis Ct. of App., Mo.), 232 Mo.App. 945, 106 S.W.2d 966, it was said: "That is, to constitute a branch or stream there must be something more than a mere surface drainage, swelled by freshets and melting snow, and running occasionally in hollows and ravines, which are generally dry." It is, of course, a matter of common knowledge that the word "branch" is frequently used to describe a small stream of water and when an indictment charges that a defendant drowned a person by placing him or her in a "branch" it sufficiently advises the accused of the means by which the State claims he killed the deceased. To drown a person is to deprive him of life by immersion in water or other liquid. The indictment here, in effect, charges the defendant with taking the life of Sandy Ann Scott by immersing her in a branch, or stream of water. The word "branch" when considered with the word "drowned" could not relate to any of the definitions which we have quoted above from appellant's brief.
*845 The demurrer to the indictment was properly overruled.
On Saturday, February 23, 1963, Duncan was an employee of Lasseter's Motel, which was located on the Guntersville Highway in Etowah County. He lived in one of the rooms of the motel. His work seems to have been that of a general handy man, cleaning rooms, looking after the premises and performing other menial tasks.
About six o'clock on that evening J. L. Walker, Elbert Ross, Mrs. Margaret Scott and Miss Jackie Dixon began occupancy of a room in the Lasseter Motel which was situated next to that in which Duncan lived. With them was Mrs. Scott's eighteen-month-old baby girl, Sandy Ann Scott. Walker alone registered for the room, but Mrs. Scott claimed to be Walker's wife and Miss Dixon claimed to be the wife of Ross.
At about ten o'clock on the night of February 23, 1963, Ross and the two women left the motel to get some food. When they left, Walker and the baby were asleep in the same bed. Ross and the two women were gone about an hour. When they returned, Walker was still asleep. The baby was not in the room.
Ross and the two women awakened Walker and inquired as to the whereabouts of the baby. Walker replied, "What do you mean." A search for the baby was begun after the motel office was notified that the baby was missing. The owner of the motel got in touch with the "Rescue Squad" and representatives of that organization soon appeared on the scene and began searching operations.
Dewey Colvard, the Sheriff of Etowah County, was notified that the baby was missing and he sent some of his deputies to the motor court and they joined in the search.
Sheriff Colvard reached the scene at about 1:45 A.M. on the morning of the 24th of February, 1963. He joined in the search. Walker, Ross, Mrs. Scott, the baby's mother, and Miss Dixon were carried to the Sheriff's office, where they remained until about 9:00 A.M. on Sunday, the 24th of February.
Sheriff Colvard and one of his deputies entered the room or cabin at the motel where Duncan lived at about 3:00 A.M. on the morning of the 24th of February. The manner in which they gained entrance to Duncan's room does not appear. Duncan was awakened and talked to by the Sheriff and his deputy. The Sheriff and his deputy were looking for the baby. They looked around the room and in the adjoining shower, first using a flashlight and afterwards the overhead light was turned on. The Sheriff saw a lot of clothes on the floor but did not see any baby clothes. He did see a "pair of coverallsoverall pants" on the floor, which he did not examine. After he finished talking with Duncan the Sheriff turned off the lights and he and his deputy left. There is no evidence that the Sheriff or his deputy had a search warrant on that occasion.
Shortly after 6:00 on the morning of Sunday, February 24, 1963, the body of the baby was found face down in a lake not far distant from the motel. Pictures of the baby were taken before she was removed from the lake. These pictures were admitted in evidence.
On his way to a funeral home with the baby's body, Sheriff Colvard called for the assistance of Mr. William T. McVay, a State toxicologist, who arrived in Gadsden within a short time and, after examining the body at the funeral home, determined that death was caused by drowning. Mr. McVay took pictures of the deceased at the funeral home, which were admitted in evidence.
Sheriff Colvard concluded his questioning of Walker, Ross, Mrs. Scott and Miss Dixon at his office around nine or ten o'clock on Sunday morning, February 24th. The record does not indicate that the *846 questioning of those persons revealed any information which tended to connect Duncan with the commission of the crime, yet immediately after the questioning, Sheriff Colvard sent Chief Deputy Reynolds and three other deputies to the motel. On direct examination Sheriff Colvard stated that he sent the deputies to the motel with an order that Duncan be "brought in, picked up." On cross-examination he was asked the following question and gave the following answer:
Reynolds and the other deputies arrived at Duncan's room about eleven o'clock on the morning of February 24th. Chief Deputy Reynolds was the only witness as to what occurred on that occasion. According to Reynolds, one of the deputies knocked on Duncan's door. Duncan invited them in but the record does not support a finding that before the invitation was extended Duncan was advised that those who wished to enter were police officers. According to Reynolds, the lock on the door "was broken, or didn't work, or something." When the deputies entered the room Duncan was in bed, although apparently awake. The deputies did not have a search warrant and apparently did not have a warrant for Duncan's arrest, as Reynolds testified that Duncan was not arrested on that occasion. Reynolds testified that he "instructed him to get dressed" and also said, "I asked him, when he dressed, to come on, that I wanted him to go down to the Court House, that the Sheriff wanted to talk to him." While Duncan was dressing a search was made of his room and shower. The deputies found a pair of "blue jeans" on the floor near or under Duncan's bed. They were wet for a distance of ten to twelve inches from the bottom of the trouser legs and red mud was on the bottom of the trousers. A large red stain was on or near the fly of the "blue jeans." The officers took the "blue jeans" into their possession and they were admitted in evidence in connection with the testimony of the toxicologist to the effect that the red stain was, in his opinion, caused by human blood of the same type as the deceased's blood. Duncan admitted to the officers that the "blue jeans" were his and that "they were trousers he had used the previous night, in searching for the child, or had been wearing them the previous night." The deputies, while Duncan was present, removed human hairs from a wet towel and from a bed sheet, which hairs were admitted in evidence in connection with the toxicologist's testimony to the effect that the hairs were of the same texture and type as those which he removed from the head of the deceased. The deputies also took into their possession two shaving lotion bottles which were admitted in evidence, and it was shown that Duncan had purchased two bottles of shaving lotion on the afternoon of the crime. Reynolds also testified that the officers took from Duncan's room "some baby clothes, diapers * * *. Four new diapers, one bluetwo-tone, blue blouse, one yellow pajama top, one white undershirt, one white pajama bottom." But these items were not admitted in evidence. Reynolds stated that he saw Duncan put on a white shirt which had a discoloring on it which appeared to be blood. After two of the deputies took Duncan to the courthouse, Reynolds continued his search of Duncan's room and removed therefrom a bed sheet upon which was a discoloration which he said appeared to be blood.
Immediately after the last-mentioned search of Duncan's room, he was carried to the courthouse or jail, where he was met by Sheriff Colvard, who testified: "* * * I told the Defendant that this crime had been committed and we was going to have to question him about it. And I asked him to lower his pants." Duncan complied with that request and the Sheriff noticed that the tail of the shirt "appeared to have blood on it." Duncan told the Sheriff he *847 did not know the blood was on the shirt. The shirt was admitted in evidence along with the testimony of the toxicologist to the effect that, in his opinion, the substance on the tail of the shirt was human blood of the same type as that of the deceased baby. It was also of the same type as Duncan's blood, a fact brought out by Duncan's counsel. Duncan was then "confronted" with the "blue jeans" with the stain thereon and said, "I don't know where it could have come from unless it was when I hurt my hand digging a ditch." Duncan denied wearing the "blue jeans" on the previous night, saying that the last time he wore them was when he dug the ditch. Sheriff Colvard examined Duncan on that occasion at length and while Duncan said that he had helped in the search for the child, he stated he did not "know a thing about the child at all."
Late in the afternoon of February 24th, after Duncan had been placed in jail or was being detained in the Sheriff's office, Chief Deputy Reynolds and another deputy entered Duncan's room and made a search without a search warrant, but with permission of the motel owner. Reynolds testified that during that search he found a diaper pin under Duncan's bed, which he took into his possession. The pin was not introduced in evidence.
There is an endorsement on the "Writ of Arrest on Indictment" which was executed on March 13, 1963, the day on which the indictment was returned, indicating that Duncan was confined in jail on February 24, 1963. Sheriff Colvard testified that Duncan was not "charged" until Monday, February 25th. Duncan remained in custody from February 24th until the date of trial.
On Tuesday, February 26th, Duncan was carried to the "photography department," where he was asked to disrobe. He complied with that request and twenty-four "close-up" color slides or pictures were taken of his entire body, including his hands. The slides or pictures of his hands were admitted in evidence. The others were not introduced. At the time these slides or pictures were made, no member of his family had requested to visit him. No lawyer was present and Duncan had not been advised that he had a right to consult counsel, but Sheriff Colvard testified that Duncan consented to having the pictures made.
On the next day, Wednesday, February 27th, Duncan was questioned by Sheriff Colvard, by the circuit solicitor, and by two of the latter's deputies or assistants before a court reporter. Duncan's sworn statement made on that occasion was introduced in evidence by his counsel. In that statement Duncan gave a detailed account of his movements on Saturday and Saturday night, February 23rd, the day of the crime. Duncan said that he never saw the child and did not even know it was in the room next to the one which he occupied. He stated that he had been drinking whiskey and wine that day and that he did not remember anything that occurred after he returned from a visit with his ex-wife to the motel late Saturday afternoon until he was awakened about eleven o'clock by someone who told him a baby had been lost. Duncan admitted buying shaving lotion on Saturday but did not remember drinking it. Duncan said it was agreeable with him for his questioners to arrange to have a lie detector test made of him.
Other than testimony to the effect that Sheriff Colvard and perhaps his deputies talked to Duncan each day for a short period of time, the record is silent as to anything that transpired during the time Duncan was confined in his "private" jail cell from Wednesday, February 24th, until March 6th.
On the date last mentioned, Sheriff Colvard and Chief Deputy Reynolds brought Duncan from Gadsden to Montgomery. The trip was made without a court order. Sheriff Colvard testified, "We carried him at his request." They reached Montgomery *848 around ten-thirty or eleven o'clock and Duncan was carried to the City of Montgomery jail by Deputy Reynolds. Sheriff Colvard called on officials of the Montgomery Police Department soon after his arrival in Montgomery. At about one o'clock on March 6th, Duncan was brought from the Montgomery City Jail to the Montgomery Police Department, where he was taken to the polygraph room of that department. He was seated in a comfortable lounge chair in that room, in which the only other equipment was a desk, on which the polygraph equipment had been placed, and a chair behind the desk for use by an examiner. While Duncan was so seated, Lieutenant Wright, of the Montgomery Police Department, a polygraph examiner, entered the room and introduced himself to Duncan. He told Duncan that there was a two-way mirror in the room, but he did not tell him that the effect of that mirror was to permit people from the outside to see and observe what was going on in the polygraph room without themselves being seen. He did not tell Duncan that a permanent fixture on the desk was a microphone, which was so installed and connected that the persons viewing the proceedings from the other side of the so-called two-way mirror could also hear what was occurring in the room. He did explain to Duncan that on the desk was situated the polygraph instrument.
Lieutenant Wright told Duncan that he did not have to submit to the examination; that he should do so only from his own free will and accord. He showed Duncan a "release" which apparently his department required all subjects to sign either before being interrogated or subjected to the lie detector test. Wright asked Duncan to read the release. Duncan stated that he could not read, whereupon Wright read the release to Duncan, who then signed it. Wright did not tell Duncan that a lie detector test was not legal evidence and could not be used against him in court.
Lieutenant Wright asked Duncan if he knew why he was in Montgomery and he stated he knew he was there because of the little girl who had been killed and said that he didn't know anything about it other than what he had already told Sheriff Colvard. After talking with Wright for some twenty to twenty-five minutes Duncan, according to Wright, then stated that he had confidence in Wright; that he had not told Sheriff Colvard the truth, but that he was now ready to tell the truth to Wright. According to Wright, the defendant, Duncan, then made the following statement:
"After going behind the cabin, he said he continued down through this *849 marsh area, is the way he described it to me, to a branch, and as he was attempting to cross the branch he slipped, and dropped the baby into the branch.
After Duncan had concluded making the statement set out above, he was asked by Wright if he would mind repeating the statement in the presence of Sheriff Colvard, who had been viewing the proceeding through the two-way mirror and listening to them by means of the microphone which was affixed to the desk. Duncan indicated that he would not mind repeating the statement to Sheriff Colvard. Wright then brought Sheriff Colvard into the polygraph room and, according to the Sheriff, Duncan then made a statement to him which the Sheriff summarized in the following language:
On cross-examination of the State's witness Wright, counsel for Duncan brought out the fact that after Duncan made his oral statements to Wright and to Sheriff Colvard, wherein he related his connection with the child's death, Wright then gave Duncan "a Polygraph test." According to Wright, Duncan took the test voluntarily. Wright said that after examining the test, it was his opinion that Duncan told substantially the truth when he said "that he slipped and fell and dropped that child in the water" and that Duncan told the truth when he said "that he attempted to get the child out of the branch, following it some 15 or 20 feet down the branch before he succeeded." The defendant having injected into the case the fact that the polygraph test was made, and having questioned Wright as to his opinion as to the truthfulness of some of the statements made by Duncan on the test, the trial court permitted the State to elicit from Wright evidence to the effect that Duncan gave truthful answers to the other questions propounded to him on the test, which answers definitely connected Duncan with the child's death.
Following the occurrences in the polygraph room, Duncan was carried to an adjoining room where there was a typewriter. He had agreed to sign a written statement. Sheriff Colvard questioned Duncan in the presence of a detective of the Montgomery Police Department and others. The detective typed the questions as they were propounded by Sheriff Colvard and the answers as they were given by Duncan. Sheriff Colvard conceded that the questions which he propounded were leading in their nature. After this interrogation was completed, the questions and answers were read over to Duncan, who said that the answers which he had given were correct, and he then signed *850 the statement or confession in the presence of persons who witnessed his signature. The written statement is substantially the same as the oral statement given by Duncan to Lieutenant Wright.
On the following day, March 7, 1963, after Duncan had been carried back to Gadsden, the county seat of Etowah County, he was again interrogated by Sheriff Colvard in the presence of a court reporter, who took down Sheriff Colvard's questions and Duncan's answers. When this questioning was completed and the questions and answers were typed up, Duncan signed the statement, which contains some details different from those contained in some of his previous statements, but we do not think they are of sufficient importance to point out here.
Duncan did not testify. Only two persons were called as witnesses in his behalf. They were the owner of the motel and her husband, both of whom gave testimony to the effect that on Saturday afternoon, February 23, 1963, Duncan was drinking excessively. They further testified that for a period of months, following a railroad accident, Duncan had suffered "blackout spells," during which he was capable of moving and acting, but would remember nothing that transpired during the "spells." They testified that such condition was worse when Duncan was drinking. The owner of the motel also gave testimony to the effect that on the day of the crime, Saturday, February 23, 1963, she observed blood on one of Duncan's hands. This testimony was no doubt offered to explain the presence of blood on the "blue jeans" and on Duncan's shirt.
One of the serious questions presented is whether the trial court erred to reversal in permitting the State to offer evidence relative to the articles which the investigating officers found in Duncan's room, which had a tendency to connect Duncan with the commission of the crime with which he was charged.
Prior to Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933, decided by the Supreme Court of the United States on June 19, 1961, the appellate courts of this state had consistently held that evidence obtained by an unreasonable search and seizure was admissible in the trial of one charged with a violation of the law of this state, except where evidence so obtained was made inadmissible by a state statute, such as § 210, Title 29, Code 1940. Fikes v. State, 263 Ala. 89, 81 So. 2d 303; Oldham v. State, 259 Ala. 507, 67 So. 2d 55; Ingram v. State, 252 Ala. 497, 42 So. 2d 36; Banks v. State, 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359; Shields v. State, 104 Ala. 35, 16 So. 85. Our holdings in the cases just cited were in accord with the rule enunciated by the Supreme Court of the United States in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782, decided in 1949, to the effect that evidence secured in violation of the Fourth Amendment to the Constitution of the United States, if relevant, was admissible in a State court; that the provisions of the Fourth Amendment were not imposed on the States by the Fourteenth Amendment.
But Mapp, supra, overruled Wolf v. People of State of Colorado, supra, in the respect indicated and held that "all evidence obtained by searches and seizures in violation of the Constitution is, by the same authority, inadmissible in a state court." Thus, the federal exclusionary rule as promulgated in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, was made applicable in the courts of those states, including Alabama, which had not previously adopted the exclusionary rule.
It appears that this court has not been called upon to consider the federal exclusionary rule in a criminal case appealed directly to this court since the Mapp case, *851 supra, was decided. However, in Carlisle v. State ex rel. Trammell, 276 Ala. 436, 163 So. 2d 596, a proceeding in equity to abate an alleged gambling nuisance, after citing Mapp, we said:
The Court of Appeals of Alabama has recognized the impact of the holding in the Mapp case upon criminal prosecutions in a number of cases, including Smith v. State, 41 Ala.App. 528, 138 So. 2d 474; Moore v. State, 41 Ala.App. 657, 146 So. 2d 734; Phillips, alias Moore v. State, 42 Ala.App. 64, 152 So. 2d 148, cert. denied, 275 Ala. 698, 152 So. 2d 150; Lawson v. State, 42 Ala. App. 172, 157 So. 2d 226, cert. denied, 275 Ala. 695, 157 So. 2d 228; Pate v. State, 42 Ala.App. 350, 165 So. 2d 127, cert. denied, 276 Ala. 706, 165 So. 2d 128; Matthews v. State, 42 Ala.App. 406, 166 So. 2d 883; Brown v. State, 42 Ala.App. 429, 167 So. 2d 281, cert. denied, 277 Ala. 108, 167 So. 2d 291; York v. State (Ala.Ct. of App. MS); Knox v. State, 42 Ala.App. 578, 172 So. 2d 787, cert. denied, 277 Ala. 699, 172 So. 2d 795; Sopcjak v. State, 42 Ala.App. 608, 173 So. 2d 403; Ramsey v. City of Huntsville, 42 Ala.App. 603, 172 So. 2d 812; Carpenter v. State, 42 Ala.App. 618, 174 So. 2d 336; McCurdy v. State (Ala.App.), 176 So. 2d 53, cert. denied (Ala.), 176 So. 2d 57.
In several of the cases just cited, the Court of Appeals indicated that a pre-trial motion to exclude evidence obtained by an unreasonable search and seizure is necessary. But in denying certiorari in Brown v. State, supra, this court said: "We do not hold that a pretrial motion to suppress is improper, but do hold that such motion is not necessary and that objection may be made for the first time when the illegally obtained evidence is offered at the trial." (167 So.2d 294)
Perhaps it is well to note that in reviewing a death case under the automatic appeal statute, supra, we may consider any testimony that was seriously prejudicial to the rights of the appellant and may reverse thereon, even though no lawful objection or exception was made thereto. Alberson v. State, 254 Ala. 87, 47 So. 2d 182. Our review is not limited to the matters brought to our attention in brief of counsel. Lee v. State, 265 Ala. 623, 93 So. 2d 757.
The holding of the Supreme Court of the United States in the Mapp case, supra, may not nationalize the law of search and seizure, but it does compel state courts to examine and resolve the problems arising from the search for and seizure of evidence in the light of the federal Constitutional guarantees against unlawful search and seizure.
The Fourth Amendment to the Constitution of the United States "* * * forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made * * *." Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374. In the case just cited it was observed that there is no formula for determination of reasonableness. Each case is to be decided on its own facts and circumstances.
When police officers want to search a person's home they must have either a search warrant or a knowing, voluntary permission, unless the search is incidental to a lawful arrest or there are other circumstances, not present in this case, which justify a departure from the rule. Waldron v. United States, 95 U.S.App.D.C. 66, *852 219 F.2d 37. See United States of America v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59.
With the foregoing in mind, we come to a consideration of the conduct of the officers in this case in obtaining the articles from Duncan's room which unquestionably tended to connect him with the commission of the crime, in order to determine whether those articles were obtained in violation of the Fourth Amendment.
It is well established that a person's hotel room is protected against unreasonable search and against seizure of articles therein. United States v. Jeffers, supra; Stoner v. State of California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856; Hall v. Warden, 4 Cir., 313 F.2d 483; United States ex rel. Clark v. Maroney, 3 Cir., 339 F.2d 710. Moreover, the record in this case shows beyond peradventure that the motel room which the officers entered and from which they obtained the incriminating evidence was considered by Duncan and others as constituting his home.
It is conceded that the officers did not have a search warrant on any occasion when Duncan's room was entered, searched and the incriminating articles taken therefrom.
The search of Duncan's room by Sheriff Colvard around three o'clock on the morning of February 24, 1963, produced no damaging testimony, in our opinion. On that occasion Sheriff Colvard was looking for the little girl. He did not testify that he found any incriminating evidence whatsoever or that he saw anything which indicated that Duncan was the perpetrator of the crime.
Incriminating evidence was obtained in the search made by Chief Deputy Reynolds and other deputies around eleven o'clock on the morning of February 24th. Does the evidence show that a "knowing, voluntary permission" was given by Duncan for that search to be made?
When the State sought to introduce some of the evidence obtained during that search, counsel for the defendant objected on the ground, among others, that such evidence was the result of an illegal search and seizure. At this point the following transpired:
A person can consent to search without warrant and thereby waive the protection of the Fourth Amendment against invasion of the right of privacy. Zap v. United States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477; Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668; Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453; Gilbert v. United States, 9 Cir., 307 F.2d 322, cert. denied, 372 U.S. 969, 83 S. Ct. 1095, 10 L. Ed. 2d 132; United States v. Page, 9 Cir., 302 F.2d 81, and cases cited.
But courts indulge every reasonable presumption against waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; Knox v. State, 42 Ala.App. 578, 172 So. 2d 787, cert. denied, 277 Ala. 699, 172 So. 2d 795.
In United States v. Page, supra, it was said:
"Because of the importance of preserving constitutional rights, various rules have been stated for the guidance of the trial judge in determining whether consent to the search was in fact given. The government must prove that consent was given. It must show that there was no duress or coercion, express or implied. The consent must be `unequivocal and specific' and *853 `freely and intelligently given'. There must be convincing evidence that defendant has waived his rights. There must be clear and positive testimony. * * *"
See Gibson v. United States, 80 U.S.App. D.C. 81, 149 F.2d 381, cert. denied, O'Kelley v. United States, 326 U.S. 724, 66 S. Ct. 29, 90 L. Ed. 429; United States v. Viale, 2 Cir., 312 F.2d 595, cert. denied, 373 U.S. 903, 83 S. Ct. 1291, 10 L. Ed. 2d 199; United States v. Smith, 2 Cir., 308 F.2d 657, cert. denied, 372 U.S. 906, 83 S. Ct. 717, 9 L. Ed. 2d 716; Nelson v. United States, 208 F.2d 505; Judd v. United States, 89 U.S.App. D.C. 64, 93 U.S.App.D.C. 14, 190 F.2d 649; Nueslein v. District of Columbia, 73 App. D.C. 85, 115 F.2d 690; Channel v. United States, 9 Cir., 285 F.2d 217; Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37.
It is said in some cases, among them United States v. Smith, 2 Cir., 308 F.2d 657, as follows: "When a law enforcement officer knocks at the door, identifies himself, and asks to be allowed to search the premises, the acquiescence thus obtained is generally not considered to be voluntary consent."
In this case the law enforcement officers did not identify themselves and did not ask to be allowed to search the premises. After gaining admittance without identifying themselves, the officers searched Duncan's room and removed the articles in issue without requesting Duncan's permission.
We are clear to the conclusion that the invitation to enter his room, extended by Duncan to the person who knocked on his door, did not constitute a consent to the search of his room so as to constitute a waiver of his right to complain that the search and resulting seizure were committed in violation of the Fourth Amendment to the Constitution of the United States. Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436; Higgins v. United States, 93 U.S.App. D.C. 340, 209 F.2d 819; Lee v. United States, 98 U.S.App.D.C. 97, 232 F.2d 354.
In Knox v. State, supra, the Court of Appeals of this state said:
Were the search which the Sheriff's deputies made of Duncan's room and the objects removed therefrom around eleven o'clock on the morning of February 24, 1963, incident to a lawful arrest?
We think not. True, Sheriff Colvard testified that he sent the deputies to Duncan's room on that occasion to arrest him and it is also established that after a search was made of his living quarters Duncan was carried to the courthouse. It has never been contended that the deputies had a warrant for Duncan's arrest and Chief Deputy Reynolds testified that no arrest was made and that Duncan accompanied two of the deputies to the courthouse after Reynolds had "instructed him to get dressed" and then asked him "when he dressed, to come on, that I wanted him to go down to the Court House, that the Sheriff wanted to talk to him." Reynolds did not even tell Duncan what the Sheriff wanted to talk to him about and, since Duncan was not at the time engaged in the actual commission of a public offense, nor was he on pursuit, *854 such information should have been conveyed to Duncan in order to constitute the act of the deputies in carrying Duncan to the courthouse a lawful arrest. § 155, Title 15, Code 1940. See Ezzell v. State, 13 Ala.App. 156, 68 So. 578; Tarwater v. State, 16 Ala.App. 140, 75 So. 816; Cobb v. State, 19 Ala.App. 345, 97 So. 779; Johnson v. State, 19 Ala.App. 141, 95 So. 583; Brown v. State, 109 Ala. 70, 20 So. 103; Rutledge v. Rowland, 161 Ala. 114, 49 So. 461.
Section 154, Title 15, Code 1940, provides in pertinent parts as follows:
The arrest of Duncan at the time of the search, if he was in fact then arrested, cannot be justified as an "on view" arrest. He committed no public offense nor threatened a breach of the peace in the presence of the deputies. Knox v. State, supra.
Nor could such an arrest be held to be lawful on the ground that the deputies had reasonable cause to believe that Duncan had committed a felony.
In Berry v. State, 27 Ala.App. 507, 175 So. 407, our Court of Appeals cited Suell v. Derricott, 161 Ala. 259, 49 So. 895, 23 L.R.A.,N.S., 996, in support of the following statement:
In Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794, it was said, in effect, that "reasonable cause to believe," as used in § 154, Title 15, Code 1940, is knowledge of circumstances such as would lead a reasonable man of ordinary caution, acting impartially, reasonably and without prejudice, to believe the person arrested to be guilty. And in Findlay v. Pruitt, 9 Port. 195, we said that mere suspicion will not afford a justification for an arrest. See Gibson v. State, 193 Ala. 12, 69 So. 533.
As far as this record discloses, the deputies, when they entered Duncan's room around eleven o'clock on the morning of February 24, 1963, were possessed of no information or facts which, if submitted to a judge or magistrate, would have required the issuance of a warrant of arrest. Berry v. State, supra. As stated above, Sheriff Colvard's entrance into Duncan's room at three o'clock on the morning of that day, insofar as this record discloses, produced no information tending to connect Duncan with the offense. If the Sheriff or his deputies were even suspicious of Duncan, such suspicion must have been based simply on the fact that he occupied the cabin next to that in which the deceased child had been kept.
There are innumerable federal cases to the effect that police officers may not arrest on mere suspicion, but only on "probable cause." Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441; Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479; United States v. Walker, 7 Cir., 246 F.2d 519; Bucher v. Krause, 7 Cir., 200 F.2d 576, cert. denied, Krause v. Bucher, 345 U.S. 997, 73 S. Ct. 1141, 97 L. Ed. 1404; Worthington v. United States, 6 Cir., 166 F.2d 557; United States v. Castle, D.C., 138 F. Supp. 436.
*855 It is fundamental that an arrest without probable cause cannot be validated by evidence obtained in a subsequent search and likewise that the search cannot be validated by the invalid arrest. Busby v. United States, 9 Cir., 296 F.2d 328.
When a police officer arrests without a warrant, and the defendant objects to the introduction of evidence claimed to be incident to such an arrest, the burden is on the State to show that the arrest was lawful. Knox v. State, supra. Objections were interposed to all evidence relating to the fruits of the search. We do not mean to hold that objections to evidence are required for our review in a capital case.
The State did not meet that burden in this case.
We are constrained to the conclusion that reversible error is made to appear in the trial court's rulings permitting the State to introduce in evidence the "blue jeans" and the strands of hair identified as being similar to the hair of the deceased child, all removed from Duncan's room following the eleven-o'clock search.
Likewise, it was error to permit Chief Deputy Reynolds to testify that on that occasion he saw several items of baby clothing in Duncan's room; that he saw a large red stain on or near the fly of the "blue jeans"; that he saw a spot on Duncan's shirt which appeared to be blood; that he saw a discoloration on a bed sheet which appeared to be blood. The exclusionary rule imposed upon the states by the holding of the Supreme Court of the United States in the Mapp case, supra, applies not only to the introduction into evidence of physical objects illegally taken, but also to the introduction of testimony concerning objects illegally observed. Wong Sun v. United States, supra; Silverthorne Lumber Co. v. United States. 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307; McGinnis v. United States, 1 Cir., 227 F.2d 598.
The introduction in evidence of the bottles removed from Duncan's room following the eleven-o'clock search would not, in our opinion, require a reversal, as we are unable to see any possible injurious effect to Duncan by such evidence.
We are also of the opinion that the testimony of Chief Deputy Reynolds to the effect that he found a diaper pin in Duncan's room when he searched it late in the afternoon of February 24, 1963, was erroneously admitted. That search, like all the rest, was made without a search warrant. Duncan was at the time being held at the county courthouse. Hence, he could not have invited Reynolds in to make a search and there is nothing to show that he had been approached about the search while in custody. Since Duncan was already in custody, the search could not be said to have been made as incident to a lawful arrest. The only possible justification of the search was Reynold's statement to the effect that he received permission of the owner or operator of the motel to enter Duncan's room. Such permission was not sufficient to make the search a legal one. Stoner v. State of California, supra.
We are unable to determine exactly how and under what circumstances Duncan's shirt, which was introduced in evidence, was obtained. We refrain, therefore, from expressing an opinion in regard to its introduction.
We come now to a consideration of the admissibility of the confessions of the defendant, Duncan, introduced in evidence by the State.
The rule is that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether or not a confession is voluntary and unless it so appears it should not be admitted. Myhand v. State, 259 Ala. 415, 66 So. 2d 544; Phillips v. State, 248 Ala. *856 510, 28 So. 2d 542; White v. State, 260 Ala. 328, 70 So. 2d 624; Hines v. State, 260 Ala. 668, 72 So. 2d 296; Goldin v. State, 271 Ala. 678, 127 So. 2d 375; Smitherman v. State, 264 Ala. 120, 85 So. 2d 427.
During the examination of the witnesses who heard the confessions made, which examination occurred in the presence of the jury, the State introduced evidence tending to show that no threat was made against the accused; that he was not physically mistreated; that he was not told it would be better for him to make a confession or worse for him if he did not; that no reward was offered or held out to him to get him to confess; that no inducement of any kind was made to him. Counsel for Duncan were not denied the right to examine the witnesses who so testified. No evidence being offered by the defendant to the contrary, the confessions were admitted in evidence over the defendant's objections.
As heretofore indicated, the occurrences referred to in the preceding paragraph all occurred in the presence of the jury. There was no request made by counsel for the defendant that the court determine the question as to whether or not the confessions were voluntary outside of the presence of the jury. As to one of the confessions, there was a discussion held outside the presence of the jury, but the testimony and ruling thereon occurred in the jury's presence.
Our Court of Appeals, on May 4, 1965, in the case of Taylor v. State, 42 Ala.App. 634, 174 So. 2d 795, which case was not brought here by the State for review, said:
In Rudolph v. Holman, D.C., 236 F. Supp. 62, cited by our Court of Appeals in Taylor v. State, supra, the petitioner, Rudolph, was awaiting execution in Kilby Prison, following his conviction of the crime of rape, at the time he filed his petition for writ of habeas corpus in the United States District Court, Middle Division of Alabama, Northern District. We had affirmed Rudolph's conviction. Rudolph v. State, 275 Ala. 115, 152 So. 2d 662. The Supreme Court of the United States had denied certiorari. Rudolph v. Alabama, 375 U.S. 889, 84 S. Ct. 155, 11 L. Ed. 2d 119. We had also denied a petition for leave to file a petition for writ of error coram nobis. Ex parte Rudolph, 276 Ala. 392, 162 So. 2d 486. Again the Supreme Court of the United States denied certiorari. 377 U.S. 919, 84 S. Ct. 1185, 12 L. Ed. 2d 188. All of these matters, other than the filing of the petition for habeas corpus in the federal district court, antedated the decision of the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, which as shown above was cited in the opinion of our Court of Appeals in Taylor v. State, supra. However, *857 after the decision in Jackson, we refused to grant a stay of execution and it was then that Rudolph's counsel filed the petition for writ of habeas corpus in the federal district court.
In Rudolph v. Holman, supra, Judge Johnson ordered Rudolph discharged from custody, subject to retrial, on the ground that in his trial in the Circuit Court of the Tenth Judicial Circuit (Jefferson County), he was denied due process of law under the Fourteenth Amendment to the Constitution of the United States in that the trial court had overruled a request of Rudolph's counsel that he be given an opportunity out of the presence of the jury to inquire into and offer evidence on the question of the admissibility of a confession. If we understand the opinion correctly, Judge Johnson considered our holding in Rudolph v. State, 275 Ala. 115, 152 So. 2d 662, to the effect that the trial court did not commit reversible error in refusing to excuse the jury while the predicate was being laid for the introduction of the confession, not to be in accord with our prior decisions. We would like to record our disagreement. We have never held that it is a requirement that the jury be excused during the time evidence is offered relating to the voluntariness of a confession, insofar as we are aware. In fact, it is very unusual to review a record where such a request has been made. Perhaps that practice has been followed in some judicial circuits, but if so we are not aware of it. Alabama has been said to follow the so-called Orthodox Rule relative to the admission of confessions. See Appendix A to Mr. Justice Black's dissent in the Jackson case, supra. However, since the so-called Orthodox Rule seems to contemplate a separate hearing before the trial judge alone on the issue of voluntariness, then we have not been strictly following that rule.
We have often said, as heretofore shown, that prima facie confessions are involuntary and that there must be evidence addressed to the trial judge rebutting that presumption and showing prima facie that the confession was voluntarily made unless, of course, the circumstances attending the confessions disclose their voluntary character. Johnson v. State, 242 Ala. 278, 5 So. 2d 632. But it has not been considered by this court to be a denial of any constitutional right for the evidence to be addressed to the trial judge in the presence of the jury. It has been almost the uniform custom for such evidence to be taken in the presence of the jury, but it has been considered that the determination of the voluntariness of the confession was solely for the trial court and not for the jury. However, after the confession has been admitted the jury could consider the circumstances under which the confession was obtained, and the appliances by which it was elicited, including the situation and mutual relations of the parties in exercising their exclusive prerogative of determining the credibility of the evidence, or the weight to which it is properly entitled, in controlling the formation of a verdict. Johnson v. State, supra.
In support of his holding that Rudolph was entitled to his discharge, Judge Johnson cited and quoted from Schaffer v. United States, 5 Cir., 221 F.2d 17, 54 A.L.R. 2d 820, which applied the federal rule. That was an appeal from a federal district court and we observe nothing in the opinion in that case which indicates an attempt to impose the federal rule on state courts.
This brings us to a consideration of Jackson v. Denno, supra, sometimes hereinafter referred to as the Jackson case, or Jackson. Jackson had confessed to a murder after disputed evidence had been received as to the voluntariness of that confession, in the presence of the jury, under the established New York procedure. Jackson was convicted. If we understand the so-called New York rule it is: If under no circumstances the confession could be deemed voluntary, the trial judge was obligated to exclude it. If the evidence presented a fair question of fact as to its *858 voluntary nature, the confession was received and the jury, under proper instruction, determined the question. After losing his appeal (People v. Jackson, 10 N.Y.2d 780, 219 N.Y.S.2d 621, 177 N.E.2d 59; amended opinion, 10 N.Y.2d 816, 221 N.Y.S.2d 521, 178 N.E.2d 234; cert. denied, 368 U.S. 949, 82 S. Ct. 390, 7 L.Ed.2d 344), Jackson sought habeas corpus in a federal district court, asserting that his conviction was founded on a confession not properly determined to be voluntary. The writ was there denied, Application of Jackson, D.C., 206 F. Supp. 759, and the Court of Appeals affirmed, United States ex rel. Jackson v. Denno, 2 Cir., 309 F.2d 573. Certiorari was granted by the United States Supreme Court, 371 U.S. 967, 83 S. Ct. 553, 9 L. Ed. 2d 538 "to consider fundamental questions about the constitutionality of the New York procedure governing the admissibility of a confession alleged to be involuntary." 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908. The Supreme Court of the United States overruled its recent case of Stein v. People of State of New York, 346 U.S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522, and held that the so-called New York rule, which had been followed at Jackson's trial, was unconstitutional as a denial of due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States.
We have given careful and deliberate consideration to this decision in the Jackson case, supra, and while we realize that the Court only knocked out the so-called New York rule and apparently gave approval to the Orthodox and Massachusetts rules, nevertheless we are clear to the opinion that the New York rule was voided not only because in certain instances the question of voluntariness of the confessions was left for the jury's determination, but also because the evidence adduced relative to the voluntariness of the confession was taken before the jury.
In disposing of the case, the Supreme Court of the United States said as follows:
Aside from the statement which we have just quoted, there is much in the lengthy opinion which leads us to the inevitable conclusion that the Supreme Court of the United States will not uphold a conviction where the question as to the voluntariness of the confession is presented in the presence of the jury if a request for a hearing outside the presence of the jury is made.
Insofar as our research discloses, all the state courts which have considered the question have construed Jackson to so hold. People v. Jolliff, 31 Ill. 2d 462, 202 N.E.2d 506; Freeman v. Gladden (Ore.), 396 P.2d 779; State v. Ortiz, 97 Ariz. 228, 399 P.2d 171; State v. Owen, 96 Ariz. 274, 394 P.2d 206; People v. Walker, 374 Mich. 331, 132 N.W.2d 87; People v. Perez, Cal.App., 42 Cal. Rptr. 161; Commonwealth ex rel. Gaito v. Moroney, 416 Pa. 199, 204 A.2d 758; People ex rel. Meadows v. McMann, 43 Misc.2d 738, 252 N.Y.S.2d 243; Lopez v. State (Ct. of Cr.App. of Tex.), 384 S.W.2d 345; State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753.
The only case which has come to our attention wherein Jackson was construed as not requiring the trial judge to hear the evidence as to the voluntariness of the confession in the absence of the jury is Smith v. State of Texas, D.C., 236 F. Supp. 857.
Insofar as we know, there has been no precise ruling by the United States Supreme Court that Jackson v. Denno is retroactive. But in at least two instances the Supreme Court of the United States has remanded cases to state courts for further proceedings not inconsistent with the opinion in Jackson. It is apparent from a reading *859 of the opinions in those cases that the trials at nisi prius occurred in the state courts prior to decision in Jackson. See State of Arizona v. Owen, supra. And in United States v. Maroney, 231 F. Supp. 154, 156, it was said:
While we agree with the application of the Jackson case made by Judge Johnson in Rudolph v. Holman, supra, and by our Court of Appeals in Taylor v. State, supra, and treating Jackson v. Denno as retroactive, we are of the opinion, since this case must be reversed on another ground, a reversal is not required on the ground that Duncan was denied due process of law in that the question as to the voluntariness of the confessions was determined in the presence of the jury. As we have shown in Rudolph v. Holman, supra, and in Taylor v. State, supra, counsel for the defendants requested that they be permitted to present evidence relating to the voluntariness of the confession outside the presence of the jury. In this case no such request was made and, moreover, there was no contradiction in the testimony adduced in the presence of the jury relative to the voluntariness of the confessions and no effort was made by counsel for the defendant to present any witness, the defendant or others, to rebut the testimony presented by the State relative to the voluntariness of the confession. If a request had been made for the question of the voluntariness of the confessions to be determined outside the presence of the jury, the trial court would no doubt have granted it because there were numerous discussions between the court and counsel outside the presence of the jury.
We feel that in fairness to the circuit bench, the prosecuting attorneys of the state and to defense counsel, we should state our views on the effect of the Jackson case, although we do this with some apprehension because there are certain areas of uncertainty.
We are clear to the conclusion that whenever a motion is made for the question of the voluntariness of the confession to be determined outside the presence of the jury, the motion should be granted. In such a hearing, the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. At such a hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant will not waive his right to decline to take the stand in his own defense on the trial in chief nor will he waive any of the other rights stemming from his choice not to testify. If the confession is held voluntary and admitted, the jury's consideration of that confession and surrounding circumstances shall proceed in accordance with the "Orthodox" procedure, that is, the jury considers the voluntariness as affecting the weight or credibility of the confession.
If there is no request expressly made by counsel for the defendant that the hearing on the issue of the voluntariness of the confession be heard in the absence of the jury, we think, nevertheless, that the trial court should on his own action require such a hearing to be held if there is to be any conflict in the testimony, and particularly when the defendant desires to take the stand, because under our rule in Fikes v. State, 263 Ala. 89, 81 So. 2d 303, that if a defendant takes the stand to testify to facts showing that a confession was unduly influenced "he certainly ought to respond to questions as to his guilt in fact and to any matter relevant thereto. He cannot restrict the nature of the relevant testimony he proposes to give."
*860 The writer and Justices Goodwyn and Merrill entertain the view that the federal courts may interpret the Jackson case as requiring that the issue of the voluntariness of the confession be determined outside the presence of the jury in all events, and for that reason would suggest to the trial courts that as a matter of precaution it might be best in the future to decide that issue in all instances outside the presence of the jury unless there has been an informed waiver. The Supreme Court of the United States in Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408, suggested that under exceptional circumstances an accused is not precluded from asserting constitutional claims even despite counsel's strategy. But there was no elaboration in the opinion of just what might constitute such circumstances. See State ex rel. Goodchild v. Burke, supra.
In the area of interpretation of the United States Constitution we are obliged to accept the majority view of the Supreme Court of the United States, however we may individually assess the dissents of Justices Black, Clark and Harlan, in which latter Justice Stewart joined. We say here, as the late Justice Stone said in Green v. State, 73 Ala. 26, 31:
Were the confessions, all of which were made before indictment, inadmissible because Duncan did not have a lawyer present at the time the confessions were made, nor had he been advised of his right to counsel.
In Spano v. People of State of New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265, the accused, despite repeated pleas to see his attorney and after eight hours of continual questioning, was tricked into confessing by the repeated urging and misrepresentations of a friend who was a policeman. Duncan never requested a lawyer. There was no protracted questioning. There is no evidence of a repeated urging or misrepresentations of a friend or anyone else. There were other factual situations present in Spano which distinguishes it from this case, but we think those pointed out above are sufficient to show that Spano alone is not controlling here.
In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246, Massiah was indicted for violating the federal narcotics laws. He retained a lawyer, pleaded not guilty, and was released on bail. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. Evidence of those statements was introduced against Massiah at his trial over his objections. He was convicted. The Supreme Court of the United States in reversing said:
Since the Court expressly bypassed the question as to whether the confession was bad because of a violation of Massiah's rights under the Fourth Amendment, the *861 words which we have italicized above seem to be the real basis of the reversal. We think it sufficient to distinguish Massiah by pointing out that the confessions in this case came before indictment. Massiah is, of course, a case which originated in the federal court, but it no doubt applies to state courts since the right to counsel guaranteed in the federal system by the Sixth Amendment has been held to be binding upon the states by virtue of the due process guarantee of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.
The Supreme Court's decision in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, goes even further than the decision in Massiah in that it voided a confession obtained before indictment and provoked this comment or criticism in the dissenting opinion of Mr. Justice White, in which Mr. Justice Clark and Mr. Justice Stewart joined: "The decision is thus another major step in the direction of the goal which the Court seemingly has in mindto bar from evidence all admissions obtained from an individual suspected of crime, whether involuntarily made or not." Mr. Justice Harlan filed a separate dissenting opinion.
Arrested on suspicion of murder, Escobedo was questioned by police until he confessed. Throughout the interrogation, his frequent requests to call his attorney were denied, and he was never advised by the police of his right to remain silent. The Supreme Court of the United States, in a five-to-four decision, reversed Escobedo's conviction, saying:
In this case Duncan was not refused the services of a lawyer before he made the confessions. He did not request such services. But Duncan was not advised of his right to counsel, but was advised before he made the first confession that he did not have to submit to the examination and was told that he should do so of his free will and accord.
Although the opinion of the Court in Escobedo purports to be limited to the facts of the case, some courts have not so construed it, as Mr. Justice White, in his dissent, intimated would be the situation.
The Supreme Court of California in People v. Dorado, 40 Cal. Rptr. 264, 394 P.2d 952, has construed Escobedo as holding that, once suspicion has focused on the accused and the purpose of interrogating him is to obtain incriminating statements, such statements cannot be used against the accused, even though he did not request counsel, unless the right to counsel was intelligently waived and that no waiver can be presumed if the investigating officers did not inform the suspect of his right to counsel or his right to remain silent. For cases to the same effect, see two very recent decisions, not yet reported: State v. Mendes (R.I.), 210 A.2d 50, decided on May 10, 1965; United States ex rel. Russo v. State of New Jersey (U.S.Ct. of App., 3rd Cir.), decided on May 20, 1965.
The Oregon Supreme Court has construed Escobedo as being authority for the *862 proposition that an accused must be effectively warned of his constitutional right to remain silent, and that if this is not affirmatively shown by the State, a confession obtained without such warning is inadmissible. State v. Neely (Ore.), 395 P.2d 557. To like effect is State v. Dufour (R.I.), 206 A.2d 82.
For other cases holding Escobedo to require the rejection of a confession see: Wright v. Dickson, 9 Cir., 336 F.2d 878; Clifton v. United States, 5 Cir., 341 F.2d 649; Miller v. Warden, 4 Cir., 338 F.2d 201.
In Queen v. United States, 118 U.S.App. D.C. 262, 335 F.2d 297, Escobedo was applied to a situation where an accused, prior to indictment, having requested counsel and having been given an opportunity to obtain counsel, had not done so. The accused had been advised, before making the extrajudicial self-incriminating statement, of her right not to make a statement and that if she did so it might be used against her. At the time the statement was made the accused told the investigating officers that she had obtained a lawyer, was in the process of obtaining one, or was going to do so.
We interpret the federal cases hereinafter cited as holding that Escobedo does not prevent the use of a confession obtained before indictment, although counsel was not present, where the accused had been advised of his right to counsel or that he need not make any statement or that if a statement is made it may be used against him. Jackson v. United States, D.C.Cir., 337 F.2d 136; Long v. United States, D.C.Cir., 338 F.2d 549; United States ex rel. Townsend v. Ogilvie, 7 Cir., 334 F.2d 837; Otney v. United States, 10 Cir., 340 F.2d 696; Latham and York v. Crouse, 10 Cir., 338 F.2d 658; Davis v. North Carolina, 4 Cir., 339 F.2d 770.
In Edwards v. Holman, 5 Cir., 342 F.2d 679, that case was said to be distinguishable from Escobedo in several particulars. Among other distinguishing factors, it was pointed out that Edwards had been advised of his "constitutional rights" and Escobedo had not. But the principal point of distinction as we view it was that Edwards was no more than a suspect at the time of the interrogation, while Escobedo had become the accused at the time the confession was obtained.
Many state courts which have considered Escobedo have, in effect, limited its holding to the factual situation there presented.
In Bean v. State, 81 Nev. ___, 398 P.2d 251, in holding the confession there under consideration not to be inadmissible because of Escobedo, the court said, after quoting that part of Escobedo which we have quoted above, as follows:
In People v. Agar, 44 Misc.2d 396, 253 N.Y.S.2d 761, it was said:
"The nub of Escobedo is contained in the foregoing quotations, and regardless of what the ultimate determination may be, this Court holds that Escobedo decided only that `under the circumstances here, the accused must be permitted to consult with his lawyer', to wit, a case in which he requested a lawyer or in which a lawyer was actually present and requested to see him. I interpret Escobedo as holding that a confession taken from a defendant prior to the commencement of a judicial proceeding is inadmissible where *863 `the police have not effectively warned him of his absolute constitutional right to remain silent' only where his lawyer is denied access to him or where `the suspect has requested and been denied an opportunity to consult with his lawyer'. The arrest by a police officer of a suspect is not the commencement of a judicial proceeding which precludes the admission of a confession taken in the absence of counsel as that term is used in People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445, and People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 [See People v. Fleischmann, supra, 43 Misc. 2d 200, 250 N.Y.S.2d 660].
* * * * * *
In Browne v. State, 24 Wis.2d 491, 131 N.W.2d 169, the Supreme Court of Wisconsin said of Escobedo:
See State v. Winsett (Del.Super.Ct.), 205 A.2d 510; State v. Fox (Iowa), 131 N.W.2d 684; People v. Hartgraves, 31 Ill. 2d 375, 202 N.E.2d 33; Mefford v. State, 235 Md. 497, 201 A.2d 824; State v. Howard (Sup.Ct. of Mo.), 383 S.W.2d 701; State v. Smith, 43 N.J. 67, 202 A.2d 669; Turner v. State (Tex.Cr.App.), 384 S.W.2d 879; Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782; People v. Langert, 44 Misc. 2d 399, 254 N.Y.S.2d 17; State v. Elam, 263 N.C. 273, 139 S.E.2d 601.
We will not expand Escobedo to cover a factual situation, as we have here, where the investigation had begun to focus on Duncan and he did not have counsel and was not advised of the so-called right to counsel before his confessions were made, and where he had not requested counsel and had been told, in effect, that he did not have to make a statement. We hold that the mere fact that a lawyer was not present when the confessions were made did not render them inadmissible. If the Supreme Court of the United States had reached the point in Escobedo where it wanted to say a confession taken at such a stage before indictment was inadmissible simply because counsel for the accused was not present, it had every reason to do so, in view of the dissenting opinions. But it did not see fit to so hold.
We do not hold that Duncan was illegally detained prior to the time the confessions were made, but we observe that insofar as we are advised the so-called McNabb-Mallory rule (McNabb v. United *864 States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819; Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L.Ed.2d 1479), holding inadmissible in federal courts a confession obtained during an illegal detention, has not been made applicable to trials of criminal cases in the state courts, as yet. Gallegos v. State of Nebraska, 342 U.S. 55, 72 S. Ct. 141, 96 L. Ed. 86 (overruled on another point in Gideon v. Wainwright, supra); Stein v. People of State of New York, 346 U.S. 156, 184, 73 S. Ct. 1077, 97 L. Ed. 1522 (overruled on another point in Jackson v. Denno, supra); Ingram v. State, 252 Ala. 497, 42 So. 2d 36.
As we have shown, before the confessions were admitted the State introduced evidence tending to show that no threat was made against the accused; that he was not physically mistreated; that he was not told it would be better for him to make a confession or worse for him if he did not; that no reward was offered or held out to him to get him to confess; that no inducement of any kind was made to him. This testimony was uncontradicted.
In that state of the record, we think the confessions were properly admitted in evidence unless the circumstances which antedated the confessions, along with those which prevailed at the time they were made, when considered with the age, character and situation of the defendant, demonstrate that he was deprived of his free choice to admit, to deny, or to refuse to answer. In other words, we come to a consideration of the so-called "totality of circumstances" rule sometimes applied by the Supreme Court of the United States in holding confessions improperly admitted. Gallegos v. State of Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325; Payne v. State of Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975; Watts v. State of Indiana, 338 U.S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L. Ed. 1192. See Phillips v. Alabama, 248 Ala. 510, 28 So. 2d 542.
There is no testimony in the record which positively shows that Duncan is a white man, but we gather such to be the case from certain situations shown by the record and the pictures of his hands, although not too clear, so indicate. The record does not show his age, but he cannot be of very tender years. He had a twelve-year-old son. He is uneducated to be sure. He cannot read, but there is nothing to show with any degree of certainty that he is not mentally alert except perhaps when he has had too much to drink, and he had been in custody from February 24, 1963, until March 6th, when his first confession was made; so presumably his mental condition at the time of the confession was not affected by his weakness for alcohol. There was some testimony given by Duncan's witnesses tending to show that he was easily influenced by suggestions, but this, standing alone, does not justify the conclusion that at the time the confessions were made Duncan was not fully capable of understanding the significance of his actions.
We are unwilling to say from the record before us that he was illegally detained. Sheriff Colvard testified that he was "charged" with the offense on Monday, February 25, 1963.
The record discloses that his twelve-year-old son visited him shortly after his confinement and while the young man was, of course, not qualified to counsel his father relative to his predicament, his visit tends to show that the officials did not hold Duncan incommunicado except perhaps for the first few days after he was brought to jail.
Duncan consented to have the pictures made on Tuesday, February 26th, according to Sheriff Colvard, and there is nothing in the record to support a contrary conclusion.
Duncan was questioned by several officials on Wednesday, February 27th, but it does not appear that the interrogation *865 was for an extended period of time, and he did not confess.
As we have shown above, the record is more or less silent as to what occurred in regard to Duncan from Wednesday, February 27th, until March 6th, the day on which he was taken to Montgomery. Certainly it does not support an inference to the effect that he was mistreated in any way. As far as the record discloses, he was not denied food, water or cigarettes at any time. He was free to contact friends, relatives or counsel if he had so desired.
The trip to Montgomery must have been made for the purpose of having a lie detector test made. We say this because Duncan, in his statement given on Wednesday, February 27, 1965, indicated that he would be willing to submit to such a test. He seems to have voiced no objection to the trip and there is testimony to the effect that he asked to go.
Perhaps the most serious question as to the voluntariness of the confessions given in Montgomery is the possible psychological coercion upon Duncan by being carried to the polygraph or lie detector room in the Montgomery Police Department. But in view of Lieutenant Wright's testimony, we cannot conclude that Duncan was in a state of fear or confusion which amounted to coercion. He was told that he did not have to submit to the interrogation and that he should not do so except of his own free will. Lieutenant Wright's testimony stands unimpeached and the nature of his testimony impresses us with his forthrightness. And, of course, the trial judge was better circumstanced to pass on this question.
We see no objection to permitting Sheriff Colvard, and perhaps others, to view and listen to the proceedings in the polygraph room from their vantage point outside the room. The situation is different from that presented in Aaron v. State, 271 Ala. 70, 122 So. 2d 360, which the writer and Justices Stakely and Coleman thought reversible error.
The circumstances connected with the confession or statement made by Duncan on March 7, 1963, after he was returned to Gadsden from Montgomery, seems to have been regular in all respects and was different from the previous statements only in immaterial respects.
If there were facts or circumstances to which Duncan could testify tending to show the involuntariness of the confessions on another trial he should be permitted to give such evidence outside the presence of the jury. Jackson v. Denno, supra.
We realize we may not have treated in detail each and every occurrence in connection with Duncan from the time of his confinement until the confessions were made, but we believe we have treated the important facts and we are unwilling to say that the confessions should have been excluded on the so-called "totality of circumstances" doctrine. We also realize that we have not treated in this opinion many of the decisions of the United States Supreme Court which apply that doctrine or rule, but to do so would only further extend this unusually long opinion and it would really serve no useful purpose because of the varying factual situations presented in those cases.
There is yet another matter which we should consider concerning the admissibility of the confessions and that is the so-called "fruit of the poisonous tree" doctrine, which is apparently imposed upon the courts of this state by Mapp v. Ohio, supra. In essence, that doctrine is to the effect that an unlawful search taints not only evidence obtained at the search, but facts discovered by a process initiated by the unlawful search. Fahy v. State of Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171; Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441; Silverthorne Lumber Co. v. United States, *866 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319; United States v. Paroutian, 2 Cir., 299 F.2d 486; United States v. Avila, D.C., 227 F. Supp. 3. This doctrine has generally been applied to cases involving searches in violation of the Fourth Amendment to the Constitution right against unlawful searches and seizures. Fahy v. State of Connecticut, supra; Wong Sun v. United States, supra; Silverthorne Lumber Co. v. United States, supra; United States v. Paroutian, supra; United States v. Avila, supra. But it can be applied to searches in violation of a statutory right. Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307. It has been applied to statements. Wong Sun v. United States, supra.
For other cases applying this doctrine, see: United States v. Goldstein, 2 Cir., 120 F.2d 485, affirmed, 316 U.S. 114, 62 S. Ct. 1000, 86 L. Ed. 1312; Hall v. Warden, 4 Cir., 313 F.2d 483; Takahashi v. United States, 9 Cir., 143 F.2d 118; People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651; Commonwealth v. Spofford, 343 Mass. 703, 180 N.E.2d 673; State v. Kitashiro (Hawaii), 397 P.2d 558.
The rule, however, does not extend to facts which, although actually discovered by a process initiated by the unlawful act, were obtained independently from a source sufficiently distinguishable to be free of the taint of illegality. Wong Sun v. United States, supra; Silverthorne Lumber Co. v. United States, supra; United States v. Sheba Bracelets, Inc., 2 Cir., 248 F.2d 134, cert. denied, 355 U.S. 904, 78 S. Ct. 330, 2 L. Ed. 2d 259; United States v. Rutheiser, D.C., 203 F. Supp. 891.
In United States v. Avila, supra, it was said:
We do not express an opinion as to whether the confessions in this case were rendered inadmissible because of the unlawful searches and seizures, but in view of another trial, we have called this doctrine to the attention of the trial court, for it is generally known that many criminal cases find their way into the federal courts after this court has affirmed, resulting in different holdings due to the application of principles of law not previously thought to be applicable to the trial of criminal cases in the state courts.
Counsel for Duncan strenuously insist that the trial court committed reversible error in permitting the State to introduce in evidence the pictures of the body of the deceased child. Some of the pictures are indeed gruesome, as they depict the female organ of the little girl, but under the evidence in this case they were admitted without error under the previous decisions of this court.
In Harden v. State, 211 Ala. 656, 101 So. 442, it was said that "if there is any evidence tending to support a reasonable inference that the homicide was committed to conceal another crime, evidence of such other crime is admissible."
Certain it is that the evidence in this case tends to show that the person who placed the little girl in the lake did so in an effort to conceal the fact that she had been sexually molested, which fact is clearly established by the evidence. See Hall v. State, 247 Ala. 263, 24 So. 2d 20; Miller v. State, *867 130 Ala. 1, 30 So. 379; Davis v. State, 213 Ala. 541, 105 So. 677.
The case of Cobern v. State, 273 Ala. 547, 142 So. 2d 869, bears marked similarity to this case on this question of the admission in evidence of photographs of the body of the deceased. Cobern was tried for robbery, but the evidence tended to show that he killed his victim. Her body was shown to have been in a deplorable condition, her skull practically beaten to pieces, and there was a 22-caliber rifle bullet wound in the chest. The doctor testified that those two injuries were sufficient to cause death. Her body was otherwise bruised and mutilated, including the puncturing of her vaginal area, evidently with a poker found in the room. During the course of the robbery prosecution, photographs of the victim's body were admitted over defendant's objection, including photographs of her vaginal area. In holding the admission of the photographs not to constitute reversible error, this court said:
This is a voluminous record, consisting of three large volumes. We have not in this opinion treated anything like all of the questions presented, but we hope we have treated those which will be helpful to the court and counsel on another trial.
It is an understatement to say that the murder of Sandy Ann Scott, an innocent baby, was an atrocious and horrifying crime. Whoever committed the act, if legally responsible, of course, needs to be punished but it is axiomatic that the guilty, as well as the innocent, must be accorded due process of law. We would like to point out that the trial judge was fully conscious of that fact and exerted every effort to prevent error from getting into the trial. But the recent holdings of the United States Supreme Court have injected into the trial of criminal cases questions which are new to the courts of this state, trial and appellate courts alike.
For the errors indicated, the judgment must be reversed. It is so ordered.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN, MERRILL and HARWOOD, JJ., concur.
SIMPSON and COLEMAN, JJ., concur specially.
COLEMAN, Justice (concurring specially).
I concur in reversal on the ground that evidence obtained by illegal search was erroneously admitted. I agree that the photographs and the evidence showing the confessions were admitted without error. As to other matters discussed I express no opinion.
SIMPSON, J., concurs in the foregoing. | June 30, 1965 |
e1e2c50e-8238-4b3a-a6b1-aa54d4147dd5 | City of Mobile v. Wooley | 180 So. 2d 251 | N/A | Alabama | Alabama Supreme Court | 180 So. 2d 251 (1965)
CITY OF MOBILE
v.
Floyd WOOLEY et al.
1 Div. 292.
Supreme Court of Alabama.
November 18, 1965.
*252 Robt. A. Beckerle, Mobile, for appellant.
Jack C. Gallalee, Caffey, Gallalee, Edington & Loveless, Mobile, for appellees.
MERRILL, Justice.
This is an appeal from a final decree in which the equity court held invalid certain ordinances of the City of Mobile, appellant, as they applied to complainants (appellees), and ordered that the complainants recover of appellant certain amounts based upon the license taxes paid under the ordinances.
Appellees operated business establishments on the Mobile Causeway in Baldwin County. They were outside the city limits, but were within the city's police jurisdiction.
The appellees filed their bill of complaint seeking a declaratory judgment on the validity of the license taxes they were paying, an injunction against the future collection of the taxes, and an accounting and refund of the taxes collected by Mobile under the ordinances. These specific prayers for relief were accompanied by a general prayer also.
All of the argued assignments of error are concerned with preliminary or procedural matters and the merits are not directly contested.
The first assignment of error is that the trial court erred in overruling the demurrer to the bill and each aspect thereof. The trial court merely overruled the demurrer to the bill of complaint. This is a general decree and such a decree constitutes only a ruling on the demurrer addressed to the bill as a whole. Pak-A-Sak of Alabama, Inc. v. Lauten, 271 Ala. 276, 123 So. 2d 122; Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749.
*253 The main purpose of the bill was to secure a declaratory judgment on the constitutionality of the ordinances. Subject to exceptions not here applicable, the rule is that where the bill for declaratory judgment shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. City of Mobile v. Jax Distributing Co., 267 Ala. 289, 101 So. 2d 295; East Gadsden Bank v. Bagwell, 273 Ala. 441, 143 So. 2d 438; Moore v. City of Fairhope, 275 Ala. 506, 156 So. 2d 366.
Here, a bona fide justiciable controversy was raised by the allegations of the bill and the demurrer was properly overruled. Authorities supra.
The other argued assignments charge error in connection with the issuing of the decree pro confesso or the refusal of the court to set it aside. A condensed statement of facts reveals that the bill was filed in 1955 and interrogatories were also filed. Interrogatories Nos. 36, 37 and 43 sought information as to what the cost of police protection for this territory was to the city. Those questions were proper under the decision in Hawkins v. City of Prichard, 249 Ala. 234, 30 So. 2d 659, where we held that a city cannot tax for revenue in its police jurisdiction.
Appellees filed a motion to require appellant to answer the interrogatories and the court ordered appellant to answer within twenty days from June 20, 1955. Appellant answered on August 22 (late) that on advice of counsel, it declined to answer. After a hearing, a default judgment was entered, conditioned that it would not take effect for twenty days if appellant answered. A demurrer to the bill was filed and later submitted for decree on April 9, 1956.
According to the record, no other action was taken until 1964, and in November, 1964, the demurrer was overruled. In December, appellant filed its answer denying that taxes were then being collected; but admitting that they had been collected from September, 1954, to March, 1956.
On December 14, 1964, the appellees filed a motion for a final decree because of appellant's failure to answer the interrogatories. Noting that a similar order requiring answer had been made in 1955, the trial judge ordered that the respondent file answers to the unanswered interrogatories by 11:00 A. M. on December 16, 1964.
The record indicates that the answers were filed at 11:37 A. M. on the date ordered. The judge, after a hearing on the appellees' motion for a decree pro confesso, ruled that the answers that were filed were incomplete, evasive, and did not fully answer the interrogatories, and the allegations of the complaint were taken as confessed. The appellant moved to set aside the decree pro confesso and, as a ground, asserted a desire to answer. This was denied.
On the 17th of December, appellees introduced testimony from the office of the clerk, charged with the collection of the taxes, as to the amounts that had been collected from the appellees. The ordinances under which the taxes were collected were also presented to the court. Appellant did not contest this evidence.
A final decree was entered on December 17, 1964, granting money judgments to the complainants and declaring the ordinances, as applied to these appellees, were invalid and void. A motion for rehearing was filed and the appellees' motion to strike the same was granted.
The thrust of appellant's argument is that the trial court's finding that the answers to the interrogatories were incomplete and evasive was an abuse of discretion and constituted error. We cannot agree with this contention.
*254 Appellant had at least four distinct and different opportunities to answer questions 36, 37 and 43, and failed to comply with three different specific orders of the court to answer or be held in default. The answers to questions 37 and 43 were dependent in part on the answer to question 36. And on October 21, 1955, appellant's sworn answer to question 36 reads:
(It is only fair to note that counsel who made this answer does not now represent appellant on this appeal.)
But in all the intervening time, there has not been any answer filed which could not be considered "incomplete and evasive."
Whether answers to interrogatories are sufficiently full is a matter of discretion with the trial court, and it is the general rule that matters resting in the sound discretion of the court will not be disturbed on appeal unless there is a clear abuse of discretion. Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381, and cases there cited.
The trial court's action in granting relief to appellees after appellant's failure to answer interrogatories is supported by our cases of Kimball v. Cunningham Hardware Co., 197 Ala. 631, 73 So. 323, and Rosenau v. Powell, 173 Ala. 123, 55 So. 789, and Equity Rule 39(b) which provides that upon the failure of the defendant to answer plaintiff's interrogatories, the court may "render a decree granting appropriate relief to the plaintiff against such defendant."
Appellant also argues that the rendering of the decree pro confesso for failure to answer the interrogatories was a denial of due process under the Constitution of the United States. We cannot agree. Such a contention was answered in Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S. Ct. 370, 53 L. Ed. 530, where the court said, in part:
See Annotation 144 A.L.R. 372.
And in our case of Albert Hass Lumber Co. v. Gibson, 172 Ala. 111, 54 So. 994, in discussing Sec. 4055, Code 1907, a predecessor of Equity Rule 39(b), the court said:
The cases cited by appellant from other jurisdictions are clearly distinguishable from the holding in the instant case and require no specific discussion.
No reversible error has been presented.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | November 18, 1965 |
81be4050-559f-4c28-ab62-b56431598e88 | Walker v. Alabama | N/A | 1121407 | Alabama | Alabama Supreme Court | REL: 01/17/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1121407
____________________
Ex parte Earnest Lee Walker
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Earnest Lee Walker
v.
State of Alabama)
(Mobile Circuit Court, CC-06-2129;
Court of Criminal Appeals, CR-11-0169)
STUART, Justice.
1121407
This Court issued a writ of certiorari to review the
Court of Criminal Appeals' decision that it did not have
jurisdiction to entertain Earnest Lee Walker's appeal
from the
new sentence imposed for his 2006 guilty-plea conviction for
second-degree receiving stolen property. The new
sentence
was
imposed after it was determined, following Walker's filing a
Rule 32, Ala. R. Crim. P., petition, that Walker's original
sentence exceeded the maximum authorized by law. The Court of
Criminal Appeals dismissed Walker's appeal by an order, from
which Judge Welch dissented. Walker v. State, [Ms. CR-11-
0169, Dec. 11, 2012] ___ So. 3d ___ (Ala. Crim. App. 2012).
We reverse and remand.
Facts and Procedural History
In June 2006, Walker pleaded guilty to the offense of
second-degree receiving stolen property, a violation of
§
13A-
8-19, Ala. Code 1975. The State established that at the time
of sentencing Walker had three prior felony convictions. The
trial court, applying the Habitual Felony Offender Act,
sentenced Walker to 15 years' imprisonment. Pursuant to the
plea agreement, the trial court ordered that the sentence run
2
1121407
concurrently with a sentence Walker was serving for a 2004
conviction.
In February 2010, Walker petitioned the circuit court for
postconviction relief, pursuant to Rule 32, Ala. R. Crim. P.,
from his 15-year sentence for the 2006 conviction for second-
degree receiving stolen property. In his petition, he argued
that his sentence was illegal because, he said, one of the
prior felonies used to enhance his sentence had been vacated
since his original sentencing. After the State conceded that
Walker's sentence had been improperly enhanced with the use of
a felony conviction that had subsequently been vacated and
that Walker was entitled to be resentenced, the circuit court
granted Walker's request for relief and ordered a new
sentencing hearing.
On September 21, 2011, the trial court conducted a new
sentencing hearing. According to the record, the trial court
stated that in light of the State's withdrawal of its request
to proceed under the Habitual Felony Offender Act it would not
apply the Habitual Felony Offender Act to Walker's new
sentence, and it resentenced Walker to 10
years'
imprisonment.
During the hearing, the following occurred:
3
1121407
"THE COURT: ... At this time, Mr. Walker, I'm going
to sentence you to 10 years to serve in [this case]
and that sentence again would be pursuant to the
limited grounds for the Rule 32 that I had already
granted.
"MR. WALKER: So is it concurrent with the '04 case,
Your Honor?
"THE COURT: Mr. Walker it is whatever the law says
it is. I'm not ordering anything special for you.
Just whatever the law requires in this case is how
it's going to be handled.
"MR. WALKER: The previous sentence was concurrent,
this is the purpose of me pleading guilty to [this
case] concurrent with '04. If you're resentencing
me today [in this case] and not running it
concurrent, then that was not part of the per se
plea agreement.
"THE COURT: I understand that's your position. I'm
telling you that whatever the law is, that's how
it's going to be applied in this case. I'm not
changing anything.
"MR. WALKER: Okay.
[Prosecutor]: Judge, would you go through on your
plea of guilty I find you guilty and sentence him so
that it's clear?
"THE COURT: Mr. Walker, I find you guilty of the
offense of receiving stolen property 2nd. I find
again that that plea is entered voluntarily,
knowingly, understandingly, and freely, and I
sentence you to 10 years to serve in accordance with
the statutory provisions for a Class C felony.
Anything else?
"[Prosecutor]: Thank you.
4
1121407
"MR. WALKER: I give notice of appeal, Your Honor."
On appeal, the Court of Criminal Appeals held that it was
without jurisdiction to consider Walker's appeal from his new
sentence, and it issued an order dismissing Walker's appeal.
In reaching its determination, the Court of Criminal Appeals
relied on its decision in Hart v. State, 939 So. 2d 948, 950
(Ala. Crim. App. 2005)(holding that because the Court of
Criminal Appeals had no statutory authority to review an
appeal from a circuit court's ruling vacating a sentence of
death and imposing a sentence of life imprisonment without the
possibility of parole, the appeal had to be dismissed).
1
Walker then petitioned this Court for certiorari review.
Standard of Review
"'This Court reviews pure questions of law in criminal
cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004)(quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala.
2003)).
Discussion
In a footnote, the Court of Criminal Appeals stated that
1
Walker could challenge the legality of his new sentence by
filing another Rule 32 petition.
5
1121407
Walker contends, and the State agrees, that the Court of
Criminal Appeals had jurisdiction to consider his appeal from
the judgment and the new sentence imposed at the sentencing
hearing conducted after the circuit court granted Walker's
request for postconviction relief, pursuant to Rule 32, Ala.
R. Crim. P., from an illegal sentence.
Before this Court can address the Court of Criminal
Appeals' jurisdiction to entertain Walker's appeal from his
new sentence, we must consider the meaning of the circuit
court's grant of Rule 32 relief in the form of a new
sentencing hearing.
Rule 32.1, Ala. R. Crim. P., sets forth the scope of the
remedy a circuit court can provide in response to a petition
for postconviction relief, stating:
"Subject to the limitations of Rule 32.2, any
defendant who has been convicted of a criminal
offense may institute a proceeding in the court of
original conviction to secure appropriate relief on
the ground that:
"(a) The constitution of the United States or of
the State of Alabama requires a new trial, a new
sentence proceeding, or other relief.
"(b) The court was without jurisdiction to
render judgment or to impose sentence.
6
1121407
"(c) The sentence imposed exceeds the maximum
authorized by law or is otherwise not authorized by
law.
"(d) The petitioner is being held in custody
after the petitioner's sentence has expired.
"(e)
Newly
discovered
material
facts
exist
which
require that the conviction or sentence be vacated
by the court ...
"....
"(f) the petitioner failed to appeal within the
prescribed time from the conviction or sentence
itself or from the dismissal or denial of a petition
previously filed pursuant to this rule and that
failure was without fault on the petitioner's part."
Rule 32.1(b) permits a circuit court to grant a Rule 32
petitioner relief from an illegal sentence by authorizing the
circuit court, without disturbing the underlying conviction,
to vacate the petitioner's sentence and order a new sentencing
hearing. When a Rule 32 court grants a petitioner relief from
an illegal sentence by ordering a new sentencing hearing, the
Rule 32 court, without disturbing the conviction, returns
jurisdiction over the underlying criminal matter to the trial
court for the purpose of conducting a new sentencing hearing
and pronouncing a new sentence. The Rule 32 court's grant of
a new sentencing hearing revives the underlying criminal
matter, authorizing the trial court to conduct a sentencing
7
1121407
hearing, independent of the Rule 32 action, and to resentence
the defendant, if appropriate. Cf. Magwood v. Patterson, 561
U.S. 230 (2010)(recognizing that the
granting of habeas relief
under 28 U.S.C. § 2254(b) invalidates
the
judgment authorizing
confinement and provides the State with the opportunity to
seek a new judgment through a new trial or a new sentencing
proceeding).
Judge Welch dissented from the Court of Criminal Appeals'
order dismissing Walker's appeal. This Court has considered
the argument made by Judge Welch in his dissent that a circuit
court's order granting a Rule 32 petitioner postconviction
relief from an illegal sentence and ordering a new sentencing
hearing is interlocutory and is not final until after the
trial court has conducted the new sentencing hearing and
resentenced the petitioner.
Judge
Welch
maintains that, after
the petitioner has been resentenced, the order granting Rule
32 relief becomes final, and the petitioner may appeal the
decision on the Rule 32 petition and his or her new sentence.
The determination to grant or to deny postconviction relief
and the propriety of the new sentence, however, are two
distinct judicial matters. The petitioner's new sentence is
8
1121407
the result of a complete and independent proceeding, and the
legality of the new sentence is not the subject of the Rule 32
proceeding in which the new sentencing hearing was granted.
Indeed, the grounds with regard to the legality of the new
sentence were not pleaded in the Rule 32 petition; therefore,
to hold that the grant of postconviction relief is
interlocutory and that appellate review of that action is not
proper until after the new sentence is pronounced would extend
the scope of a decision on a Rule 32 petition and its
appellate review
beyond
the parameters provided in the Alabama
Rules of Criminal Procedure. Dunaway v. State, [Ms.
CR–06–0996, Dec. 18, 2009] ___ So. 3d ___, ___ (Ala. Crim.
App.
2009)("This
issue
was
not
raised
in
Dunaway's
consolidated amended Rule 32 petition. Therefore, it is not
properly before this Court."); Hooks v. State, 21 So. 3d 772,
795 (Ala. Crim. App. 2008)("These claims were not raised in
Hooks's
third
amended
postconviction
petition.
They
are
raised
for the first time on appeal; thus, they are not properly
before this Court.").
Now, this Court must determine the appropriate procedure
by which a defendant can appeal the legality of a sentence
9
1121407
that is imposed at a sentencing hearing conducted after the
circuit court has granted the defendant postconviction relief
from an illegal sentence.
A defendant's right to appeal in a criminal case is
provided in § 12-22-130, Ala. Code 1975, which states:
"A person convicted of a criminal offense in the
circuit court or other court from which an appeal
lies directly to the Supreme Court or Court of
Criminal Appeals may appeal from the judgment of
conviction to the appropriate appellate court."
See Thornton v. State, 390 So. 2d 1093, 1096 (Ala. Crim. App.
1980)("Appeals lie
only from judgments of conviction."). Rule
26.2(b)(1), Ala. R. Crim. P., states:
"Upon a determination of guilt on any charge, or on
any count of any charge, judgment pertaining to that
count or to that charge shall be pronounced and
entered together with the sentence. Pronouncement
of judgment may be delayed if necessary until such
time as sentence can be pronounced."
(Emphasis added.)
Subsections (a) and (b) of Rule 26.9, Ala. R. Crim. P.,
provide that a trial court shall pronounce a judgment of
conviction and a sentence in open court. Rule 26.9(b)(4)
provides that, at the time of the pronouncement of sentence,
the trial court shall inform the defendant of the defendant's
right to appeal.
10
1121407
In Ex parte Eason, 929 So. 2d 992 (Ala. 2005), this Court
considered whether a conviction and sentence were ripe for
appeal when the record indicated that the trial court had not
expressly adjudicated a defendant guilty of the offense. In
considering the issue, we noted that the Committee Comments to
Rule 26.1, Ala. R. Crim. P., state:
"'There is no absolute requirement in Alabama that
the court enter a formal adjudication of guilty upon
the record where the sentence is in compliance with
a verdict of guilty, the reasoning being that a
judgment of guilt is implied from the sentence.
Thames v. State, 12 Ala. App. 307, 68 So. 474
(1915); Shirley v. State, 144 Ala. 35, 40 So. 269
(1906); Driggers v. State, 123 Ala. 46, 26 So. 512
(1898).'"
929 So. 2d at 994. We stated:
"Because a judgment of conviction does not have
to be phrased in formal language or include
particular words of adjudication, we hold that if
the record is clear that the trial court intended to
adjudicate a defendant guilty and the sentence order
necessarily
involves
the
substance
of
the
adjudication, then a judgment of conviction has been
entered and the defendant may appeal."
929 So. 2d at 995. In other words, a judgment of conviction,
which is a necessary indicator that a case is ripe for appeal,
consists of a determination of guilt of the offense and a
pronouncement of sentence. Because the record in Eason
indicated that a judgment of conviction had been entered,
11
1121407
albeit
implicitly, this Court held that Eason's conviction
and
sentence were ripe for appeal.
A reading of our statutes, rules, and caselaw establishes
that a judgment of conviction as required in § 12-22-130,
Ala. Code 1975, for determination that a defendant's
conviction of a criminal offense is ripe for appeal consists
of the pronouncement of both a determination of a defendant's
guilt and a sentence. When both a determination of guilt and
a sentence are evident from the record, a judgment of
conviction is set forth, and a defendant's case is ripe for
appeal. Cf. Berman v. United States, 302 U.S. 211, 212
(1937)(noting that, in a criminal case, the final judgment
includes the sentence); Miller v. Aderhold, 288 U.S. 206, 210
(1933).
Walker contends, and the State agrees, that a judgment of
conviction was entered at the sentencing hearing in this case
and, consequently, that Walker's new sentence was ripe for
appeal to the Court of Criminal Appeals. The record
establishes that, at the sentencing hearing, the trial court
reaffirmed
its
determination
of
guilt
and
pronounced
sentence;
therefore, a judgment of conviction was entered. Walker
12
1121407
properly gave notice of appeal at the sentencing hearing. The
Court of Criminal Appeals had jurisdiction to consider
Walker's appeal from his new sentence.
This Court has considered the Court of Criminal Appeals'
reliance on Hart to support its conclusion that that court
lacked jurisdiction over Walker's appeal. We agree with Judge
Welch that Hart is inapposite. As Judge Welch observed, the
holding in Hart is limited to the "unique set of procedural
circumstances" in that case. ___ So. 3d at ___. Hart, who was
16 years old when he committed capital murder, had been
sentenced to death in 1990. In 2005 the United States Supreme
Court decided Roper v. Simmons, 543 U.S. 551 (2005), which
prohibited the imposition of a death sentence on any
individual who was under the age of 18 when the murder was
committed. The Alabama Attorney General, pursuant to a writ
of habeas corpus from a federal district court mandating that
Hart be resentenced in light of Roper, petitioned the trial
court to vacate Hart's death sentence and to sentence him to
life imprisonment without the possibility of parole. Hart
2
The only two sentences available in Alabama for a
2
defendant who has been convicted of capital murder are death
and life imprisonment without the possibility of parole. See
13
1121407
appealed his new sentence to the Court of Criminal Appeals,
and that court dismissed the appeal, stating:
"[N]o statute ... allows Hart to appeal the circuit
court's ruling vacating his sentence of death and
imposing a sentence of life imprisonment without the
possibility of parole. Hart has already obtained
appellate review of the proceedings that [led] to
his capital-murder conviction."
938 So. 2d at 950.
The decision in Hart is limited to the unique facts of
that particular case. Hart was a capital defendant, his death
sentence had been invalidated by a United States Supreme Court
decision, and he was resentenced at the request of the State,
acting pursuant to a federal court's grant of habeas relief.
Because of the specificity of the Roper decision and the
statutory limitations in capital sentencing, the trial court
did not have any discretion in resentencing Hart and sentenced
him to the only available sentence provided by law. See Roper
and § 13A-5-45, Ala. Code 1975.
The facts in this case are appreciably different from the
facts in Hart. Unlike the trial court in Hart, the trial
court in this case conducted a new sentencing hearing,
§ 13A-5-45, Ala. Code 1975.
14
1121407
pronounced Walker guilty of second-degree receiving stolen
property,
exercised
its
discretion
in
resentencing
Walker,
and
ordered Walker to serve 10 years' imprisonment. Walker's new
sentence was the result of the trial court's new assessment of
the applicable sentencing circumstances. The trial court's
exercise of discretion creates a significant difference
between the facts in Hart and in this case, and due process
mandates that Walker have an opportunity to appeal his new
sentence.
Conclusion
Based on the foregoing, the judgment of the Court of
Criminal Appeals is reversed and this case is remanded for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Bolin, Parker, Murdock, Wise, and Bryan,
JJ., concur.
Shaw, J., concurs in the result.
Main, J., recuses himself.
15 | January 17, 2014 |
a7b6ca1b-7e1f-4f61-8077-02715f68d21a | Cazalas v. State | 178 So. 2d 565 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 565 (1965)
Cleve G. CAZALAS
v.
STATE.
1 Div. 265.
Supreme Court of Alabama.
August 12, 1965.
Rehearing Denied September 30, 1965.
Harry Seale, Mobile, for petitioner.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty., Gen., opposed.
COLEMAN, Justice.
Petition of Cleve G. Cazalas for certiorari to the Court of Appeals to review and *566 revise the judgment and decision in Cazalas v. State, Ala.App., 178 So. 2d 562 (1 Div. 983).
Writ denied.
LAWSON, GOODWYN and HARWOOD, JJ., concur. | August 12, 1965 |
466dbc4e-23b9-4b27-b17a-edeafd7d7588 | Duck v. State | 176 So. 2d 497 | N/A | Alabama | Alabama Supreme Court | 176 So. 2d 497 (1965)
Ricky Sanders DUCK
v.
STATE of Alabama.
5 Div. 796.
Supreme Court of Alabama.
June 17, 1965.
*498 Tom Radney, Alexander City, for appellant.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
GOODWYN, Justice.
Appellant, 14 years of age (born on August 20, 1949), was brought before the Juvenile Court of Tallapoosa County pursuant to a petition of the sheriff of said county filed in said court on January 3, 1964, praying that "summons issue to the said child" and to his parents "requiring them to show cause why said child should not be adjudged a ward of the state and dealt with according to the provisions of the law." The petition alleges that "said child should be adjudged a ward of the state and in need of its care and protection, in that he so deports himself, to endanger the morals, health or general welfare of society"; and, further, "that on the night of January 2, 1964, said child * * * shot to death his sister, Glenda Duck," and "has confessed to this offense."
On April 24, 1964, the Juvenile Court made a finding that appellant "cannot be made to lead a correct life and cannot be properly disciplined under the provisions of" Chapter 7, Tit. 13, Code 1940 (providing for, and prescribing the jurisdiction of, juvenile courts), and transferred appellant "to the jurisdiction of the Circuit Court of Tallapoosa County, the same being a Court having jurisdiction of the offense with which the said child is charged, there to be proceeded against according to law."
On the same day appellant took an appeal from said judgment to the circuit court of Tallapoosa County, sitting as a court of equity, pursuant to Code 1940, Tit. 13, § 362. This section provides for a trial de novo in the circuit court.
On May 4th the equity court appointed, as guardian ad litem for appellant, the attorney who therefore had been representing him.
A hearing of the appeal was had on June 18th. On July 2nd, the court rendered a decree that appellant be "transferred to the Circuit Court of Tallapoosa County, Alabama, at law, there to be placed upon the criminal docket of said court and there to be proceeded with according to law"; that appellant "be and he is hereby bound over to the Grand Jury of Tallapoosa County"; and that appellant's bail bond shall remain in full force and effect pending the action of said Grand Jury." This appeal, taken on July 6th, is from that decree.
The statute of primary interest in this proceeding is Code 1940, Tit. 13, § 364, which provides, in pertinent part, as follows:
The foregoing was applicable both in the Juvenile Court and in the Equity Court. See: Stapler v. State, 273 Ala. 358, 363, 141 So. 2d 181; Code 1940, Tit. 13, § 362, supra. Section 362 provides that, "[U]pon appeal, the circuit court shall try the case de novo and shall proceed, under and in pursuance of the intent and terms of this chapter, to render such judgment as to it shall seem just and for the best interests of the child."
The decisive question on this appeal is whether the evidence supports the decree appealed from. In other words, does the *499 evidence support the finding that appellant "cannot be made to lead a correct life and cannot be properly disciplined under the provisions of this chapter" (Code 1940, Chapter 7, Tit. 13, §§ 350-383, as amended)?
The evidence relied on to support the decree consists of the alleged crime, appellant's confession that he committed the crime, and testimony of the judge of the Juvenile Court. All of the other evidence, including that given by two psychiatrists and a psychologist from Bryce's Hospital, where appellant was under observation for several months, and that of a number of other witnesses having knowledge of appellant's past behavior, is clearly to the effect that appellant can "be made to lead a correct life."
Our view is that the competent and legal evidence (see Act No. 101, appvd. June 8, 1943, Gen.Acts 1943, p. 105; included in unofficial Recompiled Code 1958 as § 372(1), Tit. 7) is not sufficient to support the decree appealed from, thereby necessitating its reversal and the remandment of the cause to the circuit court.
It has been held that evidence concerning the alleged crime is relevant only on the issue of delinquency, which means that such evidence cannot alone be the basis for holding that a child found to be delinquent cannot "be made to lead a correct life." See: Guenther v. State, 3 Div. 58, Ala.Sup. (MS) (May 27, 1965); Ex parte State ex rel. Echols, 245 Ala. 353, 355, 17 So. 2d 449. From Echols is the following:
This means that evidence touching on the alleged crime is to be considered only in determining whether the child is a "delinquent child," as that term is defined in § 350(3), Tit. 13, Code 1940, so as to make him subject to commitment under the provisions of § 361, Tit. 13, Code 1940. Such evidence cannot be considered in determining whether the child "can be made to lead a correct life," that is, in deciding whether he should be transferred "to the jurisdiction of any other court in the county having jurisdiction of the offense with which the child is charged, there to be proceeded against according to law" (§ 364, Tit. 13, Code 1940).
Assuming, without deciding, that appellant voluntarily admitted the offense, such admission likewise would not be relevant on the question whether he can "be made to lead a correct life."
The judge of the Juvenile Court was called as a witness by the state. His testimony related to his decision and his reasons for it. It was not proper to consider such testimony. Code 1940, Tit. 13, §§ 362 (providing that "[u]pon appeal, the circuit court shall try the case de novo * * *"), 364 (providing that "[i]n the trial in the court to which transfer is made, neither the fact that the case has been transferred from the juvenile court nor any of the proceedings had in the juvenile court shall be given in evidence against the child"), 377 (providing that "[n]o disposition of the case of a child dealt with for delinquency under this chapter * * * shall be given or heard in any civil, criminal, or other cause or proceeding whatever, or in any other court," or "be lawful, or proper evidence against such child or parent, or parents, for any purpose; * *"). There is no doubt, from a consideration of the trial court's opinion written as a prelude to its decree, that the testimony of the judge of the Juvenile Court was given considerable weight. As there stated:
"* * * On April 24, 1964 the Judge of the Juvenile Court, Hon. Charles C. *500 Adams, determined that the Appellant `cannot be made to lead a correct life and cannot be properly disciplined under the provisions of Chapter 7, Title 13, Alabama Code of 1940.' * * *"
* * * * * *
In order to transfer the cause to the circuit court at law, there must have been legal evidence sufficient to support a finding that the minor "cannot be made to lead a correct life and cannot be properly disciplined under the provisions" of Chapter 7, Tit. 13, § 350 et seq., providing for juvenile courts. We find no such evidence in the record before us. "A finding, which requires evidence to support it, but which is not supported by evidence, cannot be allowed to stand." Stapler v. State, supra.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | June 17, 1965 |
c54c82ad-2ddb-41ce-8110-8189b1168afe | Keeton v. State | 175 So. 2d 774 | N/A | Alabama | Alabama Supreme Court | 175 So. 2d 774 (1965)
Marvin D. KEETON
v.
STATE of Alabama.
8 Div. 198.
Supreme Court of Alabama.
May 27, 1965.
*775 Marvin D. Keeton, pro se.
Richmond M. Flowers, Atty. Gen., for the State.
MERRILL, Justice.
Appellant is in the State Penitentiary under a sentence of 25 years for robbery which was imposed by the Circuit Court of Colbert County on November 5, 1963. No notice of appeal was given at that time, but appellant did, on January 14, 1964 and on March 12, 1964, file a petition in writing with the Circuit Court of Colbert County giving notice of appeal, moving for appointment of counsel on appeal, and applying for a transcript of the evidence, under Act No. 525, Acts of Alabama 1963, (see Tit. 15, § 380(14)-380(25), Recompiled Code of 1958); and seeking to file his appeal as a pauper.
We have verified the fact that the trial court denied all the requests on May 28, 1964, holding that "the defendant has not availed himself of the remedy within the time allowed by law." It is from this ruling that this appeal has been taken.
The trial court was correct in holding that the requests for transcript and counsel were not within the time prescribed by Act 525.
But any person convicted of a criminal offense may appeal, Tit. 15, § 367. Code 1940, and the appeal must be taken within six months, Tit. 15, § 368. An appeal is taken within the meaning of the statute when the record shows the defendant has expressed a desire to appeal. Relf v. State, 267 Ala. 3, 99 So. 2d 216. Appellant expressed his desire to appeal in writing within six months after sentence and thereby perfected his appeal. The trial court erred in holding that the appeal was not taken within the time allowed by law.
That brings us to the question of the availability of counsel, and the providing of a transcript as provided for in Act 525.
We think the Act was written and passed with the understanding that even though the statute, Tit. 15, § 368, gives six months in which to appeal, that notice of appeal in most criminal cases is given and entered when sentence is passed. We think the time limitation for the petitioning for a transcript of the evidence only begins to run after the appeal is taken, provided it was taken within six months. This is borne out in the statement in Section 1 of the Act (Tit. 15, § 380(14)) that: "It is the purpose of Sections 380(14)-380(25) of this title to provide such defendants or petitioners with a transcript of the evidence or a part thereof and a record for a proper and equal review in certain criminal cases and such other cases wherein it is made to appear that a convicted defendant is indigent *776 and desires to take an appeal and obtain a judicial review of matters that occurred at his trial, or hearing."
There would be no field of operation for Act 525 until an appeal is taken either to this court or to the Court of Appeals.
We hold that the appeal was taken within the time allowed by statute and the trial court is directed to ascertain if the defendant is indigent as he claims, and if so, to appoint counsel and order the furnishing of a free transcript as provided by the appropriate statutes in order that his appeal from the original conviction may be considered in this court.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | May 27, 1965 |
a13b9e44-c1ea-44bf-9f91-4a106d388def | Mastin v. Merchants National Bank | 177 So. 2d 817 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 817 (1965)
Eleanor Duane Chase MASTIN et al.
v.
MERCHANTS NATIONAL BANK OF MOBILE et al.
1 Div. 254.
Supreme Court of Alabama.
August 5, 1965.
*818 Thornton & McGowin, Mobile, for appellants.
Lyman F. Holland, Jr., Chas. B. Arendall, Jr., Hand, Arendall, Bedsole & Johnston, Geo. A. Stone, Jr., Ralph Kennamer, Vincent F. Kilborn, Inge, Twitty, Duffy & Prince, and McCorvey, Turner, Johnstone, Adams, & May, Mobile, for appellees.
MERRILL, Justice.
This case is related to the cases, Mastin v. First National Bank of Mobile, Ala., 177 So. 2d 808, this day decided, but presents different questions and is concerned with a different trust. The appeal is from a decree in a declaratory judgment proceeding to construe an inter vivos trust.
On August 15, 1930, Dr. William M. Mastin of Mobile received from his daughter Zemma $100,000 worth of securities by bill of sale. That same day, Dr. Mastin executed a trust agreement with the Merchants National Bank of Mobile. The trust agreement covered the identical securities which Zemma had transferred to him. The trust was for her use and benefit. Dr. Mastin died in February, 1933, leaving surviving him his widow and his daughter Zemma. His widow died intestate in December, 1938, leaving Zemma as her sole heir and next of kin. Zemma died on July 6, 1962, leaving a will and her next of kin were a first cousin, Claudius Henry Mastin Roberts, and the appellants, who are the widow and children of another first cousin, Edward Vernon Metcalfe Mastin. [Since this trust is of personal property, it passes to the doctor's next of kin rather than heirs. However, as they are the same in this case, the term "heirs" is sometimes used for sake of brevity, though the term next of kin would be more accurate.]
Zemma Mastin was properly cared for all her life and at her death, the trust fund still amounted to $100,287.45. The trustee, The Merchants National Bank of Mobile, filed a bill for declaratory judgment seeking instructions from the court as to whom the balance in the trust should be paid.
The significant incidents of the trust were:
aall income was payable to Zemma for life;
bthe trustee was given broad powers of investment and sale, subject to advice by Dr. Mastin during his lifetime, and after his death, advice by Zemma;
cthe trust was irrevocable;
dthe trustor reserved the right during his lifetime to make payments out of the principal to Zemma;
eafter his death, Zemma had the right to demand 50% of the principal during her life or by will, and during her lifetime, the trustee could use it all for Zemma;
fupon Zemma's death, the trustee should pay all her debts, funeral expenses, costs and expenses of the administration of her estate; and
g"distribute and pay over the whole * * * as may be directed by the said Trustor in his last will."
We quote the only provision in the trust relating to the unused portion of the trust:
Dr. Mastin executed his will ten days after setting up this trust, but made no mention of it. Zemma could have drawn 50% of the trust assets by deed or disposed of 50% by will, but she did not specifically exercise the power. It never became necessary for her to use any of the trust assets during her lifetime other than income, and her own estate was solvent.
The decree of the trial court held that by Item Twelfth of Zemma's will (Mastin v. First National Bank of Mobile, Ala., 177 So.2d 808), she "exercised a testamentary power of appointment" of 50% of the trust and held that the balance of the trust "shall constitute a portion of the probate estate" of Dr. Mastin and be paid over to the executor of his estate. (His executor was still qualified and functioning as such.)
Appellants argue that the court erred in holding that Item Twelfth of Zemma's will exercised the power over 50% of the trust assets; and erred in not holding that the trust descended to the doctor's heirs who were determined at the time of the termination of the trust.
We treat the last objection first, because the most important question presented is the determination of the time at which the heirs of Dr. Mastin are determined. If they are determined as of the death of Dr. Mastin, then his widow and Zemma were his heirs and next of kin and when his widow died intestate, Zemma was his sole heir. But if his heirs are determined as of the termination of the trust after Zemma's deaththen the appellants and the other nephew are his only heirs and next of kin.
Appellees contend that there was an interest "remaining" in Dr. Mastin when he created the trust (technically, we think "reversion" is more correct than "remainder"); that up until the moment of Dr. Mastin's death he had the right to dispose of, by his will, that portion of the trust assets which was not disposed of during Zemma's lifetime or by her will; that he failed to exercise this right and that interest passed to his next of kin and heirs at law, subject to be divested by the action of the trustee and/or Zemma; that the heirs and next of kin of Dr. Mastin were determined at his death, and his rights in the trust descended ultimately to Zemma and were part of her residuary estate which was disposed of in Item Twelfth of her will.
Appellants contend that Dr. Mastin made an unconditional delivery of the stocks and bonds to the trustee, expressly creating an irrevocable trust and reserving only a testamentary power of appointment; that he executed his will ten days after creating this trust, but did not exercise the power of appointment; that nothing remained in Dr. Mastin which could be passed on to his heirs or next of kin at his death; that the trustee took title to this personal property in fee simple; that title could not vest in Dr. Mastin's next of kin until six months after Zemma's death; that this trust was not merely a life estate in Zemma, but was for her benefit even after her death; and that the right to the trust assets did not come into existence until after Zemma's death and vested only then in the next of kin of Dr. Mastin.
We are inclined to agree with appellants. We have found no case exactly in point although there is an excellent annotation in 27 A.L.R.2d 692.
*820 Here, Dr. Mastin completely gave away the securities constituting this trust and title to them was in the trustee. He reserved only a testamentary power of appointment. But even though he executed his will ten days after creating the trust, he did not mention the trust, nor did he mention it in any of the codicils to his will.
The power of appointment by will is not a property right, but a personal privilege. Warren v. Sears, 303 Mass. 578, 22 N.E.2d 406, 127 A.L.R. 595; Bienvenu v. First National Bank of Atlanta, 193 Ga. 101, 17 S.E.2d 257; 72 C.J.S. Powers § 1, p. 402; 41 Am.Jur., Powers, § 2, p. 806. When Dr. Mastin failed to exercise that power during his lifetime or by his will, it died with him and was not descendable. He could not foresee whether the corpus of the trust would have to be consumed for Zemma's care and he could not foresee whether there would be a surplus or balance in the trust. Actually, the matter of a surplus could not be determined until six months after Zemma's death, the time in which creditors could file claims, because the trust provided for the payment of her debts.
We think this surplus is due to go to Dr. Mastin's next of kin who were the next of kin when it was definitely ascertainable that there would be a surplus, i.e., upon the termination of the trust, caused by the death of Zemma Mastin. His next of kin at that moment were his nephew, Claudius H. M. Roberts, and appellants.
We are influenced in this decision by the principle that one's property, given in trust on condition, should return to the blood line. This is "a circumstance usually considered as of some significance in the construction of wills." Bingham v. Sumner, 206 Ala. 266, 89 So. 479.
Appellees insist that we should follow Davis v. Lynchburg National Bank & Trust Co., 198 Va. 14, 92 S.E.2d 278. We think one statement in the trust in that case shows a clear distinction. Clause (E) of the trust agreement provided:
This showed an unmistakable direction that the unspent portion of the trust should revert to and become his estate. In contrast, Dr. Mastin's trust agreement and his will were silent as to any direction or intention.
We cannot agree with the trial court that by Item Twelfth of Zemma Mastin's will, "she effectively exercised a testamentary power of appointment of one-half of the principal and income of the Trust given her by the terms of the Trust." The only possible reference to this trust in Item Twelfth of Zemma's will was the general residuary clause, "It is my will, and I hereby direct, that the remainder and residue of my estate, real, personal and mixed shall be held by the First National Bank of Mobile, Alabama, upon the following terms: * * *." (Emphasis supplied.) This particular trust was not part of her estate and some affirmative action by her was required to make 50% of it a part of her estate, but she took no such action.
It is at least uncertain, if not speculative, as to whether this residuary clause includes the exercise of the power given her in the trust agreement as to 50% of the trust. In Cramton v. Rutledge, 157 Ala. 141, 47 So. 214, we said:
The question is so uncertain here that we must hold that the general residuary clause in Zemma's will did not have the effect of executing her "power" given in this trust.
Finally, appellants argue that the balance in the trust goes to appellants and not to Dr. Mastin's surviving executor, the First National Bank of Mobile. In this, the trial court did not err. Tit. 61, § 8, Code 1940, provides: "All property not disposed of by will must be administered and distributed, as in the case of intestacy, by the executor or the administrator with the will annexed." It is undisputed that Dr. Mastin made no disposition of this property by his will. The statute requires that this property "be administered and distributed" by the executor.
In summary, we hold that the next of kin of Dr. Mastin as to this trust fund were determined after the death of Zemma Mastin and the termination of the trust; that Zemma did not dispose of any of this trust fund in her will and that the complainant trustee should pay the balance, less fees and expenses, to Dr. Mastin's surviving executor, The First National Bank of Mobile, for distribution to those who were Dr. Mastin's next of kin after Zemma's death.
It follows that the decree of the trial court is reversed and the cause is remanded with directions to order the distribution of the trust funds as stated in this opinion.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | August 5, 1965 |
5b803a72-a741-48b6-b71b-b21ff51cfd0e | Eaton v. State | 177 So. 2d 444 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 444 (1965)
Gerald EATON
v.
STATE.
2 Div. 464.
Supreme Court of Alabama.
June 30, 1965.
*445 John W. Drinkard, Linden, for appellant.
Richmond M. Flowers, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
HARWOOD, Justice.
This appellant has been found guilty of murder in the first degree and sentenced to death.
The evidence tends to show that the appellant and three companions drove into Sumter County, Alabama, from Texas. They were in a Ford automobile, and had heard police radio broadcasts for their apprehension. Shortly after entering Alabama from Mississippi, they saw a highway patrol car apparently following them.
Speeding up and turning down a country road they eluded the patrol car, and eventually drove behind a country church where they spent the night. The next day, driving at random they stopped at a rural negro church. A well was near this church. They decided to "put someone in the well" that night.
After dark they drove to the home of Jack Stone. No one being there they burglarized the house, ransacking it thoroughly. The appellant testified they found some beer and whisky in the Stone home, and he had several cans of beer and about a half of a fifth of whisky.
After dark the quartet then drove to the home of Mr. and Mrs. Leonard Culpepper. The Culpeppers being absent, they entered the home and were in the process of burglarizing this home when the Culpeppers returned.
Mrs. Culpepper entered the house first. Upon observing the appellant and his companions with drawn guns she screamed. The appellant struck Mrs. Culpepper a severe blow on the head with a pistol, knocking her to the floor. As Mr. Culpepper entered the house he was covered by the guns in the hands of the four burglars.
After tying up the Culpeppers and ransacking their home the quartet placed Mrs. Culpepper in the Ford automobile, and Mr. Culpepper was placed in his own automobile. With the appellant driving the Culpepper car, followed by the Ford, the quartet drove to the well in the churchyard. As they came to a stop at the well Mr. Culpepper was shot three times by either the appellant or by his companion Lokos.
The well cover was removed and the Culpeppers, still bound, were thrown head first into the well. The cover was replaced, and the quartet drove off.
Miraculously, Mrs. Culpepper survived this ordeal. The next morning her cries *446 were heard by a passerby and help was summoned. Mrs. Culpepper was removed from the well, as was the body of Mr. Culpepper. Mrs. Culpepper has been largely confined to a hospital since, but was able to testify at the trial below.
Upon their arrest in Texas, after apparently committing other crimes in that state, the quartet confessed to the Culpepper crime. These confessions were repeated upon their return to Alabama.
Even the appellant's own testimony established his guilt of murder in the first degree.
We have not attempted to set out the evidence in all its gory details, in that we are clear to the conclusion that certain statements made by the solicitor in his argument to the jury, and to which objections were interposed and overruled, compel a reversal of this judgment. Such conclusions are necessitated if prior pronouncements of this court are adhered to and followed. These landmarks of our law cannot be ignored.
We copy the following excerpts from the record in reference to these improper arguments, numbering the statements as they appear:
So far as disclosed by the record, Sheriff Bratton was present when the accused were returned to Alabama and questioned in Linden. The present sheriff of Sumter County testified that he was appointed as such sheriff following Sheriff Bratton's death. There is no testimony in the record as to the circumstances or cause of Sheriff Bratton's death. Certainly there is no evidence tending to show that it might be said that he gave his life to the investigation.
The above argument was completely de hors the record and therefore improper. Its prejudicial effect is obviously present.
We now consider that portion of the solicitor's argument as indicated in paragraph 2 above.
In Cobb v. State, 248 Ala. 548, 28 So. 2d 713, the solicitor, in arguing for infliction of the death penalty, made statements as to the possibility of a pardon or parole in case of a verdict for life imprisonment. Upon objection being interposed, the solicitor withdrew the remark, and the trial court *447 instructed the jury that they had no concern with what other officials might do, their duty being to render a true verdict on the facts of the case. In view of the court's action in the premise, the judgment was affirmed, but the court observed:
In Oliver v. State, 232 Ala. 5, 166 So. 615, the argument of the solicitor that there was a Governor with pardoning power, was designated as improper. This argument was, however, excluded by the court, thus saving the necessity of a reversal.
In Boyle v. State, 229 Ala. 212, 154 So. 575, the solicitor stated to the jury in his argument that the effect of finding the defendant not guilty by reason of insanity would be to "put him on the ground." The defendant's objection to this argument was overruled. In holding this ruling erroneous, the court wrote:
To the same effect is Wise v. State, 251 Ala. 660, 664, 38 So. 2d 553, where the solicitor had argued:
Objection to this remark was overruled. Concerning this incident this court wrote:
In the recent case of Dunn v. State, 277 Ala. 39, 166 So. 2d 878, the solicitor argued:
Objection to this argument was overruled. The court held such ruling to be reversible error.
Again, in Taylor v. State, 42 Ala.App. 617, 174 So. 2d 335, the court charged the jury in a prosecution for taking improper liberties with a child under sixteen years of age:
The Court of Appeals held this reference to some other "body, or board, or persons" to be reversible error.
The above excerpts show clearly that the argument of the solicitor in this case was highly improper. The trial court, by overruling the objections of defense counsel to the argument, indicated its approval of the statement as being correct. Burch v. State, 32 Ala.App. 529, 29 So. 2d 422; McCray v. State, 261 Ala. 275, 74 So. 2d 491.
The only inference to be drawn from the solicitor's argument in the present *448 case that, "A man like this, if he was to get off with life imprisonment, he would be out and around"would be that the accused would either escape the penitentiary, or be paroled. Neither event was for the consideration of the jury.
The remaining portion of the statement, "or kill some convict there in the penitentiary," was improper as a statement of a fact not in the record, and further was not susceptible of proof. The probable inflammatory and prejudicial effect of such an argument cannot be denied.
While the defendant's own testimony shows him to be guilty of murder in the first degree, it might be argued that the evidence being uncontradicted, the doctrine of error without injury (Supreme Court Rule 45) might well be applied. Even so, we are here concerned not only with the degree of guilt but also with the imposition of the death penalty.
In Lawley v. State, 264 Ala. 283, 87 So. 2d 433, the defendant had been sentenced to life imprisonment on charges of rape and carnal knowledge. In response to an inquiry from a juror as to whether the defendant after a number of years, would be eligible for parole, the court stated that it was possible with a life sentence he might, with a good record, qualify for parole after fifteen years. Upon objection by defense counsel to this instruction, the court made further remarks and then stated he was withdrawing anything he said in reference to parole. This court held that the statement in reference to the withdrawal was insufficient to remove the prejudicial quality of the instructions, and wrote:
For the error above noted, the judgment in this case must be reversed.
Reversed and remanded.
All the Justices concur. | June 30, 1965 |
4e2778dd-17d7-4aca-afd4-b37938143878 | McBrayer v. Smith | 177 So. 2d 571 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 571 (1965)
Otis W. McBRAYER et al.
v.
Victoria SMITH.
8 Div. 172.
Supreme Court of Alabama.
July 15, 1965.
*572 T. J. Carnes, Albertville, for appellants.
Clark E. Johnson, Jr., Albertville, for appellee.
HARWOOD, Justice.
For and in consideration of support and care during her life, Victoria Smith, then about 81 years of age, and the complainant below, did convey to the respondents, Otis W. McBrayer and Lucille McBrayer, her house and lot in Albertville, Alabama. Otis McBrayer is a great nephew of Victoria Smith, and the McBrayers had been living with Mrs. Smith for some time prior to the conveyance.
The arrangement soured soon after the execution of the deed.
In August 1962, Victoria Smith filed a bill seeking cancellation of the deed, under Section 15, Title 20, Code of Alabama 1940, which provides:
The respondents filed their answer and cross bill. The cross bill prayed that the court determine the amount the respondents are entitled to as compensation for support, maintenance, and services rendered Victoria Smith pursuant to the deed, and upon such determination that a lien be fixed upon the property to secure the payment of such amount as determined.
The record in this case is voluminous. One witness testified by deposition, several witnesses testified ore tenus before the Register, and a very substantial part of the testimony was heard by the court.
The court entered a decree holding null and void the deed from Victoria Smith to the McBrayers, and adjudging that they have and recover the sum of $3,500 for services to Mrs. Smith, for expenditures made on her behalf, and for the relatively minor improvements made by the McBrayers on the suit property. The court further established a lien on said property for said amount.
The court further decreed that the complainant be taxed with the costs of her witnesses, and the respondents be taxed with all other costs.
As before stated, the evidence presented below is voluminous. In addition to the testimony of the complainant and the respondents many relatives and friends of the respective parties testified. Our review, however, has been greatly facilitated by the splendid briefs filed by the respective parties, particularly their recitation of the facts.
This evidence tends to show that at the time the deed was entered into Mrs. Smith was about 81 years of age, and in poor health. Likewise her house was quite old and in a most dilapidated condition. When the parties were living in the old home Mrs. Smith, during the first few years, had her meals with the respondents who are now the appellants. According to the appellants, Mrs. Smith was unappreciative of all their efforts in her behalf, was personally unclean, and of a sulky disposition. On 1 *573 March 1954, Mrs. Smith broke her hip. After seventeen days in the hospital, during which time the appellants did most of her nursing, Mrs. Smith returned to the old home. Thereafter she has been continuously confined to a wheel chair. In the old home, upon the return of Mrs. Smith from the hospital, the appellants moved into a room adjoining Mrs. Smith's room in order to be near at hand to Mrs. Smith and to answer her needs.
It is the testimony of the appellants that Mrs. Smith became more and more untidy, refused to bathe often, and developed a highly offensive odor.
Eventually, because of Mrs. Smith's uncleanliness, the appellants found it highly offensive to have her eat with them, and began taking her meals to her.
As early as 1954, the appellants began discussing with Mrs. Smith the dilapidated and unsatisfactory condition of the old house and the impossibility of continuing to live therein. They presented her with three alternatives, either that Mrs. Smith move to a nursing home, or that the appellants would leave and furnish a caretaker for Mrs. Smith, or that the appellants themselves would build a new home and Mrs. Smith could accompany them thereto. Finally, in 1960, Mrs. Smith informed the appellants that if they would build a new home she would move thereto with them. Thereafter, the appellants did build a new home which they value at $35,000. This new house has central heating and central air conditioning. A proposed garage was turned into a room for Mrs. Smith. However, this garage was not connected with the heating or air conditioning unit of the main house. The level of the floor of this garage room was several inches below that of the main house, and entry to the garage room was above ground level. Thus it was impossible for Mrs. Smith to leave her room without assistance.
The evidence presented by the appellants is to the effect that the meals furnished Mrs. Smith were palatable and that her living quarters were comfortable.
On the other hand the evidence in behalf of Mrs. Smith tended to show that the meals furnished by the appellants were meager and most often consisted of sandwiches and that her quarters were rarely cleaned nor was the bed linen often changed.
It is undisputed that when Mrs. Smith first moved into the garage room there were no screens in the windows and swarms of flies were in the room and of great annoyance to Mrs. Smith and to her visitors.
The record further shows that in her new garage room quarters Mrs. Smith could not leave without assistance, and that she was never taken into the main part of the house. The record further shows that shortly prior to bringing this proceeding below, Mrs. Smith had brought a habeas corpus proceeding to free herself from her alleged imprisonment in the garage room.
On the other hand it is the contention of the appellants that Mrs. Smith was well taken care of and satisfied with her situation until influenced by relatives of both herself and the appellants. This influence was exercised upon Mrs. Smith, according to the appellants, because these interfering relatives were upset over the prospect of the appellants acquiring the title to the old house site which being near the business section of Albertville had greatly increased in value.
In the above recitation we have not set out all the evidence introduced below, but think it suffices to say that the evidence introduced by the complainant tends to show neglect of the welfare of Mrs. Smith by the respondents which neglect increased with the passing years. On the other hand the evidence presented by the respondents tends to show that because of Mrs. Smith's disagreeable personality and her personal uncleanliness, the obligation which they had assumed to care for her was thereby turned into a terrific burden. The attitude of the respondents, we think, is very well reflected *574 in their testimony to the effect that while they were confronted with a terrific burden, they were people of their word, and did carry out their obligation under their agreement to support and care for Mrs. Smith.
All in all the evidence in this regard presents contradictions solely within the province of the chancellor to resolve.
Actually, the principal and most material point argued by the respective parties on this appeal relates to the allowance of $3,500 awarded to the appellants for their services in caring for Mrs. Smith, and certain minor improvements made by the appellants upon the old Smith home prior to moving therefrom.
It is the contention of the appellants that the situation on its face shows that this award was inadequate in that they had the burden of caring for and supporting Mrs. Smith from 1951 until shortly before the institution of these proceedings in 1962, or some eleven years.
On the other hand the court found "that considering the nature of the services, the increasing neglect and isolation of the complainant, the expenditures by the respondents for and on behalf of the complainant, the respondents' use of the house, rent free, for a long period of time, and all other pertinent matters, the court is reasonably satisfied that the respondents are entitled to the sum of $3,500."
Under cross assignment of error, the appellee contends that the trial court erred in awarding the appellants any compensation in that the neglect of Mrs. Smith by the appellants constituted a complete default of their agreement and the appellants have come into equity with unclean hands.
The rule of our cases is that where a grantor rescinds a deed of which a material part of a consideration is support and maintenance, the grantee having complied with the terms of the conveyance may be compensated for reasonable expenditures in services performed, and for the value of reasonable permanent improvements made to the property by the grantee, which in equity and good conscience appear to be just. Hipp v. McMurry, 263 Ala. 11, 81 So. 2d 531; Maples v. Corder, 263 Ala. 568, 83 So. 2d 306, and cases therein cited. The standard "which in equity and good conscience appears to be just" is indeed a vague standard and leaves much to the discretion of the chancellor.
The decision to be made by the chancellor was not an easy one. We do not agree with the argument of appellee's attorney that the chancellor found there was a complete default on the part of the McBrayers in carrying out their duties to support and maintain Mrs. Smith, because he found that there was "an increasing neglect and isolation of the complainant." We do not agree with appellee's counsel that this finding soils the appellants' hands as a matter of law. On the other hand the McBrayers did have the burden of caring for Mrs. Smith for some eleven years. At best this must have been a continuing and heavy burden. The chancellor found that they were entitled to $3,500 for these services.
While Mrs. Smith's testimony was before the Register, there was also testimony from a number of other witnesses before the court creating reasonable inferences as to the material question of the nature of the services or the lack thereof, rendered by the appellants to Mrs. Smith.
Where a decree is rendered on evidence taken ore tenus, or partly so, and the trial court has the advantage of seeing and hearing the witnesses, this court will not disturb his conclusion unless it is plainly and palpably contrary to the weight of the evidence. The chancellor saw and heard witnesses on the material question of the nature of the services rendered and could observe their demeanor on the stand. We are in no position to say his conclusion was plainly erroneous. Thompson v. Collier, 170 Ala. 469. 54 So. 493; Hackett *575 v. Cash, 196 Ala. 403, 72 So. 52; Autrey v. Latta, 234 Ala. 662, 176 So. 457.
Counsel for appellants, under an appropriate assignment of error, also argues that the court below erred in taxing the appellants with all costs other than the costs of appellee's witnesses.
In equity the matter of costs rests largely in the discretion of the chancellor. Equity Rule 112; Thompson v. Bryant, 251 Ala. 566, 38 So. 2d 590; Rogers v. City of Mobile, 277 Ala. 261, 169 So. 2d 282.
On the record before us we find no basis for disturbing the chancellor's taxation of costs in this case.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | July 15, 1965 |
d368c8e7-c43d-48e4-a3f8-de86b3ce11a5 | Foshee v. Foshee | 177 So. 2d 99 | N/A | Alabama | Alabama Supreme Court | 177 So. 2d 99 (1965)
Sue Snow FOSHEE et al.
v.
Worth FOSHEE et al.
5 Div. 786.
Supreme Court of Alabama.
June 30, 1965.
*100 Omar L. Reynolds and Reynolds & Reynolds, Clanton, for appellants.
Alvin B. Foshee, Clanton, for appellees.
LIVINGSTON, Chief Justice.
This is the second appeal in this case. See Foshee v. Foshee, 273 Ala. 539, 143 So. 2d 301. There, this Court sustained the equity of the bill of complaint. The substance of the case made by the bill of complaint is there stated and we see no point in repeating the allegations here. After affirmance, the case was tried in the lower court on evidence taken ore tenus before the trial judge who decided the issues in favor of the complainants in the court below. This appeal followed.
On former appeal, this Court stated:
"Assuming, without deciding, that the jurisdiction of a court of equity cannot be invoked for the purpose of resolving a dispute between tenants in common of a burial lot as to the kind of gravemarker to be placed thereon initially, such principle would not be controlling here. The basic purpose of the bill is to have the old monuments placed back on the graves just as they were for many years with the acquiescence of the next of kinin other *101 words, to restore the graves to the condition they were in for more than 45 years. Our view is that the particular circumstances of this case give equity to the bill. * * *"
Suffice it to say, that the evidence heard by the trial court was ample to sustain the decree rendered in the court below. We will, therefore, proceed to the questions of law presented by this appeal.
It seems to be admitted that after the death of Mrs. Adeline Smitherman Foshee about the year 1911, Hill J. Foshee and Calhoun Foshee, Sr., were tenants in common of the cemetery plot which descended to their heirs at law, the complainants and respondents (except Long). The contention seems to be that the respondents acquired sole ownership of said cemetery plot by adverse possession and by abandonment.
The record contains 10 assignments of error and 6 cross-assignments of error.
Hill J. Foshee died in 1951 and is not buried in the lot in question. Calhoun Foshee died in 1958 and is buried in the lot in question.
It is axiomatic that the possession of one tenant in common is the possession of all. Larkin v. Haralson, 189 Ala. 147, 66 So. 459; Livingston v. Livingston et al., Alexander et al. v. Livingston, 210 Ala. 420, 98 So. 281; and a possession of one tenant in common is presumed to be for the benefit of all. Markstein v. Schilleci, 258 Ala. 68, 61 So. 2d 75. The possession of a tenant in common exercising customary acts of ownership does not alone operate as disseisin of cotenant, but there must be positive information of facts, however informally communicated or acquired. Ratliff v. Ratliff, 234 Ala. 320, 175 So. 259. Before a tenant in common can rely on his ouster of his cotenant, he must claim entire title to the land, must hold exclusive adverse possession against every other person, and repudiate relation of cotenancy. Tarver v. Tarver, 258 Ala. 683, 65 So. 2d 148. The possession of one tenant in common is prima facie presumed to be the possession of all, and it does not become adverse to the cotenants unless they are actually ousted, or, short of this, unless the adverse character of the possession of one is actually known to the others, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the other tenants on notice of its adverse character. Bailey v. Bond, 237 Ala. 59, 185 So. 411; Ashford v. Ashford, 136 Ala. 631, 34 So. 10, 13, 96 Am.St.Rep. 82; Winsett v. Winsett, 203 Ala. 373, 83 So. 117; Gilb v. O'Neill, 225 Ala. 92, 142 So. 397, 85 A.L.R. 1526; Elsheimer v. Parker Bank & Trust Co., 237 Ala. 24, 185 So. 385; Palmer v. Sims, 176 Ala. 59, 57 So. 704; Swafford v. Brasher, 246 Ala. 636, 22 So. 2d 24.
The decree of the trial court was to the effect that the evidence was insufficient to show adverse possession on the part of the respondents, and that there was insufficient evidence to show abandonment by the complainants.
In general, where a tenant in common commits such waste or does other acts that amount to a destruction of the common property or that will result in its permanent injury, a cotenant is entitled to injunctive relief. 7 R.C.L., p. 904, Sec. 104; Jasper Land Co. v. Manchester Sawmills, 209 Ala. 446, 96 So. 417, 419; Sue Snow Foshee et al. v. Worth Foshee, et al., supra.
Where the evidence is taken ore tenus before the trial judge, his decree is likened to the verdict of a jury, and on appeal will not be reversed unless it is plainly and palpably wrong. Eidson v. State ex rel. Burns, 263 Ala. 281, 82 So. 2d 218; 2A Ala. Digest, Appeal and Error, Key 1008 et seq.
Under the cross-assignments of error, the appellees argue that the court below failed to decree complete relief in that (1) he did not order the old monuments be put back in their original position and in the same condition as before their removal; (2) the grave lot put back in the *102 same condition; and (3) the removal of the new and modern gravemarkers placed in the lot by the appellants. The trial court decreed:
As we understand it, no argument whatever is made as to the new marker placed by the respondents in the center of the Foshee lot.
In brief, appellees mistakingly assume that the new markers placed on the graves by appellants are placed at the foot and not at the head of the graves. From the record, we conclude that the new markers placed by appellants on the four graves in 1958 are placed at the head of the graves. It is perfectly apparent from the decree of the lower court that if the old markers are replaced on said graves it will necessitate removal of the new markers. According to the record, as we understand it, the trial court has granted complete relief as prayed for in the bill of complaint.
Finding no error in the record, the decree of the lower court is due to be, and is, affirmed.
Affirmed.
LAWSON, GOODWYN and COLEMAN, JJ., concur. | June 30, 1965 |
87096fc5-996c-4bc9-b907-685fb2fb01cc | Cash v. Usrey | 178 So. 2d 91 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 91 (1965)
Dora CASH
v.
T. S. USREY et ux.
7 Div. 629.
Supreme Court of Alabama.
August 12, 1965.
*92 Izas Bahakel and Roscoe B. Hogan, Birmingham, for appellant.
Lusk, Swann, Burns & Stivender, Gadsden, for appellees.
SIMPSON, Justice.
This is an automobile accident case. The plaintiff below was a passenger in an automobile being driven by her husband on an unpaved dirt road in St. Clair County in the early afternoon of a Sunday. The evidence is that the automobile in which the plaintiff was riding had traversed this road for some 150 feet when it was struck by the automobile which the defendant, Mrs. Usrey, was driving. One of the few facts which the witnesses agreed upon was that the defendant was proceeding in the opposite direction, meeting the automobile in which the plaintiff was a passenger, when the hood of the defendant's automobile came unlocked and flew up, obstructing her vision. The collision occurred subsequently.
The evidence is in sharp conflict as to how long a time elapsed from the time the hood came up and the time of the collision, plaintiff's witnesses testifying that the hood came up while the defendant was still "two blocks away" and the defendant testifying that the two events occurred almost simultaneously. The plaintiff's witnesses testified that the defendant's car came "weaving from one side of the road to the other" for a distance of two blocks. They further testified that the defendant (who was also injured in the accident) appeared to be drunk immediately after the accident. The defendant on the other hand denied that she was drunk and generally offered evidence to the contrary on all matters testified to by plaintiff's witnesses.
At the conclusion of the evidence the court granted a motion for a directed verdict as to the defendant's husband, Mr. Usrey, who had been joined. There was no evidence that he owned the automobile which the defendant was driving; he was not a passenger and indeed was not shown to have been involved. The jury returned a verdict for the defendant. Plaintiff appeals.
Several assignments of error are not argued and will not be here considered. Supreme Court Rule 9. Others fail to refer to any ruling of the trial court and present nothing for this court to review. Fallaw v. Flowers, 274 Ala. 151, 146 So. 2d 306.
Appellant assigns as error the refusal of the trial court to allow in evidence a photograph of the scene of the accident. The assignment of error merely states that "the court erred in its ruling whereby pictures showing the scene of the accident were not allowed to be introduced into evidence to the trial of this cause". Aside from the inadequacy of this assignment, *93 there was no error in the court's failing to allow the mentioned photographs. The evidence is that the pictures were taken some three weeks before the trial and almost a year after the accident. The witness who testified with regard to this matter testified that conditions at the scene were not substantially the same as those existing at the time of the accident. Under these circumstances it was not error to exclude the photographs. Williams v. Wicker, 235 Ala. 348, 179 So. 250. In fact the determination of the sufficiency of preliminary proofs offered to identify pictures and to show that such pictures accurately represent what they purport to portray is a matter within the sound discretion of the trial court and his decision on the sufficiency of the predicate so laid will not be reviewed here except for abuse. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. O. v. Russell, 264 Ala. 456, 88 So. 2d 175, 62 A.L.R.2d 669, affirmed 356 U.S. 634, 78 S. Ct. 932, 2 L. Ed. 2d 1030, rehearing denied 357 U.S. 944, 78 S. Ct. 1379, 2 L. Ed. 2d 1558. We find no abuse here when the witness specifically testified that conditions had changed so that there was no substantial resemblance between them and those existing at the time of the accident.
Appellant next argues that the trial court should be reversed in that it improperly qualified the jury in asking each of the members of the venire who did not know defendant's counsel to identify himself. Without deciding the propriety or impropriety of this manner of qualifying the jury, suffice it to say that the record is completely silent with respect to this stage of the trial. We cannot consider a matter which does not appear in the record on appeal. Thomas v. Brook, 274 Ala. 462, 149, So.2d 809; Rhodes v. Tomlin, 267 Ala. 491, 102 So. 2d 904.
If appellant feels that the record is inaccurate or incomplete he may seek amendments or corrections by appropriate proceedings, but such cannot be accomplished by statements made in brief on appeal. Blanton v. Blanton, 276 Ala. 681, 166 So. 2d 409.
The same defect exists with regard to appellant's assignment of error No. 6 in connection with which it is contended that the court erred in not allowing an amendment by plaintiff at the end of the evidence. However, the record does not show that the appellant offered any amendment which was refused. Under this state of affairs there is nothing for this court to review. We cannot review any action of the lower court where the judge had made no ruling adverse to appellant on the specific matter complained of. Fallaw v. Flowers, supra.
Other assignments are to the effect that the verdict is not supported by the evidence, is contrary to the weight of the evidence, or is the product of bias or prejudice.
We have read the entire record. There is evidence which, if the jury believed, supports the verdict, and we consider that the verdict is not contrary to the great weight of the evidence. It would be trite to recite the authorities to the effect that under such circumstances the verdict stands. Evidently the jury believed the version of the accident reported by the defendant, and evidently believed that she did what any reasonable person would have done when confronted with the sudden emergency she found facing her. The jury was adequately charged. We are unable to say that error to reverse is shown.
Affirmed.
LAWSON, GOODWYN and COLEMAN, JJ., concur. | August 12, 1965 |
06584cbf-5d47-45a6-9258-4f21fd09e7ef | Hamm v. Harrigan | 178 So. 2d 529 | N/A | Alabama | Alabama Supreme Court | 178 So. 2d 529 (1965)
Phillip J. HAMM, Commissioner of Revenue
v.
W. D. HARRIGAN et al.
Phillip J. HAMM, Commissioner of Revenue
v.
Virginia H. O'MELIA et al.
3 Div. 100, 100-A.
Supreme Court of Alabama.
September 9, 1965.
*531 Richmond M. Flowers, Atty. Gen., Willard W. Livingston and Chas. P. Miller, Asst. Attys. Gen., for appellant.
Chas. B. Arendall, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, M. R. Nachman, Jr., Steiner, Crum & Baker, Montgomery, for appellees.
COLEMAN, Justice.
The commissioner of revenue appeals from two judgments of the Circuit Court of Montgomery County which awarded peremptory writs of mandamus commanding the commissioner to certify to the comptroller that certain sums of money are due to be refunded to the taxpayers, who are the appellees, to the end that the State's warrants shall be drawn so as to make the specified refunds to the taxpayers.
*532 Two cases were tried together and have been so argued on this appeal. The issues in both cases are the same. We shall refer to them as if there were only one case and to the appellees in the singular as if there were only one taxpayer.
The essential facts, as we understand them, are that the taxpayer paid to the State income tax for 1958; that the amount of the tax paid was based and computed on a sum which taxpayer received as a "liquidating dividend" of an Alabama corporation; that the computation was made on the erroneous and illegal premise that taxpayer was required to treat as part of his taxable income an amount equal to the unrealized appreciation in value of certain timberlands which were distributed in kind to the stockholders as liquidating dividends; that the computation was based on the further erroneous premise that such appreciation in value was not exempt from income tax under § 388, Title 51, Code 1940, which exempts "liquidating dividends paid from income of domestic corporations on which the corporation distributing such dividends has paid all income taxes due the state of Alabama in the current or prior tax years"; that the assets so distributed had been acquired from the original capital and the earnings of the corporation; and that the corporation had paid to the state all income taxes due to the state.
It further appears that taxpayer timely filed income tax return; that the department of revenue assessed a tax deficiency; that taxpayer waived notice and requested that the assessment be made final; and that the department did make the assessment final on December 30, 1959. The waiver and assessment in one case recite as follows:
"WHEREAS, on the 30th day of December, 1959, the State Department of Revenue made an assessment against W. D. and Dorine Harrigan (hereinafter called Taxpayer) for additional income tax due by said Taxpayer under the provisions of the Alabama Income Tax Act (Title 51, Sections 373, et seq., Code of Alabama 1940), for the calendar year of 1958 together *533 with penalty and interest thereon, in the amount as follows:
The total amount assessed in the other case is $215,456.74. We understand that taxpayer paid the amount assessed, but did not appeal within thirty days as provided by § 140, Title 51, Code 1940.
Taxpayer subsequently learned of the decision in Buchanan v. State, 274 Ala. 592, 150 So. 2d 200, originally delivered October 18, 1962. In Buchanan, this court held that, under § 388, Title 51, Code 1940, a liquidating dividend, paid by a domestic corporation, was exempt from income tax, when the corporation had paid all income taxes due to the state, the dividend was distributed in kind, and the assets distributed had been acquired by the corporation solely from earnings and income of the corporation. We emphasize here that in Buchanan, taxpayer appealed under § 140, Title 51, from a final assessment of additional income tax, and did not proceed under § 410 as the taxpayer has done in the instant case.
On December 27, 1962, after the time for appeal had expired, but within the time allowed by § 410, Title 51, the taxpayer made application for refund of the amount paid. The department of revenue refused to certify to the comptroller the amount claimed, or any amount, and taxpayer instituted statutory mandamus proceedings in the circuit court as provided by § 410. The court rendered judgment granting the writ, and from the judgment the commissioner appeals.
The commissioner insists that the refund procedure provided by § 410 is not available where taxpayer has suffered a final assessment under § 407 and has not appealed therefrom as provided by § 140. Taxpayer argues to the contrary.
The commissioner argues that an assessment under § 407, Title 51, from which no appeal is taken, is conclusive and final as any other judgment of a court and cannot be altered or set aside by a proceeding under § 410, or by any proceeding other than one by which the final judgment of a court can be revised or set aside after the time for appeal has expired.
The question for decision is, does § 410 apply when an assessment has been made final under § 407 and no appeal has been taken under § 140?
We consider first the authorities relied on by taxpayer.
In Curry v. Johnston, 242 Ala. 319, 6 So. 2d 397, the taxpayer instituted a proceeding to obtain a refund of overpayments of income tax. The application for refund appears to have been made under Section 345.36 of Act No. 194, approved July 10, 1935, General Acts 1935, page 256, at page 422; which is the progenitor of § 410, Title 51. The trial court overruled the demurrer to the petition for mandamus. The demurrer raised the point that the application for refund was required to be *534 made within twelve months of the date of payment. This court reversed for error in overruling the demurrer. The opinion recites that "This ruling presents the sole question for review." This court decided that Section 345.40 of Act No. 194; § 414, Title 51; made reference to General Acts 1931, page 527, Section 2, which required that application for refund be made within twelve months of the date of payment. See § 913, Title 51, for present provisions of this latter statute. The holding is that the statute required application for refund to be made within twelve months and that this point raised by demurrer was well taken. We find no holding in the opinion that § 410 is available to the taxpayer in cases where a final assessment has been made under § 407 and no appeal has been taken. The opinion does not disclose that the question presented in the instant case was presented in Curry v. Johnston, supra, and it is certain that the instant question was not decided there. We do note that, with reference to § 407, the court said:
With reference to the application for refund and time for bringing suit, the court said:
The court does use the word "assessment," when it says that he, meaning the taxpayer, ". . . must wait for three months to give time to make the assessment, before bringing suit." (Emphasis Supplied.) The reference is obviously to the second sentence of § 414, Title 51, which, in pertinent part recites:
The "assessment," referred to in the opinion, is not an assessment made in a proceeding under § 407. The first sentence of § 414, expressly excepts from the restrictions of that section proceedings brought under § 407. The "assesment" referred to in the opinion is the "decision" of the State Tax Commission (now department of revenue) referred to in the statute. More accurately, the opinion states that the taxpayer must wait three months, to give the Commission (department of revenue) time to make a decision to allow or reject taxpayer's application for refund, before bringing suit. We are of opinion that Curry v. Johnston does not support the contentions of taxpayer.
In State v. Brown, 254 Ala. 215, 48 So. 2d 36, this court held a taxpayer entitled to refund for certain income tax paid to the state. The opinion refers to a stipulation that "taxpayer duly and properly filed application for refund of income tax," and the record discloses such an application. The case, however, was not a proceeding for refund under § 410. This court did note that taxpayer filed petition for refund under § 410, but the petition for refund was filed before the assessment was made final, because the assessment was not final until made so by the decision of this court. *535 We have examined the transcript in State v. Brown, supra. It discloses that the proceeding in the circuit court was an appeal from final assessment pursuant to § 140, Title 51. The bill of complaint and the decree of the trial court so recite. The opinion of this court recites that "Agreements were made from time to time . . . . extending the time for making the final assessment . . .." Brown sheds no light on the question as to what is the finality of an assessment under § 407, which was not appealed, with respect to § 410. Nothing in Brown supports taxpayer's contention in the instant case.
In Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So. 2d 11, the trial court, pursuant to a prior decree declaring taxpayer entitled to a mileage tax refund, ordered the commissioner to grant taxpayer's application for the refund. On appeal by the commissioner, this court held that the prior declaratory decree was a final decree, that "Having elected to take no appeal from the (prior) decree of 29 February 1952, the State Department of Revenue lost its right of appeal. Our consideration, is accordingly limited to the trial court's decree of 15 May 1953, from which this appeal is prosecuted." (Par. Added.) Being limited to the last decree, this court did not review the prior decree. The opinion does not disclose whether the department of revenue had made any assessment comparable to the final assessment under § 407, which was made in the instant case. If such an assessment had been made in Horn v. Dunn Brothers, Inc., however, the question whether the assessment was a final judgment and a bar to the relief granted to taxpayer, in the prior decree of 29 February 1952, was a question which should have been raised in the proceedings which were had prior to the rendition of the February decree. The commissioner did not appeal from that decree and this court refused to go behind that decree when the commissioner sought to appeal from the May decree. The result is that the question of the finality of the assessment, if such there was, never reached this court, and the Dunn Brothers case is not authority that an assessment made final under § 407 is not a bar to relief under § 410.
In Graves v. McDonough, 264 Ala. 407, 88 So. 2d 371, this court affirmed a decree declaring that the comptroller should draw a warrant in favor of taxpayer as a refund for taxes paid under an escape assessment. The taxpayer asserted that the escape assessment had been made under authority of § 53, Title 51 which provides for notice to the taxpayer, opportunity to appear and be heard, appeal to the circuit court, and trial by jury. Apparently, taxpayer had not appealed as provided by § 53. This court considered whether failure to pursue the statutory remedy for review barred the declaratory proceedings and concluded that the declaratory proceeding was not barred for such failure. The court said:
*536 The income tax assessment in the instant case is not void, as we understand it. The assessment may well be erroneous under Buchanan v. State, supra. The department of revenue had jurisdiction of parties and subject matter. Since the assessment was not void, the rule applied in Graves v. McDonough, supra, does not apply here. In Graves v. McDonough, this court said:
In the case at bar, the assessment is not within the exception, but is within the general rule, and the McDonough case seems to be authority in favor of the commissioner and against the taxpayer.
In State v. First National Bank of Auburn, 273 Ala 379, 141 So. 2d 196, this court considered the finality of an excise tax assessment made under § 425, et seq., Title 51. The question arose when taxpayer undertook to carry back to 1952 (tax year 1953), a loss which occurred in 1953 and 1954. The state contended that the assessment for 1952 was made final on July 2, 1953, that taxpayer did not appeal under § 140 within thirty days, and, therefore, that there was no way to re-open the assessment and allow a carry-back of the loss sustained in subsequent years. This court rejected that contention, saying that to disallow the carry-back would be to nullify the statute, which expressly authorized the carry-back, and defeat the legislative intent. It seems clear that if, in a tax year, a taxpayer made a profit and owed income tax, he would pay the tax without appealing the assessment; and, if he subsequently suffered a loss, the only way he could carry the loss back would be to re-open the prior assessment. Subject to the restrictions of the Constitution, the legislature has power to provide for the collection of income taxes and to provide for the manner of calculating the tax in allowing relief for losses. The allowance of the carry-back was part of the manner of calculation prescribed by the legislature, and was allowed for that reason. In the instant case, we are not concerned with a legislative act which compels the re-opening of an assessment in order to make the act effective. Neither the facts nor the statute have changed since the assessment was made final in the case at bar. When the assessment was made final, all the facts now relied on by taxpayer were in existence and available to him. In the waiver and request for assessment, he reserved the right to appeal, but did not do so. A change in the statute, similar to that which led to the decision in State v. First National Bank of Auburn, does not exist here. Actually the appeal in the last cited case was from an assessment for a year other than 1953. The court said:
*537 We are of opinion that the last cited case does not support the decree appealed from in the case at bar.
In Bull v. United States, 295 U.S. 247, 55 S. Ct. 695, 79 L. Ed. 1421, the court considered the case of the estate of a taxpayer against which the government asserted claims for both income and estate taxes. Through mistake, the government collected more estate tax than was due. Taxpayer paid the tax and time for bringing a proceeding for refund expired. Subsequently, however, the government brought a new proceeding, arising out of the same transaction, for income tax. The court held that taxpayer could, in the latter proceeding, recoup the excess estate tax he had paid, although an independent proceeding for refund was barred by the statute of limitations. The taxpayer's right to recover was rested solely on the bringing of the latter suit. As to what would have been the situation if the latter suit had not been brought, the court had this to say:
In the case at bar, no second suit has been brought against the taxpayer and there is no suit in which he may be permitted to recoup or offset the excess tax he has paid.
Both sides rely on State v. Woodroof, 253 Ala. 620, 46 So. 2d 553. We think the holding in Woodroof is reason for holding that the court erred in ordering the refund in the instant case.
In Woodroof, this court considered the priority of certain liens for taxes, due the state, over liens due the United States, in a proceeding for dissolution of a corporation. With respect to the perfection of a lien, this court said:
The court discussed first an income tax claim of the state for $36.22. With respect to §§ 407 and 410, Title 51, the court said:
". . . . Section 407, Title 51, Code, directs the manner of making the assessment upon hearing and provides for an appeal, as provided in section 140, Title 51. Such assessment has judicial *538 qualities. Birmingham Vending Co. v. State, 251 Ala. 584, 38 So. 2d 876. A judgment on appeal under section 140, supra, is as final as any other judgment. An assessment from which no appeal is taken is likewise conclusive when the procedure provided in section 407, Title 51, is complied with. (Emphasis Supplied.) If no such procedure as there provided is pursued, the amount shown by the taxpayer's return is prima facie the correct amount of his tax liability. If nothing further is done as to his return, such amount remains prima facie correct. In that event, it has not become a fixed liability until it shall be assessed, which must be done, if at all, within two years. Section 412, Title 51, Code. The amount of tax so imposed shall be paid on the 15th day of the third month following the close of the fiscal year (subject to future installment payments). This taxpayer was on a fiscal year basis, as of October 31st. The record in this case does not show that there was any assessment made of this income tax as provided in section 407, supra, but the return of the taxpayer was only prima facie the correct amount of his liability. And any payment of same was subject to a refund within two years if erroneous. Section 410, Title 51, Code; Curry v. Johnston, 242 Ala. 319, 6 So. 2d 397. The amount of the debt secured by the lien was not effectually fixed and, therefore, the lien was not specific and perfected." (253 Ala. at page 631, 46 So.2d at page 562)
Thus the court held that the income tax lien was not perfected because the procedure of § 407 had not been followed and because taxpayer, in such case, could apply for refund under § 410. The court says that a judgment on appeal under § 140 "is as final as any other judgment," and an assessment, from which no appeal is taken, "is likewise conclusive," when § 407 is complied with.
In the case at bar, § 407 was complied with and no appeal was taken. Under Woodroof, the instant assessment was final and conclusive as any other judgment, and was "not open for change in any sort of proceeding which might arise thereafter."
This conclusion is fortified by the court's decision in Woodroof as to the finality of a sales tax claim for $741.71, which was made final under § 767, Title 51. The court said:
It seems to us that Woodroof is authority that the assessment in the case at bar was *539 final and not subject to revision or refund by a proceeding under § 410.
The reporter will set out §§ 407 and 414, Title 51, Code 1940, and § 410 of same title as amended by Act No. 826, 1951 Acts, page 1457.
§ 407 provides that income tax shall be "assessed" upon blanks in the form to be prescribed by the department of revenue. The assessment so made by taxpayer is not final, but shall constitute a "prima facie" liability, and the words "assessment" or "assessed," as used in the statute, "mean the final determination of the amount found to be due by the department . . . .." If the amount so determined is different from the amount shown by the return, then a day must be set for hearing and notice and opportunity to be heard must be given to the taxpayer. State v. Pollock, 251 Ala. 603, 38 So. 2d 870, 7 A.L.R.2d 757. On the day set, the department must ". . . . finally fix, determine and assess the amount of tax due and notify the taxpayer . . . .." (Emphasis Supplied.) Within thirty days he may appeal to the circuit court, and, if unsuccessful there, he may appeal to this court. § 140, Title 51.
There are thus three opportunities for a judicial determination of taxpayer's liability. The first determination is made by the department of revenue.
". ... The Department of Revenue administered by the commissioner is the State tribunal designated by law with judicial functions to pass upon questions of fact or law which may arise in making an assessment. (Citations Omitted.)" Birmingham Vending Company v. State, 251 Ala. 584, 588, 38 So. 2d 876, 879.
The second determination is made by the circuit court, in equity. On the trial there, the assessment by the department is prima facie correct. The court shall hear the appeal according to its own rules as practicable. The trial, in effect, is de novo.
The third determination is made by this court. The trial here is, of course, a review based on the record made in the circuit court.
The question arises, which, if any, of the three determinations shall be final so as to bar another proceeding for refund under § 410? Is the decision by this court, on appeal, final, or may taxpayer lose here and then bring a new proceeding under § 410? Suppose taxpayer does not appeal from the circuit court. Is the decision of the circuit court final, or may the taxpayer then bring a new proceeding under § 410? Then, there is the question in the instant case, i. e., may the taxpayer simply not appeal the assessment made by the department of revenue and bring a new proceeding under § 410?
To hold that the legislature intended, by § 410, to provide for a new proceeding to determine the same question after it had been decided once by this court would be contrary to the principle that a matter once adjudicated is finally settled and determined. Irwin v. Alabama Fuel & Iron Company, 215 Ala. 328, 110 So. 566. To hold that a decision by the circuit court, on appeal to it under § 140, is not final and a bar to a new proceeding under § 410, would run counter to the same principle. Why would not a holding that a decision under § 407 is not final be equally contrary to that principle?
In Woodroof, this court construed §§ 407 and 410 to the effect that a taxpayer who had not suffered a final assessment under § 407, had the right to apply for refund under § 410; but a taxpayer, who had suffered a final assessment under § 407, does not have the right to apply for refund under § 410. We are of opinion that the construction in Woodroof is correct *540 and that we ought not to depart from it.
Woodroof was decided in 1950. In 1951, the legislature reenacted § 410, without material change other than substituting "three" for "two" in the second sentence. It is a familiar rule that where a statute has been construed, and is reenacted without material change, such construction must be accepted as a part of the statute. Lindsey Lumber & Export Co. v. Deas, 230 Ala. 447, 161 So. 473.
Taxpayer places some reliance on § 414 of Title 51, wherein the legislature provided that no proceeding shall be maintained for recovery of any tax "alleged to have been erroneously or illegally assessed or collected" (Emphasis Supplied.) until claim for refund has been filed with the department of revenue. Taxpayer relies on the use of the word assessed.
We do not think § 414 has the effect of giving taxpayer a remedy under § 410 where he has suffered a final assessment under § 407 and has not appealed. § 414 gives no rights; it limits or takes away rights of the taxpayer. Moreover, a proceeding under § 407 is, in some respect, expressly excepted from the operation of § 410. It is notable also that § 410 has, and § 414 has not, been reenacted since Woodroof was decided.
Taxpayer, in brief, concedes, of course, that Buchanan is not res judicata here, but says that it is ". . . . equally obvious this Court intended Buchanan to have future application in all cases involving similar facts." We agree that the rule in Buchanan should apply to all taxpayers alike, but we do not agree that there has been unequal application of the rule here, or any unequal treatment of the instant taxpayer.
The instant taxpayer had the same opportunities and the same rights which the taxpayer enjoyed in Buchanan. As we understand it, the statutes were the same in both cases. Taxpayer says that the facts were the same in all material aspects. What then is different?
As it seems to us, the difference is, that in Buchanan, the taxpayer took an appeal under § 140, Title 51, and the instant taxpayer, for good and sufficent reasons which are known to him but not to this court, chose not to appeal under § 140. Where the instant taxpayer was accorded the same right which the other taxpayer had, but did not exercise it, we do not think that the law favored one over the other, or, in any sense, denied to either of them that which was his exact and equal due.
On the trial of the instant case, counsel for taxpayer stated to the court:
The following colloquy occurred between the court and counsel for the commissioner:
For reasons we have undertaken to state, we are of opinion that the state's contention is well taken and that the decree for the taxpayer should be reversed and the cause remanded for entry of a decree not inconsistent with this opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | September 9, 1965 |
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