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2fd3e844-1a1e-4cd2-8be7-66af7a1f8b8f | United Ins. Co. of America v. Cope | 630 So. 2d 407 | 1921120 | Alabama | Alabama Supreme Court | 630 So. 2d 407 (1993)
UNITED INSURANCE COMPANY OF AMERICA
v.
Fred COPE.
1921120.
Supreme Court of Alabama.
December 3, 1993.
*408 Samuel H. Franklin and M. Christian King of Lightfoot, Franklin, White & Lucas, Birmingham, and James H. Anderson of Beers, Anderson, Jackson & Smith, Montgomery, for appellant.
Lynn W. Jinks III and L. Bernard Smithart of Jinks, Smithart & Jackson, Union Springs, and Frank M. Wilson and Julia A. Beasley of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for appellee.
SHORES, Justice.
Fred Cope sued United Insurance Company of America ("United"), alleging a bad faith refusal to pay, and a bad faith refusal to investigate, a $160 claim arising under a cancer policy. The jury, by a general verdict, found in favor of Cope and awarded him $1,000,000 in compensatory damages and $3,000,000 in punitive damages. The Circuit Court of Bullock County entered a judgment on the verdict. United appeals. We reverse and remand.
On April 28, 1975, Cope and his wife purchased a cancer policy from Vulcan Insurance Company. United subsequently assumed, and became responsible for, a block of business from Vulcan, including the Copes' cancer policy. Once a month, an agent from United visited the Copes to collect weekly premiums of $1.30 on the policy, which provided a hospital benefit of actual hospital expenses up to a maximum of $100; an anesthetist's actual charge, not to exceed $75; and a surgeon's charge, up to a maximum of $160. The total exposure of United under this policy for the insured's claim was $335.00. The premiums on the Copes' policy were up to date, and the policy was in force, as of October 1989, when Cope was admitted to the hospital for treatment of prostate cancer. Cope was hospitalized for one day, and a surgeon, Dr. Peter Shashy, performed surgery to remove Cope's testicles.
The policy contained the following provisions regarding claims:
After Mr. Cope's surgery, the United agent continued to come by and collect the weekly premium. Because Mr. Cope does not read, Mrs. Cope handles insurance matters for him. Mrs. Cope testified that she gave all the bills she received in connection with Mr. Cope's surgery to the United agent. The agent filled out the claim forms for the Copes and forwarded them to the district office. The district office then verified that the policies were in full force and effect and forwarded the claims to the claims office for payment.
The United agent submitted Mr. Cope's hospital bill for $1010 with a claim form to United on October 27, 1989. The maximum hospital benefit of $100 was paid directly to the hospital on November 8, 1989.[1] The anesthesiologist submitted a bill for $418, with a claim form, directly to United on January 11, 1990. United paid the maximum anesthesiology benefit of $75 on January 22, 1990.
This litigation involves the surgeon's benefit. Mrs. Cope testified that she gave the United agent all bills she received, including numerous duplicate bills from the hospital and the anesthesiologist, which continued to be sent to the Copes because the benefits under the policy did not cover the entire amounts charged. There was no direct evidence that the surgeon's bill was sent to United at the same time as the hospital and anesthesiologist bills. The agent did tell Mrs. Cope, after United had paid the maximum hospital and anesthesiologist benefits, that it had not paid all that it was obligated to pay under the policy, presumably referring to the surgeon's benefit. It was United's position at trial that it did not receive a bill from the surgeon until May 22, 1990. It is not clear from the testimony whether Mrs. Cope submitted the surgeon's bill before May 22, 1990. On direct examination, Mrs. Cope testified as follows:
On cross-examination, however, Mrs. Cope was not as clear about whether she had given the United agent the surgeon's bill. She testified as follows:
The United agent's testimony was that he did not send a bill from the surgeon to the company. On direct examination,[4] he testified as follows:
Mr. Windham testified further on cross-examination:
And, in a portion of Mr. Windham's redirect examination and recross-examination, there was a question about the consistency of his testimony at trial in relation to his deposition testimony. The trial testimony was as follows:
On May 22, 1990, if not before, after receiving and denying numerous duplicate bills with claims for benefits already paid, United received a surgery bill for $695 directly from Mr. Cope's surgeon, Dr. Shashy, and it denied payment of that bill. United sent a letter to Mr. Cope on June 19, 1990, denying the claim for the surgeon's charge and stating that the reason for the denial was that the claim was a duplicate. The letter had a toll-free telephone number at the top instructing the recipient to call with any questions regarding the letter. The Copes did not call United.
In September 1990, acting on behalf of Mrs. Cope, an attorney addressed a letter to United agent Windham, asking him to "get me copies of the policies and a copy of the file." This letter prompted United to review Cope's file; it found the surgeon's bill and paid Cope, by check, $172.50, the then maximum surgeon's benefit payable under the policy for the procedure performed by the surgeon. Six weeks later Cope filed this action, seeking damages for United's alleged bad faith refusal to pay the surgeon's benefit or, alternatively, damages for failure to timely investigate the claim for surgeon's benefits.
A bad faith action in Alabama can be premised on either of two grounds: "(1) no lawful basis for the refusal coupled with actual knowledge of that fact or (2) intentional failure to determine whether or not there was any lawful basis for such refusal." Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1, 7 (Ala.1981), citing Vincent v. Blue Cross-Blue Shield of Alabama, 373 So. 2d 1054 (Ala.1979) (Embry, J., dissenting).
The trial court submitted both claims to the jury. Cope contended at trial that, even if the surgeon's bill was not submitted for payment along with the hospital bill and the anesthesiologist's bill, each of those bills carried the name of the surgeon who had performed the procedure and the procedure was clearly identified on both bills as a surgical procedure. These facts, he argues, cast the burden on United to investigate, and he argues that a simple investigation would have led United to discover that there was an outstanding claim against Cope for the services of the surgeon, $160 of which was covered under the policy.
An insurance company has an obligation to pay all valid claims under the policy and to do so without unreasonable delay, and it cannot avoid that obligation by deliberately refusing to determine whether a claim is valid. However, the obligation to pay or to evaluate the validity of the claim does not arise until the insured has complied with the terms of the contract with respect to submitting claims. In this case the terms of the insurance contract required that Cope furnish United "written proof of any expense." The contract further describes the information needed as "written proof covering the occurrence, the character and the extent of *412 the loss for which claim is made." (Emphasis added.)
Cope argued at trial that although at the point where United had the hospital and anesthesia bills United might not have then also had an actual bill for the surgery submitted either by the Copes or by the surgeon, it had at that point sufficient information to discover who had performed the surgery and to solicit his bill. The insurance contract does not impose that duty on United. The contract requires the insured to submit written proof of the extent of the loss. This Court in Mordecai v. Blue Cross-Blue Shield of Alabama, Inc., 474 So. 2d 95 (Ala. 1985), rejected the claim that an insurer is under a duty to do more than review the documents that the insured submits to it. Id. at 98. Thus, until Cope submitted a claim in the form specified by the terms of the policy, United had no duty to investigate the surgery claim.
United asked for a directed verdict on the plaintiff's theory of liability based upon the alleged failure to investigate the plaintiff's claim. The trial court refused to direct a verdict in favor of United on that theory, stating its understanding of the plaintiff's theory with this observation:
When this Court several years ago recognized the tort of bad faith refusal to pay a valid insurance claim, it anticipated that such claims would be rare. That has not been the experience. Almost every action alleging breach of an insurance contract alleges also a bad faith refusal to pay a valid claim. It may be that the practice of refusing to pay valid claims is more common than this Court anticipated. However, no case from this Court places on an insurance company an obligation to either investigate or pay a claim until the insured has complied with all of the terms of the contract with respect to submitting claims for payment. Here, Cope did not comply with the terms of the policy; he did not submit written proof of "expense covered by this policy." Until the insured furnishes proof of loss in the form required by the policy, the insurer is under no obligation to pay or to investigate the claim. Mordecai v. Blue Cross-Blue Shield of Alabama, Inc., 474 So. 2d 95 (Ala.1985).
Under the facts of this case, the bill for Dr. Shashy's services was not submitted to United until May 1990. Until then United was under no duty to investigate whether the surgery benefits provided under the policy were due. Cope argues that the evidence shows that the surgeon's name appeared on the hospital bill or on the anesthesiologist's bill, or on both, and that that fact placed a duty on United to investigate to determine whether there was a valid claim for the surgeon's bill as provided in the policy. United did not have that duty. Until Cope filed a claim for the surgeon's bill, United had no duty to investigate to determine whether a claim for surgery benefits existed. We hold that the trial court erred in submitting to the jury the theory based upon United's alleged duty to investigate the existence of a claim for the surgery benefits provided in the policy.
United breached its contract with Mr. Cope when it denied the surgery benefits once it received a bill from Dr. Shashy. It contends that it denied this claim through a clerical mistake. Cope argues that there was evidence from which the jury could conclude that once United received a claim for those benefits it deliberately and intentionally denied them without a debatable reason to do so. Assuming, without deciding, that there was evidence from which the jury could so find, we nevertheless must reverse and remand the case for a new trial. The trial court, over United's objection, submitted both theories of liability to the jury: bad faith failure to investigate the claim for surgery benefits and bad faith refusal to pay a valid claim for the same benefits. The jury returned a general verdict. We cannot know that the jury's decision did not rest upon the claimed bad faith failure to investigate *413 whether surgery benefits were due. Because the verdict might have been returned on a claim that was erroneously submitted to the jury, we must reverse the judgment and remand this case for a new trial. American Gen. Life & Acc. Ins. Co. v. Lyles, 540 So. 2d 696, 700 (Ala.1988); Old Southern Life Ins. Co. v. Spann, 472 So. 2d 987, 990 (Ala.1985); National Sec. Fire & Cas. Co. v. Vintson, 454 So. 2d 942, 946 (Ala.1984). As we have shown, under the facts of this case the law did not impose on United a duty to investigate the claim based on the surgeon's bill, and the trial court erred in submitting that claim to the jury.
Because we must reverse the trial court's judgment denying United's motion for new trial for the reason stated, we need not address other grounds for reversal argued in United's brief.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, STEAGALL and INGRAM, JJ., concur.
[1] Cope had assigned the miscellaneous hospital benefits to the hospital.
[2] The United agent.
[3] Note that there was a surgeon and an anesthesiologist involved in Mr. Cope's claim.
[4] Mr. Windham, at the time of trial, was no longer an employee of United. Mr. Cope called him with the intention of using him as a hostile witness. | December 3, 1993 |
9f4d286b-066d-41e2-851f-a7bf2910e59c | Environmental Systems v. Rexham Corp. | 624 So. 2d 1379 | 1911813 | Alabama | Alabama Supreme Court | 624 So. 2d 1379 (1993)
ENVIRONMENTAL SYSTEMS, INC.
v.
REXHAM CORPORATION.
1911813.
Supreme Court of Alabama.
September 10, 1993.
*1380 David O. Upshaw of Schoel, Ogle, Benton and Centeno, Birmingham, for appellant.
L. Tennent Lee III of Burr & Forman, Huntsville, for appellee.
HORNSBY, Chief Justice.
This case involves a dispute arising out of the sale of assets and properties of the Fredericksburg Technology Center ("FTC"),[1] by Rexham Corporation and RADG, Inc.,[2] to Environmental Systems, Inc. ("ESI"). Rexham sued ESI, alleging that ESI had breached the contract by failing to pay the rent, utilities, and maintenance on the FTC, which liabilities Rexham contends ESI assumed pursuant to the purchase agreement. ESI filed a counterclaim, alleging that Rexham had fraudulently induced it to enter into the purchase agreement based on false representations concerning the status and condition of the FTC. ESI sought to rescind the contract and also sought damages for fraud.[3]
The trial court entered a partial summary judgment in favor of Rexham on ESI's claims of fraud and misrepresentation alleging that Rexham had falsely represented the probability of acquiring, and the value of, certain contract rights. The trial court certified the partial summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P. ESI appeals, arguing that the trial court improperly excluded extrinsic evidence of the alleged representations on the basis of the parol evidence rule and the existence of an integration, or merger, clause in the purchase agreement.
The facts giving rise to this action are not disputed. ESI executed the purchase agreement with Rexham and RADG, Inc., on November 13, 1988. The parties had negotiated this contract for approximately 8 months before executing it. The purchase agreement provided for ESI to pay $175,000 and to assume certain liabilities of RADG, Inc., and Rexham (primarily a lease on the building in which the FTC was located). In exchange, RADG, Inc., and Rexham conveyed all of their right, title, and interest in the properties and assets of the FTC. Those assets included both tangible assets, including items of equipment, furniture, and computer software, as well as intangible assets, consisting of proposals in preparation and/or under negotiation and research, development, design, and engineering of sophisticated military and commercial technology.
ESI's claims regarding the tangible assets are not at issue in this appeal.[4] Regarding the intangible assets, ESI argues that employees of Rexham and FTC misrepresented the value of those assets and the probability of acquiring contract rights on them. ESI presented evidence that Rexham and FTC employees made a presentation to ESI's representatives as to the capabilities of the persons at the FTC and of the technologies being developed there. ESI also presented *1381 evidence that, during that presentation, employees of Rexham and FTC gave ESI a packet of false and misleading information that included written estimates of the values, both current and one-year sales value, of products that had been developed and products that could be developed at the FTC. In addition, ESI presented evidence that the Rexham employees misrepresented estimates of the probabilities of the FTC's receiving contracts for sales of its technologies.
ESI argues that the trial court improperly entered a summary judgment on its fraud claims on the basis of an integration, or merger, clause in the purchase agreement and the operation of the parol evidence rule. The merger clause in the purchase agreement reads as follows:
The trial court's judgment is based on the existence of that merger clause and the application of the parol evidence rule:
Accordingly, we address only the issue of whether the trial court properly applied the parol evidence rule to exclude ESI's evidence concerning its fraud claim.
"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988); Rule 56(c), A.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990).
ESI argues that neither the integration clause nor the parol evidence rule operates to preclude it, as a matter of law, from introducing extrinsic evidence of fraud in the inducement as to the purchase agreement. We agree.
The parol evidence rule provides that, absent some evidence of fraud, mistake, or illegality, a party to an unambiguous written contract cannot offer parol, or extrinsic, evidence of prior or contemporaneous oral agreements to change, alter, or contradict the terms of the contract. Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988); Colafrancesco v. Crown Pontiac-GMC, Inc., 485 So. 2d 1131, 1132-33 (Ala.1986). Accordingly, one who seeks, in a breach of contract action, to enforce an oral representation or promise relating to the subject matter of the contract cannot succeed, because of the parol evidence rule. See Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 748 (Ala.1990).
*1382 This action, however, is not a contract action. ESI does not seek to enforce an asserted right at variance with the terms of the contract, in which case the evidence would be inadmissible, but ESI seeks to avoid and defeat the contract on account of fraud, and to recover damages for fraud, independently of the contract; in other words, the gravamen of ESI's action is the fraud, not the contract itself.
This Court has consistently held that the parol evidence rule has no application in an action alleging fraud. See, e.g., Downs v. Wallace, 622 So. 2d 337 (1993); Harris v. M & S Toyota, Inc., 575 So. 2d 74, 77 (Ala.1991); Dixon v. SouthTrust Bank of Dothan, N.A., 574 So. 2d 706, 708-09 (Ala.1990); Hall v. Integon Life Ins. Co., 454 So. 2d 1338, 1343 (Ala.1984); Brenard Mfg. Co. v. Pearson, 213 Ala. 675, 676, 106 So. 171, 172 (1925); Nelson v. Wood, 62 Ala. 175, 177 (1878); Thweatt v. McLeod, 56 Ala. 375, 377 (1876); Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571 (1841). See also Ala.Code 1975, § 12-21-33. Accordingly, the parol evidence rule does not apply to ESI's claims of fraud.
In Dixon v. SouthTrust Bank of Dothan, N.A., 574 So. 2d at 708, this Court noted the distinction between application of the parol evidence rule in contract actions and its applications in tort actions:
(Emphasis supplied.)
Similarly, in Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 748 (Ala.1990), this Court held that "[p]arol evidence is ordinarily admissible to show that a written agreement was procured by fraud." This principle has long been the settled law of this state. In Alabama Machinery & Supply Co. v. Caffey, 213 Ala. 260, 262, 104 So. 509, 511 (1925), this Court held as follows:
This Court has recently reaffirmed this principle in Downs v. Wallace, supra, noting: "As a general proposition, the parol evidence rule applies to contract actions, not [to] actions in tort. Parol evidence is ordinarily admissible to show that a written agreement was procured by fraud." 622 So. 2d at 340. The New York Supreme Court Appellate Division has stated the rule as follows:
Angerosa v. White Co., 248 A.D. 425, 431, 290 N.Y.S. 204, 213 (1936), aff'd, 275 N.Y. 524, 11 N.E.2d 325 (1937).
Rexham argues that parol evidence is not admissible in all cases of precontractual fraud, but is limited to proof of "fraud in procuring the signature to a written contract by misrepresenting or concealing its contents." Blake v. Coates, 292 Ala. 351, 353, 294 So. 2d 433, 435 (1974). Although this Court has sometimes referred to this language in referring to the rule permitting extrinsic evidence of fraud, the effect is the same as when the language used specifies that parol evidence is admissible to establish "fraud in the inducement," at least where the party seeking to establish fraud presents evidence, as ESI has, that it would not have signed the contract if it had known the truth of the representations. Therefore, this distinction has no significance regarding the applicability of the parol evidence rule to claims alleging fraud, as evidenced by the many cases holding that evidence of fraud in *1383 the inducement is admissible notwithstanding the parol evidence rule. See generally, Curry Motor Co. v. Hasty, 505 So. 2d 347, 351 (Ala.1987); Parker v. McGaha, 294 Ala. 702, 709, 321 So. 2d 182, 185 (1975); Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 307, 101 So. 2d 78 (1958).
It is undisputed that ESI's claim alleges fraud; therefore, the parol evidence rule does not exclude parol evidence of representations made before, or contemporaneously with, the execution of the written contract.
Rexham argues that the existence of paragraph 4.07, the integration clause, in the contract bars ESI from introducing evidence of oral representations on which it claims to have relied. As discussed above, the parol evidence rule applies to legal claims concerning the meaning and enforceability of contracts; the rule has no application to legal claims of fraud. An integration, or merger, clause is a portion of a particular contract that restates the rationale of the parol evidence rule within the terms of the contract. See Guilford v. Spartan Food Systems, Inc., 372 So. 2d 7 (Ala.1979) (noting that it is presumed at law that "all prior negotiations are merged into the written contract, which purports to cover the entire transaction"). An integration clause, therefore, is also not applicable to exclude evidence relating to a fraud claim.[5]See Downs v. Wallace, supra; Harris v. M & S Toyota, 575 So. 2d 74 (Ala. 1991); Dixon v. SouthTrust Bank of Dothan, N.A., 574 So. 2d 706, 708-09 (Ala.1990); Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 748 (Ala.1990); Curry Motor Co. v. Hasty, 505 So. 2d 347, 351 (Ala.1987); Parker v. McGaha, 294 Ala. 702, 707, 321 So. 2d 182, 185 (1975) (noting that "[e]vidence of fraud is always admissible, even though there is a completely integrated writing"); Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 309, 101 So. 2d 78, 84 (1957); Stanard Tilton Milling Co. v. Mixon, 243 Ala. 309, 312, 9 So. 2d 911 (1942).
Thus, the law in this state renders an integration, or merger, clause ineffective to bar parol evidence of fraud in the inducement or procurement of a contract. Other courts and general authorities have acknowledged that this rule is well established. See 3 S. Williston, Williston on Contracts §§ 811-811A (3d ed. 1961); Restatement of Contracts § 573 (1932); 3 A. Corbin, Corbin on Contracts § 578, p. 405, n. 42 (3d ed. 1960 and 1992 Supp.) (noting that a merger clause "does not prevent proof of fraudulent representations by a party to the contract, or of illegality, accident, or mistake" and further noting that "[s]uch evidence may directly contradict the writing; but at the same time it shows the whole writing to be void or voidable, including the statement by which representations and mistakes are denied"); id. § 580, p. 431, n. 65 (noting that "it is in no case denied that oral testimony is admissible to prove fraud"). See also 37 Am.Jur.2d, Fraud and Deceit § 453 (1968) (noting that "[t]he general rule that parol or extrinsic evidence is admissible to prove that a written contract was procured by fraud ordinarily applies ... in spite of special provisions in the contract which purport to limit the application of parol evidence"). In Downs v. Wallace, supra, this Court noted that such a holding is required: "To hold otherwise is to encourage deliberate fraud." 622 So. 2d at 342.
Rexham argues that Callis v. Colonial Properties, Inc., 597 So. 2d 660 (Ala.1991), in which this Court affirmed a summary judgment in the defendant's favor against the plaintiff's fraudulent inducement claim, stands for the proposition that a merger clause bars extrinsic evidence of fraud inducing one of the parties to enter a contract. If this Court adopts the construction of Callis that Rexham urges, then Callis would overrule dozens of Alabama cases and a century and a half of case law on the inapplicability of the parol evidence rule to fraud actions. It is unfathomable that this Court would overrule *1384 such a long-standing precedent without even mentioning the parol evidence rule or referring to any of the earlier cases on point; therefore, we construe Callis as consistent with our prior cases. Accordingly, we construe the opinion in Callis to have reached this conclusion based on a theory of promissory fraud, rather than based on an application of the parol evidence rule or a merger clause to Callis's fraud claim, as Rexham suggests.[6]
The alleged misrepresentation in Callis related to a promise of future performance on the part of the defendant, i.e., that it would not lease space in a shopping mall to "discount houses." This Court has held:
Fraser v. Reynolds, 588 So. 2d 442, 446, n. 3 (Ala.1990) (emphasis in original). Callis's complaint alleged that Colonial Properties promised to abstain from leasing to discount stores in the future; therefore, this Court construed her claim to be one for promissory fraud. Because she did not present substantial evidence creating a genuine issue of material fact as to whether the defendant, when it made the alleged representations, intended to deceive her and intended not to abstain from leasing to discount houses, that failure of proof was an adequate basis for the Court to affirm the summary judgment. The holding in Callis does not, therefore, overrule or conflict with the well-established principle making the parol evidence rule and the merger doctrine inapplicable to fraud actions.
Since deciding Callis, this Court has reaffirmed the principle that in fraud actions the parol evidence rule does not bar the introduction of evidence extrinsic to a written contract. See Downs v. Wallace, supra; Joseph Land & Co. v. Gresham, 603 So. 2d 923, 927 (Ala.1992); Lake Martin/Alabama Power Licensee Ass'n v. Alabama Power Co., 601 So. 2d 942, 945 (Ala.1992).
Again, we reaffirm the long-standing principle that the parol evidence rule and the "merger doctrine" do not apply to fraud actions. Accordingly, the trial court improperly held that ESI is barred from presenting parol evidence to substantiate its claim of fraud in the inducement.
Rexham also argues that paragraph 4.07 of the purchase agreement included not only a merger clause, but also what Rexham describes as a "disclaimer clause," which provides that ESI relied upon no representations made by Rexham other than those actually contained in the agreement.[7] It argues that, as a matter of law, the existence of a general disclaimer clause prevents ESI from justifiably relying on any representations not contained in the contract.
This Court recently addressed this issue in Downs v. Wallace, supra, noting that "this *1385 Court has never held that an integration clause such as the one contained in the Downses' purchase agreement [which includes what Rexham describes as a `disclaimer clause'] renders a party's reliance on oral representations unjustifiable, or unreasonable, as a matter of law." 622 So. 2d at 341. The Court in Downs noted: "This holding ensues from the rule that when an agreement has been induced by deliberate fraud, the written document reciting that agreement is void and is `of no more binding efficacy ... than if it had no existence, or were a piece of waste paper.'" Downs, 622 So. 2d at 341 (citations omitted). Therefore, the existence of a general disclaimer clause in the purchase agreement does not, as a matter of law, preclude ESI from justifiably relying on alleged oral representations that were not contained in the contract.
Nevertheless, this Court has held that "we will affirm a summary judgment if it was properly granted, notwithstanding the fact that the trial court gave the wrong reasons for granting it. Boyd v. Brabham, 414 So. 2d 931 (Ala.1982); Bank of the Southeast v. Koslin, 380 So. 2d 826 (Ala.1980)." McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14, 26 (Ala.1986). Therefore, a partial summary judgment would have been proper if Rexham had made a prima facie showing, by admissible evidence, that there was no genuine issue of material fact and if ESI had not rebutted that showing with substantial evidence. Rule 56, Ala.R.Civ.P.
After carefully reviewing the record, we conclude that Rexham has not "carried [its] burden of making a prima facie showing, by admissible evidence, that there is no genuine issue of material fact and that [it] is entitled to a judgment as a matter of law." Bass v. SouthTrust Bank of Baldwin County, 538 So.2d at 797-98; Ala.Code 1975, § 12-21-12. Accordingly, the trial court improperly entered the summary judgment against ESI's claim that Rexham misrepresented the value of certain contract rights and the probability of acquiring those rights. The judgment is therefore due to be reversed and the cause remanded.
REVERSED AND REMANDED.
ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
[1] FTC is an engineering business that designs, manufactures, and sells sophisticated military and commercial technology.
[2] RADG, Inc., is not a party to this action. It owned the FTC before assigning it to Rexham pursuant to a corporate merger. RADG, Inc., sold its interest in the FTC to ESI pursuant to the purchase agreement.
[3] ESI also claims that Rexham breached various warranties related to the sales agreement. The trial court did not rule on this claim; therefore, it is not at issue in this appeal.
[4] ESI claims that Rexham falsely represented that it had clear title to the tangible assets it contracted to convey to ESI. Rexham acknowledged in its brief in support of its motion for summary judgment that ESI's claims regarding these assets were not at issue.
[5] This is not to say that terms of contracts, including integration clauses, may not be evidence in fraud claims; the written terms of a contract may be persuasive evidence rebutting evidence as to a particular element of a fraud claim. However, the written terms of a contract may not operate to bar the trier of facts from considering other legally admissible evidence that would show fraud.
[6] Although neither the main opinion nor the special writings in Callis made specific reference to the promissory fraud theory, a review of the record in Callis reveals that, in its motion for summary judgment, Colonial Properties, Inc., argued that Callis alleged a claim of promissory fraud but that she failed to present substantial evidence of the additional elements of promissory fraud: an intent, at the time of the alleged misrepresentation, not to do the act promised and an intent to deceive. P & S Business, Inc. v. South Central Bell Tel. Co., 466 So. 2d 928 (Ala. 1985). Although it is not clear whether the trial court accepted this argument in granting Colonial Properties' motion for summary judgment, this Court considered that argument to be an adequate basis for affirming the trial court's summary judgment. McMillan, Ltd. v. Warrior Drilling & Eng'g Co., 512 So. 2d 14, 26 (Ala.1986) (noting that this Court will affirm a summary judgment if it was properly granted, notwithstanding the fact that the trial court gave the wrong reasons for granting it). Because the dissent in Callis did not consider the promissory fraud construction, it is not applicable to that construction.
[7] The disclaimer clause in the purchase agreement does not specifically disclaim the very representation ESI alleges to be the foundation for fraud. See Centronics Financial Corp. v. El Conquistador Hotel Corp., 573 F.2d 779 (2d Cir. 1978); Hector M. v. Commissioner of Social Services, 102 Misc.2d 676, 425 N.Y.S.2d 199 (N.Y.Fam.Ct.1980). | September 10, 1993 |
8e683d69-6935-40af-b1ac-d8c441db15df | Dunn v. ALABAMA ST. UNIV. BD. OF TRUSTEES | 628 So. 2d 519 | 1910469, 1910751, 1920953 | Alabama | Alabama Supreme Court | 628 So. 2d 519 (1993)
Ross DUNN, et al.
v.
ALABAMA STATE UNIVERSITY BOARD OF TRUSTEES.
1910469, 1910751 and 1920953.
Supreme Court of Alabama.
October 8, 1993.
*521 H.E. Nix, Jr. and Charles E. Vercelli, Jr. of Nix, Holtsford & Vercelli, P.C., Montgomery, for appellants.
Solomon S. Seay, Jr., Montgomery; Charles D. Langford of Gray Langford Sapp & McGowan, Montgomery; Fred D. Gray of Gray Langford Sapp & McGowan, Tuskegee; Edward Still, Birmingham; and W. Troy Massey of W. Troy Massey, P.C., Montgomery, for appellee.
ADAMS, Justice.
Ross Dunn, Jo Ann Paddock, and Jim Folsom, in his capacity as Governor of the State of Alabama and ex-officio president of the board of trustees of Alabama State University ("ASU"), appeal from a judgment declaring, inter alia, that Dunn and Paddock were not entitled to serve as trustees of the ASU. We affirm.
On April 17, 1991, former Governor Guy Hunt submitted to the senate for its confirmation the appointments of Ross Dunn and Jo Ann Paddock to the board of trustees of ASU. The appointments were "read and referred to the [State Senate's] Standing Committee on Confirmations" ("the Committee"). 1991 Senate Journal, at 83-85. The Committee voted against the appointments of Dunn and Paddock, and, moreover, declined to "report" the appointments to the full senate for a vote. The senate adjourned without further action on the appointments. On August 13, 1991, the Governor sent letters to Dunn and Paddock, stating that the action of the Committee was "insufficient to oust either of [them]" from the Board and assuring them that they retained their positions as trustees.
On September 12, 1991, the Board sued Dunn, Paddock, and Governor Hunt[1] in his capacity as Governor of the State of Alabama and ex-officio president of the Board (collectively designated as the "defendants"), seeking a declaration that Dunn and Paddock were not "duly appointed" trustees and that the Governor's written declarations purporting to confirm their positions were "void." The Board also sought, immediately and permanently, to enjoin Dunn and Paddock from "assuming or attempting to assume" positions on the Board.
On September 17, 1991, the trial court temporarily enjoined Paddock from attempting to assume a position on the Board, but temporarily enjoined the Board from interfering with Dunn's placement. The next day, the trial court issued an amended order to the same effect. On December 6, 1991, the trial court denied the defendants' motion to modify the temporary injunction against Paddock, and, from the denial of that motion, the defendants appealed (case number 1910469).
On November 5, 1991, the defendants counterclaimed, seeking a judgment declaring (1) that the Board violated its by-laws in its selection of Dr. Joe Reed and the Reverend James Smith to be chairman and vicechairman of the Board, respectively, and, thus, that they did not validly hold those positions; (2) that the Board failed to apprise trustees of the proposed agenda at scheduled meetings with the punctuality and precision necessary to prepare the trustees for meaningful participation in the meeting; (3) that the Board violated the provisions of § 16-50-26 regulating the procedures for notifying trustees of pending meeting schedules; (4) that the Board's practice of holding "closed executive sessions and other meetings" violated the "Sunshine law"; and (5) that the Board violated its by-laws in failing to provide the defendants with minutes of Board and committee meetings, "notices, and explanatory materials and recommendations." *522 The defendants also sought an injunction requiring the Board to conform its practices to the declarations sought.
The claims and counterclaims were tried in bifurcated proceedings. At a trial that began on January 27, 1992, the trial court heard ore tenus evidence on the Board's claims, as well as those counterclaims alleging (1) that the Board had violated its by-laws in its selection of Dr. Reed and Reverend Smith, and (2) that the Board had violated its by-laws in failing to apprise trustees of the proposed agenda at scheduled meetings with the punctuality and precision necessary to prepare the trustees for meaningful participation.
On February 6, 1992, the trial court entered an order declaring (1) that the purported appointments of Dunn and Paddock were "void and of no force and effect," and, consequently, that neither Dunn nor Paddock was entitled to serve on the Board; and (2) that the Board did not violate its by-laws in its selection of the current chairman and vicechairman of the board, and, consequently, that Dr. Reed and Reverend Smith were entitled to occupy those positions.[2] The defendants appeal from that order (case number 1910751).
The rest of the defendants' counterclaims were tried on evidence presented ore terms during October, November, and December 1992. On January 5, 1993, the trial court entered a final judgment in favor of the Board on all remaining issues. The defendants appeal from that judgment (case number 1920953). The three cases were subsequently consolidated for appeal. For procedural reasons, we first address the issues presented in case number 1910751the appeal from the order entered on February 6, 1992.
The issue forming the basis of the Board's claims against Dunn and Paddock concerns the effect of the Committee's vote against their appointments, and the Committee's subsequent failure to report their appointments to the full senate for consideration. It is undisputed that the resolution of this issue turns on the proper construction of Ala.Code 1975, § 16-50-20(a), as well as § 16-50-25. Section 16-50-20(a) provides:
(Emphasis added.) For the convenience of the reader, we have numbered each sentence in this section.
Section 16-50-25 relates to the appointment of successor trustees at Alabama State University and provides:
(Emphasis added.)
The Board contends that the Governor's appointments of Dunn and Paddock could only, consistent with § 16-50-20(a), become effective upon confirmation by an affirmative vote of the full senate. For this proposition, the Board relies on Sentence Four: "The trustees shall be appointed by the governor, by and with the advice and consent of the senate...." The Board thus argues, in effect, that the adjournment sine die of the senate without a floor vote on the appointments of Dunn and Paddock constituted constructive rejection by the senate. Furthermore, the Board contends that the sole field of operation of § 16-50-25 is to provide the method whereby any vacancy in the office of trustee occurring during the recess of the legislature shall be filled. It maintains that this section unequivocally provides that any appointment by the Governor in the recess of the legislature must be acted on by the Senate in the next session of the legislature; otherwise, it says, the appointment is void.
The defendants, however, contend that the appointments could only, consistent with § 16-50-20(a), be nullified by a negative vote of the full senate. Relying on Sentence Six, which states: "All appointments shall be effective until adversely acted upon by the senate," the defendants insist that the negative vote of the Committee and the Committee's subsequent failure to report the appointments to the full senate for consideration did not represent adverse senate action, and, consequently, was ineffective to "remove" Dunn and Paddock from their positions on the Board. Thus, the defendants argue, in effect, that the adjournment sine die of the senate without a floor vote on the appointments of Dunn and Paddock constituted constructive consent by the senate.
The question presented by the senate's failure to vote on these appointments is one of first impression in this Court. In construing a statute, we are permitted, indeed required, to compare statutes addressing "related subject[s]." House v. Cullman County, 593 So. 2d 69, 75 (Ala.1992) (quoting 2A Sutherland Stat. Const., § 51.02 (4th ed.)). In doing so, we are not "arbitrarily to disregard the marked differences [and similarities] in terminology" found in such statutes. 593 So.2d, at 75.
Particularly relevant in this inquiry is a comparison of the statutes and constitutional provisions creating boards of trustees for other Alabama state colleges and universities. See Ala.Code 1975, § 16-47-30 (University of Alabama); Ala. Const.1901, amend. 161 (Auburn University); § 16-49-20 (Alabama Agricultural and Mechanical University); § 16-51-3 (University of North Alabama); § 16-52-3 (Jacksonville State University); § 16-53-3 (Livingston University); § 16-54-2 (University of Montevallo); § 16-55-2 *524 (University of South Alabama); § 16-56-3 (Troy State University). That these sections vary considerably in terminology, and that the appointment provisions of § 16-50-20 differ markedly from the corresponding provisions in most of the other sections, is apparent from a cursory examination.
Alabama State University is a predominantly black institution. The only other predominantly black state-supported university is Alabama Agricultural and Mechanical University (Alabama A & M) in Huntsville, Alabama. In 1975, the legislature created the board of trustees for that university. Act No. 198, § 1, 1975 Ala.Acts 683, codified at § 16-49-20, amended by Act No. 89-881, 1989 Ala.Acts 1778. The Act provided in § 1, in material part:
(Emphasis added.) The defendants admit that the clear terms of the legislation creating Alabama A & M University's board of trustees provide that the trusteeship of those trustees vests only upon confirmation, that is, upon an affirmative vote of the Senate. Therefore, adjournment sine die of the Senate without an affirmative floor vote on the appointments constitutes constructive rejection by the Senate. The Board agrees with this assessment and further contends that although the language in the legislation creating Alabama State University's trustees is somewhat different, the result intended was the same. In attempting to ascertain the meaning of the statute creating Alabama State University trustees, we find the comparison with the statute creating the trustees of a sister black institution to be of some interest.
There is a common thread running through the legislation creating the mechanism for appointing trustees of the various state-supported institutions. That thread is that the Governor shall make the appointments, but the appointments must be subject to the advice and consent of the Senate. Obviously, the Governor could not dictate how the Senate is to perform its statutory duty, nor can the Senate dictate to the Governor how he is to perform his. The Senate performs its responsibility by applying its own internal rules of procedure. Before 1951, appointments by the Governor to fill vacancies in trustee positions were submitted to the secretary of the Senate. There they would remain until that body called on the secretary to transmit the appointments to it for action. Beginning in 1951, such recess appointments were sent to the secretary of the Senate and the secretary then submitted them to the Committee on Rules and, recently, to the Committee on Confirmations.
After the Senate began referring nominations and appointments to a committee, it adopted Senate Rule 33, which prescribed the procedure for handling them. Senate Rule 33 provides:
Rules of the Senate of the State of Alabama 33 (1991) (emphasis added).
On September 9, 1991, roughly two months after the trustees in this case were voted on, the Senate passed a resolution that provided:
Although this resolution was passed after the vote taken on the trustees involved in this litigation, this resolution purportedly put into writing the precedential procedures that had been followed by the Senate in its business for over 40 years. That is, once a nomination failed to get out of the proper committee, that nomination was dead. Furthermore, the attorney general of the State of Alabama, in an attorney general's opinion to Senator Charles D. Langford, August 14, 1991, page 4, opined that such nominations cannot be resubmitted to the Senate in any future legislative session.
Therefore, we hold that the action of the Committee on Confirmations rejecting the appointments of Dunn and Paddock was an adverse action of the Senate, which had the effect of divesting them of any authority to assume, or attempt to assume, positions of trustees on the Board of Trustees of Alabama State University.
The defendants have made much of the argument that this rationale allows a committee of the Senate to exercise authority that only the entire Senate can exercise under § 16-50-20(a), which provides that "all appointments shall be effective until adversely acted upon by the Senate." We see a difference between the rejection of a nominee and the approval of a nominee. In order to facilitate the dispatch of business by the Senate, committees were formed to provide certain essential functions. One of the functions of the Committee on Confirmations is to decide which nominees are worthy of consideration by the entire Senate. It is sound policy for the Senate to give the Committee full power to reject a nominee, but under Rule 33, the confirmation of a nominee must be by the full Senate; i.e., the committee cannot confirm a nominee. Rule 33 provides that "[a]ll nominations and appointments shall be referred to, and be reported from the Committee on Confirmations before consideration by the entire Senate. If the Senate rejects a nomination or appointment, it will either forward its rejection to the Secretary of the Senate ..., or, in the event the pertinent statute permits, the Senate may select a substitute appointment." We hold that this Rule requires only that the Committee on Confirmations submit the names of the nominees it approves, not the names of the nominees it rejects.
Although we have discussed, in some detail, the defendants' arguments concerning the authority of the Senate's Committee on Confirmations to reject or divest the Governor's nominees, we have done so because of the extensive elaboration of this point in the brief of the defendants. However, the issue involved here, namely, the right of the trustee to hold office, has been clearly set forth in § 16-50-25. In other words, by virtue of this section, unless the Governor's appointee is confirmed by vote of the entire Senate in the next session of the legislature, the trustee's appointment is ended by force of law.
We further point out that our opinion concerning the vitality of the appointments of Dunn and Paddock is consistent with two attorney general's opinions, one to the Hon. Walter E. Penry, Jr., dated October 29, 1987, and the other to the Hon. Charles D. Langford, dated August 14, 1991, which concluded that "an appointment which must be submitted to the Senate expires upon the adjournment of that body if appropriate action has not been taken thereon." To conclude as the defendants in this case do, that the adverse action taken by the Committee on Confirmations was, indeed, a constructive consent, is to place an unnatural and strained construction on the word "consent," which flies in the face of reasonable statutory construction. Western World Insurance Co. v. City of Tuscumbia, 612 So. 2d 1159 (Ala.1992); Sullivan v. State Farm Mutual Auto. Insurance Co., 513 So. 2d 992 (Ala.1987).
Therefore, the trial judge was correct in concluding that these nominees for trusteeship were divested of any interest or right to the positions which the Governor had sought to appoint them to when they failed to obtain the approval of the Committee on Confirmations.
During the first trial in this bifurcated proceeding, the trial court considered the *526 counterclaims alleging (1) that the Board violated its by-laws in its selection of its chairman and vice-chairman, and (2) that the Board violated its by-laws in failing to punctually and precisely apprise trustees of the proposed agenda at scheduled meetings.
The trial judge's disposition of this issue was based on the following factual findings and legal conclusions:
As the trial judge observed, the defendants also contended that the Board had met at an illegal session to adopt its 1989 Bylaws, which repealed a section in the previous Bylaws that would have precluded the services of Dr. Reed and Reverend Smith as chairman and vice-chairman, respectively. Regarding this contention, the trial judge stated:
We find no reason to reverse the trial court's judgment in case number 1910751 and we adopt the quoted portions of its order as part of the opinion of this Court.
The Board contends that the issues presented by the amended order entered on September 18, 1991, in which the trial court temporarily enjoined Paddock from attempting *528 to assume a position on the Board have been "superseded" by the permanent injunction to that effect entered on February 6, 1992. Consequently, the Board contends, the substantive questions presented in case number 1910469the appeal from the denial of the motion to modify the injunction issued in the amended orderare moot. We agree.
"This Court will not decide questions that are moot or that have become purely academic. J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981); City of Birmingham v. Long, 339 So. 2d 1021 (Ala.1976); Byrd v. Sorrells, 265 Ala. 589, 93 So. 2d 146 (1957)." Smith v. Cook, 578 So. 2d 1055, 1057 (Ala.1991). "Neither will we set out to resolve an issue unless a proper resolution would afford a party some relief. City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301 (1937); Caldwell v. Loveless, 17 Ala.App. 381, 85 So. 307 (1920)." 578 So. 2d at 1057. Because the defendants have not demonstrated how a favorable decision in case number 1910469 would affect their substantive rights, the appeal in case number 1910469 is dismissed as moot.
The second trial in this bifurcated cause primarily concerned the counterclaim alleging that the Board often met in secret sessions in violation of the Alabama Sunshine Law, Ala.Code 1975, § 13A-14-2(a). In particular, the defendants contended that the Board may not, consistent with § 13A-14-2(a), meet in "executive" sessions with its attorneys to discuss pending litigation.
The trial court held that an "executive session of the Board held on May 25, 1991, was protected by the attorney-client privilege and therefore was not unlawful."[6] The defendants contend that this holding is inconsistent with § 13A-14-2(a), and they urge us to adopt the following rule:
Brief of Appellants, at 65.
Section 13A-14-2(a) provides:
The defendants contend that this section, which excepts from its application only sessions at which the discussion is addressed to the "character or good name of a woman or man," controls sessions involving matters that would otherwise be protected by the attorney-client privilege. We disagree with this contention.
The privilege of confidentiality represents one of the cornerstones of the attorney-client relationship. Rule 1.6(a), Ala.R.Prof.Conduct, provides: "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)." The comment to Rule 1.6 makes the following pertinent observations:
(Emphasis added.) See also Ala.Code 1975, § 12-21-161 (codifying the attorney-client confidentiality privilege).
Matters bearing as directly on the attorney-client relationship as the privilege of confidentiality does are inherently subject to judicial oversight and control.
Ex parte Taylor Coal Co., 401 So. 2d 1, 3 (Ala.1981).
This "inherent, continuing, and plenary" control cannot, consistent with the Alabama Constitution, be abridged by legislative action. See Ala. Const.1901, § 43: "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them... to the end that it may be a government of laws and not of men." Thus, in Alabama, as elsewhere, "[t]he Legislature ... is without authority to enact laws which impair the attorney's ability to fulfill his ethical duties as an officer of the Court." Smith County Education Ass'n v. Anderson, 676 S.W.2d 328, 334 (Tenn.1984); see also Minneapolis Star & Tribune Co. v. Housing & Redevelopment Authority, 246 N.W.2d 448 (Minn. 1976); accord, Tahoe Regional Planning Agency v. McKay, 769 F.2d 534 (9th Cir. 1985); Oklahoma Ass'n of Mun. Attorneys v. State, 577 P.2d 1310 (Okla.1978). But see Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla.1985).
Although we must reject the defendants' proposed rule, we also recognize the potential for abuse of the privilege that a broad application of the exception would invite. As the Supreme Court of Tennessee pointed out: "A public body could meet with its attorney for the ostensible purpose of discussing pending litigation and instead conduct public business in violation of the Act." Smith County Education Ass'n, 676 S.W.2d, at 335. To prevent such abuse, that court set forth the following restrictions on the scope of the exception to Tennessee's "Open Meetings Act":
Id. at 334-35 (emphasis added). We agree with this standard and adopt it as the rule in Alabama.
The judgment in case number 1920953 is affirmed.
AFFIRMED.
1910469DISMISSED AS MOOT.
1910751AFFIRMED.
1920953AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] While this appeal was pending, Guy Hunt was succeeded by Jim Folsom, Jr., who has been substituted in this appeal. See Rule 43(b), Ala. R.App.P.
[2] The trial court also found that the Board sometimes violated its by-laws in failing to punctually provide notice of the times of meetings and the proposed agenda, accompanied by "explanatory materials and recommendations," and it enjoined the Board from further violations in that regard.
[3] This "grandfather" provision was inapplicable to the terms to which Dunn and Paddock were appointed in 1991.
[4] Section 16-50-26 provides:
"The first meeting of the board of trustees of Alabama State University after all members have been appointed shall be upon the call of the governor. The board shall hold regular meetings on the first Thursdays in May and November at the university unless the board shall, in regular session, determine to hold its meetings at some other time and place. The regular May meeting shall be the regular annual meeting. Special meetings of the board may be assembled by either one of the two methods outlined as follows:
"(1) Special meetings of the board may be called by the governor. In calling such special meetings the governor shall mail a written notice to each trustee, naming the time and place thereof, at least 10 days in advance of the date of such meetings.
"(2) Upon the application in writing of any four members of the board, the governor shall call a special meeting, naming the time and place thereof and causing notices to be issued in writing to the several members of the board. Such meetings shall not be held on a date less than 10 days subsequent to the notices from the governor."
[5] The March 30, 1989, meeting, during which the bylaws were amended, was convened from a meeting held on December 21, 1988. The December meeting had been convened from the recess of the regular November meeting.
[6] It is undisputed that the Board met in sessions from which the public was excluded to discuss certain matters in the presence of its attorneys. | October 8, 1993 |
503b70fb-3639-4c61-a1b7-0317c6706332 | Ex Parte Veazey | 637 So. 2d 1348 | 1920586 | Alabama | Alabama Supreme Court | 637 So. 2d 1348 (1993)
Ex parte Larry VEAZEY.
(Re Roosevelt ROBERTS v. Larry VEAZEY).
1920586.
Supreme Court of Alabama.
September 24, 1993.
Michael M. Eley and Bart Harmon of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for petitioner.
Joel S. Rogers III of Rogers and Waid, Clanton, for respondent.
Lonette Lamb Berg and Lawrence T. King of Harris, Evans, Berg, Morris & Rogers, P.C., Birmingham, for amici curiae Alabama Self-Insured Worker's Compensation Fund, Supervalu, Inc., and Kent Corp.
John J. Coleman III and Marcel L. Debruge of Balch & Bingham, Birmingham, for amicus curiae Business Council of Alabama.
Charles F. Carr, Deborah Alley Smith, and Rhonda K. Pitts of Rives & Peterson, for amici curiae Alabama Self Insurers Ass'n, American Mining Ins. Co., Alabama Retail Ass'n Self Ins. Fund, Alabama Roofing, Sheet Metal, Heating, and Air Conditioning Contractors Ass'n, Alabama Home Builders Self-Insurers Fund, Alabama Hosp. Ass'n Workers' Compensation Self-Insured Fund, Alabama Oilmen's Ass'n/Alabama Ass'n of Convenience Stores Workers' Compensation Self Ins. Fund, Associated Gen. Contractors Self Insuranced Fund, Ass'n of County Commissions of Alabama Self Insurers Fund, Automobile Dealers Ass'n of Alabama Workers' Compensation Self Insurance Fund, Municipal Workers Compensation Fund, Inc., Alabama Nursing Home Ass'n Self Ins. Trust, Alabama Automotive Wholesalers Workers' Compensation Self-Insurers Fund, Children's Hosp. of Alabama, State Auto Group, O'Neal Steel, State Farm Fire & Cas., Fontaine Truck Equipment Co., Seaman Timber Co., Inc., Browning Ferris Industries of Alabama, Inc., Oliver Transp., Inc., Wal-Mart Stores, Inc., Penn Nat. Ins. Co., Webb Wheel Products, Inc., Professional Business Owners Ass'n, CNA Ins. Co., and Overnite Transp. Co.
*1349 KENNEDY, Justice.
The plaintiff, Roosevelt Roberts, appealed to the Court of Civil Appeals from a judgment awarding him workers' compensation benefits for a partial disability. Roberts argued that the trial court erred because, he said, he had been entitled to a judgment against his employer, the defendant, Larry Veazey, based on a finding of total disability. The Court of Civil Appeals agreed and reversed the judgment of the trial court, 637 So. 2d 1345. Veazey petitioned this Court for a writ of certiorari, which was issued. The issue on our review is whether the Court of Civil Appeals afforded the trial court's judgment the proper deference.
In Ex parte Eastwood Foods, Inc., 575 So. 2d 91, 93 (Ala.1991), we discussed the proper standard for appellate review of a workers' compensation case:
Consistent with this standard, a reviewing court is to determine not whether it would have found Robertsunquestionably the victim of tragic misfortuneto be totally disabled, but whether the lesser degree of disability found by the trial court is supported by legal evidence, "any reasonable view of [which] supports the ... judgment." (Emphasis added.) Where one reasonable view of the evidence supports the trial court's judgment, the judgment must be upheld, even if another, perhaps better reasoned, view of the evidence might have dictated a different outcome.
The record indicates that Roberts, approximately 36 years old, was working as a pulpwood logger when he suffered an on-the-job injury that resulted in the amputation of his left leg above the knee. He also suffered injuries to his neck, shoulder, and back, which continue to cause him pain. Roberts has a ninth-grade education, has no technical training, and has never been employed, except as a laborer. He has an I.Q. of 94 and has no driver's license. According to one expert at trial, Roberts, by virtue of his injuries, has lost access to approximately 84 percent of the jobs that he had previously had access to. It is undisputed that Roberts is no longer able to work in the types of jobs he previously held.
Roberts's vocational rehabilitation expert testified that Roberts has a vocational disability rating of 62 to 63 percent. Veazey's expert testified that Roberts's vocational disability rating was 55 percent. Roberts's physician, Dr. Kyung O. Yoon, testified that Roberts had a permanent physical impairment of 36 percent to the body as a whole. All three witnesses stated that there were jobs that Roberts could do, and both vocational rehabilitation experts stated that such jobs were in fact available to Roberts.
The trial court held that Roberts has a 65 percent disability, and ordered compensation for a period of 300 weeks. Certainly, as to the first prong of Eastwood Foods whether there was "any legal evidence to support the trial court's findings"we must conclude that there was evidence from which the trial court could find a 65 percent disability. As to the second prong of the Eastwood Foods standard"whether any reasonable view of that evidence supports the trial court's judgment" (i.e., only where no reasonable view of the evidence would support the trial court's judgment should the judgment be disturbed)one could reasonably view the testimony of the two vocational rehabilitation experts and Robert's physician as supporting the trial court's judgment.
Based on the foregoing, the judgment of the Court of Civil Appeals is reversed, and the cause is remanded.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES and HOUSTON, JJ., concur.
INGRAM, J., dissents.
INGRAM, Justice (dissenting).
The majority concludes that the Court of Civil Appeals erred in applying the workers' compensation standard in the present case. After reviewing the record, I believe that the *1350 Court of Civil Appeals correctly held that Roberts had suffered a total disability. This Court should follow its ruling in Ex parte Eastwood Foods, Inc., 575 So. 2d 91 (Ala. 1991), where it affirmed the judgment of the Court of Civil Appeals in a case like this one. However, the facts of Roberts's situation are much more disturbing than the facts in Eastwood. Roberts's leg amputation will restrict him from walking for longer than 20 minutes, running, carrying more than 20 pounds, and climbing. Clearly, these are the requirements of working in pulpwood and manual labor, the only occupation he has known. Total disability does not mean entire physical disability; instead, it is the inability to perform one's trade or to obtain reasonably gainful employment. Wright v. Goodyear Tire & Rubber Co., 591 So. 2d 518 (Ala.Civ. App.1991).
Because no reasonable view of the facts in this case can support any conclusion other than that Roberts is totally disabled, I respectfully dissent. | September 24, 1993 |
bac85bfa-3969-44c2-853b-2a6739be1639 | Morgan v. NORTHEAST ALABAMA REG. MED. CTR. | 624 So. 2d 560 | 1920278 | Alabama | Alabama Supreme Court | 624 So. 2d 560 (1993)
Timothy MORGAN
v.
NORTHEAST ALABAMA REGIONAL MEDICAL CENTER, et al.
1920278.
Supreme Court of Alabama.
September 10, 1993.
*561 Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.
F. Carlton King, Jr., and Paula A. Hilburn of Ford & Harrison, Atlanta, GA, and Brenda S. Stedham of Merrill, Porch, Dillon & Fite, P.A., Anniston, for appellees.
PER CURIAM.
Timothy Morgan appeals from a summary judgment in favor of the defendants, Northeast Alabama Regional Medical Center ("NEARMC"), and its employees Larry Zaner and Dan Morrison in his action alleging a wrongful termination of an employment relationship. The issue is whether the trial court erred in holding that Morgan cannot maintain an action pursuant to Ala.Code 1975, § 25-5-11.1, on the basis that he failed to give proper notice of a violation of a safety rule.
The basis of Morgan's action against NEARMC and its employees Zaner and Morrisonhis supervisorsis that he was forced to work in a boiler room that was insulated with materials containing dangerous amounts of asbestos and that when he complained about this condition his employment with NEARMC was terminated. Morgan presented evidence in opposition to the defendants' summary judgment motion that would support findings of the following facts: 1) that Morgan was assigned to work in the boiler room and was not transferred to another work area, even after he complained of the asbestos-laden insulation; 2) that Zaner and Morrison violated a NEARMC safety rule by ordering certain work done in the boiler room before the insulation could be analyzed to determine its asbestos content; 3) that Morgan lodged a formal complaint with the Occupational Safety and Health Administration ("OSHA") concerning the conditions in the boiler room; 4) that NEARMC had knowledge of this complaint; and 5) that Morgan was fired solely because of his complaints, particularly the complaint he filed with OSHA.
In support of a motion for summary judgment the movant must show that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. A.R.Civ.P. 56. If the movant is able to make this prima facie showing, the burden then shifts to the nonmovant to provide substantial evidence in support of his position. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Section 25-5-11.1 provides:
(Emphasis added.)
This Court has construed the first provision of § 25-5-11.1, regarding the termination of an employee for instituting or maintaining an action for workers' compensation benefits. In Carraway v. Franklin Ferguson Manufacturing Co., 507 So. 2d 925 (Ala. 1987), the Court held that § 25-5-11.1 establishes a cause of action in tort for violation of its provisions and reversed a dismissal of the action. In Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala.1988), the Court interpreted "termination" to include a constructive termination, discussed the burdens of proof for and against the proposition that the employee was fired "solely" for filing a workers' compensation action, and reversed a judgment based on a directed verdict for the defendant. In McClain v. Birmingham Coca-Cola Bottling Co., 578 So. 2d 1299 (Ala. 1991), the Court reversed a summary judgment for the defendant, holding that, although § 25-5-11.1 refers to an employee's instituting or maintaining an action for workers' compensation benefits, the statute should be construed to prohibit terminating an employee for submitting a claim for benefits, not just to prohibit termination for filing a *562 legal action. The Court in both Twilley and McClain relied in part on the principle that, because the Workers' Compensation Act, including § 25-5-11.1, is remedial, it will be construed liberally to effect its purposes. See also Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313 (Ala.1992); Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120 (Ala.1992); Hayden v. Bruno's, Inc., 588 So. 2d 874 (Ala.1991).
This Court has not, however, construed or applied the second provision of § 25-5-11.1, regarding termination for filing notice of violation of a safety rule. Morgan contends that he was terminated because of his complaints about asbestos exposure in his workplace, and he argues that this termination violates § 25-5-11.1. The defendants respond by stating that he did not file "a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11" and argue that his termination therefore does not violate § 25-5-11.1.
Section 25-5-11(c) gives four definitions of "willful conduct" for which an employee can have a cause of action against a co-employee under § 25-5-11(b). The fourth definition reads:
This heavy burden on a plaintiff who seeks to establish that his co-employee has willfully injured him is consistent with the legislative purposes in enacting the statute that amended § 25-5-11(c) to its present form. See Reed v. Brunson, 527 So. 2d 102 (Ala.1988). Incorporation of all of these requirements into § 25-5-11.1 would not be consistent, however, with the remedial purposes of that provision. Section 25-5-11.1 was enacted to offset the harsh effects of the employment-at-will doctrine. See Twilley, supra. There are legitimate reasons for imposing a strict notice-filing requirement before a co-employee can be said to be engaging in "willful conduct" that injures the complaining employee, but those reasons do not apply to the policy of prohibiting employers from firing employees for complaining about safety violations. Thus, just as this Court in McClain construed "action" to mean any workers' compensation claim, not just an action at law, we construe the § 25-5-11.1 requirement of notice of a safety violation as not incorporating all the strict requirements of § 25-5-11(c)(4).
Section 25-5-78 requires an injured employee to file written notice of his workplace injury within five days after the injury unless prevented for good reason from doing so, but to file in any event within 90 days. "If the notice is not given, the employee ... shall not be entitled to physician's or medical fees nor any compensation which may have accrued under the terms of this article." However, the courts have long held that oral notice by the employee or actual knowledge on the part of the employer is sufficient to *563 support the employee's claim for benefits. C.E. Adams & Co. v. Harrell, 257 Ala. 25, 57 So. 2d 83 (1952); Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So. 2d 591 (1945); Bonner v. Union Camp, Inc., 559 So. 2d 183 (Ala.Civ.App.1989), cert. denied, 559 So. 2d 185 (Ala.1990); Ragland Brick Co. v. Campbell, 409 So. 2d 443 (Ala.Civ.App.1982); Legg v. Americold Compressor Co., 336 So. 2d 1121 (Ala.Civ.App.1976). The Court adopted this construction in an opinion by Justice Bouldin in 1925:
Ex parte Stith Coal Co., 213 Ala. 399, 400, 104 So. 756, 757 (1925).
Similarly, a construction of § 25-5-11.1 in light of its remedial purposes would prohibit employers from discharging employees for complaining about safety violations, regardless of whether the complaints met the strict requirements of § 25-5-11(c)(4). We need not decide whether a written complaint is necessary, or whether clear evidence of specific, pertinent oral complaints will suffice, because Morgan's written complaint to OSHA prompted OSHA to investigate NEARMC's facilities. OSHA provided NEARMC with a written copy of the formal complaint, although it appears that OSHA may not have informed NEARMC of who filed the complaint.[1] This written complaint that was submitted to NEARMC, together with the evidence of the repeated oral complaints by Morgan, is sufficient evidence of notice to the defendants for Morgan to invoke the protection of § 25-5-11.1.
Of course, Morgan must prove that his employment was terminated solely because he gave notice of safety violations, see Twilley and Culbreth, supra. He presented substantial evidence in support of that claim, and the judgment is therefore due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX and HOUSTON, JJ., dissent.
MADDOX, Justice (dissenting).
Insofar as I can tell, this is the first time that this Court has had an occasion to ascertain the legislative intent behind § 25-5-11.1, Ala.Code 1975, as it relates to an employee who alleges that he was terminated because be complained about the violation of safety rules. This Court, on other occasions, has construed § 25-5-11.1, as it relates to termination of employees who have filed for workers' compensation benefits.
Section 25-5-11.1 provides:
(Emphasis added.)
I agree with the majority: (1) that the Legislature, by adopting this statute in 1984,[2]*564 intended to prohibit employers from terminating employees in retaliation for their decision to file a claim for workers' compensation benefits; (2) that this Court has held that in order for the beneficent goals of the workers' compensation chapter to be realized, the employee must be able to exercise his right to be compensated for work-related injuries in an unfettered fashion, without being subject to reprisal;[3] and (3) that this statute is remedial legislation and is intended to prevent an employee's termination solely because the employee has instituted or maintained an action against the employer to recover workers' compensation benefits, and should, therefore, be construed liberally to effect its purposes.[4]
I cannot agree, however, with the majority's holding that the words "filed a written notice of violation of a safety rule" includes the making of oral complaints, however numerous. The statute is very specific in using the words, "filed a written notice of violation of a safety rule." The notice must be "filed" and it must be "written." I think this is especially significant, in view of the fact that the law in Alabama, when this statute was adopted, was that an employment contract was generally terminable at will by either party, with or without cause or justification for a good reason, a bad reason, or no reason at all. Now, with regard to dismissals based on the filing of workers' compensation claims, the Legislature has carved out an exception to this general rule. Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120 (Ala.1992).
Unquestionably, the purpose of the statute was to change this common law rule that exempted employers from liability for wrongful termination, which the Legislature had a right to do, but I do not believe the Legislature intended the words "filed a written notice" to include making an oral complaint. Because of my disagreement about the Legislature's intent, I must respectfully dissent.
HOUSTON, Justice (dissenting).
Is there substantial evidence that Timothy Morgan filed a "written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11"? If you read (c)(4) of § 25-5-11 and the testimony in this case, you must conclude that there is no evidence that Morgan filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of § 25-5-11. Therefore, the majority opinion is creating a judicial exception to the employee-at-will doctrine, under the guise of statutory construction. If the statute (§ 25-5-11.1) provided "or solely because the employee filed notice of violation of a safety rule" (which it does not), then I would concur with the majority insofar as Northeast Alabama Regional Medical Center, Morgan's employer, is concerned. However, I could not reverse the summary judgment for the defendants Larry Zaner and Dan Morrison, who are co-employees of Morgan's, for there is no evidence that a notice was filed pursuant to Ala.Code 1975, § 25-5-11(c)(4), and that is the only way, under the allegations of the complaint in this case, that Morgan's co-employees would be liable.
The trial court did not err; therefore, I dissent.
[1] After beginning an investigation, OSHA concluded that it did not have jurisdiction over the hospital, so it discontinued the investigation.
[2] Ala. Acts 1984, 2d Ex.Sess., Act No. 85-41, p. 44, § 11.
[3] McClain v. Birmingham Coca-Cola Bottling Co., 578 So. 2d 1299 (Ala.1991).
[4] Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala.1988). | September 10, 1993 |
07fd1956-f4da-4002-9897-d3e6800a7158 | Ex Parte Taylor | 636 So. 2d 1246 | 1920698 | Alabama | Alabama Supreme Court | 636 So. 2d 1246 (1993)
Ex parte Thomas Edward TAYLOR.
(Re Eddie Taylor
v.
State).
1920698.
Supreme Court of Alabama.
September 10, 1993.
William J. Baxley and Randy James of Baxley, Dillard, Dauphin & McKnight, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.
SHORES, Justice.
We granted certiorari review in this case to determine whether § 13A-11-72, Code of Ala.1975, which prohibits a convicted felon from possessing a pistol, is a strict liability statute or whether a convicted felon who is charged with possessing a firearm may raise the defense of self-defense. We hold that he can. We reverse the judgment affirming Taylor's conviction and remand with instructions.
The petitioner, Thomas Edward Taylor, has placed the following facts before us by way of his petition and a Rule 39(k), A.R.App.P., statement of facts. Taylor is 41 years old, has been employed by the City of Gadsden for 16 years, and is presently its director of public works. Before working for the city, he worked for the sheriff's department, and he is still an honorary deputy sheriff.
In the fall of 1989, the city garbage workers of Gadsden were on strike. During that time, because of threats of violence against him and his family, Taylor carried with him in his truck a pistol belonging to his brother. The gun was in the truck on the night of October 5, 1989, when he and his brother were accosted by a group of strikers while they were at a service area of a shopping mall where Taylor maintained the grounds. The strikers drove up "cussing and screaming" and swinging baseball bats and clubs; one of the strikers had a gun. The strikers accused Taylor and his brother of picking up garbage in defiance of the strike. The Taylors denied that they were picking up garbage and asked the strikers to let them go. The strikers refused. Taylor pulled the gun and gave it to a man who worked at the theaters in the mall, asking him to hold it on the strikers until the he could telephone the police. Taylor went into the mall and telephoned the police, who came and took him home and remained with him for some time. Thereafter, the mayor had Taylor taken out of town for his safety.
In December 1989, Taylor was indicted and charged with violating § 13A-11-72(a), which prohibits persons convicted of a felony from possessing a pistol. The indictment was based upon the fact that in 1976, when Taylor was 24 years old, he had pleaded guilty to, and had been convicted on, a charge of burglary.
During Taylor's 1989 trial, the judge refused to allow Taylor to raise the defense of self-defense and to introduce evidence that he had appeared before the State Board of Pardons and Paroles to seek a pardon from *1247 the burglary conviction and that the Board could find no record of a conviction. The trial judge's ruling was based upon the Court of Criminal Appeals' holding in Johnson v. State, 620 So. 2d 661 (Ala.Crim.App.1991). In Johnson, the Court of Criminal Appeals cited Mason v. State, 39 Ala.App. 1, 103 So. 2d 337 (1956), as supporting the proposition that a pardon does not destroy the effect of § 13A-11-72. The holding in Mason has now been specifically overruled by State ex rel. Sokira v. Burr, 580 So. 2d 1340, 1344-45 (Ala.1991). This Court affirmed Johnson v. State by an opinion of May 15, 1992; however, this Court withdrew its May 15, 1992, opinion, and this Court's final opinion in the Johnson case does not hold that § 13A-11-72(a) is a strict liability offense. See Ex parte Johnson, 620 So. 2d 665 (Ala.1993).
Taylor cites us to cases from the courts of Florida and Louisiana, holding that this offense is not a strict liability offense; we are persuaded by the reasoning of those courts. The Supreme Court of Louisiana has held that self-defense is a valid defense to the charge of possessing a firearm:
State v. Blache, 480 So. 2d 304 (La.1985). In Mungin v. State, 458 So. 2d 293 (Fla.Dist.Ct. App.1984), the Florida District Court of Appeals reversed a lower court's judgment concerning the presentation of evidence (in this case the weapon was a knife) as to self-defense, stating:
Id. at 295.
For the reasons stated above, the judgment is due to be reversed and the cause remanded for the Court of Criminal Appeals to set aside the conviction and order a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur in this judgment because I believe it comports with legislative intent. Even though I cannot agree that the statute forbidding a convicted felon to possess a pistol requires a showing of a specific intent or scienter, I do agree that the defense of self-defense is available in what I consider to be a public welfare crime.
As the author of Ex parte Harper, 594 So. 2d 1181 (Ala.1991), cert. denied, ___ U.S. ___, 113 S. Ct. 330, 121 L. Ed. 2d 248 (1992), I discussed the distinctions between strict liability crimes and those requiring the showing of a specific intent:
594 So. 2d at 1183-1184. Although, as the majority notes, "this Court's final opinion in the Johnson case does not hold that § 13A-11-72(a) is a strict liability offense," neither does it hold to the contrary. Rather, it is the classification of this crime as a "public welfare offense" that provides the distinguishing factor that supplies for Taylor an opportunity to raise the defense of self-defense. The United States Supreme Court has stated:
Morissette v. United States, 342 U.S. 246, 255-56, 72 S. Ct. 240, 246, 96 L. Ed. 288 (1952), as quoted in Ex parte Harper, 594 So. 2d at 1186.
Section 13A-11-73 forbids a convicted felon to own or possess a pistol; that section appears under the heading "Offenses Against Public Order and Safety." My reading of the statute does not reveal that the legislature required a showing of a specific intent or scienter for this offense; however, I do agree with the majority that the defense of self-defense is available to one charged with this crime against the public welfare. | September 10, 1993 |
bb72dda9-3e81-4728-bc63-670353cb940f | Ex Parte Harwell | 639 So. 2d 1335 | 1920892 | Alabama | Alabama Supreme Court | 639 So. 2d 1335 (1993)
Ex parte Teddy Lynn HARWELL.
(Re Teddy Lynn Harwell v. State).
1920892.
Supreme Court of Alabama.
September 17, 1993.
Rehearing Denied December 10, 1993.
Wilford J. Lane, Anniston, for petitioner.
James H. Evans, Atty. Gen., and Andy S. Poole, Deputy Atty. Gen., for respondent.
HORNSBY, Chief Justice.
We have granted Teddy Lynn Harwell's petition for certiorari review of a judgment of the Court of Criminal Appeals affirming his convictions of reckless homicide and assault in the first degree. We reverse and remand.
On August 3, 1991, Harwell and his wife went to the Surfside Six Lounge in Talladega County at approximately 3:00 p.m. Harwell admitted that he consumed seven or eight beers while he was there. At approximately 10:10 that evening, Harwell left the Surfside Six to drive his wife and two of their friends back to Bynum, where they lived. They proceeded north on County Road 63; on that road, Harwell's automobile collided with a motorcycle driven by Kenneth Goodwin. Kenneth Goodwin suffered serious bodily injuries, and his wife, Judy Goodwin, who was riding as a passenger on the motorcycle, died as a result of injuries sustained in the collision.
Several hours after the accident, Harwell was transported to Citizens Hospital in Talladega, where he consented to have a blood sample drawn. The blood sample was transmitted to the Alabama Department of Forensic Sciences in the Birmingham Regional *1336 Laboratory, where a forensic scientist performed tests on it; the results of those tests indicated that Harwell had a blood alcohol content of 0.19%.
Harwell was subsequently indicted for reckless murder and assault in the first degree. The indictment for reckless murder reads as follows:
The indictment charging Harwell with assault in the first degree made similar allegations with respect to the injuries caused to Kenneth J. Goodwin and specifically referenced the language of Ala.Code 1975, § 13A-6-20(a)(5), regarding causing injury while driving an automobile under the influence of alcohol.
On October 10, 1991, approximately two weeks after the State served an indictment on Harwell, he sought production of a sample of his blood that had been drawn after the accident for an independent blood alcohol analysis. As of November 15, 1991, the prosecution had failed to comply, and on that day Harwell filed a second motion to obtain a sample of his blood and to obtain the State's records relating to the analysis of his blood. On the same day, the trial judge denied that part of the motion relating to the production of the blood sample. Harwell argues that the trial court erred in denying this request.
The Court of Criminal Appeals affirmed both convictions by unpublished memorandum, holding that his "argument that the trial court's denial of his request for a sample of his own blood for independent testing constituted a denial of his rights to due process is without merit." Harwell v. State, 618 So. 2d 147 (Ala.Crim.App.1993). On May 18, 1993, this Court granted Harwell's petition for certiorari review.
Discovery matters are within the sound discretion of the trial court, and this Court will not reverse a trial court's rulings on discovery issues unless there has been a clear abuse of discretion. Home Ins. Co. v. Rice, 585 So. 2d 859 (Ala.1991). Further, this Court has held that, to be entitled to a reversal of a judgment for an abuse of discretion, the party claiming abuse must establish that it was prejudiced by the alleged abuse. See Valley Properties, Inc. v. Strahan, 565 So. 2d 571, 583 (Ala.1990).
Harwell argues that the trial court abused its discretion by denying his motions to obtain a sample of his blood so that he could have it independently analyzed. He also argues that the trial court's denial of his request prejudiced his rights to due process. He notes that this Court has held that a defendant has a right to obtain independent testing of controlled substances that were obtained from the defendant and that are in the custody and control of the State. Warren v. State, 292 Ala. 71, 288 So. 2d 826 (1973). See also Sawyer v. State, 598 So. 2d 1035 (Ala.Crim.App.), cert. denied, ___ U.S. ___, 113 S. Ct. 386, 121 L. Ed. 2d 295 (1992); Gayle v. State, 591 So. 2d 153 (Ala.Crim.App. 1991); Jackson v. State, 560 So. 2d 1100 (Ala. Crim.App.1989); Moton v. State, 524 So. 2d 381 (Ala.Crim.App.1988); Ware v. State, 472 So. 2d 447 (Ala.Crim.App.1985); Blair v. State, 453 So. 2d 1092 (Ala.Crim.App.1984).
In Warren, holding that due process requires that a defendant be allowed to obtain a sample of the controlled substances obtained from him, this Court stated:
292 Ala. at 75, 288 So. 2d at 830. (Emphasis added.) Harwell argues that where, as here, his blood alcohol content is a critical element in the prosecution's case against him, he has a right, similar to that of the defendant in Warren, to production of a sample of his blood for independent testing by a scientist of his choice.
The State argues that the blood alcohol content of his blood sample is not a material element of the crime of reckless murder. However, it is well established that one's blood alcohol content is a material element of the prosecution's case for reckless murder based on a fatal motor vehicle wreck involving a drunk driver. See Nixon v. State, 268 Ala. 101, 105 So. 2d 349 (1958) (noting that a defendant's intoxication at the time of a fatal car wreck has been considered a significant, if not controlling, factor in a prosecution for reckless murder); Hyde v. State, 230 Ala. 243, 160 So. 237 (1935). Cf. Gwin v. State, 425 So. 2d 500 (Ala.Crim.App. 1982) (holding that the trial court did not err in refusing to require the State to produce the weapons and bullets for independent expert examination because that evidence was not critical to the defendant's defense of self-defense), writ quashed, Ex parte Gwin, 425 So. 2d 510 (Ala.1983). Blood alcohol content is also material to Harwell's assault conviction based on Ala.Code 1975, § 13A-6-20(a)(5).
The record reveals that when Harwell requested production of a blood sample the sample was in the custody and control of the State and was available for further testing. The technician who conducted the State's analysis of the blood sample testified at trial that a sufficient amount of the blood sample was left to conduct an accurate blood alcohol test and that it had not yet spoiled. It follows that the State's refusal to provide Harwell with the sample deprived him of any means of challenging the results of the State's test through his own independent test. We believe the defendant's analogy to testing controlled substances is well taken under these facts. Where a defendant makes a timely request, where the blood alcohol content of that sample is a material element of the charge, and where the defendant would be prejudiced by the denial of his motion for production of the blood sample for independent testing, due process requires that the State produce a sample of his blood for independent testing of its blood alcohol content.
Rule 16.1(c), A.R.Crim.P., supports for Harwell's argument:
Although blood samples are not specifically listed in Rule 16.1, while controlled substances *1338 are, both (particularly blood) are necessarily "obtained from ... the defendant." Furthermore, Rule 16.1(f), A.R.Crim.P., provides for an expansive reading of Rule 16.1:
(Emphasis added.) Other provisions of Alabama law directly entitle one accused of driving under the influence of alcohol to an independent test of his blood. Ala.Code 1975, § 32-5A-194(a)(3), states:
See Lockard v. Town of Killen, 565 So. 2d 679 (Ala.Crim.App.1990); Horton v. State, 500 So. 2d 485 (Ala.Crim.App.1986); Gibson v. City of Troy, 481 So. 2d 463 (Ala.Crim.App. 1985).
In Gibson v. City of Troy, the court noted that "[t]he purpose of allowing an accused to obtain an additional test is to provide him a means of `cross checking' the state's test." 481 So. 2d at 467. Harwell was not allowed to "cross check" the state's test and was, thus, denied due process. Accordingly, the judgment of the Court of Criminal Appeals is due to be reversed as to both convictions and the case remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX and INGRAM, JJ., dissent.
INGRAM, Justice (dissenting).
I respectfully dissent. This Court, in Ex parte Bell, 475 So. 2d 609, 611 (Ala.1985), held that there was no general constitutional right to discovery in a criminal trial. Discovery is within the sound discretion of the trial court. See Charles Gamble, McElroy's Alabama Evidence § 290.05(1) (4th ed. 1991). I agree with the majority's holding that samples of blood and urine are discoverable under Rule 16, Ala.R.Cr.P.; however, I dissent because I believe that Harwell did not preserve this issue for review.
Harwell filed a motion seeking discovery of his own blood for independent testing. The trial court held a hearing on the discovery matters before seating the jury. At that hearing the trial court stated:
At trial, the State offered the results of the blood and urine tests, without objection.
Judge Bowen, writing for the Court of Criminal Appeals in the recent case Pettway v. State, 607 So. 2d 325, 331 (Ala.Cr.App. 1992), held:
(Some emphasis original; other emphasis added.)
The record clearly shows that Harwell did not object to the admission of the results of the blood and urine tests; therefore, I believe, Harwell failed to preserve this issue for review. Because the issue was not preserved for review, I believe the judgment of the *1339 Court of Criminal Appeals, affirming Harwell's conviction, should be affirmed; therefore, I dissent. | September 17, 1993 |
406d05e9-e3ae-4bde-85cd-2bb4ea43bf69 | Kelly v. Connecticut Mut. Life Ins. Co. | 628 So. 2d 454 | 1920618, 1920717, 1920861 | Alabama | Alabama Supreme Court | 628 So. 2d 454 (1993)
John S. KELLY
v.
CONNECTICUT MUTUAL LIFE INSURANCE COMPANY.
Mark WILL
v.
CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, et al.
Michael P. KILCULLEN
v.
CONNECTICUT MUTUAL LIFE INSURANCE COMPANY and H. Brantley Sanders.
1920618, 1920717 and 1920861.
Supreme Court of Alabama.
September 3, 1993.
*455 C.S. Chiepalich and Richard M. Beckish of C.S. Chiepalich, P.C., Mobile, for appellants.
Davis Carr and James W. Lampkin of Pierce, Carr & Alford, P.C., Mobile, for appellees.
SHORES, Justice.
This opinion addresses three separate actions against Connecticut Mutual Life Insurance Company. John S. Kelly and Mark Will appeal from summary judgments in favor of Connecticut Mutual in their separate actions; and Michael P. Kilcullen appeals from a summary judgment in favor of Connecticut Mutual and H. Brantley Sanders. We affirm all three judgments.
Chatham v. CSX Transportation, Inc., 613 So. 2d 341, 343 (Ala.1993) (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989) (citations omitted)).
The facts of each of the three cases are similar. The evidence reveals the following: William G. Nixon, an agent of Connecticut Mutual, sold new insurance policies to each of the plaintiffs in 1987. Each plaintiff had an existing policy with Connecticut Mutual at that time, and Nixon told each plaintiff that he could purchase additional life insurance without additional out-of-pocket expense for each new policy because the premium on the new policy would be paid by the annual dividends on the old policy. Each plaintiff signed a form agreeing to apply "dividend additions" from his old policy to pay the premiums due on the new policy.[1] Thereafter, Connecticut Mutual issued the new policies to the plaintiffs.
Kelly received a notice from Connecticut Mutual in March 1988 informing him that a premium of over $1500 was due on his new policy. Kelly contacted Nixon, who told him that this was just a formality and that he would need to fill out some forms for Connecticut Mutual's district office in Birmingham. Kelly received from the Birmingham office two forms enclosed in a letter dated May 25, 1988. The letter informed him that dividends credited to his old policy had been used to pay the 1988 annual premium on his new policy. The letter also stated, "In the future, forms will be sent to you for your signature, authorizing the use of dividends and/or cash value in [your old policy] to pay the net annual premium on [the new policy]." Kelly, C.R. 222. In April 1989, Kelly received a notice from Connecticut Mutual telling him that another premium was due on his new policy. Kelly contacted Brant Sanders, the branch manager of Connecticut Mutual's Birmingham office, and told Sanders that he had had the impression that the premiums on his new policy were to be paid by the dividends from his old policy. Kelly understood Sanders's reply to mean that his impression was correct. After this telephone conversation with Sanders, Kelly received from Connecticut Mutual a letter dated April 20, 1989, containing two forms. The letter told Kelly that the forms would allow Connecticut Mutual to "use dividends and cash value from [his old policy] to pay the premium due on [his new policy]." Kelly, C.R. 262. Kelly signed and returned the forms, which authorized the surrender of $790 in "dividend additions" from his old policy and a loan of $721.25 against his old policy, the proceeds from which were to be applied to pay the 1989 premium on his new policy. Kelly testified that he understood from his earlier conversations with Sanders and Nixon that the forms were a formality that would allow the premiums on his new policy to be paid solely by the annual dividends from his old policy.
Kelly sued Connecticut Mutual and Nixon on May 9, 1991. He alleged, among other things, fraud arising out of Connecticut Mutual's use of a part of the accumulated value of his old policy in order to fund the premiums on his new policy, when, contrary to Nixon's representations that the new policy would involve no out-of-pocket expenses, the dividends and accumulated value in his old policy were, in fact, insufficient to continue to fund the new policy. Nixon filed for bankruptcy, *457 and the trial court dismissed with prejudice Kelly's claims against Nixon after his discharge in bankruptcy. Kelly later amended his complaint to include a claim for conversion. Connecticut Mutual moved for a summary judgment. The trial court, after a hearing and after considering the motions and materials submitted by both parties, entered a summary judgment for Connecticut Mutual. Kelly appeals the summary judgment against his fraud and conversion claims.
Will had no contact with Nixon after he bought the 1987 policy and executed a dividend surrender form authorizing the use of $720.75 from the dividend additions on his old policy to fund the initial premium on his new 1987 policy. Will did not respond to later notices concerning amounts due of over $700 on the new policy because, he said, "[i]t was supposed to be paid for." Will, C.R. 146. Will received a letter dated July 22, 1988, from Connecticut Mutual stating that his 1987 policy had been terminated on May 15, 1988.[2] The letter indicated that "[p]rior to this date, the policy had become an Extended Term Insurance Policy per its provisions because the premium due had not been paid." Will, C.R. 179. Will did not call the toll free telephone number listed on this letter, but he did call a number for a Connecticut Mutual agent in Nashville that was on some of the notices he had received, and he left a message; the call was never returned. Will also called the Birmingham office of Connecticut Mutual, but no one answered the telephone.
Will sued Connecticut Mutual and Nixon on May 9, 1991. He alleged, among other things, fraud arising out of Connecticut Mutual's alleged use of a part of the accumulated value of his old policy in order to fund the premiums on his new policy, when, contrary to Nixon's representations that the new policy would involve no out-of-pocket expenses, the dividends and accumulated value in his old policy would be insufficient to continue to fund the new policy. Nixon filed for bankruptcy, and the trial court dismissed with prejudice Will's claims against Nixon after his discharge in bankruptcy. Will later amended his complaint to include a claim for conversion. Connecticut Mutual moved for a summary judgment. After a hearing, and after considering the motions and materials submitted by both parties, the trial court entered a summary judgment for Connecticut Mutual. Will appeals the summary judgment against his fraud and conversion claims.
Kilcullen began to receive premium notices on his 1987 policy from Connecticut Mutual in 1988. He was unable to contact Nixon, who no longer worked for Connecticut Mutual. He received a notice, dated July 19, 1988, indicating there were insufficient funds available to complete the payment on the 1988 premium for his 1987 policy, and that the policy had lapsed but could be reinstated. Then Kilcullen received a letter dated August 20, 1988, informing him that his 1987 policy had lapsed on June 20, 1988, and indicating that "[p]rior to this date, the policy had become an Extended Term Insurance Policy per its provisions because the premium due had not been paid." Kilcullen, C.R. 111. He called the toll-free number on the letter and reached Brant Sanders, Connecticut Mutual's district manager in Birmingham. Kilcullen told Sanders that he did not owe Connecticut Mutual for the premium, that "[i]t was totally misrepresented to me," and that he was assured that he "would not have to make any premiums on the policy." Kilcullen, C.R. 271. Sanders told Kilcullen that Connecticut Mutual knew it had a problem with its agent, Nixon, in Mobile, and that he or Connecticut Mutual would "straighten everything out." Kilcullen, C.R. 271-72. Sometime between August 1988 and August 1989, Kilcullen spoke with Bill Orrell, the Connecticut Mutual agent that had sold him his original life insurance policy in 1971. Kilcullen told Orrell that he had lost over $500 in dividends from the policy Orrell had sold him because another agent had sold him a later policy, and that he felt he had been "flimflammed." Kilcullen, C.R. 309, 315. Shortly thereafter, Kilcullen spoke with Orrell at Orrell's office. Orrell told him that there were not enough dividends in his original and 1987 policies combined to cover the *458 $548 annual premium on the new policy over the long run, and that Kilcullen had "gotten stuck" and had lost the money from the dividends in his old policy. Kilcullen, C.R. 317. Kilcullen received no further communication from Connecticut Mutual until he was sent two sets of audit letters on his policies in 1991. Kilcullen responded to the second set of audit letters, and on the audit form indicating that his 1987 policy had been changed to extended term insurance before it had expired, he wrote "This policy was misrepresented to me by an agent which no longer works for Connecticut Mutual. All Connecticut Mutual did was rob my subscriber account funds." Kilcullen, C.R. 114. Kilcullen testified that this statement was meant as a request for Connecticut Mutual to contact him about the status of his 1987 policy.
Kilcullen sued Connecticut Mutual and Sanders on January 10, 1992, alleging, among other things, fraud and suppression of material facts arising out of Nixon's representations to him that had induced him to buy an additional insurance policy when, contrary to Nixon's representations, the dividends from Kilcullen's old policy were insufficient to fund the new policy. Kilcullen later amended his complaint to add a claim for conversion. The trial court granted the defendants' motion for a summary judgment, ruling that all of Kilcullen's claims were barred by the applicable statute of limitations. Kilcullen appeals the summary judgment against his fraud, suppression, and conversion claims.
"A fraud action is subject to the two-year statute of limitations of Ala.Code 1975, § 6-2-38(l), but the two-year period does not begin to run until the plaintiff has discovered, or should have discovered, the fraud. See § 6-2-3." Howard v. Mutual Sav. Life Ins. Co., 608 So. 2d 379, 381 (Ala. 1992). "The question of when a party discovered or should have discovered fraud which would toll the statute of limitations is for the jury." Vandegrift v. Lagrone, 477 So. 2d 292, 295 (Ala.1985). However, there are times when this question is removed from the purview of the jury. "The question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as as matter of law only in cases where the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud." Hicks v. Globe Life & Acc. Ins. Co., 584 So. 2d 458, 463 (Ala.1991) (emphasis original). As a corollary to this rule, "[w]e have held that fraud is discoverable as a matter of law for purposes of the statute of limitations when one receives documents that would put one on such notice that the fraud reasonably should be discovered." Hickox v. Stover, 551 So. 2d 259, 262 (Ala.1989). However, the reasoning in Hickox implies that documents that are vague or that do not reasonably indicate that a fraud has occurred, based on the circumstances of each case, will not "warrant a finding that the fraud claim is barred as a matter of law." Id. (emphasis original).
In each of the three cases before us, the trial judge entered a summary judgment for Connecticut Mutual.[3] In each case, Connecticut Mutual made a prima facie showing that there was no genuine issue of material fact. In each case, the plaintiff, more than two years before filing his action, received notice that a premium was due on the 1987 policy, although Nixon had informed each plaintiff that no additional premiums would be due because the dividends on the old policy would cover the premiums on the new one. Thus, the burden shifted to each plaintiff, as nonmovant, to produce substantial evidence creating a genuine issue of material fact or indicating that Connecticut Mutual was not entitled to a judgment as a matter of law. Ala.Code 1975 § 12-21-12; Rule 56(c), Ala. R.Civ.P.; Howard, supra, at 381.
The trial judge in each of the three cases (three separate judges) determined, as a matter of law, that Connecticut Mutual was entitled to a judgment on the fraud claims because the two-year statutory period of limitations had run on each claim. Taking each plaintiff's evidence in the light most favorable to him, we must consider whether he "presented evidence on which reasonable persons could disagree as to when [he] had, or should *459 have had, actual knowledge of the alleged fraud." Howard, supra, at 381.
In 1988, Will received notices that premiums were due on his 1987 policy. He received a letter stating that his policy had been terminated for failure to pay these premiums. Nixon had informed Will that he would have no out-of-pocket expenses because his dividends from his old policy would cover the premiums. The notices and letter that Will received in 1988 were not vague; they directly contradicted Nixon's representations to him concerning the payment of premiums on the 1987 policy. Will's unsuccessful telephone calls to Connecticut Mutual after receiving the notice of policy termination reinforce our conclusion that Will "actually knew of facts that would have put a reasonable person on notice of fraud." Hicks, supra, 584 So. 2d at 463 (emphasis original). Therefore, we affirm the trial court's summary judgment as to Will's fraud claim.
Kelly and Kilcullen contend that they made inquiries to Connecticut Mutual about the status of their policies after receiving "premium due" statements on them in 1988, and that Connecticut Mutual misrepresented to them that everything would be straightened out and implied that their existing dividends would indeed pay for the premiums on the 1987 policies. They cite Howard v. Mutual Sav. Life Ins. Co., supra, and Massachusetts Mutual Life Ins. Co. v. Collins, 575 So. 2d 1005 (Ala.1990), cert. denied, 499 U.S. 918, 111 S. Ct. 1306, 113 L. Ed. 2d 240 (1991), for the proposition that, once a plaintiff has learned of facts that would put a reasonable person on notice of fraud, if that plaintiff then makes an inquiry concerning the purported fraud and is misinformed or falsely informed by the defendant, so that the plaintiff justifiably relies on the defendant's misrepresentation and his fears of fraud are thereby allayed, then the running of the limitations period is still tolled as to the fraud claim. See Howard, supra, 608 So. 2d at 383; Collins, supra, 575 So. 2d at 1007. In other words, if the plaintiff presents evidence that he was deceived by the defendant as to his claim of fraud, then, if the facts of the case so indicate, "[t]he question of whether [he] justifiably relied on the insurer's representations as to the policy coverage cannot be resolved as a matter of law," and is a question for the jury. Howard, supra, at 383. Although Kelly and Kilcullen's interpretation of the law in Howard and Collins is correct, the facts of their individual cases prevent its application.
Kelly spoke with Nixon and Sanders after he received notice that premiums were due on his 1987 policy. Nixon had informed him that the forms he had to fill out were just a formality. Kelly had understood Sanders's reply to his inquiry to mean that his new policy premiums would be paid entirely by his old policy dividends. Even if Kelly was justified in relying on this representation, after his conversation with Sanders he received a letter, dated April 20, 1989, which indicated he would have to use "dividends and cash value "from his old policy to pay the premium on his new policy (emphasis added). The forms he signed in April 1989 and returned to Connecticut Mutual authorized a loan against his old policy to pay part of the premium on his new policy. The language of the letter was not vague; it clearly stated that execution of the form, which was entitled "Request for Policy Loan," would enable Connecticut Mutual to use the cash value from Kelly's old policy to pay part of the premium on his new policy. The trial court did not err in concluding that Kelly's execution of the form authorizing Connecticut Mutual to pay the premium on one policy through a loan against the other policy demonstrated that Kelly "actually knew of facts that would have put a reasonable person on notice of fraud" more than two years before he filed his complaint, and that, therefore, as a matter of law, Kelly's fraud claim was barred by the statute of limitations. Kelly, C.R. 422. Therefore, we affirm the summary judgment as to Kelly's fraud claim.
Kilcullen spoke with Sanders in 1988, after he had received notices that premiums were due on his 1987 policy and after he had received a letter informing him that his policy had been terminated for failure to pay these premiums. The premium notices and letter were not vague, and they directly contradicted Nixon's earlier representations that *460 Kilcullen's premiums would be paid entirely from dividends on his old policy. Therefore, Kilcullen was given actual notice of the potential fraud before he contacted Sanders. We need not address whether Kilcullen justifiably relied on Sanders's representations that he would straighten everything out, and, thus, whether Kilcullen was deceived as to the fraud after his inquiry, because the facts of his later discussions with Orrell clearly indicate that Kilcullen had actual notice "of facts that would have put a reasonable person on notice of fraud" before August 1989, which was more than two years before he filed his complaint against Connecticut Mutual and Sanders. Therefore, we affirm the summary judgment as to Kilcullen's fraud claim.
Kilcullen also argues that the summary judgment was improper as to his suppression claim. However, a claim of suppression of a material fact, like a claim of fraudulent representation, is a fraud claim and is subject to the two-year statute of limitations, which begins to run when the plaintiff discovers, or should have discovered, the fraud. Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602, 604 (Ala.1987); Howard, supra, 608 So. 2d at 381; Ala.Code 1975, §§ 6-2-3, 6-2-38(l), 6-5-101, 6-5-102. Thus, for the reasons stated above, we affirm the summary judgment as to Kilcullen's suppression claim.
All three plaintiffs contend that Massachusetts Mutual Ins. Co. v. Collins, supra, 575 So. 2d 1005, demonstrates that a jury question exists concerning their reliance on the statements of Nixon and Sanders. Admittedly, the facts in Collins are remarkably similar to those in these three cases. However, in Collins we affirmed a judgment based on a jury verdict, based on the old "scintilla rule"; under that rule an issue went before the jury "`if the evidence, or a reasonable inference therefrom, furnishe[d] a glimmer or trace in support of an issue.'" Collins, supra, at 1007, n. 1 (quoting Alabama Farm Bureau Mut. Cas. Ins. Co. v. Haynes, 497 So. 2d 82, 85 (Ala.1986)). Here, we do not have the presumption of correctness that is given to a jury verdict, as we had in Collins, and the plaintiffs must prove their case by "substantial evidence." § 12-21-12. Under the substantial evidence standard of review that we must apply to these appeals, we must conclude, as indicated above, that the summary judgments were proper as to the plaintiffs' fraud claims.
The plaintiffs also contend that the trial courts erred in entering the summary judgments as to their conversion claims. We must, therefore, determine if the summary judgment was proper as to each conversion claim.
To support a claim for conversion, a plaintiff must prove "(1) a wrongful taking, (2) an illegal assumption of ownership, (3) an illegal use or misuse of another's property, or (4) a wrongful detention or interference with another's property." Gillis v. Benefit Trust Life Ins. Co., 601 So. 2d 951, 952 (Ala.1992).
In entering the summary judgments against Kelly and Kilcullen, the courts relied on Tyler v. Equitable Life Assurance Society of the United States, 512 So. 2d 55 (Ala.1987), concluding that the facts of each case involved a valid offer and an acceptance by the plaintiff and thus precluded any claim of conversion.
In Tyler, the plaintiffs agreed to pay a penalty for prepayment of a mortgage, and then, after paying the penalty, they sued Equitable, asserting, among their causes of action, a conversion claim. We held that when the Tylers accepted the offer to pay a penalty in order to prepay their mortgage, there was a valid offer and acceptance concerning the money in question in the conversion claim. Because "the money in question was paid as part of a valid offer and acceptance, there was not a wrongful taking, a wrongful detention, an illegal assumption of ownership, or an illegal use or misuse by Equitable." Tyler, supra, at 57.
All three plaintiffs contend that Connecticut Mutual converted the funds taken from their old policies to pay the premiums on their 1987 policies, because, they argue, there was no valid offer and acceptance whereby they agreed to allow Connecticut Mutual to apply those funds to their new *461 premiums. Connecticut Mutual contends that these plaintiffs agreed to pay the premiums on their 1987 policies with funds from their old policies, and that, because there was a valid offer and acceptance in each instance, there was no wrongful or illegal action by Connecticut Mutual that would allow a conversion claim.
The record shows that Kelly agreed to surrender dividends from his old policy to pay the premiums on his new policy in 1987, 1988, and 1989 and that he agreed to allow Connecticut Mutual to pay part of the 1989 premium on his new policy through a loan against the cash value of his old policy. The record shows a valid offer and acceptance. Therefore, the trial court properly entered the summary judgment against Kelly's conversion claim.
The record shows that Will agreed to surrender dividends from his old policy to pay the first year's premium on his 1987 policy, that there was no other payment on the policy after 1987, and that the policy was terminated without any additional premium payments being made. The record shows a valid offer and acceptance. Therefore, the trial court properly entered the summary judgment against Will's conversion claim.
In its summary judgment against Kilcullen the court concluded that "all claims are barred by the applicable statute of limitations." Kilcullen, C.R. at 877. However, Connecticut Mutual agrees with Kilcullen that the court erred in its reasoning, because the applicable limitations period for conversion claims is six years, § 6-2-34, and the claim was filed within the six-year period. Connecticut Mutual argues, however, that the summary judgment was correct as to the conversion claim, under the rationale of Tyler, supra, 512 So. 2d at 57, and that, under Alabama law, a correct judgment will not be disturbed on appeal, even if the trial court gives the wrong reasons for its judgment. Boykin v. Magnolia Bay, Inc., 570 So. 2d 639, 642 (Ala.1990).
The record shows that Kilcullen agreed to surrender dividends from his old policy to pay the first year's premium on his 1987 policy, that there was no other payment on the policy after 1987, and that the policy was terminated without any additional premium payments being made. Because there was a valid offer and acceptance, we hold, based on the reasoning above and on Tyler, 512 So. 2d at 57, that the trial court properly entered a summary judgment against Kilcullen on his conversion claim. Boykin, supra, at 642.
AFFIRMED.
HORNSBY, C.J., and MADDOX and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I concur specially, based upon my special opinion concurring in part and dissenting in part in Hicks v. Globe Life & Accident Ins. Co., 584 So. 2d 458, 465-69 (Ala.1991), and my dissent in Howard v. Mutual Savings Life Insurance Co., 608 So. 2d 379, 383-84 (Ala. 1992).
[1] Each plaintiff signed a "Request to Pay Dividends and Change Dividend Option" form wherein he agreed to "SURRENDER DIVIDEND ADDITIONS (less any loan indebtedness) in the face amount of [the annual premium due on the new policy]." Thus, the premiums on the new policy were to be paid from "dividend additions" on the old policy. Nowhere on the form did it indicate whether these dividend additions were restricted to forthcoming annual dividends, or whether they included the accumulated dividends from earlier annual dividends which had already been added to the cash value of the policy. Apparently, the form only authorized application of dividends from the old policy to the current year's premium on the new policy.
[2] Will's annual policy report, dated May 20, 1988, on his old policy showed a dividend of $377.56. Nothing in the record indicates that Will was asked after 1987 to apply the dividends from his old policy against the premiums for his new policy.
[3] We note that each case was assigned to a different judge. | September 3, 1993 |
7c9661be-4036-4f5d-a0ff-c48c6312cbee | Pettigrew v. LeROY F. HARRIS, MD, PC | 631 So. 2d 839 | 1920846 | Alabama | Alabama Supreme Court | 631 So. 2d 839 (1993)
Donald PETTIGREW and Dorothy Pettigrew
v.
LeROY F. HARRIS, M.D., P.C.
1920846.
Supreme Court of Alabama.
November 19, 1993.
Rehearing Denied January 7, 1994.
*840 S. Shay Samples and Ronald R. Cook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellants.
W. Stanley Rodgers and George E. Knox, Jr., Lanier Ford Shaver & Payne P.C., Huntsville, for appellee.
SHORES, Justice.
Donald Pettigrew and Dorothy Pettigrew, the plaintiffs, appeal from a summary judgment for LeRoy F. Harris, M.D., P.C., the defendant. We affirm.
The Pettigrews' complaint alleges medical negligence. Specifically, it alleges that LeRoy F. Harris, M.D., P.C., violated its duty to possess and exercise the degree of care, skill, and diligence exercised by similar health care providers in the national medical community. Specifically, it alleged:
Although the action was against Dr. Harris's professional corporation, we shall refer to that defendant as "Dr. Harris." After some discovery, Dr. Harris moved for a summary judgment on the ground that there was no genuine issue of material fact. In support of the motion, Dr. Harris filed an affidavit detailing his qualifications as a specialist in infectious diseases and stating his opinion regarding the medical treatment he performed for Mr. Pettigrew. Dr. Harris stated that he was familiar with the standard of care required for specialists in the treatment of infectious diseases and that he conformed to such standard at all times. His affidavit was based on his personal knowledge of the treatment he performed for Mr. Pettigrew.
In support of their response to the motion for summary judgment filed by Dr. Harris, arguing the existence of a genuine issue of material fact, the Pettigrews submitted the affidavits of Mr. Pettigrew and Daniel M. Musher, M.D. Mr. Pettigrew's affidavit detailed his treatment as he recalled it. Dr. Musher's affidavit detailed his qualifications regarding the treatment of infectious diseases and stated his expert opinion regarding Mr. Pettigrew's treatment and the minimum standard of care for the treatment of a patient like Mr. Pettigrew. Dr. Musher stated that, in his opinion, Dr. Harris provided Mr. Pettigrew with substandard care by failing to warn him of the symptoms of Gentamicin toxicity. Dr. Musher based his opinion on a review of Mr. Pettigrew's medical records. The medical records were not attached to Dr. Musher's affidavit, nor was a foundation laid for the admissibility of the medical records into evidence.
Dr. Harris moved to strike Mr. Pettigrew's affidavit on the ground that it directly contradicted testimony that Mr. Pettigrew had *841 given at his deposition. In support of this position, Dr. Harris argued that a party may not create an issue of fact with an affidavit that contradicts the party's own clear deposition testimony.
Dr. Harris also moved to strike Dr. Musher's affidavit on the ground that the facts on which an expert bases his opinion must be facts that are in evidence. Dr. Harris argued that, because the medical records on which Dr. Musher's opinion were based were not introduced into evidence, they are inadmissible hearsay and, therefore, that the opinion relying on them is also inadmissible. Although the trial judge granted the motions to strike these affidavits, he gave the Pettigrews additional opportunities to respond appropriately to the motion for summary judgment filed by Dr. Harris.
The issue before this Court is whether the trial court committed reversible error by granting Dr. Harris's motion to strike directed towards the material filed in opposition to Dr. Harris's pending motion for summary judgment. More specifically, the Pettigrews argue that Dr. Musher's affidavit should not have been stricken, because, they say, Ala. R.Civ.P. 56(e) requires only that an expert opinion be based on evidence that would be admissible at trial, and, they argue, such evidence need not be admitted at the time for the ruling on the motion for summary judgment.
The procedure to follow in ruling on a summary judgment motion in a professional malpractice case has been laid out by this Court in Swensden v. Gross, 530 So. 2d 764, 768 (Ala.1988): "[O]nce the defendant offers expert testimony in his behalf (albeit his own opinion), establishing lack of negligence, the defendant is entitled to a summary judgment, unless the plaintiff counters the defendant's evidence with expert testimony in support of the plaintiff's claim." (Citation omitted; emphasis added.)
In this case, the defendant, Dr. Harris, supported his motion for summary judgment with an affidavit of its own; that affidavit made a prima facie showing of a lack of negligence. That affidavit was sufficient to shift the burden to the plaintiffs to present evidence establishing an issue of material fact. Swensden v. Gross, supra. Because expert testimony is required to overcome a prima facie showing of an absence of negligence, we will address only the deficiencies in the affidavit of the Pettigrews' expert.
Rule 56(e) governs what must be filed with affidavits in support of, and in opposition to, a motion for summary judgment:
(Emphasis added.)
The Pettigrews focus on the first emphasized portion of Rule 56(e). They contend that the hospital records relied upon by Dr. Musher would be admissible at trial, and, therefore, that the affidavit complies with the rule and should be considered in opposition to Dr. Harris's motion for summary judgment. However, it is the second emphasized portion of the rule that is at issue. That sentence is a mandatory provision. That sentence provides that "sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." "The total absence of copies of the [hospital] records referred to by [Dr. Musher] rendered inadmissible [his] statements based on [those] documents." Ex parte Head, 572 So. 2d 1276, 1281 (Ala.1990).
*842 Not only did the Pettigrews fail to attach the hospital records to Dr. Musher's affidavit after they had had two opportunities to cure the defect, but, had they been attached, the simple attachment of the records would have been insufficient to comply with Rule 56(e). The rule requires that, in addition, the records be certified or otherwise authenticated. Crawford v. Hall, 531 So. 2d 874, 875 (Ala. 1988) (documents were attached to the expert affidavit but did not conform to the requirements of Rule 56(e) because they were not sworn or certified); Power Equipment Co. v. First Alabama Bank, 585 So. 2d 1291, 1299 (Ala.1991) (nonmoving party's documents submitted in connection with a summary judgment motion were inadmissible because they were not certified or otherwise authenticated); Yarborough v. Springhill Memorial Hospital, 545 So. 2d 32, 34 (Ala. 1989) (documents attached to affidavit in support of motion for summary judgment were inadmissible hearsay because they had been neither authenticated nor certified).
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, HOUSTON, STEAGALL, KENNEDY, INGRAM and COOK, JJ., concur. | November 19, 1993 |
0d0a4082-51f5-4722-9d24-27920eed7f1e | Hicks v. Alabama Power Co. | 623 So. 2d 1050 | 1911903 | Alabama | Alabama Supreme Court | 623 So. 2d 1050 (1993)
Wallace Wayne HICKS and Cathy H. Hicks
v.
ALABAMA POWER COMPANY, et al.
1911903.
Supreme Court of Alabama.
May 28, 1993.
As Modified on Denial of Rehearing September 10, 1993.
*1051 Joe L. Tucker, Jr. and James V. Green, Jr. of Hardin & Tucker, Birmingham, for appellants.
S. Allen Baker, Jr. and James A. Bradford of Balch & Bingham, Birmingham, for appellees.
HORNSBY, Chief Justice.
Wallace Wayne Hicks sued Alabama Power Company ("APCo"), alleging that APCo negligently maintained the premises where Hicks was working and that its negligence caused him to be injured. His wife, Cathy H. Hicks, joined his complaint, claiming damages for loss of consortium. APCo asserted that it was Hicks's "special employer" under Ala.Code 1975, § 25-5-53 (the exclusivity provision of Alabama's Workers' Compensation Act). The trial court entered a summary judgment for APCo on that basis; the plaintiffs appeal.
The evidence is undisputed that in 1974 Hicks was a member of Structural Iron Workers Local Union No. 92, which assigned him to work at Sullivan, Long & Haggerty ("SLH"), a construction company. SLH and APCo had entered into a contract (the "SLH contract"), wherein SLH agreed to provide APCo with generation plant construction work, including craft labor and supervision, for its Miller Steam Plant project in Jefferson County, Alabama. The plaintiff worked at Miller Steam Plant pursuant to this contract. With the exception of certain occasions when his employment with SLH was terminated and he did work for other employers arranged by his local union, Hicks worked continuously at Miller Steam Plant between 1974 and March 1988, the date of the accident. At all times while working at Miller Steam Plant, Hicks worked as an ironworker.
In March 1988, Hicks was injured at Miller Steam Plant while climbing upon a continuously moving elevator-type device known as a "man-lift" that allowed workers to move between different floors of a building under construction. He received worker's compensation *1052 benefits from SLH for this injury.[1] After settling his workers' compensation claim, Hicks sued APCo. On appeal, Hicks and his wife argue that he presented substantial evidence that APCo was not his special employer.
"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So. 2d 872 (Ala.1979)); Rule 56(c), A.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to judgment as a matter of law." Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989); Woodham v. Nationwide Life Ins. Co., 349 So. 2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989).
This action was filed after June 11, 1987; therefore, the nonmovant must meet the burden of establishing the existence of a genuine issue of material fact by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986).
When a defendant in a common law action for damages asserts that the action will not lie because the injured person or decedent was a "special employee" of the defendant, the defense is an affirmative one, and the burden rests on the defendant to plead and prove it. Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793, 795 (Ala. 1984); Rule 56(c), A.R.Civ.P. If APCo was a "special employer" of Hicks, as it argues, the exclusive remedy for Hicks's injury would be under the Workers' Compensation Act.
In Terry v. Read Steel Products, 430 So. 2d 862, 865 (Ala.1983), this Court first held that a defendant could be a "special employer" under Alabama's Workers' Compensation Act, and be held responsible for worker's compensation but immune from tort liability for injuries sustained by an employee. We adopted the following three-pronged test to determine who is a "special employer":
Terry, 430 So. 2d at 865, quoting 1C A. Larson, The Law of Workmen's Compensation, § 48 (1980).
Hicks argues that he presented evidence creating a genuine issue of material fact regarding each of the three prongs of the *1053 "special employer" doctrine. He argues that under the facts of this case one could find that he was employed solely by SLH and not by APCo.
APCo, however, argues that the underlying facts of this case are identical to those presented in Rhodes v. Alabama Power Co., 599 So. 2d 27 (Ala.1992), wherein we affirmed a summary judgment in favor of APCo based on the "special employer" defense asserted by APCo for an accident that occurred at APCo's Miller Steam Plant and injured an employee of SLH, which had a contract with APCo that, it argues, is substantially similar to the one involved in this case.
In Rhodes, this Court addressed only the issue of "control." The plaintiffs in Rhodes did not raise the additional issues of "contract of hire" and "work of the special employer." 599 So. 2d at 29. Because Hicks has raised these issues, the result in this case, as to those issues, is not controlled by the holding in Rhodes.
This Court has held that in determining whether a special employment relationship exists "the most important criterion to be scrutinized is the requirement of a contract of hire, express or implied." Terry v. Read Steel Products, 430 So. 2d at 866. Indeed, "the courts have usually been vigilant in insisting upon a showing of deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit." 1C, A. Larson, Workmen's Compensation Law, § 48.12, p. X-XXX-X-XXX. A mutual agreement between the employee and the person alleged or claiming to be the special employer, i.e., a contract of hire, express or implied, is essential because an employee loses the right to sue the special employer at common law, while gaining other rights, when he or she enters into the special employment relationship. Id.
APCo admits that it had entered into no express contract with Hicks, but it argues that an implied contract existed by virtue of Hicks's understanding of, and his submission and consent to, APCo's exercise of control over his work. APCo argues that Hicks's consent may be inferred under the circumstances because he was hired pursuant to a labor broker contract. APCo argues that in labor broker contracts the general employer exists merely to place the employee with a special employer; it contends that the employee's consent and submission to the control of the special employer permits an implication of the employee's consent to that relationship. APCo argues that Hicks's acknowledgment that SLH was a "manpower supplier" indicates Hicks's awareness and understanding of the true working relationship between APCo and SLH and indicates his submission and acquiescence to APCo's supervisory role. APCo argues that this evidence, combined with evidence that APCo controlled the details of Hicks's work, conclusively establishes that an implied contract of hire existed between Hicks and APCo.
In contrast, Hicks argues that no implied contract between him and APCo existed. He argues that an employment relationship cannot be thrust upon him without his knowledge or consent and that he must understand that he is submitting himself to the control of a new master. Hicks argues that he did not understand this and that the SLH contract expressly contradicts APCo's contentions that he was an employee of APCo. He argues that the SLH contract does not permit an inference of consent. The contract itself, he argues, unequivocally expresses APCo's intent to consider SLH and its employees as independent contractors rather than as employees of APCo.
Hicks presented article 12 of the SLH contract as evidence that APCo did not intend to treat SLH and its employees as employees of APCo. That article provides as follows:
(Emphasis supplied.) Hicks argues that the unequivocal language of the SLH contract prohibits SLH and its employees from claiming to be employees of APCo. This provision, Hicks argues, undermines APCo's argument that Hicks is a special employee of APCo.
Hicks also argues that other provisions of the labor agreement indicate that APCo had no intention to employ Hicks:
(Emphasis supplied.) Hicks argues that these provisions, and others, demonstrate that APCo had no intention to employ Hicks. Hicks argues that this evidence creates a genuine issue of material fact as to whether an implied contract between Hicks and APCo existed.
This Court has reviewed several cases addressing the issue of whether an implied contract of hire exists to support a finding of special employment. See, e.g., Pinson v. Alabama Power Co., 557 So. 2d 1236 (Ala. 1990) (concluding that an implied contract of hire existed); Marlow v. Mid-South Tool Co., 535 So. 2d 120 (Ala.1988) (holding that Mid-South was a special employer without expressly considering the issue of an implied contract of hire); Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052 (Ala.1986) (concluding that an implied contract of hire existed and created a special employment relationship); Pettaway v. Mobile Point Mfg. Co., 467 So. 2d 228 (Ala.1985) (not expressly considering the issue of an implied contract of hire but holding that a special employment relationship existed); and Terry v. Read Steel Products, supra (holding that an implied contract of hire existed).
The facts in this case are distinguishable from those presented in Pinson, 557 So. 2d 1236 (Ala.1990), where we held that an implied contract of hire existed between Pinson and Alabama Power Company. In Pinson, there was no evidence that the contract between Ellard and Alabama Power forbade Ellard and its employees from claiming to be an employee or employees of Alabama Power.
This case is also distinguishable from the other cases addressing this issue. In Terry, Pettaway, and Marlow, the plaintiff's general employer was an employment agency or employment service such as Kelly Services, Inc., or Manpower, Inc. In Bechtel, the plaintiff's general employer, Pep Services, Inc., also acted as the bargaining agent for the plaintiff employee, placing her with Crown Central Petroleum Corporation, pursuant to a supply contract. In these cases, the general employer was nothing more than the bargaining agent or employment agent for the plaintiffs. When those plaintiffs contacted Kelly Services, Manpower, or Pep Services, it was not for the purpose of entering into employment with those companies to do the work of those companies; rather, the plaintiffs intended for the general employers to "market" them to secure employment with another, special employer. Once those plaintiffs were presented by the employment services to the special employers, those plaintiffs then entered into *1055 a contract of hire with those special employers.
This case is distinguishable in that Hicks presented substantial evidence creating a genuine issue of material fact as to whether SLH acted as Hicks's employment agent or broker; Hicks presented evidence that his bargaining agent was his local union. He presented evidence that the union placed him for employment with SLH, where he entered into an employment relationship to perform the work of SLH, which included construction services for APCo. Hicks argues that it was not necessary for SLH to "lend" or "broker" Hicks to APCo; Hicks says he was part of SLH's work force that SLH utilized at the Miller Steam Plant job site. Hicks argues that once he secured employment with SLH, he did not expect or intend SLH to then transfer him to APCo's employ.
Hicks presented evidence to support these arguments. Hicks testified that he was never sent by his union to APCo for employment at the Miller Steam Plant. He stated that he "did not work at the Miller Steam Plant pursuant to any agreement between my union and [APCo] and, to my knowledge, there was no such agreement." Hicks presented evidence that his union assigned him to work with SLH. He was designated solely as an SLH employee on his "Employee's Withholding Exemption Certificates."
Hicks also presented evidence that the insurance carrier for SLH paid his workers' compensation benefits and provided medical benefits as a result of the injury. Hicks testified that his paychecks were from SLH and that he filed his workers' compensation claim through SLH. Hicks further testified:
The distinction between the type of primary employer in this case and that in the typical labor broker cases requires APCo to produce evidence that Hicks consented to a new employment relationship. Hicks presented substantial evidence creating a genuine issue of material fact as to whether SLH acted as his labor broker; therefore, as a matter of law, Hicks's consent may not be implied under the facts presented in this case.
Our review of cases from other jurisdictions confirms our analysis in this case. See Crawford v. Florida Steel Corp., 478 So. 2d 855, 859-60 (Fla.Dist.Ct.App.1985) (distinguishing between the proof required to show special employment where the general employer is a temporary labor broker agency and the proof required where it is an independent contractor who performs services; where the plaintiff is employed by the latter, consent must be demonstrated and not implied); Bourette v. Dresser Industries, Inc., 481 A.2d 170, 172-73 (Me.1984) (rejecting a control test for determining special employment and holding that, where the general employer is an independent contractor who performs services for the purported special employer, proof of the employee's consent to the new employment relationship is required even where the purported special employer controls the work of the plaintiff); Crain v. Webster Electric Cooperative, 568 S.W.2d 781, 791 (Mo.App.1978) (holding that consent to a special employment relationship "cannot be inferred merely from the fact that the employee obeyed the commands of his master in entering the services of another"; the employee's consent must be express, "informed and deliberate," to create an implied contract of hire with the alleged special employer); Rademaker v. Archer Daniels Midland Co., 310 Minn. 240, 247 N.W.2d 28, 32 (1976) (distinguishing between labor broker cases where the employee's consent to the special employment may be inferred and cases in which the primary employer is a contractor offering a service, where "there must be actual indicia of consent" to the new relationship rather than continued obedience to the primary employer); Loden v. Getty Oil Co., 316 A.2d 214, 218 (Del.Super.), aff'd, 326 A.2d 868 (Del.1974) (holding that, where the plaintiff was employed by an independent contractor who performed services for Getty, no implied contract of hire existed between the plaintiff and Getty, even though Getty *1056 presented evidence that it controlled numerous aspects of the plaintiff's work); Latham v. Technar, Inc., 390 F. Supp. 1031, 1039 (E.D.Tenn.1974) (holding that the plaintiff must have knowledge of, and must consent to, a special employment relationship; the mere fact that her activities may have been controlled by the new master is not sufficient to create a new relationship in the absence of an express or implied contract); Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So. 2d 858, 862 (1961) (holding that the employee must consent to become the employee of the purported special employer before a contract of hire may be implied); Selid Construction Co. v. Guarantee Ins. Co., 355 P.2d 389, 393 (Alaska 1960) (holding that consent of an employee to a change in employers cannot be implied merely from his obedience to the orders of his master to serve another).
Reviewing the evidence in a light most favorable to Hicks, the nonmovant, we conclude that there is a genuine issue of material fact, which must be resolved by the trier of fact, as to whether there was an implied contract of hire between APCo and Hicks and thus as to whether APCo is a special employer of Hicks. The summary judgment is therefore due to be reversed and the case remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
[1] Hicks presented evidence that he filed his claim for worker's compensation benefits with SLH. He testified that he contacted SLH when he needed additional care and that SLH then told him which doctor to see. Although APCo presented evidence that it procured and paid for the workers' compensation insurance policy pursuant to which Hicks's benefits were paid, the policy was issued in the name of SLH, not APCo. | September 10, 1993 |
99ba069c-96bf-4059-aff6-9c1281f6f673 | Wofford v. Safeway Ins. Co. of Alabama | 624 So. 2d 555 | 1920159 | Alabama | Alabama Supreme Court | 624 So. 2d 555 (1993)
Janie WOFFORD and Kendall Wofford
v.
SAFEWAY INSURANCE COMPANY OF ALABAMA.
1920159.
Supreme Court of Alabama.
September 10, 1993.
*556 C.S. Chiepalich of C.S. Chiepalich, P.C., Mobile, for appellants.
Tom E. Ellis of Kracke, Thompson & Ellis, P.C., Birmingham, for appellee.
ALMON, Justice.
The defendants/counter-plaintiffs, Kendall and Janie Wofford, appeal from a judgment based on a directed verdict in favor of the plaintiff/counter-defendant, Safeway Insurance *557 Company of Alabama ("Safeway"), on the Woffords' counterclaim alleging fraud, negligent failure to procure insurance, and breach of contract. The issue is whether the trial court erred in holding that Ron Henry, who submitted the Woffords' insurance application to Safeway, was an independent agent, not an agent of Safeway.
In November 1989, Janie Wofford and her 19-year-old son Kendall went to the Monish Chevrolet-Oldsmobile dealership in Foley, Alabama, to purchase a truck for Kendall to take to his home in Atlanta, Georgia. William Wyatt, a Monish salesman, showed the Woffords a suitable truck, and they negotiated for the purchase of the truck. Because Kendall lacked a sufficient credit history to qualify for a loan for the purchase of the truck, the lender, GMAC, required both Mrs. Wofford and Kendall to sign the installment sale contract. The sale contract included a provision by which the purchasers agreed to maintain physical damage insurance on the truck.
Wyatt telephoned Ron Henry, the owner of Gulf Coast Insurance Underwriters, to procure the necessary insurance. Henry inquired with four different insurance carriers, and found that Safeway offered the lowest premiums. Henry then completed an application for insurance based on information provided to him by Wyatt and forwarded the application to Trigon, Inc., the managing general agent for Safeway. Wyatt testified that he told Henry that Kendall was to be the primary driver of the truck and that Kendall intended to take the truck to Atlanta. Henry denied being told these facts; he stated that the documents provided by Monish at the time of the sale indicated that the policy was to cover only Janie Wofford. In any event, only Janie Wofford's name was listed on the application submitted to Safeway. Safeway issued the policy and sent it to Henry, who in turn mailed it to Mrs. Wofford at her home in Mobile.
On December 19, 1989, Kendall Wofford was involved in an accident while driving the truck. The Woffords made a claim under the policy in connection with the accident, but Safeway denied coverage. Safeway then filed a declaratory judgment action in the circuit court, asking the court to declare that it had no liability under the policy because Kendall's name did not appear on the application and because the terms of the policy specifically excluded from coverage unlisted drivers under 25 years of age. The Woffords filed a counterclaim against Safeway and a third-party complaint against Monish, alleging fraud, negligent failure to procure an insurance contract, and breach of contract. The Woffords later amended their complaint to specifically allege that Henry was an agent of Safeway and as its agent had had actual knowledge that Kendall Wofford was to be the primary driver of the truck.
During the trial, the Woffords settled with Monish for $30,000. At the conclusion of all the evidence, the trial court directed a verdict in favor of Safeway on the Woffords' claims. It specifically held that Henry was not an agent of Safeway, but was a broker or an independent agent.
In reviewing a directed verdict, this Court must determine, after viewing the evidence in a light most favorable to the nonmoving party, if the moving party has demonstrated that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991). If the moving party has carried this burden, we must then determine whether the nonmoving party has presented substantial evidence in support of its position. If the nonmoving party has failed to present substantial evidence, then a directed verdict is proper. Bailey v. Avera, 560 So. 2d 1038 (Ala.1990); Ala.Code 1975, § 12-21-12. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala.1989).
Safeway would be subject to tort liability for Henry's actions only if Henry is an agent of Safeway, but ordinarily would not be liable if he is a broker, or an independent *558 agent.[1]American States Insurance Co. v. C.F. Halstead Developers, Inc., 588 So. 2d 870 (Ala.1991); Washington National Insurance Co. v. Strickland, 491 So. 2d 872 (Ala.1985). The terms "agent" and "broker" in the context of property and casualty insurance are defined in Ala.Code 1975, § 27-7-1(a)(1) and (2):
Henry was not appointed by Safeway; that is, Safeway did not file with the commissioner of insurance a statement specifying the kinds of insurance Henry is authorized to transact for it. See Ala.Code 1975, §§ 27-7-8, 27-7-30. Washington National Insurance Co. v. Strickland, 491 So. 2d 872 (Ala.1985). Even though Henry had not been formally appointed as an agent by Safeway, he still may be deemed an agent of Safeway if Safeway retained a sufficient right of control over the details of his work. American Pioneer Life Insurance Co. v. Sandlin, 470 So. 2d 657 (Ala.1985).
The Woffords argue that Henry was an agent of Safeway under the latter test of agency; they rely primarily on Strickland, supra, to support this argument.
In Strickland, the plaintiff, Carol Strickland, met with Bruce Palmer to discuss medical insurance. Palmer described the policies of four different insurers, including Washington National. Strickland chose the Washington National policy, and she gave Palmer a check for the initial premium. Palmer assured Strickland at the meeting that her new policy was effective immediately; on this assurance, Strickland cancelled her existing medical insurance. However, Palmer did not submit the application until one week after the meeting, and Strickland had had an accident in the interim. Washington National then refused to issue the policy, claiming that Strickland was uninsurable because of her physical condition. Strickland brought a fraud action against Washington National, claiming that it was liable under the doctrine of respondeat superior for the misrepresentation of Strickland, claiming that Strickland was its agent.
Washington National argued that Palmer was only a broker or an independent agent and therefore that it was not liable; this Court rejected that argument. We held that, because there was evidence in the record that Palmer had been licensed as an agent of Washington National by the Alabama Department of Insurance, and because Washington National had supplied Palmer with applications, sales literature, and instructions, the jury could have reasonably inferred that Palmer was an agent.
The Woffords argue that this situation is similar to that in Strickland because, they say, Safeway controlled Henry's manner of performance by providing him with a "rule book" that described the prices of Safeway's policies, who Safeway would insure, and what types of vehicles Safeway would insure. The Woffords also note that Henry, like the agent in Strickland, investigated the policies of several insurers before selecting the Safeway policy.
*559 However, the determinative factor in Strickland was that Palmer had actually been appointed by Washington National to transact business on its behalf. Because an insurer is deemed by law to have a right of control over its agents, the insurer is liable for the torts of those agents committed within the scope of their employment. This was a sufficient basis to deem Palmer an agent of Washington National, and the Strickland Court mentioned the evidence that Palmer had received materials from Washington National only to underscore the right of control that was imputed to Washington National by law.
Here, it is undisputed that Henry has not been appointed by Safeway. In fact, Henry has no written contract with Safeway whatever. The existence of the guidelines in the "rule book" admittedly does provide some evidence that Safeway had a right to control Henry's actions. However, the "rule book" provides only general information as to the types and prices of Safeway products. Therefore, the rule book does not provide substantial evidence that Safeway exercised such control over Henry as to make him its agent. Cf. Standard Plan, Inc. v. Tucker, 582 So. 2d 1024 (Ala.1991) (the existence of guidelines, coupled with the fact that the individual was appointed by the insurer, enough to support jury's finding that representative was an agent of the insurer); American States Insurance Co. v. C.F. Halstead Developers, Inc., 588 So. 2d 870 (Ala. 1991) (fact that individual was appointed by the insurer and was licensed by the insurance commissioner sufficient to make him an agent of the insurer). In American Pioneer Life Insurance Co. v. Sandlin, supra, the defrauding individual was held to be an agent of American Pioneer even though he had not been licensed by that company, because of the evidence that American Pioneer exercised a substantial amount of control over his actions and the evidence that one or more of its officers participated with him in the fraud. In this case, the mere presence of Safeway's guidelines in Henry's office is not sufficient evidence of control to make Henry Safeway's agent. A contrary ruling would effectively destroy the legal significance of the broker or independent agent status, because a broker must be allowed to generally familiarize himself with the products and procedures of the insurer if he is to effectively solicit applications for his client, the prospective insured.
The Woffords also argue that Henry is made an agent of Safeway by operation of law. They cite Ala.Code 1975, § 27-7-34, and Regulation No. 58, promulgated by the commissioner of insurance pursuant to his rule-making authority under § 27-2-17. The regulation requires that, if an independent agent submits more than 10 applications per month to an accepting agent, such as Trigon, Inc., Safeway's managing general agent, the independent agent must be licensed by the company to which the applications are submitted. The Woffords argue that because Henry had submitted approximately 350-400 applications to Trigon between July 1989 and November 1989, Henry was required to be appointed by Safeway. This argument, however, was not presented to the trial court. It is a fundamental tenet of appellate review that the trial court cannot be put in error on the basis of matters that were not presented to it. Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So. 2d 1326 (Ala.1991); Gotlieb v. Collat, 567 So. 2d 1302 (Ala.1990). Safeway has filed a motion to strike the argument and the copy of Regulation 58 that is appended to the Woffords' brief. That motion is granted.
For the foregoing reasons, the motion to strike is granted and the judgment of the trial court is hereby affirmed.
MOTION GRANTED; AFFIRMED.
MADDOX, SHORES, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in part and dissents in part.
HOUSTON, Justice (concurring in part and dissenting in part).
I concur as to the claims alleging breach of contract and negligent failure to procure an insurance contract, based on the law of agency. Washington National Insurance Co. v. Strickland, 491 So. 2d 872 (Ala.1985). I dissent as to the fraud claim, based on the doctrine of respondeat superior. Washington *560 National Insurance Co. v. Strickland, supra.
[1] An insurer can be liable for the actions of a broker or independent agent if the insurer has conferred upon the broker/independent agent actual authority to make representations on its behalf. The insurer can also be liable under an apparent authority theory, if its actions invested the broker/independent agent with the appearance of authority so that a third party might reasonably rely on the broker/independent agent's representations. Washington National Insurance Co. v. Strickland, 491 So. 2d 872 (Ala. 1991). Neither of these bases of liability is applicable to the present situation. | September 10, 1993 |
c01f9924-98a5-482b-a664-5237a7cd5bbf | Seymour v. Buckley | 628 So. 2d 554 | 1921327 | Alabama | Alabama Supreme Court | 628 So. 2d 554 (1993)
Richard D. SEYMOUR,
v.
Richard L. BUCKLEY, Jr.
1921327.
Supreme Court of Alabama.
October 15, 1993.
*555 Albert L. Jordan, Melissa M. Jones, and J. Michael Cooper of Wallace, Jordan, Ratliff, Byers & Brandt, Birmingham, for appellant.
Stephen A. Rowe and William B. Stewart of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a preliminary injunction granted in favor of the plaintiff, Richard L. Buckley, Jr., against the defendant, Richard D. Seymour, on the basis of a noncompetition agreement between the parties in connection with the operation of a "paintless dent removal" business.[1] We affirm.
The parties to this cause signed a contract on October 10, 1991, in which Seymour agreed to perform services for Buckley in the paintless dent removal business under the terms set forth in the contract. Buckley is the sole proprietor of a business operating in Alabama and other states under the trade name "Press*A*Dent." Paintless dent removal ("PDR") is a process by which a skilled craftsman utilizes special tools and techniques to remove dents, dings, or creases from an automobile without performing any paint work. This is in contrast to traditional automotive body repair methods that involve sanding, filling, and repainting.
Under the terms of the contract, Buckley agreed to provide training to Seymour in the PDR process and Seymour agreed to learn the process, to preserve the secrecy of the process, and to provide PDR in a designated portion of Alabama. The contract also contained a noncompetition clause in which Seymour agreed not to compete with Buckley for two years after the termination of the business relationship. The contract recites that it is to be "governed by, construed and enforced in accordance with the laws of the State of Indiana."
The record reflects that Buckley acquired the right to use the PDR process from Matteson, Inc., in a written agreement, which is part of the record. This agreement provided that Matteson, Inc., would train individuals in the process for Buckley only if they had executed noncompetition and secrecy agreements concerning the PDR process. Buckley paid $18,500 for Seymour to go to California and to be trained there by Matteson, Inc., in the PDR process. Buckley paid Seymour his guaranteed salary of $550 per week, as well. At the conclusion of Seymour's training, Buckley set him up in business *556 in Birmingham and provided a truck, the tools, a telephone service, and business cards.
The parties maintained a business relationship until February 1993, when Seymour notified Buckley that he was "terminating their agreement" effective March 28, 1993. During March 1993, Seymour began his own business operation as "The Dent Man." Buckley testified that after the relationship was terminated he contacted the customers that Seymour had served while representing Press*A*Dent. Those customers had begun to use the services of The Dent Man. Buckley sued Seymour on May 12, 1993, seeking a temporary restraining order and a permanent injunction enjoining Seymour from interfering with the business or contractual relationship between Buckley and his customers.
The trial court first granted a temporary restraining order, then took testimony and issued the following preliminary injunction, which includes preliminary findings of fact:
The issue before us is whether the trial court's finding that irreparable harm would result if the preliminary injunction was not issued was plainly and palpably erroneous. It is settled law that wide discretion is accorded the trial judge hearing a motion for a preliminary injunction and that his action will not be disturbed on appeal unless he abuses his discretion. Chunchula Energy Corp. v. Ciba-Geigy Corp. 503 So. 2d 1211 (Ala.1987); Martin v. First Federal Sav. & Loan Ass'n, 559 So. 2d 1075 (Ala.1990).
This Court has set forth a threepronged test by which the trial court can review a motion for a preliminary injunction; see, e.g., Howell Pipeline Co. v. Terra Resources, Inc., 454 So. 2d 1353, 1356 (Ala.1984):
Quoting Double C. Productions, Inc. v. Exposition Enterprises, 404 So. 2d 52, 54 (Ala. 1981); see Martin v. First Federal Sav. & Loan Ass'n, supra, at 1079. Seymour argues that this three-pronged test was overruled as the standard of review by City of Birmingham v. Link Carnival, Inc., 514 So. 2d 792, 795 (Ala.1987), which quoted from Johnson v. United States Dep't of Agriculture, 734 F.2d 774 (11th Cir.1984).[2] Any confusion created by City of Birmingham v. Link Carnival, Inc., has been set to rest by Martin v. First Federal Sav. & Loan Ass'n, in which this Court restated the three-pronged test of Howell Pipeline Co., and Double C. Productions as controlling.
Seymour argues that the trial court erred in issuing this preliminary injunction. His first contention is that the non-competition agreement is unenforceable, citing Ala. Code 1975, § 8-1-1. However, the parties agreed in the contract that Indiana law would control, and there is no statutory equivalent in Indiana law to § 8-1-1, which *558 voids contracts in general restraint of trade as against public policy. Covenants not to compete are enforceable in Indiana if there is a protectable interest and if the restraint is reasonable in light of legitimate interests sought to be protected. Licocci v. Cardinal Assocs., Inc., 445 N.E.2d 556 (Ind.1983); Donahue v. Permacel Tape Corp., 234 Ind. 398, 127 N.E.2d 235 (1955); Waterfield Mortgage Co. v. O'Connor, 172 Ind.App. 673, 361 N.E.2d 924 (1977).
As the trial judge correctly noted, the hearing was limited to the question of a preliminary injunction. This appeal is from a preliminary injunction, not from a final decision on the merits.
We have carefully examined the evidence presented at the hearing, and we conclude that the trial court's finding that irreparable harm was likely to result if it denied the preliminary injunction and its finding that temporary interference to preserve the status quo is convenient and expedient were not plainly and palpably erroneous. Therefore, the preliminary injunction is due to be affirmed. Buckley presented a fair question as to the existence of a right that should be protected: he presented evidence that the parties signed the contract; that there was valuable consideration for the contract; that the contract has been breached; that he has suffered irreparable harm from the breach thereof; and that he has no adequate remedy at law.
Further, evidence before the trial judge presented a fair question as to the proprietary nature of the PDR process. The evidence that the PDR process is unique within the automotive body repair industry included Buckley's contract for Seymour's training with Matteson, Inc.; the testimony of a longtime Birmingham automotive body repairman, John Mitchell; and the testimony of Terry Koebbe of Dent Wizard International. Seymour's own witness, Robert L. Smith, admitted that he had learned the PDR process only after agreeing to keep it a secret and paying $6,600. The proprietary nature of the PDR process makes it a proper subject of an injunction. See Indiana Code § 24-2-3-2, defining trade secrets, and Indiana Code § 24-2-3-3, providing for injunctive relief to prevent the misappropriation of trade secrets.
For the reasons stated above, the preliminary injunction is due to be affirmed.
MOTION TO DISMISS DENIED; AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Rule 4(a)(1)(A), Ala.R.App.P., allows an appeal from an interlocutory order "granting, continuing, modifying, refusing or dissolving an injunction." Buckley's motion to dismiss is due to be denied.
[2] The Eleventh Circuit Court of Appeals said in Johnson that four factors must be considered when ruling on a motion for a preliminary injunction: (1) whether there is a substantial likelihood that the plaintiff will prevail on the merits, (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted, (3) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may do to the defendant, and (4) whether granting the preliminary injunction will serve the public interest. 734 F.2d at 781. | October 15, 1993 |
cb72ca2c-dfa7-4229-a765-abb06d19c173 | Huntley v. State | 627 So. 2d 1013 | 1910530 | Alabama | Alabama Supreme Court | 627 So. 2d 1013 (1992)
Ex parte State of Alabama.
Re Audrey Louis HUNTLEY
v.
STATE.
1910530.
Supreme Court of Alabama.
September 18, 1992.
On Application for Rehearing October 8, 1993.
James H. Evans, Atty. Gen., and Stephen N. Dodd, Asst. Atty. Gen., for petitioner.
Michael D. Blalock, Birmingham, for respondent.
ADAMS, Justice.
The State of Alabama petitions this Court for certiorari review of a judgment of the Court of Criminal Appeals reversing Audrey Huntley's conviction in the Jefferson County Circuit Court for rape and sodomy. See §§ 13A-6-61 and 13A-6-63, Ala.Code 1975. The Court of Criminal Appeals reversed on the ground that the State had exercised its peremptory challenges in a racially discriminatory manner. We affirm.
During jury selection in Huntley's case, the prosecutor used five of her seven peremptory challenges to remove black persons from the jury. Before the jury was sworn, the defendant moved to quash the jury panel *1014 on the ground that the State had exercised its challenges in a racially discriminatory manner, in violation of the defendant's constitutional guarantee of a right to an impartial trial. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In this connection, the record reveals the following discourse:
Following these remarks, the defendant offered for the record comments on various features of the case, particularly alleging the absence of meaningful voir dire, which, he contended, constituted a prima facie case of discrimination. In response, the trial judge stated: "For the record, the court does not find ... evidence of racial bias in the use of the strikes, especially in light of the fact that there are still five [blacks] remaining.... But for the purposes of the record, I'll let [the prosecutrix] give her reasons in each case." (Emphasis added.) The State then proffered for each challenge reasons that it contended were racially neutral. Subsequently, the trial proceeded and the defendant was convicted.
The Court of Criminal Appeals reversed the judgment of the trial court and remanded the cause, holding that the State had "failed to carry its `burden of articulating ... clear, specific and legitimate reason[s] for the challenge[s] which relate[d] to the particular case to be tried, and which [were] nondiscriminatory.'" Huntley v. State, 627 So. 2d 1011, 1012 (Ala.Crim.App.1991) (emphasis in original) (quoting Ex parte Branch, 526 So. 2d 609, 623 (Ala.1987)). We granted the State's petition for certiorari review in order to consider its contention that because the trial court expressly determined that the defendant had failed to present a prima facie case of discrimination, the Court of Criminal Appeals erroneously concluded that the burden had shifted to the State to justify its challenges, and, consequently, erroneously held that the State had failed to carry its burden. In other words, the State contends that the Court of Criminal Appeals incorrectly bypassed review of the correctness of the trial judge's finding as to the existence of a prima facie case, a procedural step prerequisite, it insists, to the reviewing court's consideration of the adequacy of the State's explanations. These contentions necessitate a brief review of the technical procedure invoked by allegations of discrimination in jury selection.
Upon the exercise of the prosecution's first peremptory challenge of a black veniremember, a defendant is entitled to a Batson hearing. Harrell v. State, 555 So. 2d 263, 267-68 (Ala.1989) (adopting a "bright line test" for determining the defendant's right to a hearing); cf. Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (defendant need not be a member of the challenged veniremember's minority group). This hearing provides the defendant the opportunity to marshal all available evidence in order to construct a prima facie case of discrimination. Ex parte Branch, 526 So. 2d 609, 620 (Ala.1987); Ex parte Jackson, 516 So. 2d 768, 772 (Ala.1986) (quoting Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723). If the circumstances raise an inference of discrimination, the State must attempt to justify its challenges, the burden having shifted to the State to rebut the defendant's prima facie *1015 case. Ex parte Bird, 594 So. 2d 676, 680 (Ala.1991). Following the State's explanations, the defendant may offer rebuttal evidence "showing that the reasons or explanations are merely a sham or pretext" for racial discrimination. Ex parte Branch, 526 So. 2d at 624 (citing People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978)).[1]
Although each logical step within this procedural framework is theoretically severable, considerations of justice, expediency, and judicial economy oppose a slavish adherence to the framework in practice. First, considerations of judicial economy require a record of all the evidence bearing on the issue of alleged discrimination. Although, technically, the State is under no compulsion to rebut an inference of discrimination until a prima facie case exists, this Court, if it determines that an inference clearly exists, will not hesitate to remand a cause to the trial court with directions to examine the State's explanations. See, e.g., Ex parte Adkins, 600 So. 2d 1067 (Ala.1992); Ex parte Bankhead, 585 So. 2d 112 (Ala.1991); Fowler v. Family Dollar Stores, Inc., 571 So. 2d 1102 (Ala.1990); Moore v. Ray Sumlin Const. Co., 570 So. 2d 573 (Ala.1990); Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989); Harrell v. State, 555 So. 2d 263 (Ala.1989); Ex parte Minnifield, 530 So. 2d 249 (Ala.1988); Ex parte Branch, 526 So. 2d 609 (Ala.1987); Ex parte Godbolt, 546 So. 2d 991 (Ala.1987); Ex parte Penn, 539 So. 2d 319 (Ala.1987); Ex parte Jackson, 516 So. 2d 768 (Ala.1986). It is clear from the dialogue in this case that the trial judge, though unconvinced that the defendant had presented an inference of discrimination, nevertheless sought, as evidenced by his conscientious concern that the record include the State's explanations for its strikes, to avoid such a remand order. To reverse the judgment of the Court of Criminal Appeals for considering the entire record, with which the trial court sought to expedite the judicial process, seems anomalous at best.[2] Second, because appellate courts defer to the trial judge's objective observation of the voir dire process, considerations of justice invite a contemporaneous record, rather than post hoc excuses offered by the State long after the events have faded from the trial judge's memory.
Moreover, many of the same factors are equally relevant at more than one logical step in a Batson analysis framework. For example, a defendant may both construct a prima facie case and rebut the State's proffered explanations by showing that the prosecution exercised (1) desultory voir dire, (2) "[d]isparate examination of members of the venire," (3) "disparate treatment" of veniremembers who shared certain characteristics other than race, and (4) a number of challenges to black veniremembers disproportionate to their representation on the venire. Ex parte Branch, 526 So. 2d at 623-24. Thus, the evidence that was, or could have been, propounded by the defendant in rebuttal of the prosecution's explanations rests within the breast of the trial judge, and, necessarily, actuates his judgment as to whether the defendant has presented a prima facie case.
Because this evidence, in conjunction with the explanations presented by the prosecution, was necessarily considered by the trial judge, it is ripe for review. The Court of Criminal Appeals does not err, therefore, in reviewing all the evidence of record, including those facts of which it may take judicial notice, such as the frequency of judgments from the particular judicial circuit involved that have been reversed because of discriminatory jury selection. Ex parte Bird, 594 So. 2d at 681; Warner v. State, 594 So. 2d 664, 672 (Ala.Crim.App.1990), reversed on other grounds, Ex parte Bird, supra. This is true even where the trial judge has expressly determined that the defendant failed to present a prima facie case. Indeed, *1016 a rule that so places form over substance as to require the reversal of an appellate judgment solely for alleged digressions from a framework, which, as we have discussed above, involves mutable and overlapping boundaries, would ill serve the people of Alabama who depend on an efficiently functioning justice system.
Considerations such as these undoubtedly underpin the rule set forth in United States v. Forbes, 816 F.2d 1006 (5th Cir.1987). Stating that "appellate review should not become bogged down on the question of whether the defendant made a prima facie showing," the court explained:
816 F.2d at 1010.
The Court of Criminal Appeals cited this rule with approval in Currin v. State, 535 So. 2d 221, 223 (Ala.Crim.App.), cert. denied, 535 So. 2d 225 (Ala.1988); see also McLeod v. State, 581 So. 2d 1144 (Ala.Crim.App.1990); Williams v. State, 548 So. 2d 501, 504 (Ala. Crim.App.1988), cert. denied, 489 U.S. 1028, 109 S. Ct. 1159, 103 L. Ed. 2d 218 (1989). However, in Reese v. State, 549 So. 2d 148 (Ala.Crim.App.1989), that court held that where the trial court expressly determines that no inference of discrimination exists, a reviewing court should not examine the State's explanations for its challenges. In attempting to distinguish this principle from the one approved in Currin, the court stated:
549 So. 2d at 152. (Emphasis supplied.)
We are unpersuaded by the Reese reasoning, which purports to distinguish between cases on the basis of the trial court's express finding on the threshold issue of discrimination. Indeed, the trial judge in Forbes, like the trial judge in Reese, expressly found no inference of discrimination. United States v. Forbes, 816 F.2d at 1009 n. 5. Consequently, we hold that in reviewing allegations that the prosecution has exercised its peremptory challenges in a racially discriminatory manner, the reviewing court's inquiry, whether the State's explanations are offered voluntarily or by order of the trial judge, shall not be restricted by the mutable and often overlapping boundaries inherent within a Batson -analysis framework, but, rather, shall focus solely upon the "propriety of the ultimate finding of discrimination vel non." *1017 Merrill v. Southern Methodist University, 806 F.2d 600, 605 n. 6 (5th Cir.1986); see United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987). The rule propounded in Reese, to the extent that it conflicts with this holding, is overruled. Consequently, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
HOUSTON, J., dissents.
MADDOX, Justice (concurring specially).
Trial judges sometimes require or permit the State to offer race-neutral reasons for the exercise of peremptory strikes even though the defendant has not made a prima facie showing of purposeful discrimination as required by law, and even though the trial judge has made a specific finding that there was no such prima facie showing.[3] This case falls into that category.
The facts are admitted. During jury selection, the prosecutor used five of her seven peremptory strikes to remove black persons from the jury. After the jury was struck, Huntley's counsel timely objected and made a Batson motion. Huntley's counsel set forth his reasons, as to specific venirepersons excluded, for asserting that the prosecutor had exercised her peremptory challenges in a racially discriminatory manner. After the defense attorney had made his Batson motion, and after he had explained to the trial court why he thought all of the State's five strikes of black persons were racially motivated, the court stated:
(R. at 36.)
The opinion states that "technically, the State is under no compulsion to rebut an inference of discrimination until a prima facie case exists." Maj. op. at 1015. I agree with that statement.
When trial judges either require or permit prosecutors to state their reasons, even though they have found that the defendant has failed to make a prima facie showing of discriminatory use of peremptory strikes, appellate courts have generally reviewed those reasons to determine if they are sufficiently race neutral. The prosecutor here accepted the trial court's offer to "let [the prosecutor] give her reasons in each case." I have to agree that making a distinction between a case in which the prosecutor is required to state reasons for strikes and one in which the prosecutor voluntarily states reasons for strikes is probably too narrow. I do, however, set out what I believe would be the better procedure.
As I understand the principle stated in Batson, as now extended to cover strikes by defendants,[4] a principle that I believe probably will be further extended to include gender-based strikes,[5] it is that prospective jurors, regardless of race, have a right to serve on a jury, in order to preserve public confidence in the integrity of the jury system, and that the parties should not exclude prospective jurors based on the fact that they are members of a cognizable class of persons.
I have always thought that many Batson problems could be eliminated in both criminal and civil cases by the following procedure:
Because the Batson rule now applies to strikes exercised by criminal defendants, and because I believe that it will soon apply to gender-based strikes, I think trial judges should consider permitting prospective jurors to fill out a questionnaire that would contain information helpful to the parties in exercising peremptory challenges without regard to a prospective juror's race or gender. Such a procedure would greatly assist the trial court in determining whether a party has made a prima facie case of discrimination and whether any reasons offered in support of the strikes were in fact race neutral. Furthermore, the procedure would greatly assist appellate courts in reviewing challenges made by either side.
Batson and Branch basically prohibit stereotypical strikes. Parties should ask themselves when exercising their peremptory challenges, "Why am I striking this particular person?" If it is because of race, which I think will later be extended to gender, then it violates the Batson rule. That is what happened here, and the Court of Criminal Appeals, on review, found that the State had failed to offer "`a clear, specific and legitimate reason for the challenge which relate[d] to the particular case to be tried, and which is nondiscriminatory.'" Huntley v. State, 627 So. 2d 1011 (Ala.Crim.App.1991) (quoting Ex parte Branch, 526 So. 2d 609, 623 (Ala. 1987)). (Emphasis added in Huntley.) I cannot disagree with that finding, but I would point out that the Batson rule now applies to strikes by criminal defendants; so, the defendant may have won a Pyrrhic victory. On remand, the defendant will be living by the same rules that he has successfully required the prosecution to live by.[7]
HOUSTON, Justice (dissenting).
I dissent for the reasons stated in my concurrence in the result in Ex parte Demunn, 627 So. 2d 1010 (Ala.1992). I believe that, as a matter of law, the defendant did not prove a prima facie case of discrimination. Therefore, I would reverse the judgment of the Court of Criminal Appeals and affirm the judgment of the trial court.
This case involves sex crimesrape and sodomyallegedly committed by a middle-aged black male against a young black female. Five blacks served on the 12-person petit jury. Although the state used five of its seven strikes to strike blacks, it used some of its strikes to strike non-blacks. If the defendant struck no blacks, then the racial composition of the petit jury was almost proportionately the same as the racial composition of the venire from which it was struck.
I have spent many soul-searching hours considering whether the judiciary should abolish the established procedure of allowing *1019 peremptory strikes on the basis that they are by their very nature discriminatory. With these strikes, one party will strike jurors for some reasonbecause they are male, female, gay, straight, young, old, rich, poor, attractive, ugly, too good, too bad, doctors, lawyers, Indian chiefs, married to the wrong persons, formerly plaintiffs, formerly defendants; or because they formerly served on juries that acquitted or on juries that convicted, on juries that found for plaintiffs and awarded too much or on juries that awarded not enough in damages, or on juries that found for defendants; because they are prune mouthed or cross their arms when being questioned; because they are smiling, frowning, fat, skinny, married, single, divorced, with children, without children, Protestant, Catholic, Jewish, Muslim, or Scientologist; because they own homes, do not own homes, drive cars, do not drive cars, have bumper stickers on their cars, do not have bumper stickers on their cars; or because they are Democrats, Republicans, Independents, or Socialistsor for no articulable reason except that the party would rather have Juror 25 than Juror 48. Should the judiciary abolish peremptory strikes? I think not. I still believe that litigants, whether they are black or white, accused or prosecutor, plaintiffs or defendants, benefit from the peremptory challenge. Therefore, I would require the litigant who makes a Batson challenge to prove that the other party resorted to racial discrimination in peremptorily striking a particular petit jury, before the other party is required to explain why he or she peremptorily challenged a particular juror or particular jurors.
To me this case does not present a prima facie showing of discrimination, as a matter of law. I would let the trial court be the trial court and perform the duties and exercise the responsibilities that the Unified Judicial System assigns to the trial court.
ADAMS, Justice.
APPLICATION OVERRULED.
HORNSBY, C.J., and SHORES, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
HOUSTON, J., dissents.
MADDOX, Justice (concurring specially).
The State's application for rehearing states that "[i]n affirming the Court of Criminal Appeals' decision in the instant case by overruling in part the Court of Criminal Appeals' prior decision in Reese v. State, 549 So. 2d 148 (Ala.Crim.App.1989), this Court reached a holding that is in conflict with the prior decision of the U.S. Supreme Court in Hernandez v. New York, [500] U.S. [352], 111 S. Ct. 1859 [114 L. Ed. 2d 395] (1991)."
The State argues that this Court's decision that the reviewing court "shall focus solely upon the propriety of the ultimate finding of discrimination vel non," see page 1016, conflicts with that of the United States Supreme Court in Hernandez, in which the Supreme Court stated that "the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal." 500 U.S. at ___, 111 S. Ct. at 1868 (citing Batson v. Kentucky, 476 U.S. 79 at 98, n. 21, 106 S. Ct. 1712 at 1724, n. 21, 90 L. Ed. 2d 69 (1986)).
The State's main argument seems to be that this Court, and the Court of Criminal Appeals, did not give the proper deference to the trial court's finding of fact. I cannot accept the State's argument.
The opinion of the Court in this case did, in fact, overrule in part Reese v. State, 549 So. 2d 148 (Ala.Crim.App.1989),[1] but the specific holding in this case regarding the reviewing function of this Court was: "[I]n reviewing allegations that the prosecution has exercised its peremptory challenges in a racially discriminatory manner, the reviewing court's inquiry, whether the State's explanations are offered voluntarily or by order of the trial judge, shall not be restricted by the mutable and often overlapping boundaries *1020 inherent within a Batson-analysis framework, but, rather, shall focus solely upon the `propriety of the ultimate finding of discrimination vel non.'" See page 1016. Quoting Merrill v. Southern Methodist University, 806 F.2d 600, 605 at n. 6 (5th Cir.1986), and citing United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987).
I fail to see how that holding is inconsistent with the holding in Hernandez that the reviewing Court should give deference to the finding of fact made by the trial judge. In Hernandez, the defendant asked the Supreme Court to review his claim that the prosecutor exercised peremptory strikes to exclude Latinos from the jury because of their race. In Hernandez's trial for attempted murder, the court began with a venire of 63. After a jury of nine was empaneled, Hernandez objected that the prosecutor had used four peremptory challenges to exclude Latino potential jurors. Two of the Latinos had been challenged by the prosecutor because they had brothers who had been convicted of crimes. The other two were excluded because the prosecutor had misgivings about the jurors' ability to listen to the English interpreter and not to the Spanish-speaking witness.
Hernandez's Batson claim arose from the exclusion of the two Latinos and their reliance upon an interpreter. After Hernandez objected on Batson grounds, the prosecutor did not wait for a ruling by the trial judge on whether Hernandez had established a prima facie case of racial discrimination. Instead, the prosecutor volunteered as his reasons for striking the two jurors the fact that he did not feel that they would be able to listen to and follow the interpreter. The prosecutor noted that each of the four complainants in the case were Hispanics and that all of his civilian witnesses were going to be Hispanic, and that he had no reason to want to exclude Hispanics. The trial judge rejected Hernandez's claim. On appeal, the reviewing court noted that the prosecutor had challenged the only three prospective jurors with definite Hispanic surnames, and the court ruled that this fact made out a prima facie case of discrimination. The appellate court affirmed the trial court's rejection of Hernandez's Batson claim on the ground that the prosecutor had offered race-neutral explanations for the peremptory strikes sufficient to rebut Hernandez's prima facie case.
Although the trial court had no occasion to rule whether Hernandez had made a prima facie showing of intentional discrimination, the Supreme Court noted that "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." 500 U.S. at ___, 111 S. Ct. at 1866.
The Supreme Court stated that a race-neutral explanation "means an explanation based on something other than the race of the juror." 500 U.S. at ___, 111 S. Ct. at 1866. The Court further stated that at "issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Id. Once the prosecutor offers race-neutral reasons for his strikes, the trial court has to decide if the defendant has established purposeful discrimination.
"If a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutor's stated reason constitutes a pretext for racial discrimination." 500 U.S. at ___, 111 S. Ct. at 1868. The trial judge chose to believe the prosecutor's explanation, and the finding that it was race neutral should be "accorded great deference on appeal." 500 U.S. at ___, 111 S. Ct. at 1868.
In Hernandez, the Supreme Court engaged in much the same process that this Court did in reviewing the finding in this case, and after that review it stated, "[W]e decline to overturn the state trial court's finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous." 500 U.S. at ___, 111 S. Ct. at 1871.
I fail to see how the facts here are substantially different from those in Hernandez. *1021 In this case, the Court of Criminal Appeals found that the State had failed to offer "`a clear, specific and legitimate reason for the challenge which relate[d] to the particular case to be tried, and which is nondiscriminatory.'" Huntley v. State, 627 So. 2d 1011, 1012 (Ala.Crim.App.1991) (quoting Ex parte Branch, 526 So. 2d 609, 623 (Ala.1987). (Emphasis added in Huntley.) The Court of Criminal Appeals, at least implicitly, determined that the trial court's "ultimate finding" of nondiscrimination was not based upon facts that related to the case to be tried and that, because of that fact, the finding was clearly erroneous. That peremptory strikes must be based upon the "particular case to be tried" is clear from a reading of Batson. Consequently, the Court of Criminal Appeals merely held that the finding of nondiscrimination was not supported by the record and, hence, was clearly erroneous.
As I said in my special concurrence on original deliverance, I cannot disagree with that holding, but as I also pointed out in that special concurrence, "the Batson rule now applies to strikes by criminal defendants; so, the defendant may have won a Pyrrhic victory," because "[o]n remand, the defendant will be living by the same rules that he has successfully required the prosecution to live by." See page 1018.
[1] Alternatively, where he has produced all available evidence prior to the State's explanations, the defendant may, as was done in this case, rest upon the arguments advanced at his initial showing rather than reiterate many of the same contentions.
[2] Although the trial judge in this case, appropriately, as it turns out, sought to expedite the judicial process by providing a full and complete record, a practice that should not be discouraged, we do not mean to imply that the trial judge, when convinced that no inference of discrimination exists, is, nevertheless, obligated to require the State to explain its strikes.
[3] Cf. Reese v. State, 549 So. 2d 148 (Ala.Cr.App. 1989) (overruled today by the opinion in this case); Currin v. State, 535 So. 2d 221 (Ala.Cr. App.), cert. denied, 535 So. 2d 225 (Ala.1988).
[4] See Georgia v. McCollum, ___ U.S. ___, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992).
[5] See Ex parte Murphy, 596 So. 2d 45 (Ala.1992) (Maddox, J., dissenting from the denial of the writ of certiorari); Ex parte Fisher, 587 So. 2d 1039 (Ala.1991) (Maddox, J., dissenting from the denial of the writ of certiorari); and Ex parte Dysart, 581 So. 2d 545 (Ala.1991) (Maddox, J., dissenting from the denial of the writ of certiorari).
[6] I understand that the Circuit Court of Montgomery County has adopted a procedure that allows prospective jurors to fill out a general questionnaire when they first assemble, and that counsel for parties having cases to be tried can obtain this information for use in striking the jury.
[7] Even after the prosecution struck five blacks, five blacks served on the trial jury that convicted the defendant. Because the Batson rule now applies to a criminal defendant's peremptory challenges, if this defendant again uses all of his peremptory challenges to remove whites, then his strikes can also be challenged.
[1] In Reese, the court held that where the trial court expressly determines that no inference of discrimination exists, a reviewing court should not examine the State's explanations for its challenges. See our opinion of September 18, 1992, page 1016. | October 8, 1993 |
504b818c-3324-4cb3-ae2a-9ea4e41cb4ab | Yarbrough v. Sears, Roebuck and Co. | 628 So. 2d 478 | 1921031 | Alabama | Alabama Supreme Court | 628 So. 2d 478 (1993)
Gerald YARBROUGH and Stephanie Yarbrough
v.
SEARS, ROEBUCK AND COMPANY and Toyotomi Co., Ltd.
1921031.
Supreme Court of Alabama.
September 3, 1993.
Rehearing Denied October 15, 1993.
*479 S. Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellants.
De Martenson and Nancy S. Akel of Huie, Fernambucq & Stewart, Birmingham, for appellees.
HOUSTON, Justice.
Gerald and Stephanie Yarbrough filed this action against Sears, Roebuck and Company ("Sears") and Toyotomi Co., Ltd. ("Toyotomi"), to recover damages under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), based on allegations of negligent and wanton design of a kerosene heater, failure to adequately warn of dangers associated with the kerosene heater, and breach of implied and express warranties.
The Yarbroughs purchased a kerosene heater from Sears; that heater had been manufactured by Toyotomi. A printed decal on the heater itself warned against using gasoline in the kerosene heater. Before operating the kerosene heater, the Yarbroughs read the warnings and instructions included with it, which included several warnings *480 against using gasoline as fuel for the heater. Approximately a year after the Yarbroughs had purchased the heater, Mr. Yarbrough refueled the heater with fuel that he had purchased at Shaddix Grocery in Cullman, Alabama, and had pumped from a gasolinetype fuel pump labeled "kerosene." On December 23, 1989, the heater was in the Yarbroughs' kitchen and was lighted; the Yarbroughs, who were in their living room, heard a "poof" noise from the kitchen. Upon investigation, they saw flames coming from the heater and extending approximately six inches above it. Mr. Yarbrough was burned while trying to carry the burning heater out of the house, and the house and their personal belongings were destroyed. All of the experts, including the Yarbroughs' expert, Frederick Grim, agreed that the fire in the kerosene heater which caused Mr. Yarbrough's injuries and the destruction of the house and the Yarbroughs' personal property, was the result of using gasoline, as opposed to kerosene, in the kerosene heater.
Alfa Insurance Company and Blue Cross and Blue Shield of Alabama intervened in this action. After discovery, Sears and Toyotomi moved for a summary judgment, attaching supporting documents, including portions of the deposition of the Yarbroughs' expert, Grim; the affidavit of Dr. Harold F. Smith; and copies of the instructions, warnings, and decals explicitly warning and instructing users not to use gasoline in the kerosene heater.
In opposition to the motion for summary judgment, the Yarbroughs filed an affidavit of Grim, which the trial court struck on motion of Sears and Toyotomi. The trial court entered a final summary judgment for Sears and Toyotomi on all of the Yarbroughs' claims and on the claims of Alfa and Blue Cross. Alfa and Blue Cross did not appeal. The Yarbroughs appeal, presenting the following issues:
In granting Sears and Toyotomi's motion to strike Grim's affidavit, the trial court held that "affidavits given in litigation which contradict prior, sworn deposition testimony of the affiant may not be considered to create a genuine issue of material fact." Because the rule precluding inconsistent testimony from establishing a genuine issue of material fact applies only to the testimony of parties, not to the testimony of witnesses, Tittle v. Alabama Power Co., 570 So. 2d 601 (Ala. 1990), we need not address whether Grim's affidavit is inconsistent with his deposition testimony.
570 So. 2d at 604.
Like the affiant in Tittle, Grim was not a party and had no motive to fabricate an issue. Grim was simply an expert witness; although compensated by the Yarbroughs to testify, he was disinterested. Because Grim was not a party, the rule precluding one from creating genuine issues of material fact by contradictory or inconsistent testimony does not apply to him; therefore, the trial court erroneously struck his affidavit.
Nonetheless, even considering Grim's affidavit, we must conclude that the Yarbroughs failed to present substantial evidence creating a genuine issue of material fact as to whether the defendants might be liable under the AEMLD.
In adopting the AEMLD, the Court defined a defective product as a product that *481 is "unreasonably dangerous, i.e., not fit for its intended purpose," and said: "[T]he important factor is whether [the product] is safe or dangerous when the product is used as it was intended to be used. However, danger may be obviated by adequate warning." (Emphasis added.) Casrell v. Altec Industries, Inc., 335 So. 2d 128, 133 (Ala. 1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976). A manufacturer is not an insurer against all harm that might be caused by the use of its product, nor is a manufacturer obligated to produce an accident-proof or injury-proof product; and the mere fact that someone is injured while using the product does not establish that the product was unreasonably dangerous when put to its intended use. See Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328 (Ala. 1991).
The heater at issue was designed to be fueled with only kerosene. When it is used properlythat is, fueled with keroseneit meets an ordinary consumer's expectation by heating the house. However, if the consumer improperly uses gasoline in the kerosene heater, an obvious hazard is created because of the inherent volatility of gasoline. This potential hazard was identified in the nine warnings, cautions, and instructions contained within the "Owner's Manual," the "Safety Tips" brochure, the labels, decals, instructions, and hang tag that accompanied the heater:
A label included on the side of the fuel tank on the kerosene heater read in pertinent part as follows:
These warnings, included with the kerosene heater, were specific, comprehensive, and detailed in notifying potential consumers of the possibility of the danger associated with the use of gasoline or gasoline-contaminated kerosene as fuel for the heater. These warnings, which Mr. Yarbrough read, not only warned against the use of gasoline in the heater, but also provided details as to why gasoline should not be used as fuel for the heater and warned against moving the heater while it was in operation or if flames emerged from the heater.
These detailed, specific, and comprehensive warnings distinguish this case from Bean v. BIC Corp., 597 So. 2d 1350 (Ala.1992), wherein the Court held that the defendant, BIC Corporation, had failed to show the absence of a genuine issue of material fact where the allegation was that its general warnings "KEEP OUT OF REACH OF CHILDREN" and "KEEP AWAY FROM CHILDREN" failed to warn of the dangers associated with a child's use of a lighter.
We note the Yarbroughs' allegation that the barometric feed system used in the kerosene heater was defective and that there was an alternative, safer device. Other than the general statement by Grim, the Yarbroughs' expert witness, that "[t]here is a simple design modification to this heater which could have signalled misfueling and provided warning and/or turned off the heater before it flared out of control," the record is devoid of any proof of the existence of a feasible, available alternative to the design presently used in the heater that would have averted the danger presented by the heater. There was no detail or explanation provided; there was no evidence to prove that "a simple design modification" was safer or more practical or would have reduced or prevented the Yarbroughs' injuries and loss; and there was no evidence to show that the utility of an alternative design outweighed the utility of the design actually used. See General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala. 1985); Beech v. Outboard Marine Corp., 584 So. 2d 447 (Ala.1991). Moreover, Grim stated that an alternative to the barometric feed design would not have eliminated or reduced the chances of this accident, because the accident and subsequent injuries were caused by the use of gasoline or gasoline-contaminated fuel.
Based on the foregoing, we conclude that the trial court properly entered the summary judgment for Sears and Toyotomi as to the Yarbroughs' AEMLD claim.
The Yarbroughs support their claims of negligent and wanton design and failure to warn by the same evidence used to support their AEMLD claim. Suffice it to say, without further discussion, that the Yarbroughs presented no evidence of negligent design and no evidence of wanton design. Rather, the evidence clearly establishes that the damage to the Yarbroughs' house and personal belongings and the injuries to Mr. Yarbrough were caused by Mr. Yarbrough's misuse of the product.
Furthermore, as this Court stated in Gurley v. American Honda Motor Co., 505 So. 2d 358, 361 (Ala.1987):
It is undisputed that Mr. Yarbrough, the user of the kerosene heater, read the instructions and warnings before he operated it. However, based on his own actions on the day of the fire, one must conclude that he failed to heed the clear, specific warnings and instructions that if he saw flames coming out *483 of the heater (which meant that gasolinecontaminated fuel had been used) he was not to move the heater but was to call the fire department. Rather, on the day of the fire, when he saw flames coming from the heater, he tried to pick up the heater by its handles and carry it. There was no evidence that any other warning or instruction would have been heeded and thereby would have prevented the accident.
Based on the foregoing, we conclude that the trial court properly entered the summary judgment for Sears and Toyotomi as to the Yarbroughs' claims of negligent and wanton design and failure to warn.
The Yarbroughs' claim of a breach of the implied warranty of merchantability is to the effect that the kerosene heater was unreasonably dangerous and therefore could not be merchantable. "Such an argument ignores the clear distinction between causes of action arising under tort law and those arising under the U.C.C. as adopted in Alabama." Shell v. Union Oil Co., 489 So. 2d 569, 571 (Ala.1986). Whether the kerosene heater was unreasonably dangerous is not a question properly addressed in a claim alleging breach of warranty under the U.C.C., but it could be, and was, properly raised in a claim under the AEMLD.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | September 3, 1993 |
96c97ced-3aad-4c9f-9f35-76addeb07b64 | Ex Parte McDuffie | 624 So. 2d 1063 | 1921221 | Alabama | Alabama Supreme Court | 624 So. 2d 1063 (1993)
Ex parte Michael H. McDUFFIE.
(Re Elmer WOODALL v. J.C. WOODALL).
1921221.
Supreme Court of Alabama.
September 10, 1993.
G. Howard Houston II of Howard, Dunn, Howard & Howard, Wetumpka, for petitioner.
Robert M. Alton, Jr. of Alton & Alton, Montgomery, for respondent.
MADDOX, Justice.
The question presented by this petition for a writ of mandamus is whether the trial judge acted properly in compelling a criminal defense attorney to disclose to an adversary party in a civil proceeding the employment contract he had made with his client who had been charged capitally and was awaiting trial. The trial judge, after examining the employment contract in camera, ordered the criminal defense attorney to disclose the contract. The attorney petitioned this Court for a writ directing the trial judge to vacate his disclosure order; the attorney argues that to require the disclosure would violate the attorney-client privilege.
This Court ordered the trial judge to respond with an answer and brief, and he has done so. After considering the petition, the exhibits, and trial judge's answer and brief, we conclude that the writ is due to be denied.
Attorney Michael H. McDuffie entered into an employment contract with J.C. Woodall, who is presently under indictment in *1064 Elmore County for capital murder.[1] The civil action to which the mandamus petition relates arises out of the same set of facts as the capital murder charge.
The plaintiff in the civil action is Elmer Woodall. He has sued J.C. Woodall, the defendant in the capital case, charging that J.C. Woodall "committed an assault upon [him], said assault being accomplished by and through the agents, servants and accomplices of the said J.C. Woodall." Elmer Woodall claimed in his civil action that J.C. Woodall and the other named persons conspired to kill him and his mother and that he was shot in the head.
The plaintiff sought to compel the defendant's attorney to disclose his employment contract with the defendant, based on the fact that the defendant, approximately one week before the scheduled date for trial of the civil action, conveyed certain real property to attorney McDuffie. The plaintiff asked the court to compel McDuffie to disclose the terms of the employment contract. McDuffie claimed that such disclosure would violate his attorney-client privilege and the defendant, J.C. Woodall, claims that the disclosure could violate his privilege against self-incrimination. The trial judge ordered McDuffie to disclose the contract to him in camera. After examining it, he sealed it, and the plaintiff has not seen it yet, and neither has this Court because the petitioner has not made it a part of the record.
The plaintiff, in his response to this mandamus petition, states that "[t]his case [Woodall v. Woodall ] was originally scheduled for trial on March 1, 1993," and "[i]n light of the appraised value of the property conveyed by J.C. Woodall to McDuffie combined with the timing of the transaction in question and other facts which will not be enumerated at this point, Elmer Woodall verily believes that said conveyance may constitute a violation of Code of Alabama, 1975 as amended § 8-9A-1, known as the Alabama Fraudulent Transfer Act."
Mandamus is an extraordinary remedy requiring a showing of: (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 Finerty, 611 So. 2d 1063 (Ala.1993); Ex parte Alfab, Inc., 586 So. 2d 889 (Ala.1991).
Ex parte Bozeman, 420 So. 2d 89, 91 (Ala. 1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So. 2d 98 at 102 (Ala.1981); also quoted in Ex parte Finerty, 611 So. 2d at 1064.
Based on the principles of law cited in this opinion and those cited in the respondent judge's brief, we hold that the petitioner has failed to show that he is clearly entitled to the relief he seeks. The petition is denied.
WRIT DENIED.
ALMON, SHORES, HOUSTON and INGRAM, JJ., concur.
[1] The indictment charges murder for hire. Ala. Code 1975, § 13A-5-40(a)(7). | September 10, 1993 |
bf1cad4a-52c9-485a-8c6e-563b52fdca02 | McBride v. Sheppard | 624 So. 2d 1069 | 1920507 | Alabama | Alabama Supreme Court | 624 So. 2d 1069 (1993)
Pamela Faith McBRIDE, et al.
v.
Dr. Raymond L. SHEPPARD and Huntsville OB/GYN Associates, P.A.
1920507.
Supreme Court of Alabama.
September 10, 1993.
*1070 M. Clay Alspaugh and Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellants.
W. Stancil Starnes of Starnes & Atchison, Birmingham, and W. Stanley Rodgers and Ashley E. Watkins of Lanier Ford Shaver & Payne, Huntsville, for appellees.
MADDOX, Justice.
The plaintiffs appeal in a medical malpractice case. The sole issue is whether the trial court erred in denying the plaintiffs' motion for a new trial, which was based on the alleged illiteracy of one of the jurors, i.e., his inability "to read, speak, understand and follow instructions given by a judge in the English language." See § 12-16-60(a)(2), Ala.Code 1975.
The facts relevant to this appeal are as follows:
Pamela Faith McBride and Gerry McBride sued Dr. Raymond L. Sheppard, M.D., and Huntsville OB-GYN Associates, P.A., alleging that the defendants had negligently caused their son Joshua Andrew McBride to suffer severe cerebral palsy and catastrophic mental retardation by failing to timely diagnose fetal distress and promptly deliver the child.
A jury returned a verdict in favor of the defendants. The plaintiffs moved for a new trial, claiming that a particular juror was unable to read and thus, under § 12-16-60(a)(2), was not qualified to sit on a jury. At a hearing on the motion for new trial, the parties offered various exhibits and examined the juror in question. The trial judge heard conflicting evidence on the abilities of the juror, but apparently believed that the juror could read at an adequate level. Accordingly, the trial court denied the McBrides' motion for a new trial. The McBrides appeal.
First, we note that the ruling on a motion for a new trial is within the discretion of the trial court and that the trial court's decision carries a strong presumption of correctness. Gold Kist, Inc. v. Tedder, 580 So. 2d 1321, 1322 (Ala.1991). The decision of the trial court should not be disturbed on appeal unless the record plainly and palpably *1071 shows that the trial court erred and that some legal right has been abused.
Section 12-16-60 sets forth the qualifications for jurors:
(Emphasis added.)
Although citizens "shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin or economic status," § 12-16-56, and the law requires that "jury venires include all qualified persons, and hence, represent a cross-section of the community," State ex rel. Gregg v. Maples, 286 Ala. 274, 279, 239 So. 2d 198 (1970) (quoting Mitchell v. Johnson, 250 F. Supp. 117 (M.D.Ala.1966)), the requirements of § 12-16-60 are mandatory in nature and are not within the trial court's discretion. Spicer v. State, 188 Ala. 9, 65 So. 972 (1914); Kittle v. State, 362 So. 2d 1260 (Ala.Crim.App.1977), rev'd on other grounds, 362 So. 2d 1269 (Ala.1978); Smith v. State, 482 So. 2d 1312 (Ala.Crim.App.1985).
The policy in the selection of jurors is stated in § 12-16-55:
In their motion for new trial, the McBrides alleged, among other things:
From the record, it appears that juror J.F. executed two affidavits, one for each side, which gave two different answers to the parties' questions concerning his ability to read. For the plaintiffs, J.F. signed an affidavit that stated as follows:
For the defendants, J.F. executed the following affidavit, dated October 27, 1992:
*1072 A hearing was held on the motion for new trial, at which the parties were given an opportunity to introduce affidavits and exhibits and to examine juror J.F. in the presence of the trial judge. The trial court found that the juror could read at an adequate level and denied the motion for a new trial.
This Court has required that a motion for new trial be granted when the statutory qualifications are clearly not met. In Ex parte Ledbetter, 404 So. 2d 731, 733 (Ala. 1981), this Court stated:
(Quoting Leach v. State, 31 Ala.App. 390, 18 So. 2d 285 (1944)).
In addition, in Chrysler Credit Corp. v. McKinney, 456 So. 2d 1069 (Ala.1984), we held that a new trial was required because a disqualified juror participated in the trial. In Chrysler Credit Corp., the trial judge asked the prospective jurors during voir dire if any of them were unable to read and write, and none of them responded. After the trial, counsel for Chrysler Credit learned that one of the jurors could neither read nor write; that juror had not responded to the judge's questions concerning literacy. Chrysler Credit moved for a new trial and during the hearing on its motion it was discovered that the juror also had a hearing impediment. The trial court denied Chrysler Credit's motion; Chrysler Credit appealed.
This Court held that a new trial was required where the prospective jury venire was specifically asked whether each member could read and write the English language and each member indicated by silence that he or she could. However, we did not decide whether a new trial is automatically required every time § 12-16-60 is violated. Under the facts of the present case, the record does not indicate that juror J.F. was specifically asked whether he could read or write the English language and that he indicated by his silence that he could, although it is possible the jury venire was asked such a question. Nevertheless, the trial judge observed juror J.F. read and found that he could read at a level adequate to qualify for jury service.
More recently, in Holland v. Brandenberg, [Ms. 1910872, May 14, 1993], 1993 WL 154446 (Ala.1993), we again considered the criteria for jury qualification found at § 12-16-60, Ala.Code 1975. The disqualifying factor at issue in Holland is found in § 12-16-60(a)(4) (the prospective juror has "lost the right to vote by conviction for any offense involving moral turpitude"). In Holland, the prospective jurors were not specifically asked whether any of them had been convicted of an offense involving moral turpitude, yet this potentially disqualifying factor was raised in a motion for new trial.
This Court held that "[f]ailure to use due diligence in testing jurors as to qualifications or grounds of challenge is an effective waiver of grounds of challenge; a defendant cannot sit back and invite error based on a juror's disqualification." Holland, 1993 WL 154446, * 2; see also Beasley v. State, 337 So. 2d 80, 82 (Ala.Crim.App.1976).
As in Holland, nothing in the record here indicates that counsel for the McBrides specifically asked J.F. about his ability "to read, speak [or] understand" the English language, and nothing indicates that counsel was concerned before trial about the educational background of the prospective jurors. The denial of the McBrides' motion for a new trial was within the sound discretion of the trial court, and that the denial was not plainly and palpably erroneous. The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON and INGRAM, JJ., concur.
ALMON, J., concurs in the result. | September 10, 1993 |
97e092c0-75be-4c55-8f21-9d03a0976dcf | Ex Parte Davis | 628 So. 2d 530 | 1901309 | Alabama | Alabama Supreme Court | 628 So. 2d 530 (1993)
Ex parte Jimmy Wayne DAVIS.
(Re: Jimmy Wayne Davis v. State of Alabama and the Honorable Jerry Fielding.)
1901309.
Supreme Court of Alabama.
October 8, 1993.
M. Clay Ragsdale IV of Starnes & Atchison, Birmingham, and Frances S. Cohen, Marc Goodheart, Martha Born, and Timothy B. Tomasi of Hill & Barlow, a Professional Corp., Boston, MA, for appellant.
James H. Evans, Atty. Gen., and Sylvia D. Mitchell, Asst. Atty. Gen., for appellee.
ADAMS, Justice.
Our opinion of May 1, 1992, is withdrawn and the following is substituted therefor.
Jimmy Wayne Davis, who was the defendant in an earlier criminal case, petitions this Court for a writ of mandamus directing Judge Jerry L. Fielding of the Talladega Circuit Court to allow Davis to depose his former trial counsel, Hank Fannin and George Sims; and Talladega County District Attorney Robert Rumsey, who had been the chief prosecutor at the trial. We grant the petition.
This mandamus petition relates to a Rule 20, A.R.Cr.P.Temp., petition filed in the Talladega *531 Circuit Court seeking a review of Davis's conviction and sentence. Davis was convicted in the Talladega Circuit Court on January 18, 1985, of the capital offense of murder during a robbery in the first degree and was sentenced to death.
Davis seeks to overturn his conviction because, among other things, he claims his counsel was ineffective, and he says that his counsel's ineffectiveness was so prejudicial as to cause him to be convicted when he should not have been. He claims that the result would have been different if his counsel had provided him with effective assistance, citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Although Judge Fielding did not allow Davis to depose Fannin, Sims, and Rumsey, he allowed the State to depose Davis concerning his claim of ineffective assistance of counsel.
Rule 20 (now superseded by Rule 32, A.R. Cr.P.) made deposition discovery available on post-conviction review. Where a defendant has been sentenced to death and contends in a post-conviction proceeding that he had ineffective assistance of counsel, and the State has been allowed to depose the defendant regarding his claim of ineffective assistance, we hold that fundamental principles of due process dictate that the defendant likewise be allowed to depose his trial counsel and the chief prosecutor before the hearing on the post-conviction petition. It is not sufficient that Fannin and Sims have met with Davis's new counsel. Davis is entitled to have their testimony by deposition placed on the record before the court hears his Rule 20 petition. The mandamus petition is therefore granted.
APPLICATION GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; WRIT GRANTED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur. | October 8, 1993 |
dc439c4c-dccb-4187-87ad-43a3a0e2818b | Harding v. Pierce Hardy Real Estate | 628 So. 2d 461 | 1920622 | Alabama | Alabama Supreme Court | 628 So. 2d 461 (1993)
Steven HARDING
v.
PIERCE HARDY REAL ESTATE, d/b/a 84 LUMBER COMPANY.
1920622.
Supreme Court of Alabama.
September 3, 1993.
*462 William Dowsing Davis III of Davis & Goldberg, Birmingham, for appellant.
John W. Clark, Jr., and Michael E. Henderson, Birmingham, for appellee.
INGRAM, Justice.
Steven Harding was injured when he tripped over a box protruding into an aisle in the 84 Lumber Company store in Midfield, Alabama. Harding sued Pierce Hardy Real Estate, doing business as 84 Lumber Company (hereinafter "84 Lumber"), alleging that it had negligently and wantonly failed to keep its premises in a safe condition. The trial court entered a summary judgment in favor of 84 Lumber; Harding appeals.
On appeal, Harding raises a single issue: whether he presented substantial evidence that his injury was caused by "negligent premises maintenance" on the part of 84 Lumber. This Court's review is limited to the issues raised on appeal; therefore, by failing to raise the issue on appeal, Harding has waived any argument as to whether the summary judgment in favor of 84 Lumber was proper as to the wantonness claims and the "negligent failure to warn" claim.
Therefore, our review on appeal is limited to whether the summary judgment was appropriate on the claim of negligent failure to maintain the premises in a safe condition. A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The movant "`bears the initial responsibility of informing the [trial] court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.'" Lawson State Community College v. First Continental Leasing Corp., 529 So. 2d 926, 936 (Ala.1988) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (quoting Fed.R.Civ.P. 56(c))); see Berner v. Caldwell, 543 So. 2d 686 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the nonmovant must present "substantial evidence" supporting his position and creating a genuine issue of material fact. See § 12-21-12, Ala.Code 1975; Ala.R.Civ.P. 56. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).
The evidence, viewed in the light most favorable to Harding, the nonmovant, suggests the following facts:
Harding went to 84 Lumber to purchase paint and plaster. He picked up a gallon of primer and then he went to the plaster aisle. He observed 150 to 250 empty boxes thrown into the center of the aisle, leaving only an 8- to 12-inch path between the boxes and the rack of merchandise. Harding followed another customer down the aisle along the path; while he was walking down the aisle he tripped over a box of paint cans protruding about six inches into the path. Harding testified in his deposition that he did not see the box he tripped over because he was watching the person in front of him and was scanning the shelves; that, although he saw the boxes piled in the center of the aisle, he did not realize that they posed any special danger to him because he was following the path and the person ahead of him; and that he made no special attempt to avoid the boxes while walking the narrow path.
At the time of the accident, Harding was a business invitee of 84 Lumber. This Court has held:
Quillen v. Quillen, 388 So. 2d 985, 989 (Ala. 1980) (emphasis supplied), quoted in McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957 (Ala.1992).
We have held that a summary judgment is proper on the issue of whether a defect was open and obvious when the undisputed evidence shows that the plaintiff was aware of the danger, appreciated the danger, and acted more carefully because of the perceived danger. See Harvell v. Johnson, 598 So. 2d 881, 883 (Ala.1992). However, when the evidence is disputed, "questions of openness and obviousness of a defect or danger and of the plaintiff's knowledge are generally not to be resolved on a motion for summary judgment." Id. In this case, although it is not disputed that Harding saw the boxes in the center of the aisle and that he took the narrow path around them, he denies that he saw the box of paint cans protruding into the pathway, that he appreciated the danger of this box in the pathway, or that he had reason to act more carefully to avoid the box in the pathway.
Therefore, because the evidence is disputed and Harding presented substantial evidence that the paint can box in the pathway was not an open and obvious danger, we reverse the summary judgment as to the negligent-failure-to-maintain-claim and remand this case for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS and KENNEDY, JJ., concur. | September 3, 1993 |
7a0c926d-c99e-413b-990c-ba1f52a89156 | Tidwell v. Upjohn Co. | 626 So. 2d 1297 | 1920265 | Alabama | Alabama Supreme Court | 626 So. 2d 1297 (1993)
Brenda G. TIDWELL, as administratrix of the Estate of James L. Tidwell, deceased
v.
The UPJOHN COMPANY.
1920265.
Supreme Court of Alabama.
September 10, 1993.
Rehearing Denied November 5, 1993.
*1298 Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellant.
Stephen E. Scheve of Shook, Hardy & Bacon P.C., Kansas City, MO, and Warren B. Lightfoot and John M. Johnson of Lightfoot, Franklin, White & Lucas, Birmingham, for appellee.
PER CURIAM.
Brenda G. Tidwell, as administratrix of the estate of her husband, James L. Tidwell, appeals from the summary judgment entered in favor of the Upjohn Company in her action against it, St. Vincent's Hospital ("St. Vincent's"), and Dr. Lamar Ager following her husband's suicide while a patient at St. Vincent's. The trial court entered a summary judgment in favor of Dr. Ager and entered a judgment based on the jury's verdict in favor of the hospital. Brenda Tidwell does not appeal from either of those judgments.
Pursuant to the Alabama Extended Manufacturer's Liability Doctrine, Brenda Tidwell alleged in her complaint that Upjohn had negligently manufactured, marketed, and distributed the drug Halcion, which James Tidwell had been taking immediately before his death. She also alleged 1) that Upjohn had wantonly manufactured, marketed, and distributed Halcion; 2) that it had negligently and wantonly failed to provide adequate warnings regarding the use of Halcion; and 3) that it had committed fraud, misrepresentation, and deceit in its development and marketing of Halcion. The sole issue on appeal is whether the deposition testimony of Mrs. Tidwell's two proffered experts, James O'Donnell, a pharmacist and pharmacologist, and Dr. Lyle Rossiter, a psychiatrist, was sufficient to establish proximate cause.
*1299 On Monday, February 22, 1988, after having had trouble sleeping for several nights, Mr. Tidwell consulted his family physician, Dr. Joseph Welden, saying that he had not been feeling well for about six weeks. Dr. Welden prescribed .25-milligram dosages of Halcion, a sleep-inducing drug, which Mr. Tidwell began taking that night. Mr. Tidwell returned to Dr. Welden on Thursday, February 25, 1988, because he was still sleeping fitfully. At that point, Dr. Welden surmised that, if there was not an organic explanation for Mr. Tidwell's problems, he could be suffering from major depression. As a result, Dr. Welden had Mr. Tidwell admitted to St. Vincent's that day to be tested for a possible tumor and to see if there was a physiological explanation for his problems. After the tests came back normal, Dr. Welden referred Mr. Tidwell to Dr. Ager, a psychiatrist, whose initial impression was that Mr. Tidwell was severely depressed. His opinion was that Mr. Tidwell was suffering from major depressive syndrome, and he increased Mr. Tidwell's dosage of Halcion to .5 milligrams. Mr. Tidwell took this amount on Friday evening and, according to the nurse's notes, was afterwards feeling better and was walking in the hall with his wife.
Mrs. Tidwell visited her husband on Saturday morning and brought a couple of newspapers for him to read. Although Mr. Tidwell attempted to look at one of them, he became frustrated and threw it on the floor, declaring that he thought he was "losing [his] mind." After a nurse brought his breakfast to him, Mr. Tidwell ate a few bites, picked up his coffee cup, went into the bathroom, and locked the door. Immediately after he entered the bathroom, Mr. Tidwell shot himself in the head with a handgun taken from his travel bag.
Mrs. Tidwell contends that the increased dosage of Halcion caused her husband to kill himself and that Upjohn failed to warn physicians properly of the effects of a .5-milligram dosage of Halcion. To prove causation, Mrs. Tidwell offered the deposition testimony of Mr. O'Donnell and Dr. Rossiter. Upjohn contends that the testimony of both was insufficient to establish causation. Specifically, Upjohn argues that Mr. O'Donnell was not competent to testify as an expert in this case because he is not a medical doctor and that, even if he were, he still would not qualify because, by his own admission, he had insufficient knowledge regarding Halcion and its use.
The trial court's order granting Upjohn's motion for summary judgment reads:
The trial court's summary judgment in favor of Upjohn was appropriate if there was no genuine issue of material fact and if Upjohn was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. Once Upjohn made a prima facie showing that it was entitled to a judgment, the burden shifted to Mrs. Tidwell to present substantial evidence supporting her position and creating a genuine issue of material fact, to withstand the granting of Upjohn's motion. Hilliard v. City of Huntsville Electric Utility Board, 599 So. 2d 1108 (Ala.1992). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); Ala.Code 1975, § 12-21-12.
Proximate cause is an essential element of Mrs. Tidwell's prima facie case of negligent failure to adequately warn. See Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185 (Ala.1992); Gurley v. American Honda Motor Co., 505 So. 2d 358 (Ala.1987); *1300 E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963 (Ala.1985). It is also an essential element of her other causes of action against Upjohn: wantonness and fraud. Thus, the sole issue on appeal is whether the testimony offered by Mrs. Tidwell was "substantial evidence" that Mr. Tidwell's treatment with the drug Halcion at a dosage of .5 milligrams proximately caused him to commit suicide.
A ruling on the admissibility of expert testimony is largely within the discretion of the trial court and will not be overturned unless there has been an abuse of discretion. Bell v. Hart, 516 So. 2d 562 (Ala. 1987); Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972). The purpose of expert testimony is to aid the trier of fact where the subject matter is beyond the ken of the average juror. Ex Parte Hill, 553 So. 2d 1138 (Ala.1989); Thompson v. Jarrell, 460 So. 2d 148 (Ala.1984). Thus, where a witness has sufficient "knowledge, skill, experience, or training ... that his opinion will be considered in reason as giving the trier of fact light upon the question to be determined" it should be admitted as expert testimony. Ellingwood v. Stevens, 564 So. 2d 932 (Ala. 1990), citing, C. Gamble, McElroy's Alabama Evidence, § 127.01(5) (3d ed. 1977). A critical distinction in this case is that an objection to testimony of a competent expert based on the witness's lack of knowledge goes to the weight of the evidence and not its admissibility. See Ellingwood, supra; Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1929); Pollard v. State, 549 So. 2d 593 (Ala.Crim.App. 1989).
This is not a medical malpractice case. Mrs. Tidwell's claim against Upjohn is based on the Alabama Extended Manufacturer's Liability Doctrine, Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976). See Ala.Code 1975, § 6-5-500 et seq. While expert testimony of a physician is required in a medical malpractice case in order to determine the proper medical standard of care, Levesque v. Regional Medical Center Board, 612 So. 2d 445 (Ala.1993), the testimony of a medical doctor is not required in order to prove causation relating to the effects of drugs or toxins. See Bell v. Hart, supra; Police & Fireman's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So. 2d 261 (1953); Thaggard, supra. In Bell, this Court cited with approval a passage from Rodriguez v. Jackson, 118 Ariz. 13, 574 P.2d 481 (Ariz.App.1977), clearly stating that a witness need not be a physician to testify as to medical causation.
Upjohn contends that the trial court was correct in ruling that Mr. O'Donnell was not qualified to render an expert opinion on whether the increased dosage of Halcion proximately caused Mr. Tidwell to kill himself, because Mr. O'Donnell is not a physician. However, Upjohn, in its brief to this Court, acknowledges that the issue of causation in this case relates to Mr. O'Donnell's expertise in pharmacology. Upjohn stated that "[t]he complex issues of medical causation [in this case] turn on testimony relating to psychopharmacology, pharmokinetics, epidemiology, and psychiatry" (emphasis added).
Mr. O'Donnell is a pharmacist and pharmacologist with a Pharm.D. degree from the University of Michigan. He is the editor-in-chief of a professional pharmacy journal, has served as the assistant director of pharmacy at a Chicago hospital for 12 years, and has been an assistant professor of pharmacology at a Chicago medical school. The trial court considered him to be an expert on the pharmacologic properties of Halcion. Mr. O'Donnell testified that he possesses expertise in the area of pharmacologic toxic effects of benzodiazepines such as Halcion.
Given Mr. O'Donnell's education, experience, study, and background in pharmacology, we conclude that he had sufficient knowledge to testify as an expert on the issue of whether Halcion ingestion at a dosage of .5 milligrams contributed to Mr. Tidwell's suicide. Further, the trial court abused its discretion in ruling that only the testimony of a medical doctor could be considered on that issue.
Although this Court held in Phillips v. Alamed Co., 588 So. 2d 463 (Ala.1991), that it was not an abuse of discretion for a trial court to rule that a medical doctor, rather than a registered nurse, was required to *1301 render expert testimony on a medical causation issue in a medical malpractice case, we have also held that the opinion of dentists or chemists, who receive training similar to that received by physicians on the effects of drugs on the human body, is admissible as expert testimony on that issue. Thaggard, supra. This Court has also allowed a toxicologist to testify as to the effect on the human body of exposure to carbon monoxide. Mullins, supra. Therefore, because Mr. O'Donnell has sufficient expertise in pharmacology to assist a jury in making its determination of whether Halcion ingestion was a contributing factor in Mr. Tidwell's suicide, the trial court erred in holding that his testimony was inadmissible on the issue of causation.
The trial court further ruled that a judgment in favor of Upjohn was proper because, without Mr. O'Donnell's testimony, Mrs. Tidwell had presented no substantial evidence that ingestion of Halcion proximately caused Mr. Tidwell's suicide. However, when Mr. O'Donnell's expert testimony is combined with that of Mrs. Tidwell's other expert, Dr. Rossiter, this burden is met.
On issues of medical causation a showing of probable cause, rather than possible cause, must be made. See Willard v. Perry, 611 So. 2d 358 (Ala.1992). The pertinent portions of Dr. Rossiter's deposition testimony read:
Although the trial court was correct to note that Dr. Rossiter, a psychiatrist, testified only that ingestion of Halcion was possibly a contributing cause of Mr. Tidwell's suicide, he also testified that the only reasonable medical factors that could have contributed to Mr. Tidwell's suicide were his major depression and ingestion of the drug Halcion. Moreover, Mr. O'Donnell testified that, in his opinion as a pharmacologist, the ingestion of Halcion at a dosage of .5 milligram was a "significant contributing event" leading to Mr. Tidwell's suicide:
When questioned by Mrs. Tidwell's lawyer, Mr. O'Donnell testified similarly:
This testimony is supported by internal Upjohn documents that question the safety of the .5-milligram dosage of Halcion. Accordingly, viewing this evidence in a light most *1303 favorable to Mrs. Tidwell, we conclude that she has presented "substantial evidence" of probable causation, and we conclude that the summary judgment in favor of Upjohn must be reversed.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
STEAGALL, Justice, dissenting.
I must respectfully dissent. Although I agree with the majority that Mr. O'Donnell was qualified to render expert testimony on the issue of causation, neither his testimony nor that of Dr. Rossiter provides the requisite substantial evidence that Mr. Tidwell's ingestion of Halcion proximately caused his death. As O'Donnell's testimony reflects, the most he would say was that Halcion contributed to Mr. Tidwell's death. When the lawyer for St. Vincent's asked O'Donnell whether he could say to a reasonable degree of pharmacologic certainty that the deterioration of Mr. Tidwell's psychiatric condition was more likely caused by the Halcion than by the psychiatric condition itself, O'Donnell said "No." Likewise, Dr. Rossiter refused repeatedly to say that Halcion probably caused Mr. Tidwell's suicide. See Willard v. Perry, 611 So. 2d 358 (Ala.1992) (cited in the majority opinion) (probable cause rather than possible cause must be shown in medical causation situations).
In my opinion, the expert testimony here does not rise to the level required to establish substantial evidence of causation. Thus, the summary judgment in favor of Upjohn was proper and should be affirmed.
MADDOX and HOUSTON, JJ., concur. | September 10, 1993 |
f3379d3e-59b3-435e-99e9-ad7c09d9b2ac | Camaro Trading v. Nissei Sangyo America | 628 So. 2d 463 | 1920710 | Alabama | Alabama Supreme Court | 628 So. 2d 463 (1993)
CAMARO TRADING COMPANY, LTD.
v.
NISSEI SANGYO AMERICA, LTD.
1920710.
Supreme Court of Alabama.
September 3, 1993.
*464 William W. Sanderson, Jr. and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
Gary C. Huckaby and Stuart M. Maples of Bradly, Arant, Rose & White, Huntsville, and Stephen A. Gorman of Foran & Schultz, Chicago, IL, for appellee.
KENNEDY, Justice.
Nissei Sangyo America, Ltd. ("Nissei"), filed this declaratory judgment action against Camaro Trading Company, Ltd. ("Camaro"), seeking a declaration that a contract entered into by Nissei and Camaro was void on the basis that Camaro, a Hong Kong corporation, was doing business in Alabama without being qualified to do so.
The procedural history of this case is somewhat complicated. Camaro removed the case to the United States District Court for the Northern District of Alabama on diversity grounds. That court remanded the case to the state courts for lack of federal jurisdiction, specifically finding that Camaro had failed to prove that its principal place of business was somewhere other than Alabama. (C.R.Supp. 56-64.)
On remand to the state court, Camaro filed a motion to compel arbitration pursuant to an arbitration clause in the contract. The trial court denied the motion, and Camaro appealed. Nissei cross-appealed the trial court's denial of its motion for summary judgment. In Camaro Trading Co., Ltd. v. Nissei Sangyo America, Ltd., 577 So. 2d 1274 (Ala.1991), this Court held that the trial court did not err in denying Camaro's motion to *465 compel arbitration and dismissed Nissei's cross-appeal.
After a nonjury trial in the declaratory judgment action, the trial court declared that the agreement between Nissei and Camaro was void and unenforceable because of Camaro's failure to qualify to do business in Alabama before doing business in this state. Camaro appeals.
The only issue is whether the trial court erred in finding that Camaro was a foreign corporation that was not qualified to do business in Alabama. Therefore, we will discuss the facts relevant to that issue.
On September 1, 1987, Nissei and Camaro executed a "Sales Representative Agreement." According to the agreement, Camaro was to act as Nissei's exclusive sales agent for sales of "Shinwa cassette mechanisms" to the Chrysler Acustar Corporation, located in Huntsville, Alabama. Camaro's obligation under the agreement was to use its "best efforts and skills to sell, promote and generally create a demand" by Chrysler in Huntsville for Shinwa cassette mechanisms. Camaro was to receive a 5% commission on Nissei's sales of the mechanisms to Chrysler. It is undisputed that the agreement was limited to Camaro's representation of Nissei in the sale of cassette mechanisms to Chrysler in Huntsville.
The agreement listed Camaro's address as 1805 University Drive, Huntsville, Alabama 35801. (C.R.Supp. 92-98.) Camaro's letterhead contained an address in Hong Kong and an address in Huntsville. Domer Ishler, who signed the agreement on behalf of Camaro, testified that 90% of the daily operations of the project occurred in Huntsville. (R.T. 56.) Ishler, an Alabama resident, had a power of attorney on Camaro's brokerage account in Alabama and was the signing authority on Camaro's corporate accounts. Chrysler's plant manager testified that Ishler directed and controlled Camaro in Huntsville.[1]
From September 1987 until March 1989, when the agreement was terminated, Nissei issued 20 checks to Camaro at the Huntsville address. It is undisputed that Camaro did not pay tax on its commissions from the agreement. Additionally, Camaro owned and maintained a yacht in Huntsville that it used for entertaining Chrysler executives.
When a trial court, without a jury, hears ore tenus evidence, its findings are presumed to be correct and its judgment based on those findings will not be reversed on appeal unless the appellate court finds it to be not supported by the evidence or to be plainly and palpably wrong, after considering all the evidence and after making all reasonable inferences from that evidence. Spruiell v. Robinson, 582 So. 2d 508 (Ala.1991).
Section 10-2A-247, Ala.Code 1975, provides in pertinent part:
This Court has interpreted § 10-2A-247 as follows:
Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1370 (Ala.1988).
*466 The initial determination in applying § 10-2A-247(a), is whether the company is engaged in inter state commerce or in intra state commerce. Businesses engaged in inter state commerce are protected by the Commerce Clause of the United States Constitution, U.S. Const., Art. I, § 8, cl. 3, and are immune from the provisions of § 10-2A-247(a). Whether a company is engaging in an intrastate activity, so as to require qualification in this state, is to be determined on a case by case basis.
Clearly, Camaro was engaged in an intra state transaction with Nissei. First, Camaro was Nissei's representative only in Alabama and was its representative with respect to one Alabama customer, namely the Chrysler plant in Huntsville. Second, Camaro had an office and agents and received commission payments in Alabama in connection with the agreement. Third, the daily activity incident to the agreement took place in Alabama. Last, we note that the federal court order remanding the case to the state court for lack of diversity jurisdiction stated that the state court might draw whatever inferences it wished from Camaro's failure to prove that its principal place of business was somewhere other than Alabama. (C.R.Supp. 59-63.)
Diversacon Industries, Inc. v. National Bank of Commerce of Mississippi, 629 F.2d 1030, 1034 (5th Cir.1980).
Sanwa Business Credit Corp. v. G.B. "Boots" Smith Corp., 548 So. 2d 1336, 1339 (Ala.1989), citing, Sanctions for Failure to Comply with Corporate Qualification Statutes: An Evaluation, 63 Colum.L.Rev. 117-19 (1963).
Camaro argues that Kentucky Galvanizing Co. v. Continental Casualty Co., 335 So. 2d 649 (Ala.1976), is dispositive of this case. In Kentucky Galvanizing, this Court held that the corporation's activities in Alabama were simply solicitation of orders and delivery incident to that solicitation and, therefore, constituted interstate activity. However, we find the present case to be analogous to SAR Manufacturing Co. v. Dumas Brothers Manufacturing Co., 526 F.2d 1283 (5th Cir.1976) (applying Alabama law). In SAR Manufacturing, the foreign corporation had expanded its operation by purchasing a warehouse in Alabama, maintaining two vehicles in Alabama, and employing Alabama residents full-time. The court held that the corporation's activities were "localized enough to easily fall under the ambit of a series of transactions which are primarily intrastate and concomitantly the corporation falls under the satrapy of the qualification statutes." SAR Manufacturing, 526 F.2d at 1286.
Based on the foregoing, we cannot say that the trial court's judgment was not supported by the evidence or was plainly and palpably wrong. We affirm.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] When it signed the agreement with Nissei, Camaro also entered into an agreement with Twentieth Century Marketing, Inc. ("TCM"), which provided that TCM was to act as Camaro's representative in Huntsville to perform Camaro's obligations to Nissei. Ishler, the owner of TCM, testified that before the filing of this action Nissei was unaware of Camaro's agreement with TCM. | September 3, 1993 |
166ef04e-fe60-48a6-9df5-8354171ca034 | Grayson v. Dungan | 628 So. 2d 445 | 1920402 | Alabama | Alabama Supreme Court | 628 So. 2d 445 (1993)
Mary GRAYSON
v.
Johnnie Gates DUNGAN, as administratrix of the estate of Strougther Herman Dungan, deceased.
1920402.
Supreme Court of Alabama.
September 3, 1993.
Rehearing Denied November 19, 1993.
*446 Stuart C. DuBose, Jackson, for appellant.
V. Wylynn Gilmore-Phillippi of Gilmore Law Office, Grove Hill, for appellee.
HORNSBY, Chief Justice.
Mary Grayson, the defendant, appeals from a judgment based on a jury verdict in favor of Johnnie Gates Dungan, administratrix of the estate of Strougther Herman Dungan, a/k/a Dick Dungan, on a claim alleging that Grayson had failed to fully repay $18,000 lent to her by Dick Dungan. Grayson argues that the trial court abused its discretion by admitting into evidence a letter written by Dick Dungan's lawyer regarding the terms of repayment of the loan. We affirm.
The evidence shows that in November 1988, Dick Dungan lent Grayson $18,000. Although there was no note evidencing the loan, Grayson admitted that she had received the $18,000 from Dungan as a loan, to be repaid within two years. The parties dispute on appeal the terms of repayment of the loan and whether Grayson fully repaid the loan.
In June 1991, Dick Dungan's widow, Johnnie Gates Dungan, representing Dick Dungan's estate, sued Grayson, alleging that she had failed to fully repay the loan. The jury returned a verdict in favor of Dungan in the amount of $16,200. The trial court entered a judgment based on the jury verdict and subsequently denied Grayson's motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial.
At trial, Grayson argued that she had repaid the loan in full; she produced 3 handwritten receipts for payment in cash, signed by Johnnie Dungan, indicating that Grayson had made payments of $5,000, $6,000, and $7,000, and thus supporting her argument that she had fully repaid the loan. Dungan testified, however, that each of the receipts had been altered, after she had signed them, from the original amounts of $500, $600, and $700.
Dungan presented into evidence an unsigned copy of a December 1988 demand letter from Dick Dungan's lawyer to Grayson calling for repayment of the loan. In relevant part, the letter states:
Grayson acknowledged that she received the letter but denied that she had agreed to convey one-half of her interest in the business and to pay 12% interest. She argues that the trial court's admission of the letter into evidence constitutes reversible error because, she argues, it was an offer of compromise, was hearsay, and was not the best evidence, and its admission violated the Dead Man's Statute, Ala.Code 1975, § 12-21-163.
A trial court has great discretion in determining the admissibility of evidence, and its rulings will not be reversed on appeal absent an abuse of discretion. Williams v. Hughes Moving & Storage Co., 578 So. 2d 1281, 1285 (Ala.1991); Roberts v. Public Cemetery of Cullman, Inc., 569 So. 2d 369, 373 (Ala.1990). Further, the appellant must establish that the error was prejudicial before the trial court's judgment will be reversed on that basis. American Furniture Galleries, Inc. v. McWane, Inc., 477 So. 2d 369, 373 (Ala.1985). Therefore, we must consider whether the admission of the letter was an abuse of discretion and, if so, whether that error requires a reversal of the trial court's judgment.
Grayson first argues that the letter was inadmissible as an offer of settlement or compromise. See Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987). The judgment will not be reversed on the ground of an "improper admission or rejection of evidence ... unless ..., after an examination of the entire cause, it [appears] that the error complained of has probably injuriously affected substantial rights of the parties." Rule 45, Ala.R.App.P.; Whisenant v. Nationwide Mut. Fire Ins. Co., 577 So. 2d 909 (Ala. 1991).
Grayson argues that the admission of the letter prejudiced her because it was evidence coming from an officer of the court, compared to her testimony, which she says the jury may have been less likely to believe. However, Grayson herself admitted that she had agreed to repay the $18,000 within 2 years, and the jury found that she owed only the portion of that amount it found that she had not repaid: $16,200. The jury did not find that she owed the additional amounts claimed in the attorney's letter, i.e., one-half of her interest in the business and 12% interest on the $18,000. Therefore, any error in admitting the letter would have been mere harmless error in this case. Carnival Cruise Lines, Inc. v. Goodin, 535 So. 2d 98 (Ala.1988) (holding that a civil defendant was not prejudiced by admission of alleged hearsay statements where another witness later testified to identical statements); Davis v. Southland Corp., 465 So. 2d 397 (Ala.1985).
Grayson next contends that the letter constitutes inadmissible hearsay and that the trial court abused its discretion by admitting it into evidence. She argues that the letter constitutes hearsay because, she says, it is an extra-judicial statement offered to prove the existence of the loan agreement. Dungan, however, argues that the letter was not offered to prove the truth of the matter asserted and, accordingly, that the hearsay rule does not apply.
In Ward v. Dale County Farmers Co-op., Inc., 472 So. 2d 978 (Ala.1985), this court held that a letter concerning the nature of a contract was properly admissible, despite a hearsay objection, because the existence of the contract was not in dispute, and that failure to reply to the letter was an implied admission of its truth. In Ward, this Court quoted a well-known treatise on the law of evidence in Alabama:
472 So. 2d at 979, quoting C. Gamble, McElroy's Alabama Evidence § 193.06 (3d ed. 1977).
Grayson admitted both the existence of a contract and her receipt of the letter. Evidence was presented that Grayson did not respond to the letter and that previous loans Dick Dungan had made to Grayson did not call for interest payments. The trier of fact could infer that a reasonable person in Grayson's position would have responded to the letter that she received from Dick Dungan's lawyer. Thus, the letter was admitted to show its effect on Grayson, sometimes referred to as "effect on listener," rather than to prove the truth of the matters asserted in the letter. Therefore, under the rule specified above, the trial court did not abuse its discretion by admitting this letter into evidence.
Grayson also argues that the letter contains hearsay within hearsay because the basis for the statements of Dungan's lawyer is not personal knowledge, but hearsay from Dick Dungan regarding Dungan's conversations with Grayson. However, this does not affect the letter's admissibility, because, as discussed above, it was not offered to prove the truth of the matters asserted in the letter.
Grayson next contends that the trial court erred in admitting the letter because, she says, an unsigned photocopy of the letter from the attorney's files was not the best evidence of the letter she received. Dungan argues that this objection is not properly raised on appeal because, she argues, Grayson's counsel did not object on that basis at trial. Although Grayson's counsel did not specifically object on grounds that the letter did not comply with the best evidence rule, his objection was based on the fact that the copy was of an unsigned letter and was not authenticated; thus, his particular objections implied a "best evidence" objection.
As a general rule, when the original of a writing is in the possession of the opposing party, the party seeking to prove the contents of the writing through secondary evidence may not do so unless that party has given notice to the opposing party to produce the original. Payne v. Crawford, 102 Ala. 387, 14 So. 854 (1894); C. Gamble, McElroy's Alabama Evidence § 216.01(1) (4th ed. 1991). However, when a witness testifies at trial, as Grayson did, that the copy exhibited is a true and correct copy of the original, the copy is admissible and the original need not be produced. Kessler v. Peck, 266 Ala. 669, 98 So. 2d 606 (1957); Vetter v. Federal Deposit Ins. Corp., 426 So. 2d 444, 446 (Ala.Civ.App. 1983).
Finally, Grayson argues that the letter was admitted in violation of Ala.Code 1975, § 12-21-163, the Dead Man's Statute. However, we need not address this argument, because that objection was not made at trial with Grayson's other specific objections. State v. Holloway, 293 Ala. 543, 307 So. 2d 13, 17 (1975); Vetter, 426 So. 2d at 445. Accordingly, the trial court's judgment is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | September 3, 1993 |
cbff61b8-334e-417c-9b93-55d1a140e2fc | Ex Parte HPW | 628 So. 2d 514 | 1920427 | Alabama | Alabama Supreme Court | 628 So. 2d 514 (1993)
Ex parte H. P. W.
(Re H. P. W.
v.
State.)
1920427.
Supreme Court of Alabama.
October 8, 1993.
*515 Everette A. Price, Jr. and J. David Jordan, Brewton, for petitioner.
James H. Evans, Atty. Gen., and J. Randall McNeill, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
This case involves the transfer of the petitioner, a juvenile, from the juvenile court to the circuit court on a charge of capital murder for the alleged killing of his mother and stepfather. We granted certiorari review to address (1) whether the trial court erred in refusing to order the State to give the juvenile funds to conduct an independent evaluation of his mental condition; (2) whether the trial court should have granted the juvenile's request for a continuance, and (3) whether the trial court should have considered a mental evaluation of the juvenile that was not formally introduced into evidence at his transfer hearing.
H.P.W., a juvenile, was arrested and charged with the murder of his mother and stepfather. The State moved to have his case transferred to the circuit court for him to be tried as an adult on a charge made capital by § 13A-5-40(a)(10), Ala.Code 1975. After a hearing, the juvenile court transferred him for trial as an adult. He appealed from the juvenile court's transfer order, raising three issues in the Court of Criminal Appeals. H.P.W. v. State, 591 So. 2d 141 (Ala.Cr.App.1991).
The Court of Criminal Appeals noted that "[t]he record reveals that there were very specific claims of serious mental illness." 591 So. 2d at 142. That court held that the juvenile court had abused its discretion in denying the juvenile's motion for a continuance, because, the court found, the juvenile had presented evidence indicating a history of mental problems. The Court of Criminal Appeals set aside the juvenile court's transfer order and remanded the case to the juvenile court.
After remand, the juvenile court, on December 20, 1991, pursuant to Ala.Code 1975 § 12-15-34, gave the juvenile's attorneys and guardians ad litem notice of a transfer hearing to be held on January 6, 1992. The juvenile was given a mental evaluation on *516 December 23, 1991, in order to comply with the court's obligation under § 12-15-34(b) to determine if he was mentally ill or mentally retarded. Dr. Dennis E. Breiter reviewed records of the juvenile's previous psychiatric treatments, which had been mentioned by the Court of Criminal Appeals in its opinion, 591 So. 2d at 142. He observed the juvenile himself, and he concluded that the juvenile was competent to stand trial for capital murder. The report of the findings from the mental evaluation conducted by Dr. Breiter was served on one of the juvenile's two attorneys, who was also a guardian ad litem, on January 3, 1992.
The juvenile moved to continue the second transfer hearing on the grounds that his counsel had not received the mental health report until January 3, 1992, and therefore had not had time to seek a second opinion or to confer with the juvenile or with co-counsel. He also moved the court to order the State to pay expenses for him to hire a psychiatric expert to do an independent mental evaluation and to testify. The court denied both motions and transferred the juvenile to the circuit court. In making its decision, the trial court considered the mental evaluation conducted by Dr. Breiter, but Dr. Breiter's report was never formally entered into evidence.
The Court of Criminal Appeals affirmed the transfer order, by unpublished memorandum, 617 So. 2d 705, holding that it was not error to deny the juvenile's motion for funds to conduct additional psychiatric evaluations prior to the transfer hearing to determine if he should be transferred to the circuit court. The Court of Criminal Appeals also determined that the mental evaluation required by § 12-15-34 did not encompass an independent psychiatric evaluation.
The Court of Criminal Appeals also held that the trial court did not err in denying a continuance. We granted certiorari review to consider these issues.
We first address the juvenile's claim that the trial court erred in denying his motion asking the court to order the State to pay the expenses for a mental evaluation. He argues that the denial of this motion violated his due process rights under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). We disagree. In Ake, the Supreme Court held that the Fourteenth Amendment's guarantee of fundamental fairness required that an indigent defendant in a criminal proceeding be provided the means to build an effective defense, 470 U.S. at 76-77, 105 S. Ct. at 1092-93, but this case involved a transfer hearing and this Court has specifically stated that "a transfer hearing is not a hearing to adjudicate the guilt or innocence of the child accused of a crime but is, instead, a probable cause hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult." Brown v. State, 353 So. 2d 1384, 1387-88 (Ala.1977). Consequently, the procedural requirements of a trial do not ordinarily apply to a transfer hearing. See, Gulledge v. State, 419 So. 2d 219, 220 (Ala. 1982) (holding that the strict rules of evidence do not apply to a transfer hearing because it is a probable cause hearing rather than a criminal prosecution); Cruse v. State, 489 So. 2d 694, 697 (Ala.Cr.App.1986) (holding that a transfer hearing is not a "criminal prosecution" within the meaning of the Sixth Amendment's guaranty of the right to a speedy trial). We hold, therefore, that because a transfer hearing is a probable cause hearing rather than a criminal prosecution, which would place a person's liberty at stake, the denial of the juvenile's motion to require the State to pay expenses to obtain a psychological expert did not violate his due process rights.
The juvenile also argues that the court erred in denying his motion for a continuance. He argues that he did not have a reasonable time after receiving Dr. Breiter's mental evaluation to review it and did not have sufficient time to consult with counsel. We agree with the Court of Criminal Appeals that the trial court did not abuse its discretion in this regard. In Spellman v. State, 469 So. 2d 695, 698 (Ala.Cr.App.1985), the Court of Criminal Appeals upheld the denial of a continuance where the juvenile's counsel *517 had only 24 hours to prepare for the transfer hearing. In so holding, the court noted that "[c]ounsel for the defendant had seen the transfer report and was able to cross-examine the party who prepared [it]." 469 So. 2d at 698. H.P.W.'s counsel had approximately 72 hours, or three times longer than counsel had in Spellman, to prepare after obtaining Dr. Breiter's report. See also, Taylor v. State, 507 So. 2d 1034, 1036 (Ala.Cr.App.1987) (upholding the denial of a motion for a continuance of a transfer hearing because the juvenile's prior psychological evaluations were available to defense counsel). H.P.W. had more than two weeks' notice of the January 6, 1992, hearing, and the State had been seeking a transfer since April 18, 1991. Furthermore, the State asserts, and H.P.W. does not deny, that Dr. Breiter's report could have been picked up at Dr. Breiter's office any time after December 23, 1991, or that Dr. Breiter was at least available to discuss his findings. There was no evidence that H.P.W. attempted to obtain a copy of the mental evaluation before January 3, 1992. It is well settled that the disposition of a motion for a continuance is vested in the sound discretion of the trial court and that its ruling will not be disturbed on appeal, except upon a clear showing of abuse of discretion. Carroll v. State, 445 So. 2d 952, 954 (Ala.Cr. App.1983). Under the circumstances of this case, the denial of the continuance was not an abuse of discretion.
Finally, the juvenile argues that the trial court erred in transferring him to the circuit court because in deciding to transfer him the court considered a psychiatric report that had not been formally offered into evidence. The juvenile says he had no opportunity to object to the report or to question its findings. Ala.Code 1975, § 12-15-34, does not require that a psychological evaluation be formally offered into evidence. All that the section requires is that the court conduct a hearing on whether to grant the transfer motion, inquire into whether there are reasonable grounds to believe that the juvenile is committable to an institution or agency for the mentally retarded or mentally ill, and consider evidence on the six factors set out in § 12-15-34(d).
On his first appeal, the Court of Criminal Appeals ordered that the juvenile be given a reasonable time to procure a psychiatric evaluation and his medical records. H.P.W. v. State, 591 So. 2d 141, 143 (Ala.Cr.App.1991). The psychiatric evaluation and medical records were obtained, and the juvenile's attorneys had more than two full months from the day the order of the Court of Criminal Appeals was handed down to prepare his case in order to show that there were reasonable grounds to believe that he was mentally ill or mentally retarded.
We conclude that the trial court did not err in considering the mental evaluation that had not been formally offered into evidence. In Gulledge v. State, 419 So. 2d 219, 220 (Ala. 1982), this Court held that the strict rules of evidence do not apply to a transfer hearing because it is a probable cause hearing rather than a criminal prosecution. The trial court was required by the Court of Criminal Appeals only to give the juvenile "the opportunity to procure his medical records, as well as any other evidence relating to his mental problems." H.P.W. v. State, 591 So. 2d 141, 142 (Ala.Cr.App.1991). This opportunity was given. The juvenile cannot complain that the court considered evidence of his mental condition when that is what he sought the prior continuance to obtain.
We affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., dissents.
KENNEDY, Justice (dissenting).
The majority of the Court holds that H.P.W.'s due process rights under the Fourteenth Amendment were not violated by the juvenile court's denial of his motion asking that the State pay the expenses of a mental evaluation. I disagree.
In Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), the Supreme *518 Court held that a state must take certain steps to assure that an indigent criminal defendant has a fair opportunity to present his defense, including providing him with a psychiatrist's assistance if the defendant shows that his sanity at the time of the offense is an issue. In addition, in that case the Supreme Court held that the defendant was entitled to a psychiatrist's assistance at his sentencing proceeding in order to present an expert's opposing view as to his future dangerousness, because at the sentencing proceeding the State had presented evidence of the defendant's likelihood of future dangerousness. The Supreme Court held that without a psychiatrist's assistance, the defendant could not present a well-informed expert's opposing view as to his likelihood of future dangerousness.
The case at bar involves an indigent juvenile who was transferred to the circuit court to stand trial as an adult. The Court of Criminal Appeals reversed the transfer order on a holding that the juvenile court had abused its discretion in denying a motion for a continuance and a motion for a psychiatric evaluation after evidence was presented that the juvenile had a long history of mental problems and drug abuse. H.P.W. v. State, 591 So. 2d 141 (Ala.Cr.App.1991). On remand, the juvenile court held a second transfer hearing; it reviewed, among other things, evidence from a State psychiatrist, and it found that H.P.W. was competent to stand trial as an adult.
Recently, this Court stated that "a transfer hearing is a `critically important' proceeding in juvenile criminal procedure," citing Kent v. United States, 383 U.S. 541, 560, 86 S. Ct. 1045, 1057, 16 L. Ed. 2d 84 (1966), and that "A transfer hearing `must measure up to the essentials of due process and fair treatment,'" quoting Kent, 383 U.S. at 562, 86 S. Ct. at 1057. Ex parte W.T.K., 586 So. 2d 850, 851 (Ala.1991).
In Ex parte W.T.K., the juvenile argued that his arrest had been unlawful and that the subsequent confession was therefore inadmissible at the transfer hearing as the fruit of an unlawful arrest. This Court reaffirmed its prior position that a transfer hearing is not designed to determine guilt or innocence of the juvenile but is instead a probable cause hearing to determine whether the juvenile should be transferred out of the juvenile court for criminal prosecution as an adult. However, the Court held that a juvenile's Fourth Amendment rights must be protected at a transfer hearing.
Similarly, in regard to the instant case, I feel that certain protections must be afforded a juvenile, including providing him with a psychiatrist's assistance at a transfer hearing when it has clearly been shown that his mental state is at issue. As previously noted, there was evidence presented that H.P.W. had a long history of mental problems and drug abuse. (R. 52, 102-14).
It is particularly important that courts protect the constitutional rights of juveniles at transfer hearings. To transfer a juvenile and try him as an adult without protecting his rights to due process of law is impermissible.
Section 12-15-34(c), Ala.Code 1975, provides that if there are grounds to believe that a juvenile is committable to an institution, the court can order a mental examination pursuant to § 12-15-70. As was stated in Ake, "[p]sychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness.... Perhaps because there is often no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party." 470 U.S. at 81, 105 S. Ct. at 1095.
At a transfer hearing it is the judge who determines whether a juvenile is competent to stand trial as an adult; nevertheless, before the judge makes this determination, the juvenile should have the opportunity to present opposing expert evidence as to his mental state. If the juvenile is indigent, as H.P.W. is in this case, the State should be required to pay the expense of obtaining a psychiatrist's assistance. | October 8, 1993 |
d772c0db-8ebb-4569-957f-c76005306458 | Norris v. Wal-Mart Stores, Inc. | 628 So. 2d 475 | 1920841 | Alabama | Alabama Supreme Court | 628 So. 2d 475 (1993)
Tammy Jo NORRIS,
v.
WAL-MART STORES, INC.
1920841.
Supreme Court of Alabama.
September 3, 1993.
*476 Thomas W. McCutcheon of Higginbotham, Whitten & McCutcheon, Florence, for appellant.
Gary P. Wilkinson of Hill, Young & Wilkinson, Florence, for appellee.
SHORES, Justice.
The plaintiff, Tammy Jo Norris, appeals from a judgment based on a directed verdict for the defendant in a premises liability action. Ms. Norris sued Wal-Mart Stores, Inc., alleging that the Muscle Shoals Wal-Mart store in Colbert County had not exercised proper care in stocking items, and that, as a result of its failure to properly maintain the stocked items or a failure to warn customers of the danger caused by the items, she was injured. On January 28, 1993, the case was tried before a jury. At the close of the evidence, the judge directed a verdict for Wal-Mart. The plaintiff appeals from the resulting judgment. We reverse and remand.
A motion for a directed verdict tests the sufficiency of the opponent's evidence. Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991); Coburn v. American Liberty Ins. Co., 341 So. 2d 717 (Ala.1977). When ruling on a motion for a directed verdict, a trial court must view the entire evidence in the light most favorable to the nonmoving party. Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala.1981). The moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Danford at 546; Bazzel v. Pine Plaza Joint Venture, 491 So. 2d 910 (Ala.1986).
The applicable standard of review is the "substantial evidence rule." Alabama Code 1975, § 12-21-12; Watters v. Lawrence County, 551 So. 2d 1011 (Ala.1989). If a claimant fails to present substantial evidence as to one or more elements of his cause of action, a directed verdict is proper. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala.1989). Therefore, in order for Ms. Norris to defeat the motion for directed verdict, she was required to present substantial evidence that *477 Wal-Mart owed her a duty, that it breached that duty, and that the breach of that duty was the proximate cause of her injury. Jones v. Newton, 454 So. 2d 1345, 1348 (Ala. 1984).
The evidence, when viewed in a light most favorable to Ms. Norris, indicates the following: Ms. Norris was shopping in the Muscle Shoals Wal-Mart store. When she bent down to get an item off a lower shelf, some boxes of toothpaste, each of which weighed 10 pounds, fell from a shelf above and one of them injured her. The shelf was more than six feet from the floor, and Wal-Mart employees used ladders to stock the shelf. Ms. Norris's seven-year-old daughter, who was shopping with her, testified that she saw no one near the box that struck her mother when it fell and that she did not know why it had fallen. There was no evidence as to the position of the box before its fall. The shelf from which the box fell did not have a railing.
Wal-Mart does not contest the fact that the box fell from the top shelf and hit Ms. Norris on the back of her head and neck as she leaned over to select an item from the lower shelf. The blow, she said, forced her to her knees. She offered evidence from which the factfinder could determine that the blow resulted in injuries from which she still suffers. The evidence was undisputed that she sought medical attention immediately following the accident and that she continues to be treated for pain. The evidence would support a finding that she continues to suffer pain that interferes with her normal activities.
Ms. Norris was a business invitee on the premises of Wal-Mart; therefore, Wal-Mart owed her a duty to exercise reasonable care to maintain its premises in a reasonably safe condition. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So. 2d 957 (Ala.1992). A defendant is not the "insurer of the safety of his invitees [and] there is no presumption of negligence which arises from the mere fact of an injury to an invitee." Shaw v. City of Lipscomb, 380 So. 2d 812, 814 (Ala.1980); Tice v. Tice, 361 So. 2d 1051 (Ala.1978); Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So. 2d 586, cert. denied, 287 Ala. 729, 255 So. 2d 592 (1971). Ms. Norris contends that, because Wal-Mart deemed railings a reasonable precaution in some areas of the store, it had a duty to use the same reasonable precaution of fencing all shelves in other areas of the store, particularly the one where she was injured. Ms. Norris asserts that, at the least, the evidence presented a question of fact from which the jury could conclude that Wal-Mart was negligent in using railings on some of its shelves and not using railings on the shelf from which the case of toothpaste fell. She cites Furgerson v. Dresser Industries, Inc., 438 So. 2d 732 (Ala.1983), to support this contention.
In Furgerson, a convenience store operated three identical gas pumps, which were placed in a row. Two of the pumps had poles beneath their display-panel arms to prevent customers from walking into the arms that jutted out from the pumps. The third pump had no safety poles. A customer walked into the unmarked arm of the third pump, fell backwards, and was injured. This Court stated:
Furgerson at 733. Ms. Norris construes this to mean that, because Wal-Mart used railings on other shelves in the store, but not in the area where she was injured, this "demonstrate[s] that issues of material fact existed and the factual question of negligence should have been submitted to the jury." We agree.
This is not a slip and fall case. In Furgerson, the pumps were identical except for the missing safety poles on the third pump. In this case, some of the shelves upon which merchandise was stored or displayed had railings that would prevent an item from sliding off. Shelves with railings were otherwise identical to the ones without railings. Whether railings were installed apparently depended upon what was stored on the shelves. A fact question was presented as to whether Wal-Mart breached its duty to provide *478 a safe place for business invitees to shop by storing cases of toothpaste on high shelves, under which customers were invited to shop, without providing a railing to keep a heavy box from falling onto a customer.
Ms. Norris also contends that the court should not have directed a verdict because:
Mims v. Jack's Restaurant, 565 So. 2d 609, 610 (Ala.1990). She claims that the shelves were defective and that a jury should decide whether the store should have had notice of their defect. The defect that Ms. Norris refers to is the lack of "fencing" or "snaprailing" on the uppermost level of the shelf. In Mims, supra, we said that where the alleged defect or instrumentality is a part of the premises, such as a display rack, and not a foreign substance, such as spilled food, for example, the owner of the premises has a duty to provide ordinary and reasonable maintenance of those premises in order to meet its duty to its invitees.
We have carefully reviewed this case and conclude that the judgment of the trial court is due to be reversed and the cause remanded for resolution by a jury. Ms. Norris introduced evidence from which a jury could conclude that Wal-Mart breached its duty to her as a business invitee and that the breach of that duty was the proximate cause of her injuries. The trial court erred in directing a verdict for the defendant.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | September 3, 1993 |
bb0d9a0d-1b7e-4538-b63f-af7a475cf5dd | Vallas v. Cincinnati Ins. Co. | 624 So. 2d 568 | 1920571 | Alabama | Alabama Supreme Court | 624 So. 2d 568 (1993)
John P. VALLAS, et al.
v.
CINCINNATI INSURANCE COMPANY and Alabama First Insurance Company.
1920571.
Supreme Court of Alabama.
September 10, 1993.
Samuel M. McMillan of Inge, McMillan & Coley, Mobile, for John P. Vallas, et al.
Thomas H. Nolan, Jr. and Craig W. Goolsby of Brown, Hudgens, P.C., Mobile, for Cincinnati Ins. Co.
Mary Beth Mantiply and Lynn C. Miller of Mantiply & Associates, Mobile, for Alabama First Ins. Co.
ALMON, Justice.
The plaintiffs, John P. Vallas, Louis P. Vallas, and McCurtin Creek, Ltd., appeal from a summary judgment in favor of the defendants Cincinnati Insurance Company ("CIC") and Alabama First Insurance Company ("AFIC"). The plaintiffs brought this action for a declaratory judgment against Paul L. Smith, Janet L. Smith, CIC, and AFIC to determine the rights and obligations of the parties under homeowner's insurance policies issued by AFIC and CIC.[1] The sole issue is whether the activity, out of which an action by the Smiths against John and Louis Vallas arose, was a "business" or "business pursuit" within the meaning of the exclusions of the homeowner's policies issued by CIC and AFIC.
A summary judgment under Rule 56, Ala. R.Civ.P., is proper when the trial court determines that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Lee v. Clark & Assocs. Real Estate, Inc., 512 So. 2d 42, 44 (Ala.1987); George v. Federal Land Bank of Jackson, 501 So. 2d 432, 434 (Ala. 1986). When the movant makes a prima facie showing that no genuine issue of material fact exists, the nonmovant then has the burden to introduce substantial evidence creating such an issue. Rule 56(e), Ala.R.Civ.P.; § 12-21-12, Alabama Code 1975; Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990). Like the trial court, this Court views the evidence and resolves all reasonable doubts in favor of the nonmovant. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403, 404 (Ala.1990).
Viewed in favor of the nonmovant plaintiffs, the evidence indicates the following:
In 1977 John P. Vallas, Louis P. Vallas, Paul L. Smith, and five others formed a limited partnership called McCurtin Creek, Ltd., for the stated purpose of purchasing and later subdividing and selling for profit a 220-acre tract of land near Bay Minette, *569 Alabama. John Vallas and Paul Smith were the general partners of the McCurtin Creek limited partnership. John Vallas was also a limited partner, as was his brother Louis Vallas.[2]
The McCurtin partnership purchased the 220-acre tract of land from Paul Smith, who was a real estate broker. For the first six years of the partnership's existence, Paul Smith managed its affairs; however, after 1983 John Vallas performed minor paperwork for the partnership. Louis Vallas has never taken any part in the management of the limited partnership. Over a period of 15 years, the McCurtin partnership sold three parcels from the 220-acre tract it purchased in 1977.
During the existence of the partnership, Louis Vallas was in the vending-machine business and John Vallas owned and operated, on a full-time basis, a Captain John's seafood restaurant in Mobile. In his deposition, however, John Vallas estimated that over a 30-year period, he had invested approximately $500,000 in about 60 or 70 limited partnerships investing in real estate and had derived between $3 and $4 million in income from his these limited-partnership investments.
Eleven years after McCurtin Creek, Ltd., bought the 220-acre tract of land, John P. Vallas inadvertently learned from a logger named John Zukley that Paul Smith had had another logger named Max Chapman harvest and sell timber growing on land owned in part by Smith personally and in part by the partnership. The timber was sold to three mills, and Smith was paid $26,000, of which $12,000 was attributable to timber cut from partnership land. After consulting with his attorney, John Vallas met with Ms. Laura Dahle, a Baldwin County assistant district attorney, and told her what he had learned from Chapman. On the basis of testimony from John Vallas and others, a grand jury indicted Paul Smith. Shortly before the date set for trial, John D. Whetstone, the district attorney for Baldwin County, dismissed the indictment, concluding that the controversy was properly a civil matter.
In November 1991, Paul and Janet Smith brought an action for damages and for an accounting of partnership accounts, against John Vallas, Louis Vallas, McCurtin Creek, Ltd., and sundry fictitiously named defendants. Against John Vallas, Louis Vallas, and McCurtin Creek, Ltd., the Smiths alleged malicious prosecution, abuse of process, false arrest and imprisonment, and intentional infliction of emotional distress, in connection with the issuance of the indictment and with the arrest and imprisonment of Paul Smith. The Smiths also alleged conversion in connection with the placement of the $26,000 in proceeds from the sale of the timber in a partnership account.
John Vallas requested that AFIC provide a defense and indemnity for any judgment in the Smiths' action under a homeowner's policy issued to John and Katherine Vallas. The AFIC homeowner's policy provided, in pertinent part:
Under the AFIC policy, "`business' includes trade, profession, or occupation."
The plaintiffs also sought coverage under another homeowner's insurance policy issued to John Vallas by CIC. The CIC policy provided coverage for "personal injury,"[3] but stated the following exclusion:
The CIC policy defined "business" as follows:
In January 1992, John Vallas, Louis Vallas, and McCurtin Creek, Ltd., brought this action for a declaratory judgment, seeking a determination (1) that the homeowner's insurance policies issued by CIC and AFIC provided coverage for any matter arising from the Smiths' action against John and Louis Vallas, (2) that CIC and AFIC had an obligation under the policies to provide the plaintiffs with a defense, and (3) that CIC and AFIC were liable for any judgments entered against the plaintiffs in that action.
Following discovery, AFIC moved for a summary judgment. In support of its motion for summary judgment, AFIC introduced excerpts of the deposition of John Vallas, the certificate of the limited partnership of McCurtin Creek, Ltd., and a copy of the AFIC homeowner's policy issued to John Vallas. In opposition, the plaintiffs filed the deposition and affidavit of John Vallas, John Vallas's answers to interrogatories, and AFIC's response to the plaintiffs' request for production. In August 1992, the trial court granted AFIC's motion for summary judgment.
CIC also filed a motion for summary judgment, supported by the pleadings, a copy of the complaint in the Smiths' action, the deposition of John Vallas, and a copy of the CIC homeowner's policy. In opposition to CIC's motion for a summary judgment, and in support of his own motion for a summary judgment, Louis Vallas filed a copy of his own affidavit. John Vallas and McCurtin Creek, Ltd., also filed a motion for a summary judgment against CIC. In opposition to Louis Vallas's and John Vallas and McCurtin's motions for summary judgment, CIC filed a copy of the CIC homeowner's policy.
After a hearing, the trial court granted CIC's motion for a summary judgment and denied both the plaintiffs' motion to reconsider or set aside the summary judgment in favor of AFIC and their motions for summary judgment against CIC.
The issue is whether the Smiths' action against the plaintiffs arose out of a "business pursuit" under the AFIC policy or a "business" activity under the CIC policy.
The plaintiffs argue that the terms "business pursuits" and "business" are ambiguous and, therefore, that the exclusions of the AFIC and CIC policies should be construed for the benefit of the insured and limited to their narrowest reasonable application. The *571 plaintiffs contend that, construed narrowly, the exclusions do not apply to what, they say, is essentially an investment. The plaintiffs contend that their limited or negligible involvement in the McCurtin limited partnership and the minimal amount of business activity conducted by the McCurtin partnership over the term of its existence show that the controversy arose from a dispute among joint investors, not joint owners of an active business.
The word "business" and the phrase "business pursuits" appear in many insurance policies, and courts from other jurisdictions have construed and applied this language in a variety of factual circumstances. E.g., Saha v. Aetna Cas. & Surety Co., 427 So. 2d 316 (Fla.Dist.Ct.App.1983); Eyler v. Nationwide Mutual Fire Ins. Co., 824 S.W.2d 855 (Ky.1992); Grossman v. American Family Mut. Ins. Co., 461 N.W.2d 489 (Minn.Ct.App. 1990); Brickell v. United States Fire Ins. Co., 436 So. 2d 797 (Miss.1983). See generally Annot., Construction and Application of "Business Pursuits" Exclusion Provision in General Liability Policy, 48 A.L.R.3d 1096 (1973).
This Court has had several occasions to interpret and apply the terms "business" and "business pursuits." Pullen v. Cincinnati Ins. Co., 400 So. 2d 393 (Ala.1981); Stanley v. American Fire & Cas. Co., 361 So. 2d 1030 (Ala.1978). In Stanley, the Court held that an insured's babysitting for remuneration constituted a "business pursuit" within the meaning of a homeowner's policy, which excluded coverage for "bodily injury/property damage arising out of business pursuits of any insured except activities therein which are ordinarily incidental to non-business pursuits." 361 So. 2d at 1032-33. In Stanley, a child in the insured's care was injured when she fell backwards into a bed of hot coals in the insured's fireplace. For several months before the accident, the insured had babysat the children of various friends and neighbors in her home. As compensation for her services, the insured received $3 per child, per day.
In holding that the insured's supervision of children for remuneration constituted a "business pursuit," the Court in Stanley quoted with approval language from a California Court of Appeals opinion defining "business" and "business pursuit":
Id. at 1033 (quoting Crane v. State Farm Fire & Cas. Co., 14 Cal. App. 3d 727, 92 Cal. Rptr. 621 (Dist.Ct.App.), rev'd, 5 Cal. 3d 112, 95 Cal. Rptr. 513, 485 P.2d 1129 (1971)). Although the Stanley Court stated that the exclusionary provision at issue was "poorly worded" and that it could have been drafted with greater specificity, the Court did not find it ambiguous in the factual circumstances of the case. 361 So. 2d at 1033.
Although the AFIC and CIC policies could have defined the terms "business" and "business pursuits" more clearly, we cannot say that they are ambiguous in the circumstances of this case. See Stanley v. American Fire & Cas. Co., supra. Therefore, when they are applied as written, we think the "business pursuits" and "business" exclusions of the AFIC and CIC policies, respectively, apply to exclude coverage for any bodily injury or property damage arising out of John Vallas's involvement in the limited partnership.
Considering the CIC policy first, we cannot say that the limited partnership, which was formed to buy and sell investment real property for capital gain, was not "an undertaking... for gain [or] profit." Likewise, we cannot say that the limited partnership was not a "business pursuit." Although the plaintiffs argue that the limited partnership activity was essentially a passive, real estate investment and that the term "business" signifies only an active business with an office, employees, equipment, etc., we think the term has a much broader meaning than they would admit. As stated in Stanley, "business pursuits," although synonymous with "business" in some circumstances, signifies, more accurately, "a continued, extended, or prolonged course of business," i.e., in the circumstances *572 of this case, a continued, extended, or prolonged undertaking for gain or profit. The evidence in the record clearly shows that when this action was filed, John Vallas, the insured, was a general partner in a limited partnership that had been in existence for 15 years and that had disposed of three parcels of land, presumably for profit, during that period. Therefore, we hold that the McCurtin Creek limited partnership, of which the insured John Vallas was a general partner, was a "business pursuit" within the meaning of the exclusion in the CIC policy.
Based on the foregoing, we hold that the AFIC and CIC policies do not extend coverage to the injuries on which the the Smiths' action is based and that AFIC and CIC are not obligated either to provide the plaintiffs with a defense or to indemnify them against a judgment entered against them in that action. Therefore, we affirm the summary judgment in favor of AFIC and CIC.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] Paul L. Smith and Janet L. Smith are not parties to this appeal.
[2] The six limited partners of McCurtin Creek, Ltd., were James P. Vallas, Louis P. Vallas, William Vallas, George J. Roussos, and John P. Vallas.
[3] The CIC policy defined "personal injury" as "injury to others arising out of: a libel, slander, defamation of character, false arrest, willful or false detention or imprisonment, wrongful eviction or entry, malicious prosecution, humiliation, or invasion of privacy and if arising out of any of these, mental anguish, mental injury, or shock." | September 10, 1993 |
add351d2-187d-481d-a1c7-986bede9b295 | Gaut v. Medrano | 630 So. 2d 362 | 1911457 | Alabama | Alabama Supreme Court | 630 So. 2d 362 (1993)
Richard Brian GAUT
v.
Sal MEDRANO and Holnam, Inc.
1911457.
Supreme Court of Alabama.
September 3, 1993.
Rehearing Denied December 10, 1993.
E.J. Saad of Crosby, Saad, Beebe, Cavender & Crump, P.C., Mobile, for appellant.
Cooper C. Thurber, Reggie Copeland, Jr. and Gilbert F. Dukes III of Lyons, Pipes & Cook, P.C., Mobile, for appellees.
Jack Drake of Drake & Pierce, Tuscaloosa, and Andrew Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.
S. Allen Baker, Jr. and James A. Bradford of Balch & Bingham, Birmingham, for amicus curiae Business Council of Alabama.
ALMON, Justice.
The plaintiff, Richard Gaut, appeals from a summary judgment in favor of the defendants, Holnam, Inc. ("Holnam"), and Sal Medrano. The issue is whether the trial court erred in holding that Gaut, an employee of Industrial Services of Mobile, Inc. ("Industrial"), became a "special employee" of Holnam by virtue of an agreement between Holnam and Industrial and therefore is barred, by the exclusivity provision of the Workers' Compensation Act, from bringing a tort action *363 against Holnam[1] for injuries he suffered while working at Holnam's plant.
Industrial, according to the affidavit of its president, Terry Holsonback, provides "personnel service in the form of general labor force employees to businesses on a temporary or as needed basis." Holnam manufactures and sells cement. On November 1, 1989, Industrial contracted to provide "[p]ersonnel [s]ervices as required by [Holnam] for the period of November 1, 1989, through October 31, 1990," for maintenance at Holnam's plant.[2] The thrust of the agreement is specifically set out in the section entitled "Payment for Services":
Holnam paid Industrial according to the number of hours worked by the laborers Industrial supplied, not by the amount of maintenance performed.
The wage rate paid by Holnam for each employee furnished by Industrial included the following components: the amount actually paid to the employee by Industrial; payroll taxes and insurance; an allowance for the tools used by Industrial employees; and other compensation for "general supervision, benefits, home office overhead and profit."[3] Industrial "agree[d] to carry insurance and workmen's compensation acceptable to" Holnam. Holnam itself specifically agreed to carry workers' compensation insurance pursuant to the Jones Act on Industrial's employees that were engaged in activities on certain ships belonging to Holnam; Holnam also expressly reserved the right to unilaterally terminate these ship-based employees, but did not expressly reserve that right as to any other employees. Holnam also required Industrial to obtain a Mine Safety and Health Act (MSHA) number for safety purposes. The agreement provided that Industrial was to be held accountable as a "contractor" to the MSHA agency. Industrial is referred to as a contractor throughout the agreement.
On November 11, 1989, Richard Gaut went to an Industrial office at Holnam's plant to apply for employment with Industrial. Industrial's application identified it as "General Contractors, Constructors & Engineers" performing "Complete Plant Maintenance Service," not as an employment agency. Gaut was hired and began doing maintenance work at the plant; he worked full-time at the plant until December 30, 1989. During that approximately seven-week period, Industrial paid Gaut's wages and made state and federal tax withholdings and unemployment withholdings from his paycheck. Industrial provided hardhats that were either plain or had "Industrial Services" written on them. Industrial furnished tools for its employees and stored them in an area referred to as the "Industrial Services work equipment room." Industrial was generally responsible for coordinating the work schedules of Gaut and the other Industrial employees and dictated his lunch and other break schedules. Industrial had supervisors on the job sites.
Although Industrial supplied all of Holnam's maintenance crews and completely handled the administrative and accounting aspects of the maintenance crews, Holnam exercised a great deal of control over the activities of the Industrial employees on the job site. Holnam supervisors often gave orders to the Industrial employees; sometimes these orders were given directly, and sometimes they were relayed to the employees via Industrial supervisors.
*364 On December 30, 1989, Sal Medrano, a Holnam supervisor, ordered Gaut and several other Industrial employees to remove some pieces of clay from a conveyor belt. As Gaut attempted to remove the clay, he fell onto the moving belt and was severely injured when his leg became caught in the "snub roller"a piece of machinery located at the end of the belt used to break up objects. Following the accident, Industrial filed an accident report with the MSHA agency, stating that Gaut was its employee and that he had been injured while performing maintenance on Holnam's premises. Industrial then entered into a settlement with Gaut for his workers' compensation benefits.
Gaut brought an action against Medrano and Holnam based on his injuries, alleging, inter alia, that they had failed to provide him, as an employee of an independent contractor, with a safe working environment after exercising a substantial amount of control over the manner in which he performed his duties. In their answer, the defendants alleged that Gaut's action was barred by the exclusive remedy provision of the Workers' Compensation Act. The circuit court entered a summary judgment for the defendants, based on its determination that Gaut was a special employee of Holnam and that he was therefore barred by the exclusivity provision from bringing an action against Holnam.
Alabama Code 1975, § 25-5-53, provides that an action brought under the Workers' Compensation Act is the exclusive remedy for an employee's injuries sustained in the course of his employment. Rhodes v. Alabama Power Co., 599 So. 2d 27 (Ala.1992). The exclusivity bar is an affirmative defense. Rule 8(c), Ala.R.Civ.P. Therefore, on a motion for summary judgment, the defendants have the burden of establishing a prima facie showing as to each element of the defense of exclusivity; if the defendants are able to carry this burden, then the plaintiff must present substantial evidence to overcome this prima facie case. A.R.Civ.P. 56; Ala.Code 1975, § 12-21-12. Substantial evidence has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Also, in reviewing a summary judgment, we must resolve all reasonable doubts in favor of the nonmovant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
The exclusive remedy provision extends to "special employers," which have been described as "individuals or businesses who, for practical purposes, may be considered primary or co-employers of the injured employee." Rhodes, supra, at 28 (quoting Tweedy v. Tennessee Valley Authority, 882 F.2d 477, 479 (11th Cir.1989)). In Terry v. Read Steel Products, 430 So. 2d 862 (Ala. 1983) this Court adopted a three-pronged test for determining when an employee of a general employer can become the employee of a "special employer" for purposes of workers' compensation:
430 So. 2d at 865 (quoting 1C A. Larson, The Law of Workmen's Compensation, § 48 (1980)). The requirement of a contract of hire comports directly with our Workers' Compensation Act, which defines an "employee" as a "person in the service of another under any contract of hire, express or implied, oral or written." Ala.Code 1975, § 25-5-1(5).[4]
*365 This test has been applied in several cases: see Hicks v. Alabama Power Co., 623 So. 2d 1050 (Ala.1993); Rhodes v. Alabama Power Co., 599 So. 2d 27 (Ala.1992); Pinson v. Alabama Power Co., 557 So. 2d 1236 (Ala.1990); Means v. International Systems, Inc., 555 So. 2d 142 (Ala.1989); Marlow v. Mid South Tool Co., 535 So. 2d 120 (Ala.1988); Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052 (Ala.1986); Pettaway v. Mobile Paint Mfg. Co., 467 So. 2d 228 (Ala.1985); Tweedy v. Tennessee Valley Authority, 882 F.2d 477 (11th Cir.1989).
Gaut argues that the trial court erred in holding that the evidence submitted by the defendants satisfied the first two elements of the Terry test as a matter of law. Gaut does not argue that Holnam did not exercise a right to control the details of his work.
The first element of the Terry test is not satisfied as a matter of law in the record before us. For Gaut to have become the special employee of Holnam, he must have made a contract of hire, either express or implied, with Holnam. This is an important determination, for when a person enters into an employer-employee relationship with a party, that person gives up valuable rights, including the common law right to bring an action against the party for any injury he might suffer while acting in the scope of his employment. Professor Larson makes this point in his treatise:
Larson, supra, §§ 48.11 and 48.12. Here, Gaut made no express contract with Holnam; therefore, the judgment can be affirmed only if the record shows that Gaut entered into an implied contract of hire with Holnam and there is no genuine issue as to that fact.
Gaut asserts that he had no knowledge of the agreement between Holnam and Industrial; he states that he always believed that Industrial, not Holnam, was his employer; and he states that he believed that only Industrial could terminate his employment. He argues that he believed he was working for Industrial and that he believed Industrial was an independent maintenance contractor. Gaut's statement of his understanding of the situation is supported by the evidence, from which a jury could conclude, from all appearances, that Industrial was an independent contractor performing maintenance and other *366 services. If a jury finds that a reasonable person in Gaut's position could have concluded that Industrial was an independent contractor performing maintenance services for Holnam as the premises owner, the jury could find that Gaut did not impliedly consent to a contract of hire with Holnam.
Terry v. Read Steel, supra, and three of the cases following it have involved general employers that were unambiguously temporary employment placement agencies. Terry and Pettaway were placed with their special employers by Manpower, Inc.; Marlow, by Kelly Services, Inc.; and Means, by Long's Temporary Services, Inc. In such cases, the employee applies to the general employer for the specific purpose of temporary placement with special employers and thus necessarily agrees to a contract of hire with the special employer. For example, the Court in Pettaway, supra, stated: "Approximately two weeks before his injury, Manpower informed Pettaway of an available work assignment at Mobile Paint. Manpower asked Pettaway if he would accept such an assignment, as this was the normal procedure. Pettaway agreed to do so." 467 So. 2d at 228 (emphasis added).
In Bechtel v. Crown Central Petroleum Corp., 495 So. 2d 1052, 1054 (Ala.1986), Pep Services, Inc., had "agreed to supply Crown with gasoline filling station personnel." The opinion does not discuss how Bechtel started working with Pep or with Crown, but it recites the following facts in rejecting Bechtel's argument that she had not consented to a contract of hire with Crown:
Id. The Court stated that there was no evidence in the record that Bechtel had not consented to a contract of hire with Crown, and it affirmed the summary judgment for Crown.
Gaut did not wear Holnam clothing, but did wear a hardhat bearing Industrial's name; Holnam did not participate in the hiring process; Industrial supplied Gaut's tools; and Industrial, not Holnam, handled the administrative details of his employment. From the evidence cited in Bechtel, it appears that Pep Services was simply and obviously a placement agency, like Manpower and Kelly Services. Certainly Pep did not have supervisory personnel at the Crown station, as Industrial did in the Holnam plant.
Gaut also asserts that he could not be terminated by Holnam. There is evidence indicating that Gaut could be terminated by Holnam, although the contract is silent on this point. Morris Jessup, a process control superintendent at Holnam, testified that Holnam had the right to terminate any laborer who was not performing satisfactorily. This testimony is buttressed by the affidavit of Terry Holsonback, the president of Industrial. Holsonback stated that Holnam supervisors had the authority to replace any laborer whose work displeased the supervisor. However, it is not clear that an Industrial laborer who was "replaced" by a Holnam supervisor would automatically be fired by Industrial, or whether Industrial would make that decision itself and perhaps transfer him instead.
Gaut admitted he realized that he was supposed to follow the orders of Holnam's supervisors while performing the maintenance work at the plant. In his deposition, Gaut stated:
Pinson v. Alabama Power Co., 557 So. 2d 1236 (Ala.1990), could be read as holding that such an acknowledgment of ultimate authority is dispositive of the question of an implied contract of hire. In Pinson, this Court held that the plaintiff had formed an implied contract of hire with the special employer, Alabama Power Company ("APCo"), citing the facts that Pinson "understood that APCo was `the boss' of the project and he submitted to APCo's control and supervision." 557 So. 2d at 1237. However, those facts were only the conclusion of the following list:
Id., at 1236-37. Pinson is thus distinguishable from this case because of the much more pervasive involvement of Alabama Power in Pinson's hiring and in the details of his employment and because of the absence of evidence that Pinson's general employer appeared to be operating on the site as an independent contractor rather than as a mere supplier of labor.
Both Pinson and Rhodes, supra, involved general employers unlike the temporary employment placement agencies involved in Terry, Pettaway, Marlow, and Means. The Court in Rhodes referred to the general employer as "a contractor that had served as a labor broker for Alabama Power since 1974, primarily for the provision of laborers to perform construction services at Alabama Power's J.H. Miller, Jr., Steam Plant in Jefferson County." 599 So. 2d at 27. Rhodes did not dispute the first two elements of the "special employer" test; rather, he argued only that Alabama Power did not have the right to control the details of his work.
"Labor brokers" as involved in Pinson, Rhodes, perhaps Bechtel, and arguably here, are different from "temp" agencies, and it may or may not be obvious to an employee that the nature of his employment with one employer is such that he is impliedly agreeing to a contract of hire with another entity operating as a "special employer."
An important consideration in this inquiry is stated in Vanterpool v. Hess Oil V.I. Corp., 766 F.2d 117, 122 (3d Cir.1985), cert. denied, 474 U.S. 1059, 106 S. Ct. 801, 88 L. Ed. 2d 777 (1986). That court looked to "whether the employment with the borrowing employer was of such duration that the employee could be reasonably presumed to have evaluated and acquiesced in the risks of his employment." Gaut reported to the Holnam plant every work day of the seven-week period. He was aware that this was his ordinary workplace and that he was expected to follow the orders of the Holnam supervisors. Moreover, Industrial had supplied Holnam's maintenance crews since 1983: therefore, this is not a case of an employee's being lent to another employer for a very short time or being lent on an ad hoc basis and thus having little or no reason to actually consent to a contract of hire with the borrowing employer. However, these considerations are not so important as to support a holding that Gaut must be deemed as a matter of law to have entered into an implied contract of hire with Holnam.
Gaut submitted substantial evidence that Industrial presented itself to him as an independent contractor performing maintenance services and that Holnam either reinforced this appearance or did nothing to contradict it. He may have reasonably viewed Holnam simply as a premises owner that had reserved a right to control its contractor's *368 performance. See, e.g., Thomas v. Pepper Southern Constr., Inc., 585 So. 2d 882 (Ala. 1991); Pugh v. Butler Telephone Co., 512 So. 2d 1317 (Ala.1987); Alabama Power Co. v. Beam, 472 So. 2d 619 (Ala.1985). If a jury so finds, it could also find that Gaut did not enter into an implied contract of hire with Holnam.[5] In short, there 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." This case presents a fact question as to whether Industrial had reached that point.
For the foregoing reasons, the judgment is reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS and INGRAM, JJ., concur.
[1] Gaut does not argue any separate issue as to Medrano, Holnam's mill supervisor. If Gaut was an employee of Holnam for workers' compensation purposes, then he could bring an action against Medrano, who would be his co-employee, only for "willful conduct," which he does not allege. Ala.Code 1975, § 25-5-11. Thus, the judgment for Medrano stands or falls with the judgment for Holnam.
[2] This contract was a renewal of similar contracts beginning in 1983. Industrial also agreed to provide laborers for purposes other than maintenance.
[3] For example, the wage rate for a laborer pursuant to the agreement was $7.90 per hour. Industrial, in turn, paid its laborers only $5.00 per hour, and the remaining $2.90 was allocated to the various other components.
[4] Section 25-5-1(4) defines "employer" as "Every person who employs another to perform a service for hire and pays wages directly to the person." None of the cases has considered the significance for this definition of the fact that the employee's wages were channeled through the general employer, and Gaut does not argue that Holnam was not his employer because it did not "pay[] wages directly to" him. We think this definition is satisfied by arrangements, such as the one between Industrial and Holnam, where the employee's wages are directly correlated to the hours worked for the special employer and directly attributed to payments from the special to the general employer.
[5] We note that the result here is consistent with the recent case of Hicks v. Alabama Power Co., 623 So. 2d 1050 (Ala.1993). | September 3, 1993 |
15abd88b-afe8-47c1-a57c-392c27c838c0 | Brooks v. Hobbie | 631 So. 2d 883 | 1930110 | Alabama | Alabama Supreme Court | 631 So. 2d 883 (1993)
Bernest BROOKS and Rubin McKinnon
v.
Walker HOBBIE, Jr., and Billy Joe Camp.
J. Elbert PETERS, et al.
v.
James E. FOLSOM, Jr., etc., et al.
1930110.
Supreme Court of Alabama.
December 22, 1993.
James U. Blacksher and Leslie M. Proll, Birmingham, and Solomon S. Seay, Jr. and Terry G. Davis, Montgomery, and Edward Still, Birmingham, for Bernest Brooks and Rubin McKinnon.
William H. Pryor, Jr. of Walston, Stabler, Wells, Anderson & Bains, Birmingham, and Algert S. Agricola, Montgomery, for J. Elbert Peters, Jacob Savage, Douglas Moore, Beth Springler McDonald, Bettye Fine Collins, Donald R. Murphy, Wendy Allen and George Kingston.
James H. Evans, Atty. Gen., and Marc Givhan, Courtney W. Tarver and Mort P. Ames, Deputy Attys. Gen., for appellees.
SHORES, Justice.
The United States District Court for the Middle District of Alabama has certified this question:
The question certified arose out of litigation that began in March 1992, when a group of African-American plaintiffs brought an action *884 in the United States District Court for the Middle District of Alabama challenging, under federal law, the way district lines are currently drawn for the Alabama State Legislature. (Brooks v. Camp, Civil Action No. 92-T-364-N (M.D.Ala.) In February 1993, another group of plaintiffs, identifying themselves as Republicans, brought another action in a federal court, which also claimed that the legislative district lines as then drawn violated federal law. (Peters v. Folsom, Civil Action No. 93-T-124-N (M.D.Ala.). These two cases were consolidated by the United States District Court, which, without reaching the merits of the contentions of the parties, stayed further proceedings in both cases on the ground that the Alabama legislative process had not run its course with regard to redistricting the legislature.
On February 23, 1993, the Supreme Court of the United States announced its decision in Growe v. Emison, ___ U.S. ___, 113 S. Ct. 1075, 122 L. Ed. 2d 388 (1993), holding that federal courts are required to "defer consideration of disputes involving redistricting where the State, through its legislative or judicial branch, has begun to address the highly political task itself." ___ U.S. at ___, 113 S. Ct. at 1080. (Emphasis added.)
The Brooks plaintiffs and other African-American citizens then brought a separate action in the Circuit Court of Montgomery County, in which they challenged the existing state legislative district lines under both federal and state law. (Sinkfield v. Bennett, CV-93-689). On May 12, 1993, at the request of all parties litigant in the Sinkfield litigation, the Circuit Court of Montgomery County tentatively approved a consent judgment adopting a plan for redistricting the state legislature for the 1994 legislative elections. The plan was submitted to the United States Justice Department and was precleared by that Department, as required by Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. After holding a hearing at which all of the parties to the litigation had an opportunity to be heard in regard to the plan, the Circuit Court of Montgomery County entered a final judgment on August 13, 1993, implementing the plan.
The plaintiffs in Brooks and the defendants in both Brooks and Peters moved that the federal court dismiss both cases in the federal court and defer to the final judgment rendered in the Circuit Court of Montgomery County. Only the plaintiffs in Peters oppose the dismissal of the cases in the federal court. They contend that the Alabama state courts lack subject matter jurisdiction to redistrict or reapportion the State Legislature.
A three-judge federal panel,[1] noting "the important and determinative issue of Alabama law as to whether the Montgomery County Circuit Court had jurisdiction to enter its order adopting a plan for the reapportionment of the State Legislature," has certified that question to this Court. We have expedited the matter, because trial of these consolidated federal cases has been set for January 4, 1994.
We answer the question in the affirmative.
It is understandable that counsel for Peters would base his argument upon our old cases of Waid v. Pool, 255 Ala. 441, 51 So. 2d 869 (1951), and Ex parte Rice, 273 Ala. 712, 143 So. 2d 848 (1962), decided at a time when our Alabama state courts, like other state courts, stayed out of "political" issues such as re-districting of the legislature. Waid v. Pool held that an earlier lawsuit challenging the Alabama legislature's failure to redistrict was properly dismissed:
At the time of Waid v. Pool, indeed until the United States Supreme Court spoke in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), both state and federal courts considered legislative redistricting as an area peculiarly political and, thus, nonjusticiable in the courts. The United States Supreme Court often sanctioned the action of the lower federal courts in declining to exercise their jurisdiction in cases considered "political."
The pre-Baker v. Carr attitude is reflected in Justice Frankfurter's majority opinion in Colegrove v. Green, 328 U.S. 549, 66 S. Ct. 1198, 90 L. Ed. 1432 (1946), in which the majority refused to reach the merits of a federal court challenge to a congressional apportionment plan in Illinois. Justice Frankfurter urged the court not to enter "this political thicket":
328 U.S. at 553-54, 66 S. Ct. at 1200; see South v. Peters, 339 U.S. 276, 70 S. Ct. 641, 94 L. Ed. 834 (1950).
Then, in 1962, in Baker v. Carr, supra, a case challenging the malapportioned Tennessee legislature, the United States Supreme Court rejected the proposition that such cases were nonjusticiable because they presented "political questions." The Court, reversing the federal district court's dismissal of the complaint, stated:
369 U.S. at 209, 82 S. Ct. at 706. The holding in Baker v. Carr was based upon the Fourteenth Amendment guarantee of equal protection:
369 U.S. at 237, 82 S. Ct. at 720.
Within a year of Baker v. Carr, actions challenging state legislative apportionment plans were instituted in over 30 states.[2] One of these was Alabama, where, in Ex parte Rice, supra, this Court declined to consider an equal protection challenge to legislative districting. As noted above, this Court summarily affirmed on the authority of Waid v. Pool, despite the holding in Baker v. Carr.
Two years later the "one person-one vote" decision of Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), answered a challenge to the malapportionment of the Alabama legislature. In Reynolds v. Sims, the United States Supreme Court elaborated on its holding in Baker v. Carr:
377 U.S. at 566-68, 84 S. Ct. at 1384-85. The Court further stated:
377 U.S. at 577-78, 84 S. Ct. at 1390.
In 1964, the United States Supreme Court, on the equal protection principles articulated in Reynolds v. Sims, invalidated districting plans in Colorado, New York, Maryland, Virginia, and Delaware. Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S. Ct. 1418, 12 L. Ed. 2d 568 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S. Ct. 1429, 12 L. Ed. 2d 595 (1964); Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964); Roman v. Sincock, 377 U.S. 695, 84 S. Ct. 1449, 12 L. Ed. 2d 620 (1964). It is interesting that the Colorado districting scheme had actually been approved by a statewide referendum. Chief Justice Warren's opinion explained that the fact that a challenged legislative apportionment plan was approved by the electorate was without federal constitutional significance if the scheme adopted failed to satisfy the basic requirements of equal protection as delineated in Reynolds v. Sims. Lucas v. Forty-Fourth Gen. Assembly, supra, 377 U.S. at 734-35, 84 S. Ct. at 1473.
In light of Baker v. Carr and its progeny, it is no longer legitimate for a court to decline to enforce the right of every citizen to a vote with a weight equal to the weight of every other citizen's vote. The "one person-one vote" principle of Reynolds v. Sims, supra, was based upon equal protection. The United States Supreme Court expanded that principle in Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), which struck down Georgia's congressional districting statute. The Court held "that, construed in its historical context, the command, of Art. I, § 2 of the United States Constitution that Representatives be chosen `by the People of the several States' means that as nearly as practicable one man's vote in a congressional election is to be worth as much as another's." 376 U.S. at 8-9, 84 S. Ct. at 530 (footnote omitted).
Since Reynolds v. Sims, state courts have shown little reluctance to entertain cases involving "political" issues where there is a *887 constitutional right at issue. Federal courts have a long history of entertaining such cases.[3] Federal and state courts entertain them because the Constitution of this country, as construed by the United States Supreme Court, requires judicial intervention to ensure that the constitutionally protected right of every citizen is observed.
This Court has said that, when it considers a difficult constitutional question, its task will be "facilitated by reference to the substantial body of case law that has evolved from constitutional challenges brought in the highest courts of other states [on related issues]." Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 158 (Ala.1991). Two state supreme courts (those of Texas and Tennessee) have entertained cases involving the "political" issue of redistricting. The Supreme Court of Texas explained that its responsibility to protect constitutional rights compelled the court to consider a party's constitutional challenge to redistricting:
Terrazas v. Ramirez, 829 S.W.2d 712, 717 (Tex.1991). While the power to redistrict in Texas has generally been exercised by the state's highest court, the Texas Supreme Court stated, "[W]e see no constitutional reason why it does not also reside in a trial court of general jurisdiction." 829 S.W.2d at 718. In Terrazas v. Ramirez the Texas Supreme Court spoke to the power of the lower state courts in redistricting cases:
829 S.W.2d at 717-18.
During the 1970's, the federal courts handled legislative redistricting in Tennessee, but in the 1980's the state courts took it over. In Lockert v. Crowell, 631 S.W.2d 702 (Tenn. 1982), the Tennessee Supreme Court spoke to the justiciability of the issue of redistricting:
631 S.W.2d at 705-06.
To suggest that anything in the Alabama Constitution denies a circuit court in Alabama jurisdiction to entertain an action like the Sinkfield case is to misread that constitution. The question is not whether circuit courts in Alabama have jurisdictionthe question is whether the redistricting issue is a justiciable one. Alabama's circuit courts possess general subject-matter jurisdiction to decide all justiciable issues of federal and state constitutional and statutory law. These courts of general jurisdiction have the inherent power and responsibility to enforce constitutional rights under both the federal and the state Constitution. Art. VI, Ala. Const. 1901 (Amend. 328).
Alabama has recently shown a willingness to enforce both state and federal constitutional rights in areas where both state and federal courts had abstained for many years.[4] In Alabama and elsewhere, state courts are now equally willing with the federal courts to enter these sensitive areas when compelled to do so by the constitutions of the United States or of the state, and it is no longer open to debate as to whether Reynolds v. Sims and Sims v. Amos, 336 F. Supp. 924 (M.D.Ala.), aff'd, 409 U.S. 942, 93 S. Ct. 290, 34 L. Ed. 2d 215 (1972), compel the Alabama legislature to redistrict itself at least after every decennial census.
The law is now clear that "legislative reapportionment cases are justiciable, and judicial relief becomes appropriate when the legislature fails to reapportion according to constitutional requisites in a timely fashion after having adequate opportunity to do so, or where there is no effective political remedy to obtain relief." 16 C.J.S. Constitutional Law § 178 (1984) (footnotes omitted).
We have abundant examples of the willingness of Alabama state courts to adjudicate state and federal constitutional claims. See: Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993); Hunt v. Hubbert, 588 So. 2d 848 (Ala.1991); Terrell v. City of Bessemer, 406 So. 2d 337, 340 (Ala.1981); Dothard v. Alabama State Dep't of Human Resources, 613 So. 2d 353 (Ala.1993); Scott v. City of Mountain Brook, 603 So. 2d 1030 (Ala.1992); Holland v. Hunt, 600 So. 2d 233 (Ala.1992); Nelson v. University of Alabama System, 594 So. 2d 632 (Ala.1992); Roberts v. Joiner, 590 So. 2d 195 (Ala.1991); Point Properties, Inc. v. Anderson, 584 So. 2d 1332 (Ala.1991); George v. McIntosh-Wilson, 582 So. 2d 1058 (Ala.1991).
The circuit courts of Alabama, as courts of general jurisdiction, have the same power and duty to provide relief for violations of federal law as do the federal courts. Indeed, when the rights provided by a state constitution mirror rights of the United States Constitution, the state court system may be a more appropriate forum for protecting those rights, because, in many instances, the individual rights provisions under the state constitution are as broad as, if not broader than, those in the federal Bill of Rights.
Gilbreath v. Wallace, 292 Ala. 267, 271, 292 So. 2d 651, 654-55 (1974) (footnote omitted). As we recognized in Moore v. Mobile Infirmary, "State courts, in determining the scope of rights guaranteed by their own constitutions,... may, in fact, provide more protection for private rights than the United States Constitution requires." 592 So. 2d at 170. See also Ex parte Boykin, [Ms. 1921336, Oct. 8, 1993], 1993 WL 394750 (Ala. 1993) ("the United States Supreme Court has recognized that a state may confer procedural protections of liberty interests that extend beyond those minimally required by the Constitution of the United States"); Ex parte Love, 513 So. 2d 24, 30 (Ala.1987); Mills v. Rogers, 457 U.S. 291, 300, 102 S. Ct. 2442, 2449, 73 L. Ed. 2d 16 (1982).
The plaintiffs in these consolidated federal cases sought redress first in the federal court. Before the federal court reached the merits of their claims, indeed while all further proceedings had been stayed by order of the federal court, the United States Supreme Court issued its opinion in Growe v. Emison, supra, which required that federal courts abstain from entering this area until the state legislature and state judiciary had demonstrated an inability or disinclination to act in the peculiarly sensitive area of re-districting the state legislature.
In answering this certified question in the affirmative, we defer to the wisdom of the United States Supreme Court in Growe v. Emison.
___ U.S. at ___, 113 S. Ct. at 1081. (Emphasis added.)
Redistricting is both a sensitive and a political issue. There is no dispute that the *890 legislature has the initial responsibility to act in redistricting matters. Ala. Const., Art. IX, §§ 198, 199, 200. However, in the event the legislature fails to act, the responsibility shifts to the state judiciary.[5] In his often quoted dissent in Morgan County Commission v. Powell, 292 Ala. 300, 293 So. 2d 830 (1974), Chief Justice Heflin recognized that when the other branches of government are remiss in their constitutional duties the judiciary must act. 292 Ala. at 319, 293 So. 2d at 847. While in Powell he focused on the inherent power of the judiciary to provide for an orderly and efficient court system when a legislative body fails or refuses to act, the situation he was there writing to is analogous in many ways to the situation before us in which the legislature likewise has failed or refused to act.
The United States Supreme Court in Growe wisely recognized that action by the state judiciary is preferable to federal intervention in this sensitive state matter. It is gratifying to know that the United States Supreme Court appreciates that the public will more readily accept state court intervention, brought in the context of litigation, than it will accept federal intervention in matters of state government. It is equally gratifying to have this outstanding three-judge panel of United States district judges recognize that it is appropriate that judges elected by the people of Alabama be given the opportunity to resolve this question. In answering this question in the affirmative, we accept the duty of the state judiciary to share responsibility with the federal judiciary for the resolution of often unpopular, but critical, constitutional issues.
CERTIFIED QUESTION ANSWERED.
HORNSBY, C.J., and MADDOX, ALMON, HOUSTON, KENNEDY, INGRAM and COOK, JJ., concur.
[1] The Honorable Myron Thompson, the Honorable W. Harold Albritton, and the Honorable Joel Dubina.
[2] Gerald Gunther, Constitutional Law at 1621 (11th ed. 1985).
[3] "One striking aspect of the Warren Court's activism was its dramatic expansion of federal judicial intervention into state affairs in the name of individual rights." Developments in the Law, The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1349 n. 82 (1982) (citing Reynolds v. Sims and other case examples).
[4] The author of a series of law review articles on state constitutional law notes: "In recent years, there have been striking developments in state constitutional law. Indeed, since the early 1970s we have been experiencing a `constitutional revolution' in the judicial interpretation of individual-rights provisions of state constitutions." Robert F. Williams, State Constitutional Law: Teaching and Scholarship, 41 J.Legal Educ. 243, 244 (June 1991). (Footnote omitted.)
[5] Assuming, of course, that a citizen of this state properly invokes the state court's jurisdiction in an adversary proceeding. | December 22, 1993 |
2e9e08ba-e971-4cfd-87ab-8b972fd812d7 | Swain v. State | 629 So. 2d 699 | 1921003 | Alabama | Alabama Supreme Court | 629 So. 2d 699 (1993)
Ex parte State of Alabama.
Re Willie A. SWAIN
v.
STATE.
1921003.
Supreme Court of Alabama.
September 3, 1993.
James H. Evans, Atty. Gen., and Jack W. Willis, Asst. Atty. Gen., for petitioner.
Jeb Fannin, Talladega, for respondent.
INGRAM, Justice.
We granted the State's certiorari petition in this rape case to determine whether the Court of Criminal Appeals' holding that the State failed to prove penetration conflicts with prior decisions of this Court and of the Court of Criminal Appeals.
Willie A. Swain was indicted for the offense of rape in the first degree of his 11-year-old daughter. See § 13A-6-61(a)(3), *700 Ala.Code 1975. A jury convicted Swain on that charge, and he was sentenced to 21 years in the penitentiary. The Court of Criminal Appeals reversed the conviction, holding that the State failed to produce sufficient evidence to prove penetration. Swain v. State, 629 So. 2d 697 (Ala.Cr.App.1993). The Court of Criminal Appeals found, however, that the "evidence show[ed] without question that the appellant was guilty of sexual abuse in the first degree as defined by Ala. Code 1975, § 13A-6-66(a)(3)," and, therefore, remanded the case with directions to the trial court to set aside the conviction for rape in the first degree and to adjudicate Swain guilty of sexual abuse in the first degree. 629 So. 2d at 698-99.
The State argues that it produced sufficient evidence of penetration to support the jury's verdict finding rape in the first degree. We agree.
The record shows the following evidence: The victim testified that, after taking her from her bed and placing her on the floor, Swain "[t]ook all my clothes off and stick [sic] his private between my legs." In response to the prosecutor's question, "[D]o you know whether or not his male organ penetrated inside to your female organ?" the victim testified, "All I know it was hurting." Swain made a statement to the investigating officer, Michael Hubbard, of the Talladega Sheriff's Department; the statement was presented to the jury, and it contained Swain's account of the events:
The Court of Criminal Appeals held that the State had failed to prove penetration. We disagree. Whether there was actual penetration, "some degree of entrance of the male organ [of the defendant] within the labia pudendum [of the victim]," is a question of fact for the jury. Seales v. State, 581 So. 2d 1192, 1193-94 (Ala.1991). Penetration can be established by circumstantial evidence and "does not have to be proved by *701 the use of any particular words." Patrick v. State, 495 So. 2d 112, 115 (Ala.Cr.App.1986). The standard of appellate review of the sufficiency of the evidence was stated in Seales:
Seales, 581 So. 2d at 1193 (quoting Dolvin v. State, 391 So. 2d 133, 137-38 (Ala.1980)).
Based on the evidence in the record, we find that the victim's testimony that Swain had "stuck" his penis between her legs and that it hurt is sufficient evidence from which the jury could have inferred that Swain had actually penetrated the victim's labia pudendum. Moreover, the jury heard Swain's statement regarding his actions on the night in question and could have found that statement not believable, thus excluding that explanation of the circumstantial evidence from its deliberations on the issue of penetration. Therefore, we reverse the judgment of the Court of Criminal Appeals, which was based on a holding that the State had failed to prove penetration, and we remand this case to that court for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ALMON and ADAMS, JJ., dissent. | September 3, 1993 |
5c104520-22b1-47c5-a24f-8ea25720561c | Newman v. Bankers Fidelity Life Ins. Co. | 628 So. 2d 439 | 1920333 | Alabama | Alabama Supreme Court | 628 So. 2d 439 (1993)
Madie NEWMAN
v.
BANKERS FIDELITY LIFE INSURANCE COMPANY and Glenn M. Hudson.
1920333.
Supreme Court of Alabama.
September 3, 1993.
*440 Phillip E. Adams, Jr., and Hoyt W. Hill of Walker, Hill, Adams, Umbach, Meadows & Walton, Opelika, for appellant.
R. Larry Bradford of Bradford & Associates, P.C., Birmingham, for appellees.
SHORES, Justice.
The plaintiff, Madie Buce Newman, appeals from a judgment entered in favor of the defendants, Bankers Fidelity Life Insurance Company ("Bankers") and Glenn M. Hudson, after a jury returned a verdict. We affirm.
The record reveals the following. Ralph Newman and his wife Madie Newman bought a house in Lee County in 1964. They financed their purchase through a 35-year FHA mortgage. They then spoke with C.G. Littleton, the local agent for Bankers, about obtaining insurance on Mr. Newman's life in order to pay the balance on the mortgage should Mr. Newman predecease his wife. Littleton asked Glenn Hudson, Bankers' supervising agent in Montgomery, "to discuss some way for him [Mr. Newman] to cover a mortgage." R.T. 1097. Hudson met with Mr. Newman and took his application for insurance. Mrs. Newman was not present at this meeting. The application was for a "25 yr. Income Rep. Policy $60.00 monthly," with the amount of insurance set at $13,446.00. The application made a special request for "Lump Sum Settlement of Commuted Value Requested (Date Policy Nov. 7, 64)." Along with Newman's application, Hudson sent a note to Bankers indicating that the insurance was meant to cover the mortgage balance on his 35-year loan.
Bankers issued a "family income replacement" insurance policy on Ralph Newman's life, with Madie Newman as beneficiary. *441 The face of the policy, on its first page, indicated it would provide monthly income of $60 to the beneficiary; that the "commuted amount" of the policy was $13,446 on date of issue and would decrease according to a table listed on the face of the policy; that the date of issue was November 7, 1964; that the expiration date was November 7, 1989; and that the term period was "25 FULL POLICY YEARS." The bottom of the first page of the policy contained the following language:
Hudson delivered the policy to Madie Newman at her home on January 4, 1965, and collected one month's premium from her. Mrs. Newman testified that Hudson told her "that Mr. Newman had taken out a life insurance policy on himself to take care of the mortgage on the house," and that the insurance would last 25 years. R.T. 835-36. She also testified that Hudson told her she would receive $13,446 if her husband died and the policy was paid up, and that he unfolded the policy and showed her the amount of $13,446 and the $60 per month figure, but did not show her anything else. Mrs. Newman did not read the policy until July 1990, after her husband had been hospitalized.
In February 1989, Alice Priest, a Bankers employee, noted on Mr. Newman's policy master record, which was maintained in Mr. Newman's policy file at Bankers, that the policy was due to be terminated in November 1989. Apparently because of a series of clerical errors, the policy remained on active status after its termination date of November 7, 1989. Between November 1989 and February 1990, Mrs. Newman received monthly billing statements from Bankers and continued to pay monthly premiums on her husband's policy. She received from Bankers an authorization form to allow Bankers to automatically withdraw the monthly premium from her checking account; she completed the form and returned it in February 1990. Bankers received automatic monthly premium payments from the Newmans between February 1990 and July 1990.
Mr. Newman was hospitalized on July 3, 1990. Mrs. Newman telephoned Bankers on July 9, 1990, to find out how to file a claim on her husband's policy if he were to die. She testified that someone at Bankers told her how to file a claim, and that she was told she would receive $60 a month and $13,446. Mr. Newman died on July 15, 1990, and Mrs. Newman thereafter filed a claim with Bankers on his life insurance policy.[1] Bankers sent Mrs. Newman a check for $137.79 and a summary-of-benefits notice dated August 23, 1990, indicating that the check was for the return of unearned premiums. The notice contained the following remarks:
Mrs. Newman testified that the first time she learned she was not going to receive any insurance payment for her husband's death was when she received this notice. T.R. 852. She later testified that when she looked at the front page of the policy in July after her husband got sick, but before his death, she knew that the policy had expired. She also testified that she telephoned Bankers, told someone that she had overpaid on the policy for nine months between November 1989 and July 1990 and that the policy had expired, and asked Bankers to send the money back to her. T.R. 875-76.
Mrs. Newman sued Bankers, asserting claims based on fraud, deceit, bad faith, and *442 wantonness, arising out of its actions concerning the life insurance policy issued by Bankers on the life of her husband. In the same action, Mrs. Newman sued Bankers' agent, Glenn M. Hudson, asserting claims based on fraud and deceit arising out of representations he made to the Newmans concerning Mr. Newman's life insurance policy. She sought compensatory and punitive damages against both defendants.
The trial court directed a verdict in favor of Bankers on the wantonness claim, after the close of Mrs. Newman's case. The jury returned a general verdict in favor of the defendants on the remaining claims. The trial court denied Mrs. Newman's motion for a new trial. Mrs. Newman appeals.
Mrs. Newman raises six broad issues on appeal. 1) Did the trial court err in not allowing evidence of similar acts by Bankers? 2) Did the trial court err in its rulings on objections to questions asked of Bankers' president, Eugene Choate, during direct and cross-examination? 3) Did the trial court err in directing a verdict against Mrs. Newman's wantonness claim? 4) Did the trial court err in refusing to give certain jury charges requested by Mrs. Newman? 5) Was the jury verdict contrary to the law? 6) Did the trial court err in denying Mrs. Newman's motion for a new trial?
Did the trial court err in not allowing evidence of similar acts by Bankers? Mrs. Newman contends that the actions of Bankers regarding a life insurance policy it had issued to Robert Neal Conkle were sufficiently similar to its actions regarding Ralph Newman's policy that evidence of Bankers' treatment regarding Mr. Conkle's policy should have been admitted to show a fraudulent intent, plan, or scheme by Bankers, or to indicate a pattern or practice of intentional wrongful conduct. See § 6-11-21(1), Ala. Code 1975. The trial judge held an evidentiary hearing on the issue before trial; it excluded the evidence after determining that the facts surrounding the Conkle policy did not represent a "sufficiently pertinent set of circumstances" to allow its use as pattern or practice evidence.
Evidentiary matters are within the sound discretion of the trial judge. The commission of similar wrongs by a party to a civil action may be admissible to show a fraudulent intent, plan, or scheme. C. Gamble, McElroy's Alabama Evidence § 70.03(1) (4th ed. 1991); Kabel v. Brady, 519 So. 2d 912, 918 (Ala.1987). "Questions of materiality, relevancy, and remoteness of evidence are matters resting within the discretion of the trial court, whose exercise of that discretion will not be reversed unless it has been grossly abused." HealthAmerica v. Menton, 551 So. 2d 235, 245 (Ala.1989) cert. denied 493 U.S. 1093, 110 S. Ct. 1166, 107 L. Ed. 2d 1069 (1990), citing Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665, 670-71 (Ala.1981). However, "[i]n order to admit other false representations in a fraud case, the other representations must be similar in nature to those alleged in the complaint, and the transaction must be of substantially the same character." Massachusetts Mut. Life Ins. Co. v. Collins, 575 So. 2d 1005 (Ala.1990), cert. denied, 499 U.S. 918, 111 S. Ct. 1306, 113 L. Ed. 2d 240 (1991) (citations omitted). Although the plaintiff in a fraud case has wide latitude as to what proof she may submit into evidence, the admissibility of such evidence rests largely within the discretion of the trial court, and its ruling will not be disturbed on appeal unless it has abused that discretion. Allstate Ins. Co. v. Hilley, 595 So. 2d 873, 877 (Ala.1992). After carefully reviewing the record, we find no evidence that the trial court abused its discretion in excluding testimony and other evidence concerning the Conkle policy, and therefore we will not disturb this ruling on appeal.
Did the trial court err in its rulings on objections to questions asked of Eugene Choate during direct and cross-examination? Mrs. Newman called Eugene Choate, the president of Bankers and its representative at the defendants' table during trial, as an adverse witness on direct examination.
Mrs. Newman contends that the trial court erred in sustaining the defendants' objections to her examination of Mr. Choate. Mrs. Newman was properly allowed to interrogate Mr. Choate, as an officer of an adverse party, by use of leading questions on direct examination. Ala.R.Civ.P. 43(b). The defendants did not object to Mrs. Newman's use of *443 leading questions. A careful review of the record indicates that the trial court did not abuse its discretion in sustaining the defendants' objections to Mrs. Newman's questioning of Mr. Choate.
Mrs. Newman further contends that the trial court erred in allowing the defendants' counsel to cross-examine Mr. Choate by use of leading questions. "Leading questions are generally allowed on cross-examination." Ala.R.Civ.P. 43(b). We find no error by the trial court in allowing the defendants to use leading questions on cross-examination of Mr. Choate.
Did the trial court err in directing a verdict against Mrs. Newman's wantonness claim? "[A] directed verdict is proper when the claimant has failed to present substantial evidence as to one or more elements of [her] cause of action." Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991). "In considering the question of the sufficiency of the evidence of wantonness to be submitted to the jury, this court must accept the adduced evidence most favorable to the plaintiff as true, and indulge such reasonable inferences as the jury was free to draw from the evidence." Bishop v. Poore, 475 So. 2d 486, 487 (Ala. 1985).
"What constitutes wanton misconduct depends on the facts presented in each particular case." South Cent. Bell Tel. Co. v. Branum, 568 So. 2d 795, 797 (Ala.1990). Wantonness, which involves a conscious or intentional act, should not be confused with negligence, which involves inadvertence. As we said in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987):
510 So. 2d at 145-46.
Mrs. Newman argues that Bankers acted wantonly in failing to update its policy master record to show that Ralph Newman's policy had expired, even though Bankers' computer system and its file on Newman contained information showing when the policy expired and even though Bankers had a "no match" computer program that would have identified the policy as expired had the program been run between November 7, 1989, and July 15, 1990. Mrs. Newman also argues that Bankers acted wantonly in failing to notify the Newmans that the policy had expired, in accepting premium payments on the policy after its expiration, and in inducing the Newmans to make automatic bank draft payments after the policy had expired.
Based on the evidence in the record, and accepting the evidence most favorable to Mrs. Newman as true, and indulging such reasonable inferences as the jury was free to draw therefrom, we conclude that Mrs. Newman failed to present substantial evidence on an essential element of her wantonness claim, e.g., that Bankers acted or failed to act with knowledge that injury to Mrs. Newman was likely to result. Therefore, we hold that the trial court did not err in directing the verdict against her wantonness claim.
Did the trial court err in refusing to give certain jury charges requested by Mrs. Newman? Mrs. Newman contends that the court erred in refusing her proposed jury charges 1 through 15, which were based on language found in our recent opinion in Intercontinental Life Ins. Co. v. Lindblom, 598 So. 2d 886, 888 (Ala.), cert. denied, ___ U.S. ___, 113 S. Ct. 200, 121 L. Ed. 2d 142 (1992). *444 It is reversible error to give an incorrect or misleading instruction to the jury as to the theory of a case, and a new trial is required if the record reveals that the jury was given such an erroneous charge. American Cast Iron Pipe Co. v. Williams, 591 So. 2d 854, 856 (Ala.1991) (citations omitted).
Rule 51, Ala.R.Civ.P., as it concerns appeals regarding refused jury charges, states:
The trial court did not err in refusing Mrs. Newman's proposed charges, because the rule of law set forth in the requested charges was given to the jury when the court read the following charge to the jury:
R.T. 1283-84. Mrs. Newman argues that this is an incorrect statement of the law, citing Lindblom, which states:
598 So. 2d at 888. Mrs. Newman, in her reply brief, incorrectly interprets Lindblom as holding that, as a matter of law, the insurer's acceptance of premiums on an expired policy constitutes willful fraud. In Lindblom, the jury found that the acceptance of overdue premium payments "after the expiration of the grace and courtesy periods constituted a willful misrepresentation that the policy remained in force." Id. at 889. This finding was supported by the record. Id. However, it was not the mere acceptance of payments that constituted willful fraud. Lindblom relied on Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989), affirmed, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), in establishing the elements of willful fraud. Both these cases stand for the proposition that the acceptance of insurance premiums on an expired, overdue, or nonexistent policy is a representation by the insurer to the insured that the policy is in full force and effect. Haslip, 553 So. 2d at 542; Lindblom, 598 So. 2d at 888. However, to prove willful fraud, the plaintiff must also present evidence that the insurer (or its agent) had no intention of fulfilling its promises on the policy and that the insurer intended to deceive its insured. 553 So. 2d at 542. Because this rule of law was substantially and fairly given to the jury in the court's oral charge, we hold that the trial court did not err in refusing Mrs. Newman's requested jury charges.
Was the jury verdict contrary to the law? Mrs. Newman argues that the verdict is contrary to existing law, is contrary to the evidence adduced with regard to her claims for compensatory and punitive damages, and is manifestly unjust.
"A jury verdict is presumed to be correct, and this presumption is strengthened by the trial court's denial of a motion for a new trial. A judgment based on a jury verdict will not be reversed unless it is plainly and palpably wrong." Whisenant v. Nationwide Mut. Fire Ins. Co., 577 So. 2d 909, 911 (Ala.1991) (citations omitted).
Campbell v. Burns, 512 So. 2d 1341, 1343 (Ala.1987).
There was sufficient evidence to support the jury's verdict. Mrs. Newman testified that Mr. Hudson told her when he delivered the policy that the insurance would last 25 years. Mr. Choate, Bankers' president, testified that there was no 35-year decreasing term policy on the market when Ralph Newman bought the policy in 1964. R.T. 593, 659. Mrs. Newman testified that she knew the policy had expired when she telephoned Bankers about a refund on the extra nine premiums before her husband died. Although there was conflicting evidence on these and other issues at trial, we cannot say that the other evidence was so much more credible and convincing as to indicate that the jury verdict was unjust or plainly and palpably wrong. Campbell v. Burns, 512 So. 2d at 1343. "This Court has `neither the right nor the inclination to say whether we would have decided the case differently. The facts are to be determined by the jury and not by us...." City of Birmingham v. Hale, 574 So. 2d 784, 786 (Ala.1991), citing Campbell, supra, at 1344. After carefully reviewing the law, we cannot agree that the verdict was contrary to existing law. Furthermore, after carefully reviewing the record, we cannot say that the verdict is manifestly unjust.
Did the trial court err in denying Mrs. Newman's motion for a new trial? Mrs. Newman contends that a new trial is appropriate because, she says, the jury verdict was against the great weight and preponderance of the evidence. "[A] motion for new trial on the ground that the verdict is against the great weight and preponderance of the evidence is examined for a determination of whether the verdict is palpably wrong or manifestly unjust." Ex parte Oliver, 532 So. 2d 627, 628 (Ala.1988). We have already determined that there is nothing to clearly indicate that the verdict here is wrong or unjust. Therefore, the trial court did not err in denying Mrs. Newman's motion for a new trial. City of Birmingham v. Hale, 574 So. 2d at 786; Campbell v. Burns, 512 So. 2d at 1343.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Mrs. Newman sent Bankers a claimant's statement, a certified copy of Mr. Newman's death certificate, and the original insurance policy. | September 3, 1993 |
f70c2268-ddbd-4829-8cd9-58eaf29adc72 | House v. Campbell | 628 So. 2d 448 | 1920475 | Alabama | Alabama Supreme Court | 628 So. 2d 448 (1993)
Edna Jean HOUSE, individually and as administratrix of the estate of Jeannie Louise House, deceased
v.
James R. CAMPBELL, Jr.
1920475.
Supreme Court of Alabama.
September 3, 1993.
*449 J. Garrison Thompson of Pitts, Pitts and Thompson, Selma, for appellant.
Reginald J. Laurent of Laurent & Laurent, Slidell, LA, for appellee.
ALMON, Justice.
The defendant, Edna Jean House, appeals from a declaratory judgment entered on a jury verdict finding that for purposes of intestate succession, a relationship of parent and child was established under § 43-8-48(2)(b), Ala.Code 1975, between the plaintiff, James R. Campbell, Jr., and Jeannie Louise House, a deceased minor. Campbell brought this action to establish a relationship of parent and child in order to inherit a one-half share of the monies from a settlement in a wrongful death action brought by Edna House, as administratrix of the estate of Jeannie House. The issue is whether the relationship of parent and child was established for purposes of intestate succession under § 43-8-48(2)(b).
Jeannie Louise House was the daughter of Edna Jean House and James R. Campbell, Jr. At the time of Jeannie's birth, Edna and Campbell were not married. Between 1967 and 1975, Campbell, Edna, and Jeannie lived together in Louisiana, either by themselves or with other members of the Campbell family. There was testimony that while Campbell, Edna, and Jeannie were living in Louisiana, Campbell supported Jeannie when he was working, and that when he was not they stayed with, and were supported by, Campbell's parents. Campbell and his mother both testified that when he did work, he would reimburse his parents for supporting Jeannie during those periods when he was not working. Campbell's sister and nephew also testified that when he could, Campbell gave Jeannie clothes and money.
In 1975 Edna and Jeannie moved to Selma, Alabama, to live with Edna's sister. Campbell testified that when Edna and Jeannie moved to Selma, he and Edna entered into an informal custody and visitation agreement by which Edna was to have primary custody and Campbell was to have a right to visitation during summers and holidays. Edna testified that she did not recall Campbell's sending Jeannie any money after she and Jeannie moved to Selma in 1975. Campbell, however, testified that Edna never demanded or requested child support payments after she and Jeannie moved to Selma.
In December 1986, Jeannie was killed in an automobile accident in Montgomery, Alabama. As administratrix of Jeannie's estate, Edna brought a wrongful death action in the Montgomery County Circuit Court. While that wrongful death action was pending in Montgomery, Campbell brought this action in the Dallas County Circuit Court, seeking a judgment declaring that a parent and child relationship existed between him and Jeannie for purposes of intestate succession. Edna answered, alleging, inter alia, that Campbell had failed to support Jeannie during her *450 lifetime and that he was not entitled to inherit from Jeannie because no parent and child relationship existed between her and Campbell under Ala.Code 1975, § 43-8-48. After a trial, the jury returned a verdict in favor of Campbell.
Section 43-8-48 provides, in pertinent part:
Conceding that Campbell proved that he treated Jeannie openly as his own child, Edna argues that Campbell failed to prove that he did not refuse to support Jeannie. Edna contends that "support" connotes a degree of regular contribution to the financial and other material needs of a child and that the evidence of the sporadic or occasional financial contributions made by Campbell to Jeannie's support was insufficient to prove that Campbell supported her.
A determination of paternity under § 43-8-48(2)(b) is ineffective unless the father openly treated the child as his own and did not "refuse" to support the child. Edna's argument ignores the distinction, implicit under § 43-8-48(2)(b), between a refusal to provide support and a failure to do so. Although the record undisputedly shows that for much of Jeannie's life Campbell failed to meet his natural and legal obligation as a parent to contribute to her support, there is no evidence that he refused to contribute to her support.
In his charge, the circuit judge stated:
Although Edna does not challenge the propriety of this charge, which was requested by Campbell, we quote it here to emphasize the distinction under § 43-8-48(2)(b) between "refuse" and "fail" and to note that the jury was instructed on the distinction and presumably followed this portion of the circuit judge's charge in reaching its verdict.
Because there was ample evidence in the record that, although Campbell often failed to contribute to Jeannie's support, he did not refuse to do so, we affirm the judgment entered in favor of James R. Campbell, Jr.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur. | September 3, 1993 |
f6dd43b9-985a-4601-825a-e0eb138ece00 | Harsco Corp. v. NAVISTAR INTERN. TRANSP. | 630 So. 2d 1008 | 1911845 | Alabama | Alabama Supreme Court | 630 So. 2d 1008 (1993)
HARSCO CORPORATION
v.
NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.
1911845.
Supreme Court of Alabama.
August 27, 1993.
Rehearing Denied December 10, 1993.
Dennis G. Pantazis of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for appellant.
D. Martenson and Prisca M. DeLeonardo of Huie, Fernambucq & Stewart, Birmingham, for appellee.
MADDOX, Justice.
This case presents a dispute over the construction of an indemnity provision in a product distribution agreement entered into between a manufacturer and a distributor, relating to a front end loader that was claimed to have a defect in design, material, or workmanship that proximately caused the death of a workman on a construction project where the product was being used.
The specific question presented is whether, under the terms of the distribution agreement, the manufacturer was required to indemnify the distributor for the amount the distributor paid to the estate of the deceased workman in settlement of a wrongful death action filed against the distributor by the estate of the deceased workman. The trial court held that, as a matter of law, the distributor, under the facts presented, was legally entitled to indemnity by the manufacturer and entered a summary judgment for the distributor. We reverse and remand.
In 1970, International Harvester Company, now known as Navistar International Transportation Corporation ("Navistar"), entered into a distribution agreement with Northwestern Motor Company ("Northwestern"), also known as Fairmont Railway Motors ("Fairmont"), which later became Harsco Corporation, under which Harsco would manufacture compact loaders (the subject product was a "Bobcat" front end loader) and Navistar would sell them.
*1009 The distribution agreement, entered into on April 20, 1970, contained the following provisions relating to indemnity:
(Emphasis added.)
The Bobcat front end loader that was made the basis of the underlying action alleging the wrongful death of the workman, Larry Franks, was shipped by Harsco to Navistar on September 28, 1971. It was alleged to be defective because it did not have an emergency/parking brake system. Originally, the compact loaders manufactured by Harsco were equipped with a hydrostatic braking system but were not equipped with an emergency/parking brake system. On August 4, 1973, the subject loader was sold by Navistar through its dealer, as it had been delivered by Harsco, the manufacturer, without the incorporation of an emergency/parking brake system.
On or about October 13, 1981, Larry Franks was operating the loader; he was seriously injured on that date and died four days later. On or about October 8, 1982, the estate of Larry Franks filed an action in the Circuit Court of Jefferson County against International (now Navistar) and others, alleging product liability, strict liability, and defective design in the manufacture or design of the Bobcat loader. The basis of the defective design claim was that Harsco, the manufacturer, did not equip the Bobcat loader with an emergency/parking brake system.
Pursuant to the terms of the distribution agreement, Navistar tendered to Harsco the defense of the wrongful death action; Harsco assumed the defense of the action and had controlled the defense for some 30 months, when on January 20, 1986, Harsco tendered the defense of Navistar back to Navistar. Harsco claims that it tendered the defense of the action when, during discovery, it learned that, although Navistar had maintained the component parts for the emergency/parking brake system in its warehouse for more than one year, Navistar had nevertheless sold Franks's employer the subject Bobcat front end loader without installing the parking or emergency brakes.
Harsco subsequently settled with the Franks estate for $40,000, and on or about September 20, 1990, a compromise settlement was reached by Navistar and the estate whereby Navistar, under protest, paid to the estate some $200,000 in compromise of the disputed claims of liability and fault. Navistar notified Harsco that it would file this action seeking to be indemnified for the amounts it had expended, plus attorney fees and costs.
Navistar then sought indemnification by Harsco for the amount of the compromise settlement plus attorney fees and costs of defense. When Harsco refused the Navistar demand for indemnification, Navistar *1010 brought this action. The trial court, in entering Navistar's summary judgment, held that the indemnity provision in the distribution agreement, as a matter of law, required Harsco to indemnify Navistar for its expenses in settling the litigation and in defending the Franks litigation. Harsco appeals from Navistar's summary judgment.
It is well settled that our review of a summary judgment is de novo, e.g., Maharry v. City of Gadsden, 587 So. 2d 966 (Ala.1991); Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976), and that we take into account the same factors that the trial court considered, Havens v. Trawick, 564 So. 2d 917, 919 (Ala.1990), resolving all reasonable doubts in favor of the nonmovant. Id. We view all the evidence and entertain all reasonable inferences therefrom in a light most favorable to the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). The movant has the initial burden of showing that no genuine issue exists as to any material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. If the movant makes this prima facie showing, then the burden shifts to the nonmovant. E.g., Maharry v. City of Gadsden, 587 So. 2d 966, 968 (Ala.1991). For actions filed after June 11, 1987, the nonmovant must offer "substantial evidence" to overcome the prima facie showing, see § 12-21-12, Ala.Code 1975, which means "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The evidence presented on the motion for summary judgment tends to show that in 1972, new federal regulations had required compact loaders to be equipped with emergency or parking brakes. To meet this requirement and Navistar's subsequent request, Harsco began developing in 1971 a braking system for its compact loaders. Harsco developed and submitted to Navistar a double-disk braking system, which Navistar rejected as being too expensive.
In March 1972, Harsco designed a braking system that met with Navistar's approval, and Navistar agreed to order the parts and install them on each compact loader supplied by Harsco. In 1973, Navistar sold to Larry Franks's employer a compact loader that was not fitted with the modified brake system. In 1981, Franks died from injuries allegedly sustained in a North Carolina accident involving the compact loader. In 1982, Franks's estate sued Harsco and Navistar, alleging that the compact loader had design defects and that Navistar had had the component parts for the brakes in its inventory for more than one year but had refused or failed to install them on the unit Franks was operating at the time of his injuries. As pointed out above, in 1983, Harsco took up the defense of Navistar pursuant to the indemnification provision included in the distribution agreement.
At the outset, we note that pursuant to the distribution agreement executed by the parties, Illinois law governs the substantive aspects of this dispute and Alabama law applies to the procedural questions. Both parties have cited and argued Illinois case law extensively.
Navistar's argument can be stated succinctly: The trial court did not err in granting its motion for summary judgment on the undisputed facts and evidence before it, because Harsco agreed to indemnify it "against any and all claims made by any person, including without limitation, tort product liability and liability for breach of either express or implied warranties." Navistar's argument is based upon the contention that the front end loader was defective in design, material, or workmanship; that the terms of the distribution agreement are plain; that under Illinois or Alabama law, Harsco agreed to indemnify it, under the undisputed facts of this case; and that because Franks's estate sued Navistar and Harsco for injuries and death stemming from a defective product designed by Harsco, Harsco alone should bear the responsibility. Indeed, Navistar argues *1011 that the indemnification provision of the distribution agreement "anticipated the exact situation before the Court." We cannot agree with that argument, in view of the facts presented.
If the facts were simply that Harsco designed a defective product that Navistar sold and that was the cause of Franks's death, then Navistar's argument would be controlling, because the indemnification agreement would control and a summary judgment for Navistar would be proper. Cf., McBro, Inc. & Traveler's Insurance Co. v. M & M Glass Co., 611 So. 2d 283 (Ala.1992). However, the indemnity agreement provides that Illinois law applies; under Illinois law "[i]t is well settled ... that indemnity contracts are to be strictly construed." Argueta v. Baltimore & Ohio Chicago Terminal R.R., 224 Ill.App.3d 11, 586 N.E.2d 386, 395, 166 Ill.Dec. 428, 437 (1991). Indeed, "[s]ince Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp., 395 Ill. 429, 70 N.E.2d 604 (1946), Illinois courts have consistently held that indemnification contracts will not be construed as indemnifying against a party's own negligence unless such construction is required by clear and explicit language of the contract or such an intention is expressed in unequivocal terms." Argueta, 224 Ill.App.3d at 25, 586 N.E.2d at 395, 166 Ill.Dec. at 437.
The question presented, therefore, is whether the indemnity provision before us, when strictly construed, is a clear and explicit expression in unequivocal terms of an agreement that Harsco indemnify Navistar even if it was Navistar's negligence that caused Franks's injuries and death.
Even though it agreed, in pertinent part, to "indemnify [Navistar] against any and all claims made by any person, including without limitation, tort product liability and liability for breach of either express or implied warranties," Harsco argues that this provision does not clearly provide for indemnity if Franks's death was caused by negligence on the part of Navistar in failing to install the brake system on the compact loader; and Harsco points out that Illinois law prevents indemnification for the negligent acts of Navistar unless the parties clearly and explicitly intended such a result and so stated in unequivocal terms. Alabama law is similar in this regard. We agree with Harsco's argument.
Indemnification is not required for negligent acts of the indemnitee unless the parties "knowingly, evenhandedly, and for valid consideration, intelligently enter[ed] into an agreement whereby one party agrees to indemnify the other, including indemnity against the indemnitee's own wrongs, if expressed in clear and unequivocal language." See, Industrial Tile, Inc. v. Stewart, 388 So. 2d 171, 176 (Ala.1980); see also Craig Construction Co. v. Hendrix, 568 So. 2d 752 (Ala.1990).
Even though the provisions of the indemnification agreement are reasonably clear, the facts surrounding the responsibilities for equipping the subject loader with the emergency/parking brake system were such that we cannot say that, as a matter of law, the parties reasonably expected indemnity to apply under the facts of this case. Because the indemnification provision does not clearly require Harsco to indemnity Navistar, the language of the indemnification agreement is not dispositive of the question of indemnification. A jury question is presented on that issue.
We recognize that, as between private parties, indemnity contracts are enforceable if the contract clearly indicates an intention to indemnify against the consequences of the indemnitee's negligence, if the indemnity provision was clearly understood by the indemnitor, and if there is no evidence of a disproportionate bargaining power. Even though we find no unequal bargaining power here, and even though the provisions regarding indemnity are reasonably clear, the liability for the defective condition of the loader presents a fact question insofar as the reasonable expectancy of the parties is concerned. If we held that the indemnity provisions are clear and unequivocal, under the facts of this case, we would have to hold that Harsco agreed to indemnify Navistar for Navistar's alleged negligence in regard to actions that a factfinder could conclude were out of Harsco's control; there are facts indicating *1012 Harsco shipped the emergency/parking brake parts to Navistar and that Navistar held them in its warehouse for over a year before selling the loader and never equipped the loader with the brake system.
Considering the facts and applying the rules relating to summary judgments, we conclude that Navistar failed to carry its burden of showing that there exists no genuine issue of material fact. The factfinder may determine that Harsco did agree to indemnify Navistar in a situation such as that presented in the Franks's action; however, the factfinder may determine otherwise.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
INGRAM, J., dissents.
INGRAM, Justice (dissenting).
I respectfully dissent. The underlying litigation brought by the estate of Larry Franks concerned an alleged design defect, i.e., that the front-end loader had been designed without an emergency/parking brake system. I believe that the indemnity agreement, as a matter of law, requires Harsco to indemnify Navistar. I disagree with the majority's implication that Navistar should bear the full responsibility of the design defect because it failed to equip the front-end loaders with the emergency/parking brakes, when clearly the front-end loader had been defectively designed by Harsco and was received by Navistar's predecessor, International, in that defective condition. | August 27, 1993 |
337febc1-67e1-4951-b661-7b1704eb8f22 | Nunnelee v. City of Decatur | 643 So. 2d 543 | 1911513 | Alabama | Alabama Supreme Court | 643 So. 2d 543 (1993)
Marvin B. NUNNELEE, as administrator of the Estates of Rickey Allen Shoemake and Edith Nunnelee Shoemake, deceased
v.
CITY OF DECATUR, et al.
1911513.
Supreme Court of Alabama.
September 3, 1993.
Rehearing Denied June 24, 1994.
D. Leon Ashford and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Stephen V. Hammond of Chenault, Hammond, Hall & Reeves, Decatur, and A.J. Coleman and Jon R. Sedlak, Decatur, for appellees.
PER CURIAM.
The plaintiff appeals from a summary judgment entered in favor of the City of Decatur and its police officers in a wrongful death action, in which the plaintiff predicated liability against the city on the alleged failure of its police officers to arrest a person whose motor vehicle later crossed the median of Interstate Highway 65 and collided with the vehicle in which the plaintiff's deceaseds were riding.
On March 5, 1989, Rickey Allen Shoemake and his wife, Edith Nunnelee Shoemake, were killed when Willie Joe Robinson's vehicle collided with the Shoemakes' vehicle. Robinson was convicted of two counts of murder committed "while under the influence of alcohol" and was sentenced to life imprisonment without parole. See Robinson v. State, 584 So. 2d 533 (Ala.Crim.App.), writ quashed, 584 So. 2d 542 (Ala.1991).
Marvin B. Nunnelee, administrator of the Shoemakes' estate, filed a wrongful death action against the City of Decatur; Decatur police officers Noel Mayfield, Jerry Hale, and Jackie Sherrill; and Willie Joe Robinson. Nunnelee alleged that the Decatur police officers had acted negligently by releasing Robinson after stopping him in Decatur for a suspected DUI violation approximately 1 ½ hours before the fatal accident occurred.
The trial court entered a summary judgment in favor of all defendants except Robinson, concluding, among other things:
The court made the judgment final pursuant to Rule 54(b), A.R.Civ.P.; Nunnelee appeals. We affirm.
Evidence presented at the hearing on the motion for summary judgment tended to show that at 5:48 p.m. on March 5, 1989, Decatur police officer Elizabeth Wooten McNeil and another Decatur police officer answered a call to an apartment complex to investigate a reported disturbance. McNeil said that she found two women and Robinson, who was packing a suitcase. McNeil testified that Robinson did not appear intoxicated, that she did not smell alcohol on Robinson's person, and that she did not see evidence of alcohol in the apartment.
At 6:24 p.m. on that day, Robinson's vehicle almost collided with a City of Decatur police car driven by Sgt. Noel Mayfield. Suspecting that Robinson was intoxicated, Mayfield, assisted by officers Jackie Sherrill and Jerry Hale, stopped Robinson. The officers testified that Robinson "passed" a field sobriety test and that when Sherrill and Hale searched Robinson's vehicle they found one unopened can of beer. The officers stated that Robinson did not appear intoxicated and that Mayfield issued Robinson a citation for driving without a license and then released him at approximately 6:30 p.m.
At approximately 7:55 p.m., Robinson's vehicle crossed the median of Interstate Highway 65 in Cullman County, Alabama, and collided with the Shoemakes' vehicle, killing the Shoemakes. Cullman County Deputy Sheriffs James Douglas Williams and Dennis Spradlin, and State Trooper Ricky Dale (all of whom were witnesses at the accident scene), the emergency medical personnel who *545 took Robinson from the accident scene to the hospital, and hospital personnel all testified that Robinson appeared to be highly intoxicated and that he smelled strongly of alcohol.
In determining whether the summary judgment was appropriate, we will first consider whether the city and the defendant police officers were entitled to substantive immunity, as the trial court held.
Citing Tyler v. City of Enterprise, 577 So. 2d 876 (Ala.1991), and Luker v. City of Brantley, 520 So. 2d 517 (Ala.1987), Nunnelee argues that this Court recognizes a cause of action based on the alleged negligence of police officers, while acting in the line and scope of their duties, in allowing an intoxicated driver to go free and to continue to operate his vehicle. In Tyler, this Court affirmed a summary judgment for the defendants on the ground that the plaintiff's decedent was contributorily negligent, as a matter of law, and that the plaintiff was, therefore, barred from recovering under a claim that the defendants had negligently caused the decedent's death by failing to stop him from driving because of his intoxication; nevertheless, the Court wrote:
577 So. 2d at 877.
The question on this appeal, therefore, is whether the summary judgment was proper in light of the evidence presented by Nunnelee in opposition to the defendants' motion for summary judgment. In short, did the defendants show "that there is no genuine issue as to any material fact and that [they were] entitled to a judgment as a matter of law"? Rule 56(c)(3), Ala.R.Civ.P.; King v. Winn-Dixie of Montgomery, Inc., 565 So. 2d 12, 12-13 (Ala.1990).
In Butler v. Aetna Finance Co., 587 So. 2d 308, 311 (Ala.1991), this Court stated the rule that we apply:
In viewing the evidence, of course, we must resolve all doubts concerning the existence of a genuine issue of material fact in favor of the nonmoving party, Fountain v. Phillips, 404 So. 2d 614 (Ala.1981), and, if there is substantial evidence that supports the position of the nonmovant, we must reverse the summary judgment. Boswell v. Coker, 519 So. 2d 493 (Ala.1987).
"[S]ummary judgment is rarely appropriate in negligence actions, which almost always present factual issues of causation and of the standard of care that should have been exercised," Yarborough v. Springhill Memorial Hospital, 545 So. 2d 32, 34 (Ala.1989).
Having applied these well-established principles to the judgment appealed from, and having considered the context of the evidence presented in support of, and that presented in opposition to, the motion for summary judgment, we conclude that the trial court properly entered the defendants' summary judgment.
Did the plaintiff present substantial evidence that the defendant police officers, acting within the line and scope of their duties, knew that Robinson was so intoxicated *546 that the Luker principle would be applicable? As this Court said in Tyler, "Luker stands for the proposition that once a police officer, acting in the line and scope of his duty, knows that a driver is intoxicated, he has a duty to restrain him, and if he does not restrain him and a third party is injured by the intoxicated driver, the city may be liable for the negligence of the officer in allowing the intoxicated driver to proceed." We conclude that the plaintiff did not present the necessary "substantial evidence." Consequently, the court properly entered the summary judgment on the ground that the officers, based on the facts of this case, were entitled to substantive immunity. In this connection, see Justice Almon's concurring opinion in Thetford v. City of Clanton, 605 So. 2d 835, 843-44 (Ala.1992), in which he wrote:
See also Nichols v. Town of Mount Vernon, 504 So. 2d 732 (Ala.1987); Garrett v. City of Mobile, 481 So. 2d 376 (Ala.1985); and Rich v. City of Mobile, 410 So. 2d 385 (Ala.1982).
We hold that the plaintiff failed to show, by substantial evidence, that the defendants "knew" that Robinson was intoxicated. In fact, the evidence offered by the defendants in support of their motion for summary judgment was to the effect that Robinson was not intoxicated when the Decatur police officers stopped him, at least not to the extent that his driving would be impaired (Robinson stated that he had drunk two beers). Robinson was stopped because his pick-up truck almost collided with Officer Mayfield's police car, but in a field sobriety test Robinson showed no sign of intoxication. The only evidence that the police had any indication that Robinson was intoxicated was the statement by Officer Sherrill in Robinson's criminal trial that he had detected "a slight odor of alcoholic beverages in the truck." This does not constitute substantial evidence that the officers had a duty to arrest Robinson. At the very least, the evidence shows the wisdom of the substantive immunity rule, which shields the officers from liability in the exercise of their discretionary decision-making functions.
The trial judge concluded, as a matter of law, that "[t]hese defendants are immune from liability under the undisputed material facts in this case." We agree with his conclusion.
The judgment of the trial court, therefore, is due to be affirmed.
On July 29, 1993, the plaintiff, after this appeal was submitted, filed with this Court a motion for leave to file a Rule 60(b), Ala.R.Civ.P., motion in the trial court, alleging, among other things, that the plaintiff had unsuccessfully tried to depose Robinson before the date of the hearing on the motion for summary judgment but that Robinson had refused to be deposed, on the ground *547 that his testimony might tend to incriminate him in his criminal trial. The summary judgment here on appeal was entered on May 15, 1992, more than a year ago. The claim against Robinson is still pending in the trial court, but the trial court, pursuant to Rule 54(b), determined that there was no just reason to delay the entry of a final judgment for the city and its officers, and the plaintiff appealed from that judgment. The record shows no reason why this Court should grant the plaintiff's motion; therefore, it is due to be denied.
AFFIRMED; MOTION DENIED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
ALMON, J., concurs specially.
INGRAM, J., concurs in the result.
ALMON, Justice (concurring specially).
I concur to affirm the summary judgment for the reasons stated in my special concurrence in Thetford v. City of Clanton, 605 So. 2d 835, 843-44 (Ala.1992). | September 3, 1993 |
5aab6a1d-4e9d-410f-b7ab-71cca0ece6d4 | Ex Parte Mutrie | 658 So. 2d 347 | 1920902 | Alabama | Alabama Supreme Court | 658 So. 2d 347 (1993)
Ex parte Pearlie MUTRIE.[1]
(Re Pearlie Mutrie v. State).
1920902.
Supreme Court of Alabama.
September 10, 1993.
Rehearing Denied November 5, 1993.
*348 Emmett O'Neal Griswold, Jr., Samson, for petitioner.
James H. Evans, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for respondent.
INGRAM, Justice.
Pearlie Mutrie pleaded guilty to unlawful "delivery" of a controlled substance in violation of § 13A-12-211, Ala.Code 1975. The trial court entered a judgment on the plea, and she was sentenced to two years' imprisonment. The trial court enhanced her sentence five years, under § 13A-12-250, Ala. Code 1975requiring enhancement for the sale of a controlled substance within three miles of a schooland another five years, under § 13A-12-270, Ala.Code 1975requiring enhancement for the sale of a controlled substance within three miles of a housing project. The Court of Criminal Appeals, without an opinion, affirmed the judgment and sentence on the authority of Burks v. State, 611 So. 2d 487, 491 (Ala.Cr.App.1992). 618 So. 2d 150. This Court granted Mutrie's certiorari petition to examine the issue of whether §§ 13A-12-250 and -270 mandate enhancement of Mutrie's sentence on conviction for unlawful "delivery" of a controlled substance.
Section 13A-12-250 specifically provides:
(Emphasis added.) Section 13A-12-270 specifically provides:
(Emphasis added.)
As stated above, Mutrie pleaded guilty to unlawful delivery of a controlled substance, in violation of § 13A-12-211, which prohibits the unlawful distribution of a controlled substance. Section § 13A-12-211 states: "A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance enumerated in schedules I through V." (Emphasis added.) Thus, the issue to be resolved by this Court is whether a judgment based upon a plea of guilty to unlawful "delivery" may be enhanced under §§ 13A-12-250 and -270, *349 which provide for enhancement of sentences for convictions of an unlawful sale.
In construing §§ 13A-12-250 and -270, this Court is guided by prior caselaw stating this Court's authority to construe statutes:
Ex parte Holladay, 466 So. 2d 956, 960 (Ala. 1985) (emphasis added).
Clements v. State, 370 So. 2d 723, 725 (Ala. 1979) (emphasis added), overruled on other grounds, Beck v. State, 396 So. 2d 645 (Ala. 1980). "Further, it is well established that criminal statutes should not be `extended by construction.' Locklear v. State, 50 Ala.App. 679, 282 So. 2d 116 (1973)." Ex parte Evers, 434 So. 2d 813, 817 (Ala.1983).
The Court of Criminal Appeals affirmed the enhancement of Mutrie's sentence on the authority of Burks v. State, 611 So. 2d 487, 491 (Ala.Cr.App.1992). The Court of Criminal Appeals, in an earlier case, Qualls v. State, 555 So. 2d 1158 (Ala.Cr.App.1989), had held that "the legislature, by enacting Alabama's `schoolyard statute,' intended to create an around-the-clock drug-free atmosphere on or near school grounds.... Therefore, we believe that the legislature clearly intended to protect these areas ... from the evils associated with drug activities at all times." Qualls, 555 So. 2d at 1165, quoted in Burks, 611 So. 2d at 491. In Burks, the Court of Criminal Appeals, in dicta,[2] stated that §§ 13A-12-250 and -270 applied to all convictions for "drug activity" within the drug-free zone and were not limited to sales of controlled substances. We disagree with this statement.
Applying the well-established principles of judicial construction of criminal statutes, we hold that the clear and unambiguous language of §§ 13A-12-250 and -270 prescribe enhancement only as to those sentences imposed on "person[s] convicted of an unlawful sale of a controlled substance." As stated above, this Court has stated that a defendant is not to be punished under a criminal statute, even though his act may contravene the policy of the statute, if his action "does not come within the words of [the] statute, according to the general and popular understanding *350 of those words"; and that "No person is to be made subject to penal statutes by implication." Clements, 370 So. 2d at 725.
In Hill v. State, 348 So. 2d 848, 855 (Ala.Cr. App.), cert. denied, 348 So. 2d 857 (Ala.1977), the Court of Criminal Appeals held that a defendant cannot be convicted of "selling" marijuana "if his conduct, according to the undisputed evidence, does not afford a reasonable inference that he participated with the seller in making the sale." The fact that the defendant acted as the buyer's agent is not a defense to an indictment under § 13A-12-211 charging the defendant with unlawfully selling, furnishing, giving away, manufacturing, delivering, or distributing a controlled substance. Although the defendant who acts as a procuring agent may not be liable for a "sale," such conduct clearly would support a finding that the defendant violated § 13A-12-211, prohibiting the distribution of a controlled substance, which includes delivering and furnishing. See Harrington v. State, 515 So. 2d 53, 54 (Ala.Cr.App.1986) (holding that defendant, who had acted as buyer's agent, had unlawfully "furnished" a controlled substance). Because prior caselaw has established that a defendant who acts as the buyer's agent (also known as a "procuring agent") is not guilty of unlawfully "selling" a controlled substance, and because the clear language of §§ 13A-12-250 and -270 applies only to convictions for unlawful "sale," a conviction for unlawful distribution is enhanceable only if the defendant's activity constituted a sale, and not if the defendant acted as the agent of the buyer.
Therefore, we hold that §§ 13A-12-250 and -270, prescribing a five-year enhancement of sentences for persons convicted of an unlawful sale of a controlled substance within three miles of a school and within three miles of a housing project, do not apply to convictions for "distribution" of a controlled substance, in violation of § 13A-12-211, unless the defendant is found to have sold, or to have collaborated or associated with the seller to sell, a controlled substance. Therefore, we remand this case to the Court of Criminal Appeals for further proceedings in accordance with this opinion.
REMANDED[*].
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
MADDOX, J., concurs specially.
ALMON, J., concurs in the result.
HOUSTON and STEAGALL, JJ., dissent.
MADDOX, Justice (concurring specially).
I concur in the holding that the enhancement provisions of §§ 13A-12-250 and 13A-12-270 apply only to "`person[s] convicted of an unlawful sale of a controlled substance," 658 So. 2d at 348, but if the petitioner's activity in this case was sufficient to constitute a "sale" within the meaning of § 13A-12-211,[3] as the term "sale" is broadly defined by the Court of Criminal Appeals in Burks v. State, 611 So. 2d 487 (Ala.1993), then the trial court was authorized to enhance the defendant's sentence. I concur only to remand the case to the Court of Criminal Appeals, for that court to determine whether the activity that this defendant engaged in was a "sale," as that court has defined that term in Burks, the case that court cited as supporting its judgment.
In Burks v. State, 611 So. 2d 487 (Ala.Cr. App.1992), the Court of Criminal Appeals wrote:
611 So. 2d at 491. This Court denied certiorari review in Burks. In Pettway v. State, 624 So. 2d 696 (Ala.Cr.App.1993), the Court of Criminal Appeals reaffirmed its holding in Burks and discussed the interplay between the enhancement statutes and § 13A-12-211:
It appears to me that the basic holding of the majority opinion may define "sale" more narrowly than that term has been defined in Burks and Pettway. In short, it seems to me that those cases hold that the enhancement provisions of §§ 13A-12-250 and 13A-12-270 are triggered when there is "drug activity" within the specified areas. The holding of this case seems to overrule portions of those cases. If it has that effect, I cannot agree with it, because I believe that Burks and Pettway both properly apply the enhancement statutes.
[1] The petition was filed under the name "Mutrie." However, the record contains documents, signed by the petitioner, indicating that she spells her name "Pearlie Mutry."
[2] The Court of Criminal Appeals specifically found that Burks's activity was clearly a "sale." See Burks, 611 So. 2d at 491.
[*] Note from the reporter of decisions: On March 14, 1995, the Supreme Court dismissed the petition for certiorari review after receiving the Court of Criminal Appeals' return to the remand.
[3] § 13A-12-211, "Unlawful distribution of controlled substances," provides:
"(a) A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance enumerated in schedules I through V.
"(b) Unlawful distribution of controlled substances is a Class B felony."
See Ala.Acts 1987, No. 87-603, p. 1047, § 2. | September 10, 1993 |
d61767d2-9594-43d1-a7a8-279158ca4924 | Ex Parte United Service Stations, Inc. | 628 So. 2d 501 | 1921175 | Alabama | Alabama Supreme Court | 628 So. 2d 501 (1993)
Ex parte UNITED SERVICE STATIONS, INC.
(Re Loan NHAM
v.
UNITED SERVICE STATIONS, INC.)
1921175.
Supreme Court of Alabama.
September 24, 1993.
*502 Jack B. Hinton, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for petitioner.
Charles H. Morris III, Selma, for respondent.
Jack Drake of Drake & Pierce, Tuscaloosa, for amicus curiae Alabama Trial Lawyers Ass'n.
HORNSBY, Chief Justice.
The defendant, United Service Stations, Inc. ("United Service"), petitioned this Court for a writ of mandamus directing Judge Eugene W. Reese, of the Montgomery Circuit Court, to grant its motion to compel discovery of plaintiff Loan Nham's psychological records and to allow the deposition of her *503 former psychologist. For the reasons discussed below, the writ is denied.
Loan Nham was a commercial tenant of United Service and operated a retail store on the leased premises. In April 1989, the ceiling of the restroom in the store collapsed on top of Nham, injuring her neck, shoulders, and back. Nham sued United Service and others in April 1991, alleging negligence and claiming physical and mental injury.
After receiving treatment for her injuries, Nham continued to suffer severe pain in her head and neck that physical therapy and prescription medication did not fully alleviate. In November 1992 she was referred to the Kirkland Clinic at the University of Alabama at Birmingham. The Kirkland Clinic specializes in "pain management." At the clinic, patient evaluation and treatment are performed by a team of doctors, including a psychologist.
Nham's attorney initially named Dr. Frank Brotherton, her Kirkland Clinic psychologist, on his witness list and had noticed Dr. Brotherton for deposition. However, these actions by Nham's attorney occurred before Nham invoked the psychotherapist[1]-patient privilege of Ala.Code 1975, § 34-26-2, in relation to Dr. Brotherton. Once Nham raised the privilege, her attorney canceled the deposition of Dr. Brotherton and amended the witness list to replace Dr. Brotherton with Dr. Tazewell Jones, the psychologist currently treating Nham. There is no indication from the material before us that Dr. Brotherton will be used as a witness by Nham, and this opinion proceeds on that basis. United Service filed a motion to compel discovery of Nham's complete psychological records from Kirkland Clinic[2] and to depose Dr. Brotherton, the clinic psychologist who had been assigned to Nham's case.
Nham objected to United Service's motion to compel discovery and formally claimed the protection of the statutory psychotherapistpatient privilege. The trial court denied United Service's motion to compel and its "motion for reconsideration," ruling that Nham had not waived the psychotherapistpatient privilege. United Service responded by filing this petition for a writ of mandamus.
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 AmSouth Bank, N.A., 589 So. 2d 715 (Ala.1991); Ex parte Day, 584 So. 2d 493 (Ala.1991). At issue here is whether United Service has a "clear legal right" to discovery of Nham's psychological records and to depose Dr. Brotherton in the face of Nham's assertion of the psychotherapist-patient privilege.
Although Alabama law does not recognize a physician-patient privilege of confidentiality, the legislature has adopted a psychotherapist-patient privilege. Section 34-26-2, Ala. Code 1975, states:
(Emphasis added.)
This privilege provides a patient the right to refuse to disclose, and to prevent others from disclosing, confidential communications between the patient and psychotherapist made for the purposes of diagnosis or treatment of the patient's mental condition, and it encompasses notes or records made by the psychotherapist. Ex parte Rudder, 507 So. 2d 411 (Ala.1987). United Service contends that either: 1) the psychotherapistpatient privilege does not exist in the context of an action where the complaint seeks damages for mental pain and anguish or 2) that *504 even if the privilege exists, Nham has waived the privilege. We will address these arguments in turn.
Some jurisdictions adopting a statutory psychotherapist-patient privilege have provided a list of exceptions from the privilege, such as where a patient relies on his mental condition as an element of a claim or defense in a civil proceeding; however, the Alabama legislature did not limit the privilege with specific exceptions. Compare, e.g., Cal.Evidence Code § 1010 et seq. (West 1966); Fla.Stat.Ann. § 90.503 (West 1979); Mass.Ann.Laws ch. 112, § 135A (Law.Co-op. 1991); Tenn.Code Ann. § 24-1-207 (1992 Supp.) (psychiatrist only); Va.Code § 8.01-400.2 (Michie 1992). The Alabama psychotherapist-patient privilege, however, is subject to certain judicially created exceptions. This Court has recognized an exception to the privilege where, in a child custody matter, the mental state of one of the parents is at issue and a proper resolution of child custody requires disclosure of otherwise privileged psychiatric records. Harbin v. Harbin, 495 So. 2d 72 (Ala.1986). Further, the psychotherapist-patient privilege is unavailable in a criminal trial where the defendant raises the defense of insanity. Free v. State, 455 So. 2d 137 (Ala.Crim.App.1984); Magwood v. State, 426 So. 2d 918 (Ala.Crim.App.), aff'd, 426 So. 2d 929 (Ala.1982), cert. denied, 462 U.S. 1124, 103 S. Ct. 3097, 77 L. Ed. 2d 1355 (1983).
The strength of the public policy on which the statutory psychotherapist-patient privilege is based has been well recognized by this Court. It follows that the privilege is not easily outweighed by competing interests.
Ex parte Rudder, supra, at 413. In Rudder, where the defendant sought discovery of the plaintiff's psychiatric records in order to defend a claim of defamation, First Amendment free speech rights were not applicable because the psychotherapist-patient privilege made the information unavailable to the public. Id., at 416-17.
There is no implication in the language of § 34-26-2 that the legislature intended an exception to the privilege where the issue of a party's mental condition is raised in a civil proceeding. Given the first rule of statutory construction, that where the meaning of the plain language of the statute is clear, it must be construed according to the plain language, see, e.g., King v. National Spa & Pool Inst., 607 So. 2d 1241, 1246 (Ala.1992), this Court will not create such an exception. Moreover, such an exception would conflict with the public policy underlying the psychotherapist-patient privilege noted above.
The Supreme Court of Georgia has recognized a strong psychotherapist-patient privilege where its legislature made the privilege equivalent to the attorney-client privilege. That court, construing a statute substantially identical to § 34-26-2, has held that the psychiatrist-patient privilege applies even when a party who claims it is "seeking to recover damages for injuries of a mental and emotional nature." Bobo v. State, 256 Ga. 357, 349 S.E.2d 690, 692 (1986), citing Wilson v. Bonner, 166 Ga.App. 9, 303 S.E.2d 134 (1983). See Ga.Code Ann. §§ 24-9-21(5), 43-39-16 (Michie 1991). By the same logic, we hold that the psychotherapist-patient privilege of Ala.Code 1975, § 34-26-2, does apply in the context of the issues raised by this petition.
United Service also contends that Nham has impliedly waived the protection of the psychotherapist-patient privilege relating to the Kirkland Clinic records and deposition of Dr. Brotherton by raising the issue of psychological pain; by her attorney's deposition *505 questioning of Dr. McDanal, the director of the Kirkland Clinic, on the psychological element of pain; by her attorney's attaching Nham's then current clinic records as an exhibit to the deposition; by Nham's failure to raise the privilege earlier in the discovery process; and by her employment of a second psychologist, Dr. Jones, whom she has named as a witness for trial.
The Alabama legislature placed the protection to be provided by the psychotherapist-patient privilege on the same level as the protection provided by the attorneyclient privilege. § 34-26-2. Accordingly, like the attorney-client privilege on which it was modeled, the psychotherapist-patient privilege is personal to the patient, and only the patient may waive it. Watson v. State, 504 So. 2d 339 (Ala.1986). See Swain v. Terry, 454 So. 2d 948 (Ala.1984). In order to impliedly waive a testimonial privilege, the holder of the privilege must objectively manifest a clear intent not to rely upon the privilege. Jordan v. State, 607 So. 2d 333, 336 (Ala.Crim.App.1992).
In Ex parte Great American Surplus Lines Ins. Co., 540 So. 2d 1357 (Ala.1989), this Court ruled that there was not sufficient evidence of intent to waive the attorneyclient privilege where, in an action based upon an insurer's denial of coverage, the insurer responded with the argument that it had sought the advice of legal counsel regarding the coverage decision. In Great American, even though the petitioner argued that there had been a partial disclosure of the contents of the letter by the insurer's statement that its denial of coverage was based in part on the attorney's "opinion letter," we ruled that the partial disclosure by the insurer was insufficient to waive the attorney-client privilege. Great American, supra, at 1359. Similarly, the record before us in this case shows no evidence of an intent to waive Nham's psychotherapist-patient privilege.
The general inquiry into the psychological aspects of pain realization, made by Nham's attorney to Dr. McDanal, an anesthesiologist and director of the Kirkland Clinic, is insufficient to support a finding of a waiver of the psychotherapist-patient privilege relating to Dr. Brotherton. We have already noted that the privilege will not be impliedly waived simply by a patient's seeking damages for injuries relating to a mental or emotional condition.
When Nham's attorney attached Kirkland Clinic's initial records as a deposition exhibit to Dr. McDanal's deposition, that act waived the privilege as to any information contained in those records; however, that act did not manifest a clear intent by Nham to waive the privilege in relation to later records of evaluation and treatment or in relation to the defense's proposed deposition of Dr. Brotherton, the clinic psychologist, regarding Nham's case. The records disclosed contain only two entries relating to Nham's mental condition made by Dr. Brotherton, and both involve only the clinic's initial evaluation. They contain no information relating to Dr. Brotherton's thoughts or impressions regarding his continued psychological treatment of Nham. Further, Nham's failure to raise the privilege in relation to United Service's discovery from non-psychotherapist physicians could not constitute a waiver, because the privilege was not applicable to those physicians.
Finally, the use of Dr. Jones, Nham's present psychiatrist, as a trial witness will serve as a waiver of the privilege in relation to his testimony. However, it does not serve as a waiver of the privilege in relation to the complete Kirkland Clinic records[3] or in relation to Dr. Brotherton. This Court has ruled that where the attorney-client privilege is waived as to one attorney, it will be deemed waived in relation to other attorneys from the same law firm. Swain, supra. The facts of this case are not analogous to those of Swain, because Dr. Jones is not employed by the Kirkland Clinic, where Dr. Brotherton saw Nham. Further, because Nham consulted the Kirkland Clinic and Dr. Brotherton more than a year and a half after she had *506 sued, and because the consultation was directly related to the injury that is the basis of her action, an analogy can be drawn to the exception from discovery for experts retained, but not to be used at trial. Rule 26(b)(4), A.R.Civ.P.
Because the record indicates that Nham has not waived the protection of the psychotherapist-patient privilege, United Service has no "clear legal right" to the discovery sought. Accordingly, United Service's petition for the writ of mandamus is denied.
WRIT DENIED.
MADDOX, ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I joined Chief Justice Torbert's dissent in Ex parte Rudder, 507 So. 2d 411, 417-20 (Ala. 1987), because I felt that the psychiatristpatient privilege as applied in Ex parte Rudder conflicted with the defendants' First Amendment rights of freedom of speech and freedom of the press and that the defendants' constitutional rights outweighed the statutory privilege. No such constitutional issue is presented in the case at issue.
Mandamus is an extraordinary writ, to be issued only when the petitioner has a clear legal right to the order sought, Ex parte Day, 584 So. 2d 493 (Ala.1991), which has been previously recognized by this Court as appropriate for mandamus review; Ex parte Spears, 621 So. 2d 1255 (Ala.1993); or where the right of the parties cannot be adequately protected by appellate review of a final judgment. Ex parte Spears, supra. I find neither in this case. If Loan Nham continues to seek damages for mental pain and anguish and to insist on her psychotherapist-patient privilege of confidentiality (Ala.Code 1975, § 34-26-2), the trial court, in this civil case, should permit the defendant to argue to the jury the inconsistency in the plaintiff's claiming such damages while insisting on the privilege (Colquitt, Alabama Law of Evidence § 513, at 193 (1990)); and there is a presumption that the jury will do its job as finder of the facts.
[1] The Court's use of the term "psychotherapist" in the context of this case is limited to licensed psychologists and licensed psychiatrists.
[2] Nham's initial Kirkland Clinic records from November 6, 1992, to January 29, 1993 were attached as an exhibit to Nham's deposition of Dr. Judy McDanal, an anesthesiologist and director of the clinic.
[3] The complete Kirkland Clinic records had not even been made available by Nham to Dr. Jones at the time of his deposition. | September 24, 1993 |
e252d765-e19c-4963-9cf2-96ed4b99459f | Williams v. Lide | 628 So. 2d 531 | 1921020, 1921023 | Alabama | Alabama Supreme Court | 628 So. 2d 531 (1993)
Curtis WILLIAMS
v.
John T. LIDE.
John T. LIDE
v.
Curtis WILLIAMS.
1921020, 1921023.
Supreme Court of Alabama.
October 8, 1993.
*533 Collins Pettaway, Jr., and J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders & Pettaway, P.C., Selma, for appellant/cross-appellee.
John W. Kelly III, Selma, for appellee/cross-appellant.
PER CURIAM.
This Court's opinion issued August 23, 1993, is withdrawn, and the following is substituted therefor:
Rev. Curtis Williams appeals and John T. Lide conditionally cross-appeals from a judgment in an election contest brought by Lide. Lide and Williams competed with one another for election to the Dallas County Commission, district 2. According to the votes counted by officials on the evening of the election, November 3, 1992, Williams received the most votes: 2,269 to Lide's 2,265.
On November 17, 1992, Lide filed an election contest, alleging:
On April 9, 1993, the trial court entered a judgment for Lide, based on its finding that Lide had received the highest number of legal votes cast on November 3, 1992. The trial court counted 2,272 legal votes for Lide and 2,262 legal votes for Williams.
The principal issues raised by Williams on appeal pertain to: (1) the voting rights of convicted felons; (2) the legality of certain challenged votes; (3) the legality of certain absentee votes; and (4) the trial court's exclusion of the proffered testimony of Mary James.
Ala. Const. of 1901, art. VIII, § 182, disqualifies a person from voting who has been convicted of a crime punishable by imprisonment in a penitentiary. The purpose of disfranchising a person who has been convicted of a felony is "to preserve the purity of the ballot box rather than to inflict an additional penalty on the offender." 29 C.J.S. Elections § 33, n. 10 (1965). One who has been disfranchised by reason of conviction of a disqualifying crime may seek restoration of the right to vote, by pardon. Ala.Code 1975, § 17-3-10.
At trial, Lide proved that eight persons who had voted in the November 3, 1992, election for the Dallas County Commission, district 2, had been convicted of a felony, for which they were sentenced to a penitentiary, and had not had their voting rights restored. Accordingly, the trial court rejected those persons' votes.
Williams contends that those eight people were entitled to vote, because the board of registrars had not notified them that their names had been removed from the voter registration list. Ala.Code 1975, § 17-4-132, requires the board of registrars to notify, by certified mail, each person convicted of a disqualifying offense that the board intends to strike that person's name from the voter registration list. Section 17-4-132 also provides that "Any person whose name is stricken from the list may appeal from the decision of the board...."
We determine that the legislative intent for requiring notice, by certified mail, of the board's intention to strike a person's name from the registration list is two-fold: (1) to provide an elector with a reasonable opportunity to prevent his disfranchisement by offering proof that he had not been convicted of the disqualifying offense, and (2) to apprise an elector of the fact of his disqualification, thus providing him an incentive to seek the restoration of his right to vote. See generally § 17-3-10 ("restoration of right to vote upon pardon"; specific statutory provision for reinstatement of voting rights upon submission of a copy of the pardon document).
However, there is no authority for Williams's contention that parties who are disqualified from voting under § 182 nonetheless retain their right to vote until they *534 are notified pursuant to § 17-4-132 that the board intends to remove their names from the registration list.[1] Section § 182 appears to be the sole authority for determining who has a right to vote. Section 17-4-132 merely provides the board of registrars with a method of purging the voter registration list that complies with due process; specifically, it protects those citizens whose names the board has selected, erroneously, for removal from the voter registration list, by giving those citizens an opportunity to contest the removal of their names. The presence or absence of a person's name on the voter registration list does not necessarily determine the right to vote.
Lide proved that the eight persons in question were disqualified from voting under § 182; accordingly, the trial court properly rejected the votes cast by those persons.
Hawkins v. Persons, 484 So. 2d 1072, 1073 (Ala.1986). Section 17-12-3 requires that a challenged elector's oath be administered by an election inspector. "If a challenged elector subscribes to the oath and properly identifies himself, his ballot must be received and counted as if he had not been challenged." Hawkins, 484 So. 2d at 1073.
In this election contest, the parties contested 71 challenged ballots cast in district 2, Dallas County, Alabama, on November 3, 1992. The grounds for contesting the votes were generally two: (1) the voter did not reside in district 2; or (2) the voter's oath was deficient because it was not signed by an election inspector or did not adequately identify the voter's place of residence. Pursuant to this Court's holding in Hawkins, the trial court permitted challenged voters whose oaths were defective as a result of mistakes of election officials to testify at trial to cure those defects. See Hawkins, 484 So. 2d at 1074 (citing Pope v. Howle, 227 Ala. 154, 149 So. 222, 225 (1933)). After the parties had completed their presentation of evidence, the court privately compared the challenged voters' ballots to their oaths and to the evidence. Then, on April 9, 1993, the trial court issued a final order, listing by polling place, not by individual voter (so as to preserve the privacy of each citizen's vote), the number of challenged votes accepted and in whose favor it had counted those votes.
In reviewing the trial court's findings of fact in this election contest, we apply the same standard used by appellate courts when the trial court in a nonjury case has taken a material part of the evidence through ore tenus testimony; that is, we will not disturb the trial court's findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence. Mitchell v. Kinney, 242 Ala. 196, 200, 5 So. 2d 788, 797 (1942).
Twenty-six electors voted challenged ballots at the Union National Guard Armory polling place. Through inadvertence, polling officials failed to count any of those ballots. The ballots contained 19 additional votes for Lide, 5 additional votes for Williams, and 2 ballots with no vote for a member of the Dallas County Commission, district 2. The vast majority of electors who cast challenged ballots at Union had their oaths administered *535 by a clerk at the polling place, not by an election inspector as § 17-12-3 requires. Accordingly, the parties presented testimony from 19 of those electors in order to cure defects in their oaths.
In its final order, the trial court stated that it had considered 21 of the 26 challenged ballots cast at Union and that, of those, it had counted 16 votes: 14 for Lide and 2 for Williams. The court stated that the five ballots considered and rejected by it were rejected because "the voters did not live in district 2 or their oaths were insufficient."
Williams contends that the trial court acted improperly in refusing to consider five of the challenged ballots cast at Union. We can infer from the record that the five challenged ballots not considered by the trial court were not considered because the oaths of those voters were defective and the voters did not testify at trial to cure the defects. Thus, under § 17-12-3, the trial court's decision not to consider those ballots was proper.
Williams also contends that the trial court erred in rejecting five of the challenged votes of voters who testified at trial. Only three of those rejected votes were for Williams.[2] A review of the record reveals that one of the five persons who cast challenged votes for Williams supplied an insufficient address on her oath, and, although she testified at trial, her testimony did not prove that she lived in district 2. Another person who cast a challenged vote for Williams identified her signature on an oath, but stated that she did not remember reading the oath and did not remember the inspector asking her to swear to the information therein. A third person who cast a challenged ballot for Williams testified that he was registered to vote, but that he had no voter-registration card in his possession and could not remember when he had registered, although he believed that it was more than 10 years before the election. Thereafter, he stated that he voted for the first time (by challenged ballot) in the November 1992 election.
Under the ore tenus rule, the testimony of these three witnesses supports the trial court's finding that three challenged votes for Williams were due to be rejected.
The trial court reviewed 23[3] challenged ballots cast at the Orrville polling place. Twenty of those voters who cast challenged votes testified in an effort to cure defects in their oaths. In its final order, the trial court stated that 12 of the challenged votes cast at Orrville were legal and that they were counted for Williams. The trial court further stated that it had excluded the remaining challenged votes for the following reasons: (1) one voter testified under oath that he knew a reason that he should not be allowed to vote; (2) one voter was not registered; (3) two voters had no recollection of voting; (4) three voters had been convicted of felonies; and (5) several voters' oaths were insufficient and were not cured by testimony.
Williams argues that the trial court erred in rejecting the five challenged votes from Orrville that were not cast by convicted felons. However, the evidence in the record supports the trial court's findings that those five challenged votes were due to be rejected for the reasons stated in the trial court's order.
Seven electors cast challenged ballots at the Safford polling place, and three of those voters testified at trial in an effort to cure defects in their oaths.[4] The trial court found that only one of those voters who had testified had cured defects in his oath.
Williams argues that he should have received five more votes from Safford. The record reveals that two of challenged voters from Safford who did not testify did not complete a proof of identity as required by § 17-12-4; therefore, their votes were properly *536 rejected. Further, two of the challenged voters were convicted felons whose votes were properly rejected. As for the three remaining challenged voters, Lide presented evidence that two of them had never registered to vote in Safford and that one of them had moved from Safford prior to November 1992. This evidence supports the trial court's finding that Williams should receive only one challenged vote from Safford.
Election officials rejected several absentee ballots cast in the November 3, 1992, election, because of deficiencies in the affidavits required to be filed by those absentee voters. Williams argued to the trial court that 13 absentee ballots were erroneously rejected by election officials. In reviewing those absentee ballots and accompanying affidavits, the trial court stated that it was adhering to the factors adopted by this Court in Wells v. Ellis, 551 So. 2d 382 (Ala.1989), for determining whether an absentee vote complies with Ala.Code 1975, § 17-10-1 et seq. (the statutory authority for absentee voting, which sets forth the manner for such voting). Those factors are:
(a) that the voter was not guilty of "fraud, gross negligence, or intentional wrongdoing";
(b) that the voter substantially complied "with the essential requirements of the absentee voting law"; and
(c) that any irregularities in the vote do not "adversely affect the sanctity of the ballot and the integrity of the election."
551 So. 2d at 384 (quoting Bolden v. Potter, 452 So. 2d 564, 566 (Fla.1984), and citing Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975)).
Ala.Code 1975, § 17-10-7, provides that an affidavit must accompany the ballot of each absentee voter, and it sets forth the form for that affidavit. Although Wells stands for the proposition that an absentee voter's affidavit need not be identical to the form contained in § 17-10-7, under Wells the affidavit must comply substantially with § 17-10-7 and its irregularities must not "adversely affect the sanctity of the ballot and the integrity of the election." To fulfill these requirements from Wells, the trial court admitted into evidence only those absentee ballots that were accompanied by an affidavit containing the voter's (1) place of residence, (2) reason for voting absentee, and (3) signature. However, if an absentee voter's affidavit lacked any of those three elements, the trial court permitted the voter to testify at trial to supply the missing elements.
After reviewing the 13 absentee voters' affidavits submitted by Williams, the trial court admitted seven into evidence based solely upon its findings that those affidavits met the court's three-element test devised for testing the Wells factors. Thereafter, Williams presented testimony from four of the six voters whose affidavits were lacking certain elements. The trial court admitted all four of those voters' affidavits into evidence.
In its final order, the trial court stated that 9 additional votes, cast absentee, should be counted for Williams. The court rejected two of the 11 ballots admitted into evidence, stating that "one voter did not make application for an absentee ballot and ... someone else voted for her; [and] [t]he other voter, according to her testimony, simply laid her ballot down and did not seal it in the envelope to protect its integrity."
Williams argues that the trial court erred in rejecting two votes from among the 11 absentee ballots and accompanying affidavits in evidence. In reviewing the trial court's findings as to this issue, we are bound by the ore tenus rule. Mitchell, 242 Ala. at 200, 5 So. 2d at 797. The evidence in the record supports the trial court's finding that two absentee votes were due to be rejected for the reasons given by the trial court in its final order.
Williams also argues that the trial court acted improperly in refusing to admit into evidence the affidavits of two absentee voters that contained no address. Those were the two voters who did not testify at trial. Essentially, Williams argues that the trial court should not have reduced Wells to a three-element test, because, in doing so, Williams says, it failed to consider the individual *537 circumstances of each voter. Williams contends that the place-of-residence element, deemed necessary by the trial court, was unnecessary because, he says, to obtain an absentee ballot the voter must establish his place of residence.
After reviewing the absentee affidavits presented by Williams, we conclude that the three-element test devised by the trial court was the most lenient test it could have used, under the circumstances, to determine whether affidavits were in substantial compliance with § 17-10-7 and whether any irregularities in them would "adversely affect the sanctity of the ballot [or] the integrity of the election." By allowing Williams to present testimony from absentee voters whose affidavits lacked the three elements deemed necessary, the trial court went a step further than it had to. Had the trial court been any more lenient, it would have effectively abolished § 17-10-7 and, necessarily, would have compromised the integrity of the election process. Accordingly, the trial court acted properly in refusing to admit into evidence absentee ballots lacking an address.
At trial, Lide did not argue that election officials had erroneously rejected any absentee votes in his favor. He did, however, contest the legality of two absentee votes. Election officials counted those two votes for Williams; however, at trial, both of the voters testified that a man came to their home prior to the November election and told them that he would assist them in voting by absentee ballot. The voters testified that they gave the man their names, addresses, and Social Security numbers. They further testified that the man told them that they would receive absentee ballots in the mail; however, they said, they never received or cast any absentee ballots and never told the man for whom they intended to vote. When shown affidavits allegedly signed by them, they testified that the signatures thereon were not theirs.
The trial court found that the two voters did not vote their absentee ballots; accordingly, it deleted two absentee votes from Williams's total. Although Williams argues that the trial court's finding was erroneous, that finding is supported by the evidence.
During the trial, Ed Vancil, one of three members of the Dallas County Board of Registrars, testified for Lide regarding the computer records of registered voters in Dallas County. Vancil testified that he was the only member of the board trained to operate the computer and that he was, therefore, responsible for maintaining the computer records. Thereafter, Williams, during his case in chief, attempted to call Mary James to testify that as part of her duties as a clerk in the Dallas County probate judge's office she made entries on the computer records of registered voters when "instructed to do so by various authorities and ... when the board of registrars [was] not in session."
Upon Lide's objection to James's testimony, the trial court determined that the best evidence as to the computer records of registered voters would be a computer-generated, voter registration list. It further determined that Vancil, as a member of the board of registrars, and not James, was the appropriate person to generate the list, and it ordered that he do so. Williams argues on appeal that the trial court erred in concluding that Vancil was the appropriate person to generate the list of registered voters.
A trial court has great discretion in determining the admissibility of evidence, and its rulings will not be reversed on appeal absent an abuse of discretion. Williams v. Hughes Moving & Storage Co., 578 So. 2d 1281, 1285 (Ala.1991); Roberts v. Public Cemetery of Cullman, Inc., 569 So. 2d 369, 373 (Ala.1990).
Sections 17-4-129 and 17-4-130 establish the board of registrars as the appropriate entity to prepare a list of all qualified and registered electors. Mary James testified, regarding her involvement in entering names on the computer-generated voter list, that she received instructions from the Dallas County Commission and from the board of registrars. She also acknowledged that the probate judge derives the voting list from the board of registrars. Accordingly, the trial court did not abuse its discretion in ruling that Vancil should generate the computer *538 list of registered voters and that the list he generated should serve as the best evidence of the computer records of registered voters in Dallas County.
Williams also argues that the trial court abused its discretion by excluding James's testimony, because, Williams says, it was offered to impeach Vancil and was proper for that purpose. Although Williams may have offered James's testimony to impeach Vancil, he elicited no testimony from James to establish any grounds for impeachment. In Shepherd v. Southern Ry., 288 Ala. 50, at 60-61, 256 So. 2d 883, at 892 (1970), this Court stated that "impeaching testimony" is "designed to discredit a witness" by showing "why faith should not be accorded to his testimony" and that it consists of evidence "attacking the character, motives, integrity, or veracity of the witness." The trial court did not abuse its discretion in excluding James's testimony, because it did not establish any of the grounds for impeachment.
Williams's remaining arguments (stated in his brief as arguments VI, VII, and VIII) are merely restatements of his four primary arguments addressed above.
In his brief, Lide states that he intended that his cross-appeal be conditioned on this Court's conclusion that one or more of Williams's appellate arguments had merit and resulted in his receiving more legal votes than Lide. Because we affirm the trial court's order, the condition on which Lide's arguments are predicated has not occurred; therefore, the cross-appeal is to be dismissed as moot.
1921020ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
1921023ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; DISMISSED AS MOOT.
HORNSBY, C.J., and HOUSTON, STEAGALL and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
ADAMS, J., dissents.
MADDOX, Justice (concurring specially).
On the application for rehearing, I have reexamined my concurrence with the majority opinion and, after further study, I now concur specially for the following reasons.
On original deliverance, I thought that the majority was correct in holding that the trial judge properly rejected the votes of 10 voters on the ground that they had been convicted of felonies and were, therefore, disqualified under the provisions of § 182 of the Constitution. I can no longer agree with that holding. I have concluded that persons who have been convicted of a felony are entitled to vote unless their names have been removed from the list of registered voters in accordance with the procedure set forth in Ala.Code 1975, § 17-4-132:
(Emphasis added.)
The right to vote is guaranteed by the Constitution of the United States, and a person whose name is stricken from a registration list and whose right to vote is thereby denied should be accorded due process of law. I believe that § 17-4-132 is designed to guarantee to a registered voter who has been convicted of a felony that measure of due process required by the Constitution of the United States by setting up a procedure to remove a person's name from a voter's list because of conviction of a felony. There could be several reasons why a person's name should not be removed from a voter's list because of the conviction of a felony. The conviction might be set aside on appeal, or the person convicted may have had his or her civil rights restored. An uncounseled prior conviction might not disqualify a person from voting, just as an uncounseled prior conviction cannot be used to support a finding of guilt or to enhance punishment under the Habitual Felony Offender Act. Ex parte Reese, 620 So. 2d 579 (Ala.1993), citing Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), and Ladd v. State, 431 So. 2d 579, 580 (Ala.Crim.App.1983).
I believe that persons whose names appear on a voter's list would be entitled to vote until the procedure set forth in § 17-4-132 for removing their names from the voter's list is followed. In this case, the record shows that the names of the challenged voters had been removed from the list of qualified voters, without their having received the proper notice as provided for in the statute.
The provisions of § 182, in my opinion, are not self-executing, especially in view of the statutory requirements for removing from a voting list the name of a person who has been convicted of a felony; consequently, I cannot agree with the holding of the majority regarding the voters who had been convicted of felonies. Nevertheless, in view of the facts of this case, even the challenged ballots of those persons convicted of felonies would not have changed the result of the election.
ADAMS, Justice (dissenting).
I must respectfully dissent, because of that portion of the majority opinion tacitly approving the action of the board of registrars in perfunctorily disenfranchising felonelectors. The trial judge rejected the votes of eight electors whose names had been "purged" from the registration lists because of felony convictions. Although the record is not entirely clear on this issue, it appears to be undisputed that none of these electors had been notified by the board of registrars of its action, either before or after removal.
In this connection, Ala.Code 1975, § 17-4-132, provides in pertinent part:
(Emphasis added.)
The primary purposes of the notice requirement are to provide an elector with a reasonable opportunity to prevent his disenfranchisement and to apprise an elector of the fact of his disqualification, thus providing him an incentive to seek the restoration of his right to vote. One does not seek a remedy until he is made aware of a deprivation. It is not unreasonable to assume that a significant number of voters are unaware of this particular consequence of a felony convictionespecially when they are not apprised of it, as the statute requires. The board, in failing to provide either prepurgation or postpurgation noticein patent violation of the provisions and purpose of the *540 statutediscourages the discovery of the deprivation and the pursuit of a remedy.
The action of the trial court entirely eviscerates § 17-4-132. Because the "the right to vote is a fundamental right," Thomas v. Mimms, 317 F. Supp. 179 (S.D.Ala.1970) (citing Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966)), such actions pose grave consequences for electors' due process guarantees. These consequences appear especially significant in view of evidence that none of these electors was notified of his disenfranchisement. The evidence suggests that noncompliance with § 17-4-132 in Dallas County is routine and pervasive.
I also dissent because of that portion of the opinion approving the trial court's rejection of the testimony of Mary James, Dallas County probate clerk. Both parties proffered testimony regarding the generation of computer records of registered voters. The trial judge allowed the testimony of Lide's witness, who was one of three Dallas County registrars, and disallowed the testimony of Williams's witness, the probate judge's clerk, because, he concluded, she was not an appropriate person to generate a computer list, and, consequently, was not qualified to testify to matters regarding the preparation and generation of the voter lists.
The trial court's conclusion is inconsistent with a number of sections of chapter 4 of Title 17 of the Codemost significantly, § 17-4-138, which provides in part:
(Emphasis added.) The job description given in this section specifically designates, in my judgment, the probate judge's clerkin this case, Mary Jamesas the individual most competent to testify as to the preparation and production of a computer-generated registration list. The rejection of Williams's proffered witness represents, therefore, a clear abuse of discretion, necessitating a reversal of the judgment in this case.
For these reasons, I must respectfully dissent. I dissent from the majority's affirmance of the trial court's judgment, and I dissent from the denial of rehearing.
[1] Our holding that the notice provision contained in § 17-4-132 does not supersede § 182, which disqualifies convicted felons from voting, does not consider the issue whether the fact that the notice required by statute was not given constitutes a separate federal or state cause of action. That issue has not been raised in this appeal.
[2] The other two rejected votes were for Lide, and Lide does not argue that the trial court erred in rejecting them.
[3] At one place in its order of April 9, 1993, the trial court mistakenly states that it reviewed 24 challenged ballots cast at Orrville. It reviewed 23.
[4] The trial court stated, erroneously, that only six challenged ballots were cast. | October 8, 1993 |
033ca9c3-c65e-4e99-a48b-76d6e10a2fd5 | Amerada Hess v. Owens-Corning Fiberglass | 627 So. 2d 367 | 1911251, 1911252 | Alabama | Alabama Supreme Court | 627 So. 2d 367 (1993)
AMERADA HESS CORPORATION, et al.
v.
OWENS-CORNING FIBERGLASS CORPORATION.
AMERICAN TRADING TRANSPORTATION COMPANY, INC., et al.
v.
OWENS-CORNING FIBERGLASS CORPORATION.
1911251, 1911252.
Supreme Court of Alabama.
May 14, 1993.
As Modified on Denial of Rehearing August 27, 1993.
*368 Joseph M. Allen, Jr. and Gregory C. Buffalow of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for Amerada Hess Corp., American Trading Transp. Co., Inc., Arco Marine, Inc., Bermuth Lembcke Co., Inc., Chevron U.S.A., Inc., Chiquita Brands Intern., Inc., formerly United Brands Co. and United Fruit Co., Isbrandtsen Co., Inc., Keystone Shipping Co., Chas. Kurz & Co., Inc., Lykes Bros. S.S. Co., Inc., Marine Navigation Co., Marine Transport Lines, Marine Transport Management Co., Inc., Nat. Bulk Carriers, Paco Tankers, Inc., Red Hills Corp., United Brands Co., Unocal and Warren Petroleum Co.
Jon A. Green and Jack B. Hood of Crosby, Saad, Beebe, Cavender & Crump, P.C., Mobile, for appellee.
Allan Wheeler of Starnes & Atchison, Birmingham, and Michael B. Kinnard and Melissa B. Isaacs of Baker, Worthington, Crossley, Stansberry & Woolf, Knoxville, TN, for amici curiae Owens-Illinois, Inc. and Keene Corp.
ADAMS, Justice.
Amerada Hess Corporation; American Trading Transportation Company, Inc.; ARCO Marine, Inc.; Bermuth Lembcke Company, Inc.; Chevron U.S.A., Inc.; Chiquita *369 Brands International, Inc.; Isbrandtsen Company, Inc.; Keystone Shipping Company; Marine Transport Lines; Marine Transport Management Company, Inc.; National Bulk Carriers; PACO Tankers, Inc.; Red Hills Corporation; United Brands Company; Unocal; and Warren Petroleum Company (all hereinafter referred to as the "shipowners") are defendants and third-party plaintiffs in an action by former seamen alleging asbestos injuries. The shipowners appeal from summary judgments in favor of Owens-Corning Fiberglass Corporation ("OCF") on their third-party claims seeking indemnity or contribution from OCF, whose asbestos products, it is alleged, were aboard the shipowners' vessels and injured the seamen. We affirm.
This case represents another installment in the ongoing maritime asbestos litigation addressed previously by this Court in Foster Wheeler USA Corp. v. Owens-Illinois, Inc., 595 So. 2d 439 (Ala.1992), and Sheffield v. Owens-Corning Fiberglass Corp., 595 So. 2d 443 (Ala.1992). Personal representatives of the estates of Thomas Shepherd and James L. Burnett Sr. ("plaintiffs") sued OCF in the District Court of Dallas County, Texas, in 1987 and 1988, respectively, alleging that asbestos products manufactured by OCF had caused the deaths of their decedents, former seamen. These personal representatives, on February 8, 1990, and February 24, 1989, respectively, also filed actions against the shipowners in the Mobile County, Alabama, Circuit Court. In the Alabama actions, the plaintiffs alleged, inter alia, that the ships on which the seamen worked had been unseaworthy because of asbestos fibers aboard them. The shipowners, seeking indemnity or contribution, impleaded OCF and numerous other manufacturers of asbestos-containing products, which, they alleged, were responsible for the deaths of the plaintiffs's decedents.
Subsequently, OCF obtained agreements with the plaintiffs settling their claims against OCF and purporting to release OCF from any further liability arising out of the plaintiffs' claims. OCF then moved for summary judgments in the Mobile County Circuit Court, contending that the settlements with the plaintiffs barred the shipowners claims against OCF for indemnity or contribution. In February 1991, the trial court entered summary judgments in favor of OCF in both cases. These judgments were subsequently certified as final judgments, pursuant to Ala.R.Civ.P. 54(b). The shipowners appealed. On July 15, 1992, this Court granted the shipowners' motions to consolidate the appeals of the summary judgments for briefing and oral argument. On August 12, 1992, the trial court granted motions filed by the shipowners to dismiss the plaintiffs' claims against them on the basis of the actions pending in Texas. In Shepherd v. Maritime Overseas Corp. 614 So. 2d 1048 (Ala. 1993), we reversed the judgments dismissing the plaintiffs' claims against the shipowners and remanded their causes for further proceedings.
On these appeals of the summary judgments in favor of OCF, the shipowners contend that they are entitled to recover from OCF their attorney fees or damages in the event of a damages award, under (1) an indemnity theory or (2) a rule allowing contribution from a joint tort-feasor notwithstanding that tort-feasor's settlement with, and release by, the plaintiff.
The shipowners contend that OCF's conduct in supplying asbestos-containing products for shipboard use was "actively" wrongful, while their fault consisted, they contend, only in failing to discover the danger of asbestosconduct that they insist was only "passively" wrongful. See Wedlock v. Gulf Mississippi Marine Corp., 554 F.2d 240, 243 (5th Cir.1977) ("the classic case of passive negligence occurs ... when one joint tortfeasor creates a danger that the other (passive) tortfeasor merely fails to discover or to remedy"); Avondale Shipyards, Inc., v. Vessel Thomas E. Cuffe, 434 F. Supp. 920, 928 (E.D.La.1977) ("breach [of] an absolute duty to provide a seaworthy vessel" constitutes passive fault). They contend that maritime law accords them a right to recoup their attorney fees from OCF pursuant to a theory of "active" versus "passive" fault.
*370 Preliminarily, we note that the procedural posture of the shipowners in this case renders their claims for indemnity particularly unpersuasive. Specifically, the shipowners are nonsettling, third-party plaintiffs seeking indemnity from third-party defendant OCF, following OCF's settlement with the plaintiffs.
"The basis for indemnity is restitution, and the concept that one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay." Restatement (Second) of Torts § 886B (1977), comment c. "The unexpressed premise has been that indemnity should be granted in any factual situation in which, as between the parties themselves, it is just and fair that the indemnitor should bear the total responsibility, rather than to leave it on the indemnitee...." Id.
At this stage, the shipowners have satisfied no obligation. Nor has OCF, which was impleaded by the shipowners, been unjustly enriched by the shipowners' litigation. This case thus involves none of the traditional elements necessary to trigger a right to indemnity. On a more general ground, however, recent developments in maritime law render misplaced an admiralty defendant's reliance on the active-passive fault doctrine.
In 1975, the United States Supreme Court abrogated the "divided damages" rule set forth in The Schooner Catharine v. Dickinson, 58 U.S. (17 How.) 170, 15 L. Ed. 233 (1855), which required joint maritime tort-feasors to share damages equally, regardless of their relative degrees of fault. United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708, 44 L. Ed. 2d 251 (1975). In so doing, it established in maritime law the concept of comparative fault, that is, a "rule requiring, when possible, the allocation of liability for damages in proportion to the relative fault of each party." Id. at 398, 95 S. Ct. at 1709.
After Reliable Transfer, a number of admiralty courts concluded that maritime law no longer recognized a right to indemnity based on the active-passive fault distinction. Hardy v. Gulf Oil Corp., 949 F.2d 826 (5th Cir.1992); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540 (11th Cir.1987), cert. denied, 486 U.S. 1033, 108 S. Ct. 2017, 100 L. Ed. 2d 604 (1988); Bass v. Phoenix Seadrill/78, Ltd., 749 F.2d 1154 (5th Cir.1985); Loose v. Offshore Navigation, Inc., 670 F.2d 493 (5th Cir.1982). In this connection, Loose offered the following pertinent comments:
670 F.2d at 500-02 (footnotes omitted). See also D. Owen and J. Moore III, Comparative Negligence In Maritime Personal Injury Cases, 43 La.L.Rev. 941, 955 (1983) ("rationale of Reliable Transfer `is strongly at odds' with that of tort indemnity"). We find this reasoning persuasive and hold that there is no right to indemnity based on a distinction between active and passive fault in maritime actions filed in Alabama state courts.
OCF's contention that its settlements with the plaintiffs extinguish the shipowners' claims for contribution presents this Court once again with the question of the effect of a settlement on a tort-feasor's liability to joint tort-feasors for contribution. The issue was presented earlier in Foster Wheeler USA Corp. v. Owens-Illinois, Inc., 595 So. 2d 439, 442-43 (Ala.1992), another appeal spawned by the maritime asbestos litigation in progress in Mobile County. Although we ultimately deferred a decision on that question because of the brevity of the parties' treatment of the issue in relation to its potential impact on the large volume of pending cases, we stated:
595 So. 2d at 442-43 (quoting Restatement (Second) of Torts § 886A (1977), comment m). The shipowners urge us to adopt Option I, under which, they contend, their claims against OCF for contribution would remain viable.
At the outset of our discussion of this issue, we note that "attorney's fees and legal costs incurred by the defending tortfeasor [are] not recoverable in contribution from the other negligent parties." ODD Bergs Tankrederi AJS v. S/T Gulfspray, 650 F.2d 652, 655 (5th Cir.1981). However, resolution of the question regarding the effect of the pro tanto settlements is necessitated by our reversal of the judgments dismissing the plaintiffs' claims against the shipowners in Shepherd v. Maritime Overseas Corp., 614 So. 2d 1048 (Ala.1993). Moreover, because the issue is of grave consequence to the litigation pending in Mobile County, we deem it expedient at this time to set forth rules governing its disposition.
Federal courts sitting in admiralty have reached no consensus on this issue. The Fifth Circuit Court of Appeals currently allocates damages among the tort-feasors on a pro rata basis consistent with Option III, as applied in Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.1979); see Teal v. Eagle Fleet, Inc., 933 F.2d 341 (5th Cir. 1991); Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1430 n. 11 (5th Cir.1988) (in dicta, approving Leger`s allocation method), cert. denied, 490 U.S. 1106, 109 S. Ct. 3156, 104 L. Ed. 2d 1019 (1989); Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir.1987); Martin v. Walk, Haydel & Assoc., Inc., 742 F.2d 246 (5th Cir.1984); or, alternatively, reduces the plaintiff's total claim by the amount of the pro tanto settlement, consistent with Option II, see Rollins v. Cenac Towing Co., 938 F.2d 599 (5th Cir.1991), cert denied, ___ U.S. ___, 112 S. Ct. 1242, 117 L. Ed. 2d 474 (1992); Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252 (5th Cir.1990) (disapproving Leger's damages allocation procedure); Hernandez v. M/V Rajaan, 841 F.2d 582 (5th Cir.), cert. denied, 488 U.S. 981, 109 S. Ct. 530, 102 L. Ed. 2d 562 (1988); but does not permit contribution from a settling tort-feasor as provided by Option I. Hardy v. Gulf Oil Corp., 949 F.2d 826, 834 (5th Cir.1992). The Seventh Circuit Court of Appeals rejected Option III but declined to choose between Options I and II. In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279 (7th Cir.1992). The Eighth Circuit Court of Appeals has adopted Option III and criticized Option I. Associated Electric Cooperative, Inc. v. Mid-America Transportation Co., 931 F.2d 1266 (8th Cir.1991). See also Stanley v. Bertram-Trojan, Inc., 781 F. Supp. 218 (S.D.N.Y.1991) (expressly rejecting Option I and applying a combination of Options II and III).
Although these courts have expressed considerable divergence of opinion, they were virtually unanimous in declining to apply Option I until the Eleventh Circuit refused to recognize a settlement bar to contribution in Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575 (11th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 484, 121 L. Ed. 2d 388 (1992). Miller v. Christopher, 887 F.2d 902, 906 (9th Cir.1989) (criticizing Option I and noting that no federal admiralty court had applied it). The shipowners have been able to cite no other admiralty case applying that approach. However, they urge us to follow Great Lakes Dredge on the ground, inter alia, that because Alabama lies within the geographical area encompassed by the Eleventh Circuit, failure to follow Great Lakes Dredge will lead to forum shopping. We share this concern; however, our concern over the potentiality of forum shopping is insufficient to override our reluctance to follow an approach that, in this Court's view, is inconsistent with the principles *373 of maritime law and has no support among the rest of the federal circuits that have addressed this issue.[1] Indeed, our reading of Great Lakes Dredge compels us to conclude that the Eleventh Circuit's rejection of Option III and its consequent adoption of Option I resulted from its misconstruction of Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.1979), a leading authority for the application of Option III.
In Leger, the plaintiff sued his employer, Drilling Well Control, Inc. ("DWC"), Dresser Offshore Services, Inc. ("Dresser"), and Continental Oil Company ("Continental") because of injuries he sustained while working on a barge owned by Dresser at the site of an offshore oil well owned by Continental. Id. Before trial, DWC and Continental settled with Leger for $82,331.05 and $100,000, respectively. Damages were awarded Leger in the amount of $284,090 and fault was allocated according to the following percentages: (1) Leger, 35%, (2) Dresser, 45%, (3) Continental, 20%, and (4) DWC, 0%. The district court entered a judgment against Dresser in the amount of $127,840, which "reflect[ed] the total damages of $284,090.00 reduced by $99,430.17 representing the 35% contributory negligence of the plaintiff and by $56,817.24 representing the 20% negligence attributed to Continental. No reduction in the judgment was made for DWC's settlement since DWC was found not to be negligent."[*]Id. at 1248. This procedure imposed upon Dresser, the nonsettling tort-feasor, liability for damages based solely on its pro rata share of the fault.
On appeal, Dresser contended that the trial court erred in refusing to calculate the judgment based on a pro tanto reduction of the total judgment by $182,331.05, the amount of the plaintiff's settlement with DWC and Continental. It contended, moreover, that the damages recoverable under the court's pro rata method represented a windfall to Leger. The Court of Appeals for the Fifth Circuit rejected these contentions and affirmed the judgment. It explained:
Leger, 592 F.2d at 1250 (footnotes omitted).
As pointed out above, only one of the two nonsettling tort-feasors, Dresser, had been found negligent. Because of the procedural posture of the parties as the result of this finding, Leger focused primarily on only one issue necessarily implicated by Option III, that is, the method of allocating damages among the nonsettling tort-feasors. Thus, the court was not squarely confronted with two other issues inherent in the application of that procedurethe question of joint liability among the nonsettling tort-feasors and the issue presented in this case, that is, the efficacy of a settlement as a bar to a nonsettling tort-feasor's right of contribution. As a corollary, however, the reduction of the plaintiff's claim by the amount of the settling tort-feasor's pro rata share of fault obviated the necessity of contribution from a settling tort-feasornone of the nonsettling tort-feasors could be charged any amount representing the settling tort-feasor's share of fault. T. Schoenbaum, Admiralty and Maritime Law § 4-15, at 26 (Supp.1992). The following remarks from Leger are also relevant in this connection:
Id. at 1250-51.
The presence in Leger of only one negligent nonsettling tort-feasor also occasioned Leger's most conspicuous unanswered question, that is, whether liability among remaining nonsettling tort-feasors remained joint. That Leger could be read as adopting a modified form of joint liability apparently caused some courts to reject that approachmost significantly, the Eleventh Circuit, which in a trilogy of decisions rejected the Leger approach and applied Option I.[2]
The litigation precipitating the Eleventh Circuit's application of Option I involved three successive appeals, beginning with Ebanks v. Great Lakes Dredge & Dock Co., 688 F.2d 716, 718 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103 S. Ct. 1774, 76 L. Ed. 2d 346 (1983); including Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1544 (11th Cir.1987), cert. denied, 486 U.S. 1033, 108 S. Ct. 2017, 100 L. Ed. 2d 604 (1988); and culminating in Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575 (11th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 484, 121 L. Ed. 2d 388 (1992). The litigation arose out of a collision on the St. Johns River between a dredge owned by Great Lakes Dredge & Dock Company ("Great Lakes") and a tanker owned by Chevron Transport Corporation ("Chevron"). The plaintiffs, having settled their claims against Chevron, sued Great Lakes, their Jones Act employer. The third-party claims of Great Lakes against Chevron for contribution were severed; thus, Chevron was not a defendant in the initial trial.
*375 At trial, the jury, pursuant to special interrogatories on which it was to determine the relative percentages of fault of all entities involved in the accident, attributed 100% of the fault to Chevron, a nonparty. Consequently, it assessed no damages.
The issue in Ebanks, the first appeal, concerned only the proper method of apportioning fault.[3] Great Lakes contended that the method of allocation was consistent with, and required by, Leger. The court distinguished Leger on the ground that Chevron, unlike the settling defendants in Leger, had never been subject to the plaintiffs' claims. Ebanks, 688 F.2d at 720. More significantly, however, the court concluded that Leger's "effect as precedent [had] been weakened" by Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S. Ct. 2753, 61 L. Ed. 2d 521 (1979), Ebanks, 688 F.2d at 720, which involved the proper construction of an amendment to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905.
The amendment at issue in Edmonds prevented a negligent shipowner from recouping from a longshoreman's employer, whose negligence concurred with that of the shipowner to injure the longshoreman, any damages for which the shipowner might be liable. The United States Supreme Court held that the amendment did not abrogate the rule of joint liability long recognized in maritime torts in favor of a proportionate fault rule.[4] 443 U.S. at 263-64, 99 S. Ct. at 2757-58. Edmonds thus reaffirmed the rule allowing a maritime plaintiff "to sue in a common-law action all the wrong-doers, or any one of them, at his election," and, absent contributory negligence, to obtain a "judgment in either case for the full amount of his loss." Id. at 260 n. 7, 99 S. Ct. at 2756 n. 7 (quoting The Atlas, 93 U.S. (3 Otto) 302, 315, 23 L. Ed. 863 (1876)).
Ebanks concluded that because maritime law, as reaffirmed by Edmonds, provided for recovery "against either of several tortfeasors, without regard to the percentage of fault, it was error for the trial court to distract the [jury's] attention by requiring it to allocate the degree of fault between the defendant and a non-party." 688 F.2d at 722. Implicit throughout the court's analysis of the allocation issue was its view that the Leger approach involved a modified form of joint liability and was, consequently, inconsistent with traditional principles of maritime law. This view of Leger was even more prominent in Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1544 (11th Cir. 1987), cert. denied, 486 U.S. 1033, 108 S. Ct. 2017, 100 L. Ed. 2d 604 (1988), on appeal following return to remand.
After remand by Ebanks, Great Lakes settled with all the plaintiffs except Vivian Self, the widow of a former seaman employed by Great Lakes. In the second trial of that case, the trial judge (1) apportioned the fault of Chevron and Great Lakes vis-à-vis each other but reserved to a subsequent trial an adjudication of their damages, (2) determined the liability of Great Lakes to Self, (3) and awarded damages to Self. Self explained the findings of the trial court as follows:
Self, 832 F.2d at 1544-45.
A panel of the Eleventh Circuit reversed that portion of the judgment awarding damages on the basis of Great Lakes' pro rata *376 share of fault. It held that the plaintiff's damages from the nonsettling tort-feasor should be calculated on a pro tanto basis, that is, a reduction by the amount of her settlement with Chevron, the settling tort-feasor. Id. at 1548.
Focusing once again on the perceived tension between Leger and Edmonds, the court construed Leger as standing for the proposition that "it is the plaintiff who bears the loss or obtains the gain." Self, at 1546 (emphasis added). Concluding that such a rule was inconsistent with Edmonds, which, according to Self, required the maritime defendant to bear "any inequity which results from the implementation of a seaman's damage award," id., the court went further than it had in Ebanks, declaring, in effect, that Leger could not "withstand the more recent Edmonds opinion." Self, at 1546 (citing Joia v. Jo-Ja Service Corp., 817 F.2d 908 (1st Cir.1987), cert. denied, 484 U.S. 1008, 108 S. Ct. 703, 98 L. Ed. 2d 654 (1988), and Drake Towing Co. v. Meisner Marine Const. Co., 765 F.2d 1060 (11th Cir.1985)).
After Self, Great Lakes settled with Self's estate for $2,050,000 and, contending that it had paid more than its equitable share of the damages, subsequently sought contribution from Chevron. Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575 (11th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 484, 121 L. Ed. 2d 388 (1992). Thus, for the first time in that litigation, the Eleventh Circuit was directly confronted with the issue presented in this case, that is, the preclusive effect to be accorded a settlement and release.
In Great Lakes Dredge, the third and latest appeal in that litigation, the court framed the issue as "[w]hether, given the pro tanto method adopted in Self, a joint tortfeasor who is forced to bear more than its fair share of an injured party's damages is prohibited by a settlement bar rule from seeking contribution from a settling joint tortfeasor." Id. at 1580. That the Great Lakes Dredge court was not writing on a clean slate is obvious from the terms in which the court framed the issue. Indeed, the court expressly concluded that Self had "overruled Leger and rejected the proportionate distribution of liability." 957 F.2d at 1581.
Considering itself bound by stare decisis, id. at 1580 n. 4, to reject one of the two options that bars contribution from a settling tort-feasor, the court next compared the relative advantages and disadvantages of Options I and II. Observing that a nonsettling tort-feasor could, under the pro tanto approach adopted in Self, "be forced to pay for more than [its] proportionate share of damages," the court concluded that on balance, an equitable distribution of damages among nonsettling tort-feasors through the right of contribution outweighed the policies favoring settlements. 957 F.2d at 1581.
We might be inclined to agree with the approach thus adopted by the Eleventh Circuit if its analysis of Leger and, therefore, Option III were sound. We conclude, however, that the opposite is true. The court's analysis proceeded upon the premise that Option III as applied in Leger abrogated or modified joint liability among nonsettling tort-feasors. Such an approach would relieve nonsettling tort-feasors not only of the liability represented by the pro rata share of settling tort-feasors, but also of liability represented by the pro rata shares of the nonsettling tort-feasors, thus requiring the plaintiff to bear the risk, for example, of a nonsettling tort-feasor's insolvency. Such an approach would, indeed, contravene the policy of maritime law, which has traditionally provided "special protection" for injured seamen. Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1548 (11th Cir.1987), cert. denied, 486 U.S. 1033, 108 S. Ct. 2017, 100 L. Ed. 2d 604 (1988); Joia v. Jo-Ja Service Corp., 817 F.2d 908, 917 (1st Cir.1987), cert. denied, 484 U.S. 1008, 108 S. Ct. 703, 98 L. Ed. 2d 654 (1988); see also Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S. Ct. 1317, 93 L. Ed. 1692 (1949).
Nothing in the text of the Restatement, however, or, for that matter, Leger, requires this result.[5] Significantly, the Fifth Circuit has recently declared expressly that *377 Leger did not "eliminate the well established maritime rule of joint liability." Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1430 n. 11 (5th Cir.1988), cert. denied, 490 U.S. 1106, 109 S. Ct. 3156, 104 L. Ed. 2d 1019 (1989). Option III, therefore, does not prevent a maritime plaintiff from recovering all his damagesminus an amount represented by the settling tort-feasor's percentage of fault from any of the nonsettling tort-feasors. As among those tort-feasors, contribution provides the vehicle through which an equitable distribution of damages may be achieved. See Miller v. Christopher, 887 F.2d 902, 904 (9th Cir.1989). The tort-feasors, rather than the plaintiff, thus bear the risk of a joint tort-feasor's insolvency.
Because this Court's understanding of Option III and Leger differs fundamentally from the construction offered by the Eleventh Circuit, we see no tension between Option III and maritime law such as was expressed in the Ebanks-Self-Great Lakes trilogy. On the contrary, this approach appears to represent the most efficient method of accommodating the policies of federal and maritime law. As discussed above, the reduction in a plaintiff's claim by the pro rata method of Option III is as likely to inure to the plaintiff's benefit as a pro tanto reduction, which obtains pursuant to Options I and II, and it does not seem unreasonable to require the plaintiff to forgo that portion of his claim represented by the pro rata fault of the tort-feasor with which he voluntarily settled. A pro rata reduction in the plaintiff's total claim also prevents unfairness to the nonsettling tort-feasors that can occur under Option II's pro tanto reduction, which "allows the plaintiff, in effect, to `repudiate' his bargain since he can be made whole out of the pockets of the non-settling tortfeasors." T. Schoenbaum, Admiralty and Maritime Law § 4-15, at 26 (Supp.1992). Indeed, allocation of damages based on the settling tort-feasor's pro rata share of fault obviates the need for contribution to nonsettling tort-feasors. Id.
The application of Option III, which, unlike Option I, recognizes the finality of a settlement, also accommodates the policy of the federal courts favoring settlements. See Fed.R.Civ.P. 68; Marek v. Chesny, 473 U.S. 1, 12-13, 105 S. Ct. 3012, 3018, 87 L. Ed. 2d 1 (1985) (Powell, J., concurring); Williams v. First Nat'l Bank, 216 U.S. 582, 595, 30 S. Ct. 441, 445, 54 L. Ed. 625 (1910) ("Compromises of disputed claims are favored by the courts."); see also Stanley v. Bertram-Trojan, Inc., 781 F. Supp. 218, 222 (S.D.N.Y. 1991).
Moreover, allowing contribution from settling tort-feasors could subject plaintiffs to liability for damages and expenses recovered by nonsettling defendants from settling defendants. For example, the settlement agreements involved in this case contained the following provision:
(Emphasis added.) Based on this indemnity provision, OCF has stated its intention to pursue its rights and remedies against the plaintiffs in the event the shipowners' claims against it are successful.
These considerations compel us to conclude that Option III affords the appropriate method for the disposition of maritime cases filed in Alabama state courts. The shipowners are, therefore, precluded by OCF's settlements from seeking contribution from OCF for attorney fees or damages.
The shipowners further contend that even under Option III a settling defendant must remain in the suit to litigate the issue of its own percentage of fault. They suggest that the alternative, that is, requiring the plaintiff to minimize at trial the settling tort-feasor's percentage of fault is unworkable and unfair to the plaintiff. Thus, they contend *378 that the trial court erred in granting OCF's motions for summary judgment.
We agree that Option III requires the trier of fact to determine the percentage of the settler's fault. Stanley v. Bertram-Trojan, Inc., 781 F. Supp. 218, 222 (S.D.N.Y. 1991); Bordelon v. Consolidated Georex Geophysics, 628 F. Supp. 810, 812-13 (W.D.La. 1986); see also M. Yeates, P. Dye, Jr., and R. Garcia, Contribution and Indemnity in Maritime Litigation, 30 S.Tex.L.Rev. 215, 246-47 (1989). However, we do not agree that requiring the plaintiff to exculpate the settling tort-feasor at trial is unworkable or necessarily inures to the plaintiff's detriment. On the contrary, requiring an alleged tort-feasor to remain in the suit after reaching a settlement with the plaintiff would virtually nullify the utility of the rule recognizing a settlement bar to contributionone of the principal advantages of Option III. Just as "a tortfeasor has no incentive to enter an individual settlement if it will remain vulnerable to suit based on plaintiff's claim," Stanley v. Bertram-Trojan, Inc., 781 F. Supp. 218, 222 (S.D.N.Y. 1991), it would seem to have little more incentive to settle if it were required to remain in the suit, thus incurring further litigation expense. Bordelon v. Consolidated Georex Geophysics, 628 F. Supp. 810, 812-13 (W.D.La.1986). Moreover, an alleged tort-feasor constrained to litigate the issue of its own fault after a settlement and release would have little incentive to mount a compelling defense of a position for which it could not incur further liability regardless of the outcome of the suit. Bordelon, 628 F. Supp. at 812-13 (W.D.La.1986). Indeed, it is not unreasonable to suppose that a jury seeking to determine the percentage of fault attributable to a settling tort-feasor would find more persuasive the plaintiff's vigorous efforts at exculpating the alleged tort-feasor, bolstered, no doubt, by evidence gleaned through the tort-feasor's cooperation incident to dismissal from the suit, than the grudging defense of an unwilling litigant.
In sum, the shipowners have failed to demonstrate in what respects this procedure is unworkable, and we disagree with their contentions that it is unfair. We conclude, therefore, that the summary judgments in favor of OCF were proper; those judgments are affirmed.
1911251AFFIRMED.
1911252AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
[1] This Court is not bound by decisions of lower federal courts. Ballew v. State, 292 Ala. 460, 296 So. 2d 206 (1974), cert. denied, 419 U.S. 1130, 95 S. Ct. 816, 42 L. Ed. 2d 830 (1975); Seibold v. State, 287 Ala. 549, 253 So. 2d 302 (1970). This rule is particularly applicable where, as here, the circuits are in conflict. See Note, The State Courts and the Federal Common Law, 27 Alb. L.Rev. 82 (1963).
[*] We recognize that the computations seem not to be precise.
[2] A panel decision in the Court of Appeals for the First Circuit also appears to have concluded that Leger modified traditional principles of joint and several liability. Joia v. Jo-Ja Service Corp., 817 F.2d 908 (1st Cir.1987), cert. denied, 484 U.S. 1008, 108 S. Ct. 703, 98 L. Ed. 2d 654 (1988).
[3] Preliminarily, the court acknowledged that it was bound by Leger pursuant to Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), in which an en banc Court of Appeals for the Eleventh Circuit formally adopted the case law of the Fifth Circuit, from which the Eleventh Circuit was formed by the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995.
[4] The Court of Appeals for the Fourth Circuit had construed the statute as limiting the liability of the shipowner to its pro rata percentage of fault.
[5] As we noted above, the issue of joint liability among nonsettling tort-feasors did not arise in Leger because that case involved only one nonsettling tort-feasor. | August 27, 1993 |
ff55b412-091b-4e6f-aa30-a1e087a48c3a | Med Plus Properties v. COLCOCK CONST. | 628 So. 2d 370 | 1911415 | Alabama | Alabama Supreme Court | 628 So. 2d 370 (1993)
MED PLUS PROPERTIES, et al.
v.
COLCOCK CONSTRUCTION GROUP, INC.
1911415.
Supreme Court of Alabama.
August 27, 1993.
*371 Gary L. Jester of Jester & Jenkins, Florence, for appellants.
Rodney B. Slusher, Florence, for appellee.
ALMON, Justice.
The defendants, Med-Plus Properties, a general partnership, and its two general partners, Dr. Charles B. Ferguson and Dr. Charles M. McGahey, appeal from a $125,000 judgment entered on a jury verdict in favor of the plaintiff, Colcock Construction Group, Inc. (hereinafter "CCG"). CCG, a general contractor, brought this action against the defendants (hereinafter collectively "Med-Plus"), alleging that they "wrongfully terminated" a contract to build a medical clinic in Colbert County, Alabama. Med-Plus raises three issues: (1) Whether the construction contract was illegal and therefore unenforceable on the basis that CCG violated § 34-8-6, Alabama Code 1975, by allowing an unlicensed general contractor to "superintend" construction of the clinic; (2) Whether the trial court erred in admitting CCG's estimates of the cost of completion under the construction contract; (3) Whether the trial court erred in directing a verdict in favor of CCG on Med-Plus's counterclaim alleging fraud.
On September 11, 1990, Dr. Ferguson and Dr. McGahey entered into a contract with Phillips Development Company to build a medical clinic. Ronald C. Phillips, a real estate developer and sole shareholder of Phillips Development Company, was a longtime friend and associate of Dr. Ferguson and Dr. McGahey. Phillips had helped them build two other clinics located in Florence and Decatur, Alabama. Under the terms of their September 11, 1990, agreement, Med-Plus and Phillips Development Company agreed to build a third clinic in Colbert County, Alabama, for $461,009. In addition to fixing the contract price, the agreement also specified the scope of the construction work and a schedule for the disbursement of these funds to Phillips Development Company after completion of certain stages of the construction.
Phillips began to hire subcontractors and to arrange for the purchase of materials. To pour the slab, Phillips had to have the City of Muscle Shoals inspect the site and issue a *372 building permit. To issue this permit, however, the City of Muscle Shoals required proof that the general contractor on the project was duly licensed. Because Phillips Development Company was not a licensed contractor, Phillips contacted CCG, which was then under a contract with Phillips to prepare architectural plans for the clinic. CCG was a licensed general contractor, whose officers and principal shareholders were two brothers, Jones Colcock and Miles Colcock. From the negotiations between Phillips, Jones Colcock, and Miles Colcock emerged an oral agreement whose purpose and terms were the subject of much contradictory testimony at trial.
According to Phillips, in exchange for a $10,000 fee Jones and Miles Colcock agreed that CCG would let Phillips use CCG's general contractor's license to build the clinic. Phillips also testified that under the terms of this oral agreement, CCG would assist Phillips in selecting and hiring subcontractors and would itself be allowed to perform whatever subcontracting work it was qualified to perform so long as its bid was as low as or lower than any other received by Phillips for the same work. Phillips also testified that CCG was only to be the nominal general contractor and that it was he who was to actually manage and control the construction project. According to Phillips, this authority included not only the hiring of subcontractors but also the paying of the costs of the project; he said CCG was to be a mere conduit for funds disbursed by the bank financing the project. Phillips's testimony was generally corroborated by the testimony of Dr. Ferguson and several subcontractors who worked on the project.
The testimony of Miles and Jones Colcock presented a very different picture of the oral agreement between Phillips and CCG. According to Miles Colcock, Phillips approached him in mid-September to inquire whether CCG would sell him its general contractor's license. Miles and Jones Colcock both testified that they refused to sell CCG's license. Finally, after subsequent negotiations, they said, Phillips offered to arrange a contract between CCG and Med-Plus in exchange for a $78,000 "finder's fee." According to Miles Colcock, under this arrangement, CCG was to be the general contractor and have complete authority, while Phillips was to be Med-Plus's agent on the project. Also, CCG was to hire and pay subcontractors and suppliers from funds disbursed under the contract.
Miles Colcock prepared a written agreement, almost identical to the one entered into by Med-Plus and Phillips Development Company. After signing this agreement, Phillips and Jones Colcock took it to Dr. Ferguson for his signature. On September 25, 1990, Phillips and Jones Colcock met Dr. Ferguson at his clinic in Decatur, Alabama. The meeting was brief, lasting no longer than 10 minutes, and several times during it Dr. Ferguson left the office to attend to patients.
At this meeting, it was explained to Dr. Ferguson that there had been a "hold up" in the progress of the construction project and that he would have to sign "this piece of paper" to obtain a building permit. Because the contract presented to him looked like the one that he, Dr. McGahey, and Phillips had signed on September 11, 1990, Dr. Ferguson signed it without reading its terms. The two-page document signed by Dr. Ferguson stated in the opening lines of its first paragraph:
(Emphasis added.) Dr. Ferguson testified at trial that he would not have signed the contract had he known it was anything other than a formality to obtain a building permit. Dr. Ferguson also testified that it was his understanding that Phillips was going to be the general contractor on the project.
Although the testimony concerning the substance of the representations made to Dr. Ferguson is generally undisputed, the testimony concerning who made these representations to Dr. Ferguson is not. Although Dr. Ferguson stated in his trial testimony what he understood after the meeting the agreement to be, he did not say what, if any representations, were made by Jones Colcock. According to Phillips, however, Jones *373 Colcock did make representations to Dr. Ferguson:
Not long after the signing of the contract between Med-Plus and CCG, conflicts arose between CCG and Phillips as both sought to control the project. At first, there were no problems because most of the work on the project during the initial stage involved only CCG. This work consisted of preparing the foundation and pouring the slab. After this first stage was completed, CCG received from the financing bank the first installment payment of $92,200, of which $66,781 was paid to Phillips.
The second stage of the project consisted of exterior framing, roofing, exterior sheathing, and final "rough-in" plumbing, electrical, and heating and cooling work. During this stage of the project, the conflict between CCG and Phillips became acute. Without CCG's knowledge or consent, Phillips began hiring and paying subcontractors and suppliers directly. CCG attempted to assert control over Phillips and the project, but its efforts proved unavailing. Instead of being paid to CCG, as the first installment had been, the second installment of $161,353 was paid to Med-Plus and it was subsequently transferred to Phillips. After several failed attempts by CCG and Med-Plus to reach a solution, Med-Plus terminated the contract with CCG on November 27, 1990.
On May 8, 1991, CCG brought an action alleging breach of contract. Med-Plus answered with a general denial and asserted the affirmative defenses of novation, mistake, waiver, and excused performance. Med-Plus also included a counterclaim seeking damages from CCG for negligent construction. The parties amended these pleadings numerous times during the course of the circuit court proceeding. Relevant here, however, are amendments to Med-Plus's answer raising the affirmative defense of illegality and adding a counterclaim alleging fraud against CCG. At trial the circuit court granted CCG's motion for a directed verdict on the counterclaim alleging fraud and instructed the jury on CCG's claim alleging wrongful termination of contract and the affirmative defense of illegality. After entering a judgment for $125,000 on the jury's verdict in favor of CCG, the trial court denied Med-Plus's post-judgment motions for JNOV or new trial.
The first issue raised by Med-Plus is whether, with regard to its affirmative defense of illegality, the trial court erred in denying its motion for JNOV on the ground of insufficiency of the evidence in rebuttal to the defense or its motion for new trial on the ground that the verdict is against the great weight and preponderance of the evidence.
A motion for JNOV challenging the sufficiency of the evidence is measured by the "substantial evidence" rule. § 12-21-12(d), Ala.Code 1975, John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375, 377 (Ala.1990). The standard of review applicable to a motion for JNOV is identical to the standard used by the trial court in granting or denying a directed verdict motion. John R. Cowley & Bros., supra; Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988). Like a directed verdict, a JNOV is proper when the party with the burden of presenting evidence has failed to present "substantial *374 evidence" in support of its position. § 12-21-12(a), (c), Ala.Code 1975, John R. Cowley & Bros., supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
A jury verdict is presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial.
Deal v. Johnson, 362 So. 2d 214, 218 (Ala. 1978); Edmondson v. Blakey, 341 So. 2d 481, 485 (Ala.1976). See Jawad v. Granade, 497 So. 2d 471, 474 (Ala.1986).
Med-Plus argues first that the trial court erred in denying its motion for JNOV or its motion for a new trial because, it says, uncontradicted testimony showed that CCG engaged in a scheme with an unlicensed contractor to circumvent § 34-8-1 et seq., Ala. Code 1975, by allowing Ronald Phillips to "superintend" the construction of the medical facility. Therefore, Med-Plus contends, the contract is illegal and unenforceable by CCG.
Section 34-8-6, Ala.Code 1975, prohibits any person, firm, or corporation from engaging in the business of general contracting without a license. See also § 34-8-2, Ala. Code 1975. Section 34-8-6 also prohibits other acts and imposes a misdemeanor penalty on anyone who engages in those acts, such as "any person, firm or corporation presenting or attempting to file as its own the license certificate of another," and "any person including an owner, architect or engineer who receives or considers a bid from anyone not properly licensed under this chapter." Section 34-8-1(a) defines, in part, a "general contractor" or a person, firm, or corporation "engage[d] in the business of general contracting" as follows:
Although § 34-8-6 imposes a misdemeanor penalty for engaging in the acts prohibited therein, this Court has gone further, holding express or implied contracts with unlicensed "general contractors" to be unenforceable as a violation of public policy. Hawkins v. League, 398 So. 2d 232 (Ala.1981); Cooper v. Johnston, 283 Ala. 565, 219 So. 2d 392 (1969). Such contracts are illegal and unenforceable by the unlicensed "general contractor." Twickenham Station, Inc. v. Beddingfield, 404 So. 2d 43 (Ala.1981); Hawkins v. League, supra; Tucker v. Walker, 293 Ala. 589, 308 So. 2d 245 (1975); see also Herbert v. Birmingham-Jefferson Civic Center Authority, 694 F.2d 240 (11th Cir.1982). See generally, Annot., Failure of Building or Construction Artisan to Procure Business or Occupational License as Affecting Enforceability of Contract or Right of Recovery for Work Done, 44 A.L.R.4th 271 (1986). In order to ensure that the regulatory objectives of the licensing statute are met, this Court has held unenforceable contracts based on "creative schemes" designed to circumvent its requirements. J & M Indus., Inc. v. Huguley Oil Co., 546 So. 2d 367 (Ala.1989); Cooper v. Johnston, supra. In J & M Indus., the Court stated:
To support its argument, Med-Plus relies on the language of § 34-8-1(a) and this Court's decision in Cooper v. Johnston, 283 Ala. 565, 219 So. 2d 392 (1969). In Cooper v. Johnston, an unlicensed general contractor, A.R. Johnston, brought an action against the Coopers alleging breach of a contract to build a warehouse. Johnston agreed to pay a licensed contractor a percentage of the total cost of the construction project for use of its license. The issue in Cooper was whether Johnston's association with the licensed contractor in a joint venture made Johnston a licensed contractor, allowing it thereby to bring an action against the Coopers for breach of contract. The Court in Cooper held that because Johnston was not associated with the licensed contractor as an officer, partner, or employee, the agreement was merely an attempt to escape the regulatory requirements of the statute.
Although instructive, Cooper is distinguishable from this case. In Cooper, Johnston, the party who entered into the contract to construct the warehouse, was an unlicensed contractor who attempted to avoid the statute by associating with a licensed general contractor. In this case, however, CCG entered into a construction contract with Med-Plus and was a duly licensed general contractor. In the circumstances of this case, therefore, the question is whether any relationship of Phillips, an unlicensed contractor, to CCG, a licensed contractor, somehow renders CCG's otherwise valid contract with Med-Plus unenforceable.
We hold that the jury's verdict was both supported by sufficient evidence and not against the great weight of the evidence, because CCG introduced testimony tending to prove that CCG did not enter into the construction contract with Med-Plus for the purpose of allowing Phillips and Med-Plus to circumvent § 34-8-1 et seq. In their trial testimony, both Miles and Jones Colcock denied selling or allowing Phillips and Med-Plus to use their general contractor's license for a fee. Miles Colcock also gave lengthy, detailed testimony relating how, he claims, Phillips wrested control of the project from CCG. This and other evidence constituted substantial evidence from which a reasonable trier of fact could have inferred that the construction contract entered into by CCG and Med-Plus was not a creative scheme to avoid statutory licensing requirements by allowing Phillips to "superintend" the construction project.
Moreover, we are unable to say the jury's verdict was against the weight or preponderance of the evidence. The trial court properly instructed the jury on the affirmative defense of illegality, and, after considering the testimony and other evidence, the jury chose to believe CCG's account of the events and rendered a verdict in its favor. We see no reason to disturb the jury's finding.
The second issue raised by Med-Plus is whether the trial court committed reversible error in admitting into evidence CCG's estimates of what it would cost CCG to complete the project when evidence of the actual cost of completion, as performed by Phillips, was available.
"It is well settled that damages awarded for breach of contract should return the injured party to the position he would have been in had the contract been fully performed." Cobbs v. Fred Burgos Constr. Co., 477 So. 2d 335 (Ala.1985); see also Comeq, Inc. v. Mitternight Boiler Works, Inc., 456 So. 2d 264 (Ala.1984); Files v. Schaible, 445 So. 2d 257 (Ala.1984); B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979). In cases where the owner[1] has breached a construction *376 contract after partial performance, the proper measure of damages is the difference between the price agreed upon in the contract and the cost of performance, or, in other words, the contractor's "lost profit." Cobbs v. Fred Burgos Constr. Co., supra; Danforth & Armstrong v. Tennessee & C.R.R., 93 Ala. 614, 11 So. 60 (1891); George v. Cahawba & M.R.R., 8 Ala. 234 (1845); Whiting v. Dodd, 39 Ala.App. 80, 94 So. 2d 411 (1957); J.B. Anderson & Co. v. Brammer, 4 Ala.App. 596, 58 So. 941 (1912).
To prove damages, CCG presented documentary evidence and the testimony of Miles Colcock to establish the total cost of performance. To arrive at this figure, CCG first calculated the actual cost of performance on the project through the date of termination, November 27, 1992. To this figure, CCG added an estimate of the cost of completing the project after Med-Plus terminated the contract. CCG based this estimate on building plans for the clinic prepared by Miles Colcock and figures from CCG's preconstruction estimate.
Med-Plus makes several arguments to demonstrate that the trial court reversibly erred in admitting the CCG's estimate of the cost of completion to prove lost profits. Citing Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 182 So. 2d 880 (1966), and Brendle Fire Equipment, Inc. v. Electronic Engineers, Inc., 454 So. 2d 1032 (Ala.Civ.App. 1984), Med-Plus contends first that, as evidence to prove lost profits, the estimate of completion costs should not have been admitted because, Med-Plus says, the estimate was speculative and uncertain. Med-Plus argues that the estimate was based partly on builder's plans for the clinic, which, it says, did not include specifications for the "interior finishes," such as wallpaper, floor covering, etc. Such information, argues Med-Plus, could not have been known when the contract was terminated. Because this information was not known, Med-Plus argues, the estimate was necessarily uncertain and speculative.
Med-Plus also argues that CCG's estimate was not the "best evidence" of the cost of completion because there existed a record of all the checks written by Phillips to complete the project. Citing Brendle Fire Equipment, supra at 1034, Med-Plus contends that although uncertainty alone will not preclude recovery of lost profits, a plaintiff must present the "best evidence available to afford a reasonable basis for estimating his loss." In light of the availability of a record of the actual cost of finishing construction of the clinic, Med-Plus argues that CCG's estimate is not the "best evidence available."
Review of Med-Plus's arguments and the authority cited to support them reveals an ambiguity in the phrase "lost profit," as it is used in the case law to denote an item or element of damages recoverable in an action for breach of contract. The phrase "lost profit" has been used either to designate an item of what is often called "general" or "expectancy" damages, or to designate a form of "consequential damages." One commentator has observed:
3 Dan Dobbs, Law of Remedies § 12.4(3), at 71 (2d ed. 1993); see also id. § 12.20(1). As Dobbs recognized, one relevant consequence of this distinction is that "special proof requirements" apply to consequential damages and not to general damages. In Alabama and other jurisdictions, the "special proof requirement[]" is embodied in the rule of "reasonable certainty." Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala.1985). With regard to consequential, loss-of-profit damages, this Court has stated:
Paris v. Buckner Feed Mill, Inc., 279 Ala. 148, 149, 182 So. 2d 880, 881 (1966). The analysis advocated by Med-Plus and the authority it cites in support of it apply only to consequential, loss-of-profit damages; however, CCG seeks only general or expectancy damages, in order to place it in the position it would been in if Med-Plus had performed, i.e., the benefit of its bargain with Med-Plus. The rule of "reasonable certainty," therefore, does not apply.[2]
In light of the foregoing, we conclude that the applicable standard is the rule of relevance. See Charles W. Gamble, McElroy's Alabama Evidence § 21.01(1) (4th ed. 1991). After carefully reviewing the record, we hold that the evidence of the estimated cost of completion introduced by CCG was both material and probative. CCG presented testimony explaining why it did not use the record of Phillips's checks to show the cost of completing the project after Med-Plus breached the contract on November 27, 1992. Miles Colcock testified that many of Phillips's expenditures were not directly attributable to labor and materials necessary to complete construction of the clinic. Examples of actual payments not included in their estimate of the cost of completion were $6,047 to make payments on Phillips's and his brother Donnie's automobiles and $5,655 in house payments to Phillips's mother. We find from this and other evidence in the record that the jury could have reasonably found that CCG's estimate, and not ipso facto the record of Phillips's actual payments, represented the real cost of completing the contract. The trial court did not, therefore, err in admitting CCG's cost of completion estimate into evidence.
The third issue is whether the trial court erred in directing a verdict in favor of CCG on Med-Plus's counterclaim alleging fraud. Med-Plus argues that the record reveals substantial evidence tending to prove that Jones Colcock fraudulently induced Dr. Ferguson to sign the construction contract during the September 25, 1990, meeting. Med-Plus contends that, in his trial testimony, Phillips stated that during the meeting Jones Colcock "confirmed" Phillips's express representation that the document they wanted Dr. Ferguson to sign was a "mere formality" to obtain a construction permit.
The jury verdict rejecting Med-Plus's illegality defense, however, is inconsistent with the fraud allegation. The jury considered Phillips's testimony along with all the other evidence by which Med-Plus attempted to show that CCG had entered with Phillips into an oral agreement to allow Phillips Development to be the general contractor on the project by using CCG's license and presenting an appearance that CCG was the actual contractor. The jury, by awarding contract damages to CCG, necessarily held that it did not enter into such an agreement. Thus, a fraud verdict based on a finding that Jones Colcock misrepresented to Dr. Ferguson that Phillips would be the general contractor in spite of the "mere formality" of the contract naming CCG as contractor would have been inconsistent with the verdict for CCG on the contract count. Therefore, while there may have been evidence in support of the fraud claim, any error in directing a verdict on that claim was rendered harmless by the verdict requiring findings inconsistent with a verdict for Med-Plus on the fraud claim.
Moreover, the directed verdict may well be correct, because Dr. Ferguson could not have justifiably relied on any misrepresentation by Jones Colcock that the contract he and Phillips were presenting for signature was a "mere formality" for obtaining a building permit. The "justifiable reliance" standard adopted in Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989), provides: "A plaintiff, given the particular facts of his knowledge, understanding, and present ability to fully comprehend the nature of the subject transaction and its ramifications, has not justifiably relied on the defendant's representation if that representation is `one so patently and obviously false that he must have closed his eyes *378 to avoid the discovery of the truth.'" (Quoting Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially) (emphasis added.) Dr. Ferguson was an intelligent, educated person with experience in contracting for the construction of clinic buildings for his partnership. If he had given a moment's thought to the contract he was signing or to the implications of the alleged representation that it was a "mere formality" to obtain a building permit, he surely would have realized that the legal effect of the contract was to make CCG, the licensed contractor, the general contractor on the project. Thus, he could not have justifiably relied on representations by Phillips and Jones Colcock to the contrary. Furthermore, the representation that it was a "mere formality" could mean only that it would have no effect other than to obtain the permit under false pretenses. Med-Plus would thus have been violating § 34-8-6 if it had entered into the agreement in reliance on the alleged representations. This illegal act by Med-Plus would preclude it from asserting that it had relied on the alleged representation.
For these reasons, the circuit court did not err to reversal in directing a verdict for CCG on Med-Plus's counterclaim alleging fraud.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] We use the term "owner" here to mean all those who contract to have construction performed; it is not limited to those who are technically landowners.
[2] Beyond noting its irrelevance to the admissibility of CCG's estimates of completion costs to prove general damages, we express no opinion as to the legal validity of Med-Plus's "best evidence" argument. | August 27, 1993 |
6d0bf6b4-f55e-4883-9665-c4f0fda1365f | Rumford v. Valley Pest Control, Inc. | 629 So. 2d 623 | 1910975, 1911156, 1911624 | Alabama | Alabama Supreme Court | 629 So. 2d 623 (1993)
Charles L. RUMFORD and Joanna Rumford
v.
VALLEY PEST CONTROL, INC.
William L. RAWLINS and Patsy Rawlins
v.
VALLEY PEST CONTROL, INC.
Charles L. RUMFORD and Joanna Rumford
v.
William L. RAWLINS, et al.
1910975, 1911156 and 1911624.
Supreme Court of Alabama.
June 30, 1993.
As Modified on Denial of Rehearing September 24, 1993.
*625 Dinah P. Rhodes of Blankenship, Robinson & Rhodes, P.C., Huntsville, for Charles L. Rumford and Joanna Rumford and on application for rehearing.
H. Harold Stephens of Lanier Ford Shaver & Payne P.C., Huntsville, for Valley Pest Control, Inc.
Aubrey O. Lammons of Lammons and Bell, Huntsville, for William L. Rawlins and Patsy Rawlins.
George K. Williams and Charles H. Pullen of Watson, Gammons & Fees, P.C., Huntsville, for Sherry Dinges.
INGRAM, Justice.
The plaintiffs, Charles L. Rumford and Joanna Rumford, appeal from summary judgments entered in favor of the defendants, William L. Rawlins and Patsy Rawlins, Sherry Dinges, and Valley Pest Control, Inc. ("Valley"). The Rawlinses appeal from the summary judgment entered on their cross-claim against Valley. Although these three appeals were taken at different times, they all arose from the same litigation and related to the same transaction. Therefore, we have consolidated these appeals for decision.
The Rumfords purchased a house from the Rawlinses. Sherry Dinges was the Rawlinses' agent in the transaction. Two years before the sale of the house, Valley had treated the house for termite infestation. Two years after they had purchased the house, the Rumfords discovered that it was infested with termites and that fungus and mildew were growing on the floor joists under the house.
The Rumfords sued Valley, Dinges, and the Rawlinses, seeking damages for negligence, wantonness, fraud, breach of contract, and conspiracy. The Rawlinses filed a cross-claim against Valley, alleging that Valley was responsible for any damages the Rawlinses might be required to pay the Rumfords.
The trial judge first entered a summary judgment in favor of Valley on all of the *626 claims brought against it, including the cross-claim. He then entered a summary judgment in favor of Dinges and the Rawlinses on the claims brought by the Rumfords. The trial judge gave no specific reasons for entering the summary judgments.
A summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P. To overcome a properly supported motion for summary judgment, the nonmoving party must present substantial evidence supporting its claims and creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12. To satisfy the "substantial evidence test," the nonmoving party is required to present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). When the trial court gives no specific reasons for entering a summary judgment, we will affirm the judgment if there is any ground upon which the judgment can be based. Yarbrough v. C & S Family Credit, Inc., 595 So. 2d 880, 881 (Ala. 1992).
On February 16, 1988, the Rumfords contracted to purchase a house from the Rawlinses. The transaction was closed on March 16, 1988. In October 1990, the Rumfords discovered that part of the house was infested with termites and that fungus and mildew were present on the floor joists under the house. This litigation was commenced on January 22, 1991.
In 1986 the Rawlinses contracted with Valley to treat the house for termite infestation. Later, before putting the house on the market, Mr. Rawlins replaced a piece of molding near the chimney that showed evidence of termite infestation. The Rumfords also presented evidence that Valley had treated the house for termites in 1989 without the Rumfords' knowledge.
The record shows that as early as 1983 the Rawlinses were aware of the presence of fungus and mildew under the house. Before the closing, the Rumfords asked the Rawlinses if the house had any problems with moisture. The Rawlinses informed the Rumfords that there were no such problems. Shortly before the closing, an inspector had informed the Rawlinses that there was a problem with moisture under the house and that a "French drain" should be installed. The Rawlinses had a French drain installed under the house. They informed the Rumfords that the drain had to be installed to bring the house "up to code." The Rumfords presented evidence that at all times before the closing, a padlock was on the door to the crawl space under the house, thus preventing them from inspecting that area.
As a condition of the sale contract, the Rawlinses were required to produce a letter stating that the property was free and clear from termite infestation and damage from such infestation. On March 10, 1988, the Rawlinses contracted with Valley to inspect the house and supply a "termite letter." During this inspection, Valley did not detect any active termite infestation. However, the record shows that two termite letters were produced. The first letter, dated March 10, 1988, referred to an attached graph showing the area of previous termite infestation and the extent of damage to the house. That letter also contained the following notation: "Moisture and fungus that need attention."
After the French drain was installed, the Rawlinses contacted Valley and asked them to produce a second termite letter. Without performing another inspection of the house, Valley produced a second letter. That letter, dated March 14, 1988, did not mention any problem with fungus or moisture, nor did it contain any reference to the prior termite infestation. The second letter was produced at the closing; the Rumfords were not aware of the existence of the first letter until October 1990.
We will first address the issues raised by the Rumfords in their appeal from the summary judgment entered in favor of Dinges and the Rawlinses. In the next part of the opinion, we will address the issues raised by the Rumfords in their appeal from the summary judgment in favor of Valley. Finally, we will discuss the issues raised by the Rawlinses *627 in their appeal from the summary judgment in favor of Valley on the cross-claim.
Dinges and the Rawlinses argue that the trial court properly entered the summary judgment on the claims against them because, they argue, the Rumfords' claims are barred by the statute of limitations.
One count in the Rumfords' complaint sought damages for negligence and wantonness by the Rawlinses; and one count alleged negligence by the Rawlinses. These claims are governed by the two-year statute of limitations provided in § 6-2-38, Ala.Code 1975.
"Generally, a cause of action for injury or damage to property accrues, so as to start the running of limitations, on the date of the injury or damage, and not upon the occurrence of the negligence itself, or the last known negligent act." 54 C.J.S. Limitations of Actions, § 176 (1987) (citing Alabama Power Co. v. Cummings, 466 So. 2d 99 (Ala. 1985) (footnotes omitted) (emphasis added). "[T]he cause of action `accrues,' and the statute of limitations begins to run, `when, and only when, the damages are sustained.'" McWilliams v. Union Pacific Resources Co., 569 So. 2d 702, 704 (Ala.1990). As expressed with more particularity, "an action for damage to land accrues, for limitations purposes, upon discovery of the first actionable injury." See McWilliams v. Union Pacific Resources Co., 569 So. 2d 702, 706 (Ala.1990) (Maddox, J., concurring specially) (emphasis added).
This rule is applicable not only to causes of action involving damage to the land itself but also to causes of action involving damage to appurtenant structures. In Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So. 2d 468 (1973), this Court held that the limitations period began to run on the date that ice was discovered inside the walls of an improperly constructed building. 291 Ala. at 609, 285 So. 2d at 473.
The Rumfords discovered the live termites and termite damage on October 14, 1990. Before that date, the Rumfords had suffered no deprivation of the use or enjoyment of their home. We find McWilliams, supra, to be controlling in the present case. Thus their cause of action accrued within the two-year period immediately before January 22, 1991.
We further conclude that the Rawlinses failed to make a prima facie showing that there was no genuine issue of material fact with regard to the Rumfords' negligence and wantonness claims against them. Accordingly, the summary judgment on those claims is reversed. Ex parte Head, 572 So. 2d 1276 (Ala.1990).
In Count XII of their amended complaint, the Rumfords allege that Valley, Dinges, and the Rawlinses conspired to produce a false termite letter at closing. This cause of action is also governed by the two-year statute of limitations. § 6-2-38(l). However, like the negligence and wantonness claims, this cause of action did not accrue until the Rumfords discovered the damage to their house. Moreover, we conclude that the Rumfords produced substantial evidence of a conspiracy between Valley and the Rawlinses to produce a false termite letter. Accordingly, the summary judgment in favor of Valley and the Rawlinses is reversed as to the conspiracy count. We conclude, however, that the trial court properly held that there was no genuine issue of material fact with regard to the conspiracy count against Dinges. Therefore, that portion of the summary judgment is affirmed.
In Counts IX, X, and XI of their amended complaint, the Rumfords sought damages from Valley, Dinges, and the Rawlinses for fraudulent concealment, suppression, and fraud. Count II alleged that Valley and the Rawlinses were liable for suppression; and Count VII alleged fraud by Valley and the Rawlinses. Counts I and III alleged fraud by the Rawlinses alone; and Count VIII of the amended complaint sought rescission of the sale contract based on the Rawlinses' alleged fraud.
We note that fraud claims are also governed by the general two-year statute of limitations set out in § 6-2-38(1). However, *628 because that provision would create a bar to the Rumfords' fraud claims, the "saving provision" set out in § 6-2-3 is invoked. Section 6-2-3 provides:
"[D]iscovery is made when facts become known `which provoke an inquiry in the mind of a man of reasonable prudence, and which, if followed up, would have led to a discovery of the fraud'; therefore, `fraud is deemed to have been discovered when it ought to have been discovered.'" Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784, 786 (Ala.1981) (quoting Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 281 So. 2d 636 (1972)). That is, the statutory period of limitations begins to run "when the plaintiff, in the exercise of ordinary care, should have discovered the misrepresentation." Haines v. Tonning, 579 So. 2d 1308, 1309-10 (Ala.1991). The burden is on the plaintiffs to show that their claim comes within § 6-2-3. Miller v. Mobile County Board of Health, 409 So. 2d 420, 422 (Ala.1982); Amason v. First State Bank of Lineville, 369 So. 2d 547 (Ala.1979).
Our task is to determine whether the trial court properly decided that, as a matter of law, the Rumfords should have discovered the alleged misrepresentations at some point more than two years before they commenced this action. "The question of when a party discovered or should have discovered the existence of a fraud is ordinarily one for the trier of fact." Davis v. Brown, 513 So. 2d 1001, 1003 (Ala.1987) (citing Sims v. Lewis, 374 So. 2d 298 (Ala.1979)).
In this case, the summary judgment can properly be based on the statute of limitations only if the Rumfords actually knew of facts that would have put a reasonable person on notice of the fraud. We have held that "[t]he question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases where the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud." Hicks v. Globe Life & Accident Insurance Co., 584 So. 2d 458, 462 (Ala.1991) (emphasis in Hicks).
The record shows that the Rumfords knew before the closing that the house had been inspected for termites. The letter prepared by Valley and presented at closing affirmatively states that during its inspection Valley had not detected any present termite infestation.[1] The record also shows that the Rumfords knew that a French drain had been installed under the house. They were told, however, that this was done to bring the house "up to code."
We note that the Rumfords thoroughly inspected the accessible areas of the house several times before closing. In fact, the record shows that the Rumfords prepared a list of repairs for the Rawlinses to make before the closing. While the Rumfords did not inspect the crawl space under the house, they were told by the Rawlinses that there were no problems with moisture in that area.
We conclude that the summary judgment in favor of Dinges and the Rawlinses cannot properly be based on the statute of limitations. While a jury may well conclude, based on all of the evidence, that the Rumfords should have discovered the possible fraud at a point more than two years before they filed their action, we cannot so hold as a matter of law.
The defendants also argue that because the Rumfords were in possession of the house for over two years before commencing this action, they should have discovered the alleged fraud at a point more than two years before they sued. We disagree. In Hicks, supra, the defendant insurance company argued that the plaintiff should have discovered an alleged fraud when she received her insurance policy. We concluded, however, that the time at which she should have discovered *629 the fraud was a question for the jury. Hicks, 584 So. 2d at 462. Just as the plaintiff in Hicks was in possession of a document that may have contained evidence of the alleged fraud, in this case the Rumfords were in possession of the house.
In Thompson v. Vaughn, 592 So. 2d 585 (Ala.1992), we held that the buyer's fraud claim against the seller was barred by the statute of limitations. In that case, the buyer lived in the house for over eight years before filing his claim. Significantly, the buyer also stated that he knew of the defect approximately seven years before he filed his claim against the seller. Id., 592 So. 2d at 587. In the present case, we cannot conclude that merely because the Rumfords lived in the house for two years before commencing this action, they necessarily should have detected the presence of excessive moisture, fungus, mildew, and termites sooner than they say they did.
Dinges and the Rawlinses also argue that the Rumfords failed to present substantial evidence to support their allegations of fraud. Specifically, the defendants argue that they did not affirmatively misrepresent any facts about the house and that, because the Rumfords did not specifically ask about previous termite infestation or the presence of fungus or mildew, they were under no obligation to furnish such information. In other words, they claim that the doctrine of caveat emptor is a good defense to the Rumfords' fraud claims.
In Fennell Realty Co. v. Martin, 529 So. 2d 1003 (Ala.1988), the purchasers of a house sued a realtor, alleging that the realtor had fraudulently misrepresented the condition of the heating system in the house. The heating system had several defects that created a dangerous condition in the home. 529 So. 2d at 1004. In that case, we held that Alabama retains the doctrine of caveat emptor with regard to the sale of a used residence. We further held, however, that if an agent "has knowledge of a material defect or condition that affects health or safety and the defect is not known to or readily observable by the buyer, the agent is under a duty to disclose the defect and is liable for damages caused by nondisclosure." Fennell, 529 So. 2d at 1005. This duty of disclosure is also placed on the seller. Id.
The Rumfords' expert stated in his affidavit that "the termite damage and moisture problems as they existed in March, 1988, are material defects in the home that could affect the structural integrity of a house, and can affect the health and safety of its occupants." Based on this testimony, and in light of our holding in Fennell, we conclude that whether the Rawlinses were under an obligation to disclose the moisture problems and the previous termite infestation is a question for the jury. Accordingly, we hold that the summary judgment in favor of the Rawlinses cannot properly be based on the doctrine of caveat emptor.
After reviewing the record and considering the arguments of the Rumfords and the Rawlinses, we find no other ground upon which the summary judgment on the Rumfords' fraud claim could properly be based. Accordingly, we reverse the summary judgment with regard to the Rumfords' fraud claims against the Rawlinses.
While it is undisputed that the Rawlinses knew, at a minimum, that the house had previously been infested with termites and that there had been fungus and mildew under the house, the Rumfords have not presented substantial evidence that Dinges was aware of these potential problems with the house. Assuming that Dinges had a duty to disclose any material defects of which she had knowledge, she, nonetheless, cannot be held liable for failing to disclose that which she did not know. Cornelius v. Austin, 542 So. 2d 1220, 1224 (Ala.1989). See also, Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, 736 P.2d 888 (1987). Accordingly, the summary judgment in favor of Dinges on the fraud claims is affirmed.
The Rumfords' final claim against the Rawlinses alleged that the Rawlinses breached their contract with the Rumfords for the sale of the house. The contract provides, in relevant part, "The Seller will furnish a letter from a licensed exterminating company certifying that the improvements are free of termites and damage caused by *630 termites or other wood destroying insect infestation."
The Rawlinses argue that the summary judgment on this claim should be affirmed because, they argue, they fully complied with the requirements of the contract. That is, they assert that the March 14 letter, which stated that Valley did not detect any active termite infestation, fulfilled the terms of the contract.
While the contract did not expressly so provide, we conclude that the above-quoted provision must be read to require, at a minimum, that the sellers furnish a letter that, to the best of their knowledge, accurately describes the condition of the house. Because there is evidence that the Rawlinses knew about damage from termite infestation, we conclude that the Rumfords presented substantial evidence to support their claim that the Rawlinses breached the sale contract and to create a genuine issue of material fact. Accordingly, we reverse the summary judgment with regard to the breach of contract claim against the Rawlinses.
Based on our discussion of these issues in Part I of this opinion, we hold that the Rumfords' negligence, wantonness, and conspiracy claims against Valley are not barred by the statute of limitations. Moreover, we conclude that the Rumfords presented substantial evidence in support of their negligence, wantonness, and conspiracy claims against Valley. Accordingly, the summary judgment in favor of Valley is reversed as to those claims.
Valley also claims that the fraud claims against it are barred by the statute of limitations. Based on our discussion of the Rumfords' discovery of the alleged fraud in Part I of this opinion, we conclude that the Rumfords' fraud claims against Valley are not barred, as a matter of law, by the statute of limitations. Moreover, we note that the doctrine of caveat emptor is not a good defense to the fraud claims asserted by the Rumfords against Valley.
Valley claims that the Rumfords failed to produce any evidence of actionable fraud by Valley. We disagree.
The March 10 termite letter issued by Valley mentioned both the previous termite infestation and the fungus and moisture problem. After being notified that a French drain had been installed, Valley prepared a second letter, omitting any mention of termite damage, moisture, or fungus. We conclude that, from these facts, a jury could reasonably infer that Valley intended to conceal from the Rumfords the fact that the house had previously been infested with termites and that excessive moisture and fungus were present under the house.
Finding no other basis upon which we can affirm the summary judgment in favor of Valley on the fraud claims, we must reverse it with regard to those claims.
In Count V of their complaint, the Rumfords alleged that they were third-party beneficiaries to the contract between Valley and the Rawlinses wherein Valley agreed to produce a termite letter, and they allege that Valley breached that contract.
Where certain conditions are met, a party has a cause of action as a third-party beneficiary for a breach of contract by either party to the contract. These conditions are succinctly set forth in Beverly v. Macy, 702 F.2d 931 (11th Cir.1983):
702 F.2d at 940 (citations and footnote omitted). The Rumfords contend that these conditions are met in this case and, therefore, that as third-party beneficiaries they have a valid cause of action against Valley for breach of its contract with the Rawlinses. We agree.
In addressing this claim, we must be careful to distinguish between the service contract executed in September 1986 requiring Valley annually to inspect the Rawlinses' house and treat it if necessary in connection with Valley's termite "bond," and the post-sales-contract agreement requiring Valley to conduct an unscheduled inspection of the house and issue a letter that would accurately represent the condition of the house at the time of the closing. For the latter contract, the Rawlinses paid a consideration of $30, which was in addition to the annual fee required for maintenance of the service contract.
The Rumfords do not claim to be beneficiaries of the service contract, and properly so. The service contract was for the benefit of the Rawlinses while they owned the house and not for the benefit of some hypothetical future buyer. Ray v. Montgomery, 399 So. 2d 230 (Ala.1980). By contrast, the contract requiring Valley to produce a letter representing current conditions of the house arose only pursuant to the contract executed by the Rumfords and the Rawlinses for the sale of the property and, therefore, clearly contemplated an imminent sale, after which the Rawlinses would derive no benefit from termite protection. Indeed, the only party calculated to derive a direct, substantial benefit from such a contract is the prospective buyer. See Savage v. Wright, 439 So. 2d 120, 123 (Ala.1983) ("inferable" that the provider of a termite letter "knew not only the purpose of his employment but that his `letter of clearance' would be presented to, and was for the benefit of, the purchaser"). Therefore, as to the Rumfords' breach of contract claim based on the contract to produce that letter, the summary judgment in favor of Valley is reversed.
In Count XIII of their complaint, the Rumfords allege that on March 16, 1988, they entered with Valley into a contract in which Valley agreed to apply treatment where active termites were found on the premises. They further allege that Valley breached that contract. Because the Rumfords failed to make any argument or to cite any authority with regard to this claim, the judgment of the trial court is affirmed as to the breach of contract claim based on that alleged contract. Rule 28(a)(5), A.R.App.P.; Sea Calm Shipping Co. v. Cooks, 565 So. 2d 212 (Ala.1990).
In a three-count cross-complaint, the Rawlinses sued Valley, alleging fraud in Valley's preparation and issuance of a termite letter. The Rawlinses presented no substantial evidence that Valley intentionally, recklessly, or innocently misrepresented any facts to the Rawlinses. Noteworthy in this regard is the fact that the Rawlinses were aware of both termite letters prepared by Valley. In fact, the Rawlinses requested the second letter after having received (and presumably having read) the first. Moreover, it is undisputed that the Rawlinses knew, at a minimum, that the house had been infested *632 with termites in 1986. It is also undisputed that the Rawlinses knew, at some time before March 16, 1988, that there had been a problem with moisture and fungus or mildew under the house.
Even if the Rawlinses had presented evidence that Valley had negligently failed to detect termite infestation during its 1988 inspection or had negligently failed to treat the house for termites in 1986, they still failed to present any evidence that Valley made any misrepresentations to them about the condition of the house. Accordingly, we affirm the summary judgment on the Rawlinses' cross-claim insofar as it alleged fraud. West v. Founders Life Assurance Co. of Florida, 547 So. 2d at 871; Yarbrough v. C & S Family Credit, Inc., 595 So. 2d at 881.
The Rawlinses also alleged that Valley breached the contract that required it to issue a letter accurately representing the condition of the house at the time of the closing. The evidence supporting the Rumfords' breach of contract claim brought by them as third-party beneficiaries also supports a claim by the Rawlinses, as primary parties to the "letter" contract, against Valley for breach of contract. Thus, as to the Rawlinses' breach of contract claim against Valley, the summary judgment on the cross-claim is reversed, and the cause is remanded.
In the interest of clarity, we summarize our dispositions of these three appeals:
On the Rumfords' appeal from the summary judgment in favor of the Rawlinses and Sherry Dinges (1911624), the judgment in favor of Sherry Dinges is affirmed in all respects; the judgment in favor of the Rawlinses is reversed with regard to all of the Rumfords' claims; and the case is remanded.
On the Rumfords' appeal from the summary judgment in favor of Valley (1910975), the judgment is affirmed with regard to the count alleging breach of the March 16, 1988, contract to treat active termites found on the premises; the judgment is reversed with regard to the remaining counts; and the case is remanded.
On the Rawlinses' appeal from the judgment in favor of Valley on the cross-claim (1911156), the judgment is affirmed with regard to the fraud counts; the judgment is reversed with regard to the breach of contract count; and the case is remanded.
1911624AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES and STEAGALL, JJ., concur.
ALMON, J., concurs in the result except as to the reversal of the judgment on the negligence and wantonness claims; as to that reversal he dissents.
MADDOX and HOUSTON, JJ., concur except as to the reversal of the judgment on the fraud claim against the Rawlinses; as to that reversal they dissent.
1910975AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES and STEAGALL, JJ., concur.
ALMON, J., concurs in the result except as to the reversal of the judgment on the negligence and wantonness claims; as to that reversal he dissents.
MADDOX and HOUSTON, JJ., concur except as to the reversal of the judgment on the fraud claim; as to that reversal they dissent.
1911156AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur.
ALMON, J., concurs in the result.
ALMON, Justice (concurring in the result in part and dissenting in part).
I dissent from the reversal as to the claims of negligence or wantonness. I concur in the result as to the other claims.
HOUSTON, Justice (concurring in part and dissenting in part).
I concur except to the extent that this Court reverses on the basis of Hicks v. Globe *633 Life & Accident Insurance Co., 584 So. 2d 458 (Ala.1991). To that extent, I dissent. I dissented in Hicks from the very ruling on which the majority now relies. I still think I was right in Hicks.
MADDOX, J., concurs.
INGRAM, Justice.
OPINION MODIFIED; APPLICATION OVERRULED.
[1] The letter does contain a disclaimer indicating that there could have been termites in inaccessible areas that Valley did not inspect. This disclaimer, however, was part of the printed form used by Valley and would not have necessarily led the Rumfords to suspect that other areas of the house were infested with termites. | September 24, 1993 |
85cd429f-ee77-4ea4-8c12-e435801bf022 | US Fidelity & Guar. Co. v. Russo Corp. | 628 So. 2d 486 | 1921081 | Alabama | Alabama Supreme Court | 628 So. 2d 486 (1993)
UNITED STATES FIDELITY & GUARANTY COMPANY and J. T. Schrimsher Construction Company, Inc.
v.
RUSSO CORPORATION and Holley Equipment Company.
1921081.
Supreme Court of Alabama.
September 3, 1993.
*487 James B. Schrimsher and Donald L. Christian, Jr., of Morring, Schrimsher & Riley, Huntsville, for appellants.
Lynn Baxley Ault and James L. Clark of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee Russo Corp.
Robert S. Lamar, Jr., of Lamar, Nelson & Miller, P.C., Birmingham, for appellee Holley Equipment Co.
HOUSTON, Justice.
The plaintiffs, United States Fidelity & Guaranty Company ("USF & G") and J.T. Schrimsher Company, Inc., sued Russo Corporation, Ronald McLelland, individually and as agent for Russo, and Holley Equipment Company.[1] The complaint alleged that McLelland was the agent, servant, and employee of Russo and that McLelland's negligent and/or wanton operation of a crane at a construction project should be imputed to Russo. The complaint also alleged that Holley negligently and/or wantonly failed to install a safety limiting device after removing it and that as a proximate result of Holley's negligence and/or wantonness, a crane owned by Schrimsher was extensively damaged.[2]
Russo moved for a summary judgment, contending that McLelland was the borrowed servant of Schrimsher and therefore that Schrimsher was liable for the damages attributable to any negligence of McLelland. Holley also moved for a summary judgment, based on the "borrowed servant" doctrine and also based on the allegation that McLelland was contributorily negligent in operating the crane. The trial court entered summary judgments for Russo and Holley and made the judgments final pursuant to Rule 54(b), Ala.R.Civ.P. USF & G and Schrimsher appeal.
The evidence, viewed in the light most favorable to Schrimsher and USF & G, the nonmoving parties, as required by our applicable standard of review, suggests the following facts: Schrimsher was the general contractor for the Aerospace and Shared Classroom Building constructed on the Auburn University campus in 1989. Russo was a subcontractor on the project, hired to prepare the drilled shaft foundation work on the job site. McLelland, an experienced heavy equipment operator, was employed by Russo to operate the drill rig and a crane, which was contractually provided by Schrimsher for Russo's use on the job site. While working on the drilled shaft foundation for Russo, McLelland operated the crane on approximately 25 occasions.
When Russo completed the drilled foundation work, sometime around September 22, 1989, all of its personnel left the job site, except for McLelland. Mike Medley, job superintendent for Schrimsher, had asked McLelland to stay on to operate the crane for Schrimsher; and because drilled shaft foundation work was slow, and as an accommodation to Schrimsher, Russo consented to McLelland's staying on with Schrimsher to operate the crane. However, because McLelland was a union member and *488 Schrimsher was a nonunion contractor, Schrimsher could not hire McLelland directly. Consequently, Russo and Schrimsher agreed that Russo would pay McLelland and that Schrimsher would reimburse Russo accordingly.
Each morning while McLelland was operating the crane for Schrimsher, he reported to two of Schrimsher's employees who directed his activities. Also during this time, after McLelland recorded the time he operated the crane, he had representatives from Schrimsher sign his time book and then he delivered the time book to Russo so Russo could pay him.
Russo retained the right to remove McLelland from the job site at any time and to place him on another job site of its choice if such an occasion arose; it retained the right to terminate his employment; it provided him with workers' compensation insurance coverage and health insurance coverage; and it withheld state and federal income taxes from his paycheck.
On November 7, 1989, McLelland left the crane unattended for almost 20 minutes, during which time the crane boom rose to a vertical position, fell over backwards, and damaged the crane itself, an office work trailer, and an automobile. The crane boom was supposed to have installed on it a safety device, which would cut everything off whenever the boom got to a pre-set angle near to vertical. This device, however, had been off the crane during the entire time that McLelland had operated itduring the time he operated it for Russo and during the time he operated it for Schrimsher; McLelland had been aware, since the very first time he operated the crane, of the absence of that device. McLelland knew that the safety device was designed to prevent the kind of accident that occurred, and he believed that federal law required the crane to have such a device installed on it. Although McLelland maintains that he told his supervisor at Schrimsher and its mechanic about the lack of the safety device on this crane several times before the accident, the mechanic and the supervisor both stated in their affidavits that they had no conversations with McLelland or anyone else concerning the absence of the safety device.
A corporation can act only through its servants, agents, or employees; but the acts of those servants, agents, or employees are not the acts of the corporation unless the servants, agents, or employees are acting for the corporationunless their acts are done in or about the duties assigned them or are accomplished within the line and scope of their duties. See, Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So. 2d 323 (1953). However, one in the general employ of one master may with respect to particular work be transferred to the service of a third person in such a way that he becomes for the time being the servant of that person, with all the legal consequences of that relationship:
Martin v. Anniston Foundry Co., 259 Ala. at 637, 68 So. 2d at 327.
Hendrix v. Frisco Builders, Inc., 282 Ala. 473, 476, 213 So. 2d 208, 211 (1968) (quoting Alabama Power Co. v. Smith, 273 Ala. 509, 142 So. 2d 228 (1962)).
The ultimate test in determining whether an employee has become a loaned servant is a determination of whose work the employee was doing and under whose control he was doing it. See Coleman v. Steel City Crane Rentals, Inc., 475 So. 2d 498 (Ala.1985), cert. denied, Illinois Central Gulf R.R. Co. v. Coleman, 476 U.S. 1104, 106 S. Ct. 1946, 90 L. Ed. 2d 356 (1986). It is the reserved right of control, rather than the actual exercise of control, that furnishes the true test of the relationship. Id. "Power to control determines responsibility." Martin v. Anniston Foundry Co., 259 Ala. at 637, 68 So. 2d at 328.
Under the particular facts of this case, if Schrimsher had had employees with the ability to operate the crane, it would not have had to secure the services of McLelland from Russo. In securing McLelland's services, Schrimsher assumed control of McLelland and directed him to perform certain acts with the crane. Therefore, Schrimsher was, for the time being, in complete charge of McLelland. Furthermore, McLelland was transferred to Schrimsher with his own consent and with Russo's consent, and he became Schrimsher's servant with all the legal consequences of the new relation. See Hendrix v. Frisco Builders, supra. The fact that McLelland was paid by Russo does not, under the circumstances in question, prevent his being an employee of Schrimsher in performing the particular task involved. Id.; Martin v. Anniston Foundry Co., supra.
Based on the foregoing, we conclude that, because only one inference could be properly drawn from the evidence, the trial court properly entered a judgment for Russo.
Holley, in its motion for summary judgment, did not dispute the contention that it failed to replace or install the safety device when it made repairs in February 1989. Rather, in its motion Holley basically relied on Russo's arguments that McLelland was the borrowed servant of Schrimsher, as a matter of law, and therefore, argued that McLelland's knowledge of the missing safety device was imputed to Schrimsher so as to relieve Holley of any liability. Holley also maintains that McLelland was contributorily negligent, that his contributory negligence was imputed to Schrimsher because he was its borrowed servant, and that that negligence bars any recovery.
Schrimsher and USF & G maintain that even if McLelland was in fact the borrowed servant of Schrimsher (and we have determined he was), a fact question exists as to whether "knowledge of, at best, a temporary employee can be imputed to [Schrimsher] as a matter of law."
One of the legal consequences of the relation of master and servant is that the negligence of the servant, committed in the line and scope of his employment, is imputed to the master. See Towry v. Moore, 281 Ala. 644, 206 So. 2d 889 (1968). It does not matter that the negligent servant is a borrowed servant and merely in the temporary employ of another. Rather, as long as the relation of master and servant exists, the master may be liable to third persons because of the negligent acts of its borrowed servant. See Coleman v. Steel City Crane Rentals, Inc., supra; Martin v. Anniston Foundry Co., supra; Hendrix v. Frisco Builders, Inc., supra. The general rule is that if the master is injured by the negligence of the third person and by the concurring negligence of its own servant or agent, the servant or agent's negligence is imputed to his master and will defeat the master's action against the third person. See, 57 Am.Jur.2d Negligence § 1786, pp. 468-70 (1970).
Although it is disputed whether McLelland reported the absence of the safety device to anyone at Schrimsher, it is undisputed that he knew for at least six weeks before the accident occurred that the boom kick-out safety device was not installed on the crane; knew that the purpose of the safety device was to prevent just the kind of accident that occurred; and knew that a federal regulation required that a safety device *490 be installed. Nonetheless, after considering all those factors, we conclude, based on the authority of Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88 (Ala.1989), and Central Alabama Elec. Co-op. v. Tapley, 546 So. 2d 371 (Ala.1989), that although McLelland may have been "heedless" of the danger presented by operating the crane without the safety device, his doing so does not rise to the level of contributory negligence as a matter of law.[3]
Based on the foregoing, the summary judgment for Holley is reversed and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] USF & G had in full force and effect a policy of insurance with Schrimsher providing coverage for damage or loss to Schrimsher's equipment, under which USF & G paid Schrimsher for its loss, an amount in excess of $189,000. USF & G's claim is made by virtue of its equitable subrogation rights for the payment it made to Schrimsher and by virtue of an assignment executed in favor of USF & G by Schrimsher.
[2] Holley serviced and repaired the crane before delivering it to the project site.
[3] Note: Although the author of this opinion dissented in Johnson v. Niagara Machine & Tool Works and in Central Alabama Elec. Co-op. v. Tapley, those cases state the existing law in Alabama. | September 3, 1993 |
c9fc77f0-0d0a-4636-b079-9e22538df89c | Tierce v. Ellis | 624 So. 2d 553 | 1920809 | Alabama | Alabama Supreme Court | 624 So. 2d 553 (1993)
Dennis Ray TIERCE
v.
Sheila ELLIS.
1920809.
Supreme Court of Alabama.
September 10, 1993.
Borden M. Ray, Jr. of Ray, Oliver & Ward, Tuscaloosa, for appellant.
Dan M. Gibson, Tuscaloosa, for appellee.
HOUSTON, Justice.
Irene Elizabeth Batchelder and William Copeland Tierce were married in November 1942. In February 1944, William left the United States for military service in Italy. William returned to the United States in December 1945 and learned that Irene was approximately six months pregnant. On February 2, 1946, William filed for a divorce on the ground of adultery. On February 4, 1946, Irene and William were divorced.
At the time of the divorce, Irene was pregnant with the defendant Dennis Ray. However, *554 that unborn child was not made a party to the divorce proceedings, he was not represented by a guardian ad litem during the divorce proceedings, and the issue of his paternity was not adjudicated. On April 4, 1946, Dennis Ray was born; his birth certificate listed William as the father.
William remarried; he and his second wife, Grace Clements Tierce, had five children, one of whom is the plaintiff, Sheila Ellis. William died in December 1972. Approximately 17 years later, in December 1989, William's father, John C. Tierce, died. The executors of the estate of John C. Tierce, deceased ("the estate"), filed a routine accounting of the estate and submitted a list of 10 heirs, which included the name of Dennis Ray as a son of William and as an heir to the estate. Forty-five years after Dennis Ray's birth and over 20 years after William's death, Sheila filed this declaratory action seeking to bastardize Dennis Rayasking the court to determine that Dennis Ray was not the son of William and therefore was not entitled to a share of the estate.[1] The trial court found that Dennis Ray was not the biological son of William and therefore was not an heir to the estate. Dennis Ray appeals. We reverse and remand.
Sheila maintains that because William was out of the country when Dennis Ray was conceived, it was scientifically and physically impossible for William to have been the father of Dennis Ray. She also maintains that there was no evidence that William knew that he was listed as the father on Dennis Ray's birth certificate and that there was no evidence that there was ever any contact between William and Dennis Ray. Consequently, she contends that Dennis Ray could not be the son of William and therefore is not an heir of the estate.
Pursuant to Ala.Code 1975, § 26-17-5(a)(1), William was presumed to be Dennis Ray's father, because William had been married to Dennis Ray's mother and Dennis Ray was born "within 300 days after the marriage [was] terminated by ... divorce." "`Pater is est quem nuptiae demonstrantthe presumption that the husband of the mother of a child born [or conceived] during marriage is the father of that childis often said to be one of the strongest presumptions known to the law.'" Ex parte Presse, 554 So. 2d 406, 413 (Ala.1989); (quoting Note, 76 N.W.U.L.Rev. 669 (1981)); see, Leonard v. Leonard, 360 So. 2d 710 (Ala.1978). A presumption of paternity under § 26-17-5(a)(1) can be rebutted only by clear and convincing evidence or by a judgment establishing paternity of the child by another man. See Ala.Code 1975, § 26-17-5(b).
In this case, the judgment divorcing Irene and William did not adjudicate the issue of paternity so as to destroy the usual presumption that a child born or conceived during a marriage is the child of the mother's husband; nor is the divorce judgment binding on Dennis Ray, because he was not joined as a party or represented by a guardian ad litem during the divorce proceedings. See, Ex parte Martin, 565 So. 2d 1 (Ala.1989). Furthermore, William never attempted to adjudicate the paternity issue; and had William waited over 20 years to adjudicate this issue, he would have been barred by the rule of reposethe rule that bars actions that have not been commenced within 20 years from the time they could have been commenced. Boshell v. Keith, 418 So. 2d 89 (Ala.1982); see, McArthur v. Carrie's Adm'r, 32 Ala. 75 (1858). The rule of repose does not depend on evidence of prejudice, nor does it depend on any statute of limitations. Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820 (1935); Scott v. Scott, 202 Ala. 244, 80 So. 82 (1918). Rather, "the only element of the rule of repose is time," and "[i]t operates as an absolute bar to claims that are unasserted for 20 years." Boshell, supra, at 91.
Snodgrass v. Snodgrass, 176 Ala. 276, 280, 58 So. 201, 201 (1912). See Ex parte Grubbs, 542 So. 2d 927, 930-31 (Ala.1989), in which the Court barred an equal protection claim of a black man who was discriminatorily denied admission to law school in 1949 because of his race: "By failing to assert a claim for over a third of a century (from 1949 to 1986) after Grubbs knew of the discrimination, he is now absolutely barred by the rule of repose from asserting such a claim."
Based on the foregoing, and under the particular facts of this case, we conclude that just as William would have been barred by the rule of repose from asserting the claim that he was not the father of Dennis Ray, so too is Sheila barred by the rule of repose from claiming that Dennis Ray is not the son of William and, therefore, is not an heir to the estate.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, and KENNEDY, JJ., concur.
MADDOX and INGRAM, JJ., dissent.
MADDOX, Justice (dissenting).
The Court applies a rule of the common law and statutory presumptions to conclude that a child born of a marriage is legitimate, when the evidence clearly and convincingly shows that it is naturally, physically, or scientifically impossible for the husband to be the father.
In Leonard v. Leonard, 360 So. 2d 710 (Ala. 1978), I discussed at length many of the same principles and presumptions that the majority applies to this case and set out in a dissenting opinion the reasons why I thought that the old "exploded" rule of the common law should not be applied under the facts of that case.
The fact has been established in the record that William Copeland Tierce could not, physically, scientifically, or otherwise, be the father of the child born to Irene Elizabeth Batchelder; therefore, I would so find and decide the legal issues based on fact, without applying statutory or common law presumptions that have, in my opinion, been exploded.
INGRAM, J., concurs.
[1] We note that the issue of standing, although raised below, is not at issue on appeal. As Dennis Ray stated in his brief: "[Dennis Ray] chooses not to dispute the issue of whether Sheila would have standing to present the action in a representative capacity for her deceased father if the father could have brought the action but for his death." (Emphasis in original.) | September 10, 1993 |
6c34c9f0-7c5a-4304-9e36-d20c47ae0b2c | SA v. Thomasville Hosp. | 636 So. 2d 1 | 1911938 | Alabama | Alabama Supreme Court | 636 So. 2d 1 (1993)
S.A.
v.
THOMASVILLE HOSPITAL and Dr. James Prescott.
1911938.
Supreme Court of Alabama.
August 27, 1993.
Larry C. Moorer, Mobile, and William M. Pompey, Camden, for appellant.
Davis Carr and James W. Lampkin II of Pierce, Carr & Alford, P.C., Mobile, for Thomasville Hosp.
W. Boyd Reeves and Tara T. Bostick of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for Dr. James Prescott.
ADAMS, Justice.
The plaintiff, S.A., appeals a summary judgment entered in favor of Dr. John Prescott and Thomasville Hospital. She alleges that at 5 to 6 months into a pregnancy she consulted Dr. Prescott about performing an elective abortion on her. According to her, he agreed; however, she contends that she was never informed by Dr. Prescott or the hospital of the potential risks involved in having an abortion and that, had she been so informed, she would not have consented to the procedure. She alleges that during the elective abortion procedure she began hemorrhaging and that another operation was thereafter performed to stop the bleeding. Eventually, she alleged, when the bleeding did not cease, she was flown to the University of South Alabama Hospital (USA), where she says a hysterectomy was ultimately performed.
The defendants offer a different version of the facts. They contend that S.A. presented herself at the hospital with vaginal bleeding and was in the process of an incomplete abortion. The medical records indicate that portions of the placenta and a fetal leg were already in S.A.'s vagina at the time it was determined that a dilation and curretage procedure (D & C) should be performed. During the procedure, according to the hospital and the doctor, S.A. began to hemorrhage and a second procedure was done to try to stop the hemorrhaging, and after several transfusions of blood she was flown to USA hospital. According to the hospital and the doctor, S.A. signed consent forms for the *2 dilation and curretage, as well as for the second procedure done to attempt to stop the bleeding. Those consent forms were in S.A.'s medical file.[1]
In support of their motions for summary judgment, Dr. Prescott and Thomasville Hospital offered Dr. Prescott's affidavit stating that he had not breached the standard of care with regard to S.A. His affidavit was accompanied by hospital records detailing the events preceding her D & C. The hospital records coincide with Dr. Prescott's and the hospital's version of the facts. Although Rudolph v. Lindsay, 626 So. 2d 1278, 1281 (Ala.1993), states that the unsupported assertion that "I did not breach the standard of care" will not shift the burden of proof to the plaintiff, in this case, Dr. Prescott's affidavit was accompanied by hospital records sufficient to shift the burden of proof to S.A. to offer evidence creating a genuine issue of material fact and indicating that the defendants were not entitled to a judgment as a matter of law. See Terry v. City of Decatur, 601 So. 2d 949 (Ala.1992). S.A. offered her own affidavit; however, she offered no expert testimony as to the breach of the standard of care.
S.A. was allowed an extension in order to find an expert to support her contention that Dr. Prescott and Thomasville Hospital had breached the standard of care. She failed to do so. Although she did offer the deposition testimony of a doctor, that doctor, when asked about informing patients of the potential risks of surgery, stated, "I can't say what is normal among the medical community." In addition, the doctor stated that the hospital records shown to him did not describe an elective abortion as asserted by the plaintiff but, rather, described an incomplete abortion as asserted by the defendants. The trial judge found the deposition offered by S.A. insufficient to withstand a motion for summary judgment, and this Court agrees.
Therefore, the judgment of the trial court is hereby affirmed.
AFFIRMED.
HOUSTON, KENNEDY and INGRAM, JJ., concur.
ALMON and SHORES, JJ., concur specially.
MADDOX and STEAGALL, JJ., concur in the result.
ALMON, Justice (concurring specially).
I agree that the defendants presented sufficient evidence in support of their summary judgment motion and that the plaintiff failed to present sufficient evidence in opposition. The plaintiff's expert would not testify that he was familiar with the standard of care regarding the risks of which a person should be apprised when seeking an abortion; he did not testify that the defendants breached the standard of care in obtaining S.A.'s consent; and he testified that he would not apprise his patients of the risk of hysterectomy or sterilization "in such elaborate details in all patients." Thus, I concur in the affirmance of the summary judgment. In respect to the majority opinion's citations to Pruitt v. Zeiger, 590 So. 2d 236 (Ala.1991), and Rudolph v. Lindsay, 626 So. 2d 1278 (Ala.1993), I continue to hold the views expressed in my special concurrence in Rudolph v. Lindsay.
SHORES, J., concurs.
[1] S.A. states that she did not sign the forms until the procedure was well under way and problems arose. She alleges that a nurse came to her and told her that her signature was required. | August 27, 1993 |
4a3c72d6-e1dd-482b-9c96-4760c9a9a118 | Sutton v. Epperson | 631 So. 2d 832 | 1920737 | Alabama | Alabama Supreme Court | 631 So. 2d 832 (1993)
Harold S. SUTTON, M.D.
v.
Roy T. EPPERSON, Sr., et al.
1920737.
Supreme Court of Alabama.
October 29, 1993.
Rehearing Denied December 22, 1993.
*833 James W. Webb, Daryl L. Masters and Bart Harmon of Webb & Eley, P.C., Montgomery, for appellant.
Donna L. Knotts of Parnell, Crum & Anderson, P.A., and Frank M. Wilson and James Allen Main of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for appellees.
SHORES, Justice.
We granted permission, pursuant to Rule 5, Ala.R.App.P., to appeal from a partial summary judgment entered for the defendant sellers in an action based on a contract for the sale of corporate stock. The judgment held that, as a matter of law, a liquidated damages clause in the agreement was a penalty and therefore void as against public policy. We reverse and remand.
The material facts are not disputed. Harold S. Sutton, M.D., and Roy T. Epperson, Sr., were the largest stockholders of Old Southern Life Insurance Company. Mr. Epperson Sr. was the chairman and chief executive officer of Old Southern Life for more than 25 years. Roy T. Epperson, Jr., was an officer in the corporation. Sutton had become dissatisfied with Epperson Sr.'s management of the closely held company and had caused a special meeting of the board of directors to be called for September 9, 1989. At that meeting, the board of directors voted to remove Epperson Sr. from further management of the company.
Epperson Sr. approached Sutton shortly after being ousted from his management position with the company with an offer either to buy Sutton's shares or to sell Sutton the Epperson family's shares for $2,000,000.
Sutton agreed to purchase the Eppersons' stock in Old Southern Life Insurance Company for $1,750,000. The Epperson stock was held in the names of various family members. Some shares were held in the name of Roy Epperson, Sr.; some were held in the name of his wife, Barbara Epperson; some in the name of Roy Epperson, Sr. or Roy Epperson, Jr.; still other shares were held in the joint names of Epperson Sr. and Epperson Jr.
Sutton retained a lawyer to draft a stock purchase agreement. The Eppersons were also represented by counsel. The stock purchase agreement was drafted by Sutton's lawyer and reviewed by the Eppersons' lawyer, who made several revisions, some of which were included in the contract. No objection was made to the liquidated damages provision. The agreement provided that Sutton was to purchase 247,261 shares from the Eppersons for $1,750,000, to be paid in yearly installments of $350,000, interest free. The agreement provided for Sutton to pay a $50,000 binder to the Eppersons at closing, the binder to be deducted from the first installment. The liquidated damages clause at issue is as follows:
Sutton delivered his check in the amount of $50,000 to Epperson Sr. on March 9, 1990. On April 25, 1990, the date set for consummation of the sales agreement, the parties met to consummate the transaction. However, Epperson Jr., joint owner of some of the shares of stock with Epperson Sr., was not present and did not sign the escrow agreement signed by the remainder of the parties to the contract; nor did Epperson Jr. execute a stock transfer covering the shares held jointly with his father. All of the parties agree that the April 25th meeting was not a closing and could not have been because Epperson Jr. had not signed an irrevocable stock transfer. The next day, April 26, 1990, Sutton learned for the first time that the financial condition of Old Southern had significantly deteriorated. He was advised that Old Southern's new financial statement would show a loss of approximately $2 million and that the company was possibly insolvent. He immediately informed the Eppersons that he was withdrawing his offer and would not complete the purchase. The Eppersons negotiated Sutton's check for $50,000.
On May 25, 1990, the Eppersons sued Sutton, seeking damages for breach of the contract to buy their shares of stock in Old Southern. Sutton answered, raising the liquidated damages provision as a limitation on damages for the breach of contract. Both sides moved for summary judgment, and, after argument and briefs, the trial court entered a partial summary judgment in favor of the Eppersons, holding that the liquidated damages provision of the contract was punitive and therefore void as contrary to public policy. The trial court certified the issue as a controlling issue of law for purposes of Rule 5, Ala.R.App.P., and we granted permission to appeal under that rule.
The sole issue before this Court is whether the liquidated damages clause is a penalty and therefore void as against public policy.
At common law, courts refused to enforce a penalty set out in a contract, but did enforce pre-breach stipulations as to damages, but it was often difficult to distinguish between the two. "Was the sum ... expressed in the contract ... stipulated damages, or was it a mere penalty? Few questions in the law-books are more difficult of satisfactory solution, than [this] one...." McPherson v. Robertson, 82 Ala. 459, 462, 2 So. 333, 334 (1887).
In all of the other cases that have reached this Court, the breaching party has sought to escape the application of a liquidated damages provision by claiming that the provision was excessive and punitive. This is the first case in which the provision has been defended by the party who is obligated to pay the specified amount, and attacked as void by the party who is entitled to the payment. Here, the Eppersons have not offered to return the $50,000 stated in the contract to be liquidated damages in case of a breach by Sutton, but seek, in addition to the $50,000 that they have retained, additional damages from Sutton for his failure to perform under the agreement to purchase their stock. They also retain title to the shares of stock.
It is difficult to conclude that either party is being punished by this contractual provision so that it becomes a prohibited penalty under our cases. We have recently defined a penalty in this context to mean "a security for performance designed to punish one party for breach of contract." Milton Construction Co. v. State Highway Dep't, 568 So. 2d 784, 790 (Ala.1990). Refusal to enforce penalty provisions in contracts dates back to medieval England, where the equity courts designed the rule to "prevent over-reaching" in oppressive and unfair contracts, Dobbs, Law of Remedies § 12(9) p. 246 (2d ed. 1993), and Corbin on Contracts § 1056 (1964), particularly contracts containing penal bonds executed between lenders and debtors whose bargaining powers were highly disproportionate, the debtor frequently being uneducated *835 and unsophisticated. Scholars frequently question the application of the rule in present-day commercial activities, particularly where the parties, as here, are represented by outstanding legal counsel and are, themselves, sophisticated businessmen. Dobbs, supra, at 246. "When two sophisticated parties, such as large corporations, include a liquidated damages provision that is essentially a penalty, it is difficult to understand why a court should necessarily concern itself with the matter (assuming, as always, that the provision was freely bargained)." David Brizzee, Note, Liquidated Damages and the Penalty Rule: A Reassessment, 1991 B.Y.U.L.Rev. 1618 (1991), citing Lake River Corp. v. Carborundum Co., 769 F.2d 1284 (7th Cir.1985).
Is there any overriding public policy that compels a court to invalidate and hold void this provision of a contract bargained for and agreed upon by two sophisticated businessmen, each of whom was represented by some of the best legal talent in the state? As the Court stated in Milton Construction Co. v. State Highway Dep't, supra, the state constitution protects contractual obligations from impairment by the legislature or the judiciary, and the right of freedom of contract is a cherished one that courts are bound to protect. At 17 Am.Jur.2d Contracts § 178 (1991), these principles are stated as follows:
However, under the facts of this case, we cannot hold that the liquidated damages provision is a penalty, as defined by prior cases, requiring a judicial declaration that this contractual provision is void as against public policy.
This Court set forth the criteria for assessing the validity of liquidated damages clauses in Camelot Music, Inc. v. Marx Realty & Improvement Co., 514 So. 2d 987 (Ala.1987):
514 So. 2d at 990.
This Court has often stated the standard of review when determining whether a summary judgment is proper. Milton Construction Co. v. State Highway Dep't, supra.
568 So. 2d at 785.
We apply the standards of Camelot Music to the factual inferences most favorable to the non-moving party, Sutton. If the liquidated damages clause fails to meet any one of the three criteria, it must fail as a penalty. Milton Construction Co. v. State Highway Dep't, 568 So. 2d at 790.
First, the injury caused by the breach of the agreement is difficult to estimate accurately. The Old Southern Life stock is not publicly traded and, having no ready market, the value of the stock itself is difficult to ascertain. Second, the parties intended to provide for damages rather than a penalty. In setting the amount of the binder, the parties could have considered that if Sutton did not complete the sale, the Eppersons would, nonetheless, have incurred legal expenses. The binder could have been set at an amount expected to cover these legal expenses. Last, the sum stipulated as liquidated damages was a reasonable pre-breach estimate of the Eppersons' probable loss. Under these undisputed facts, we hold the liquidated damages clause to be a valid agreement on a reasonable sum to be paid as liquidated damages in case Sutton did not complete the agreement to buy the Eppersons' stock; it was not a penalty and therefore was not void as against public policy.
In American District Telegraph Co. of Alabama v. Roberts & Son, Inc., 219 Ala. 595, 122 So. 837 (1929), this Court observed about a similar contractual provision:
219 Ala. at 598, 122 So. at 839.
Because the liquidated damages clause at issue satisfies the three requirements set out in Camelot Music, and recognizing the Alabama Constitution's strong preference for the protection of contractual obligations, Milton Construction Co., 568 So. 2d at 787, we reverse the judgment of the circuit court and remand the case for further consideration consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, HOUSTON and KENNEDY, JJ., concur. | October 29, 1993 |
0c50c898-db6e-48a8-ad89-3542b7cd676c | Big B, Inc. v. Cottingham | 634 So. 2d 999 | 1920746 | Alabama | Alabama Supreme Court | 634 So. 2d 999 (1993)
BIG B, INC.
v.
Katherine COTTINGHAM.
1920746.
Supreme Court of Alabama.
September 10, 1993.
*1001 Paul G. Smith of Smith, Spires & Peddy and Larry W. Harper of Porterfield, Harper & Mills, Birmingham, for appellant.
W. Lee Pittman and Nat Bryan of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, and Bud Turner, Anniston, for appellee.
HOUSTON, Justice.
Katherine Cottingham sued Big B, Inc., and one of its assistant store managers, Gary Vaughn. Cottingham sought to recover compensatory and punitive damages from Vaughn for false imprisonment and assault and battery (her assault and battery claim was based on allegations that Vaughn forced her to engage in a sex act with him) and from Big B based on the doctrine of respondeat superior. She also alleged that Big B had negligently or wantonly trained and supervised Vaughn and that that negligence or wantonness was the proximate cause of her injuries. Cottingham sought punitive damages from Big B under her wantonness claim as well. At the close of all the evidence, the trial court granted Big B's motion for a directed verdict on the assault and battery claim, ruling that Vaughn's solicitation of the sex act from Cottingham was outside the line and scope of his employment with Big B. The trial court also granted Cottingham's motion to dismiss Vaughn as a defendant. The trial court denied Big B's motion for a directed verdict on the false imprisonment, negligence, and wantonness claims and submitted those claims to the jury, with Big B as the only defendant. The jury returned a general verdict for Cottingham, awarding her $5,000 in compensatory damages and $1,000,000 in punitive damages, and the trial court entered a judgment on that verdict. Big B's motion for a judgment notwithstanding the verdict as to all of the claims or, in the alternative, a new trial or remittitur was later denied. Big B appeals, and we conditionally affirm.
False imprisonment consists of the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty. Ala.Code 1975, § 6-5-170. For there to be a false imprisonment, there must be some direct restraint of the person; however, it is not necessary that there be confinement in a jail or a prison. Any exercise of force, or the express or implied threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. Daniels v. Milstead, 221 Ala. 353, 128 So. 447 (1930). An employer may be held legally liable for a false imprisonment committed by one of its employees while acting within the line and scope of his employment. Birmingham News Co. v. Browne, 228 Ala. 395, 153 So. 773 (1934). Ala.Code 1975, § 6-11-27(a), provides:
(Emphasis added.)
After carefully reviewing the record, we conclude that the evidence, when viewed in the light most favorable to Cottingham, *1002 was sufficient to submit the false imprisonment claim to the jury. There was both substantial and clear and convincing evidence that Vaughn, while acting within the line and scope of his employment, wrongfully detained Cottingham during business hours at one of Big B's stores after a shoplifter, an acquaintance of Cottingham's who had entered the store with her, had escaped.[1] Vaughn, who Cottingham said appeared to be upset that the shoplifter had escaped, held Cottingham in a back room, where he falsely accused her of participating in the theft and demanded that she tell him who the shoplifter was. Vaughn, a former marine, stood between Cottingham and the door, intimidating her and threatening to have her arrested and prosecuted on shoplifting charges. Vaughn testified that "[Cottingham] was verbally abused [by him in a manner] which no human being should have ever went through." He further testified: "I know I done wrong for the simple fact of the verbal abuse Ms. Cottingham has had to take.... There is not another human being [who] should have been put through what she was put through because of one man's anger to get at another man." Cottingham, who testified that she was too afraid to attempt to leave the room, asked Vaughn what she could do to avoid prosecution. Vaughn asked what his cooperation was worth to her. Cottingham offered to pay for the merchandise that had been stolen or to clean the store. Before this discussion could progress any further, a police officer arrived to investigate the incident. Vaughn told Cottingham that their discussion would have to continue after the police officer left. Cottingham cooperated fully with the police officer, identifying the shoplifter by name. Vaughn told the officer that Cottingham was a witness and that she had had nothing to do with the theft. It was at this point that Big B's liability under the doctrine of respondeat superior ended. After the officer had gone, Vaughn immediately picked up his conversation with Cottingham where they had left off, telling Cottingham that he had up to six months to have her prosecuted. Vaughn then asked Cottingham if she had "ever [given] a white man a blow job." Cottingham replied that she had not. Vaughn responded, "Well, you're about to learn." Vaughn then grabbed Cottingham by her arms and forced her to perform fellatio on him by threatening to file a criminal complaint against her.
Although it is undisputed for purposes of this appeal that Big B is not legally responsible for Vaughn's actions after the police officer left,[2] there was sufficient evidence to show that up until the police officer's arrival Vaughn, while acting within the line and scope of his employment and for Big B's benefit, had falsely imprisoned Cottingham. We hold, therefore, that the false imprisonment claim against Big B was properly submitted to the jury.
In Lane v. Central Bank of Alabama, N.A., 425 So. 2d 1098, 1100 (Ala.1983), this *1003 Court, quoting Thompson v. Havard, 285 Ala. 718, 723, 235 So. 2d 853 (1970), stated:
See, also, Ledbetter v. United American Ins. Co., 624 So. 2d 1371 (Ala.1993).
The evidence material to Cottingham's claim of negligent training and supervision, again viewed most favorably toward Cottingham, shows the following: Big B ran a background check on Vaughn before it hired him, and that check, which included an examination of his credit history, revealed nothing that would have called into question Vaughn's fitness for employment. Vaughn's application for employment with Big B indicated that Vaughn had been honorably discharged from the United States Marine Corps and that he had obtained management experience while working with another retail store chain. Vaughn also took and passed the "Reid Psychological Systems Test," which was used by Big B as a tool to evaluate a potential employee's integrity. During his employment with Big B, Vaughn received mostly favorable performance evaluations from his superiors and he was considered to be exceptional in the area of store security. Before his dismissal, Vaughn had apprehended numerous shoplifters without an incident or a complaint of impropriety. However, Vaughn's supervisors did not review Big B's training manuals with Vaughn in accordance with company policy. In addition, Vaughn's supervisors had a reason to question Vaughn's fitness for employment when he was accused of making an unwanted sexual advance toward a 16-year-old female part-time employee of Big B. The young woman had complained to her mother, who in turn had complained to Randall Stephens, one of Big B's district managers. Stephens confronted Vaughn with the accusation in a meeting that was also attended by Jose Suco, Vaughn's immediate supervisor. Vaughn denied any wrongdoing, and Stephens instructed him "that Big B absolutely did not tolerate anything like that in any shape, form or fashion, [and] that he would be terminated immediately if [management] even thought [that] he was even thinking about anything like that or [that he had given] anybody the impression that he would do anything like that." Stephens again emphasized Big B's policy against sexual harassment in a subsequent meeting with Vaughn and informed Vaughn at that meeting that his future performance would be monitored by Suco. The female employee was transferred to another one of Big B's stores. However, Stephens did not personally interview the female employee or prepare and forward to corporate headquarters a formal written report. Stephens did report the incident to his supervisors, Steve Collins and Bobby Little.
After carefully reviewing the record, we conclude, in accordance with our standard of review, that there was sufficient evidence to show a failure on the part of Vaughn's supervisors to review the company's training manuals with Vaughn or to otherwise train Vaughn as to the proper manner in which to detain and question a suspected shoplifter. There was also sufficient evidence to allow the jury to determine whether Vaughn's supervisors were negligent in failing to properly investigate the accusation of sexual harassment *1004 made by the mother of the female employee. Although this accusation came to the attention of Stephens and Suco by way of the employee's mother and, thus, was hearsay, a fact question was nonetheless presented as to whether they exercised due care in the way that they handled the matter. The evidence suggests that the female employee could have been interviewed and that a formal report could have been prepared and forwarded to Big B's corporate headquarters for review. The jury could have found that if Stephens had sufficiently investigated the incident, Vaughn's attitude toward women and his fitness for employment would have been more seriously reevaluated and he would not have been allowed to remain in a position where he could mistreat female customers or employees. Thus, we hold that the claim for negligent training and supervision was properly submitted to the jury.
"Wantonness" is defined in § 6-11-20(b)(3) as "[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others." In Valley Building & Supply, Inc. v. Lombus, 590 So. 2d 142, 144 (Ala.1991), this Court, citing Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala. 1987), explained the difference between negligence and wantonness:
To prevent a directed verdict or a judgment notwithstanding the verdict from being entered for Big B on her wanton training and supervision claim, Cottingham had to support her claim for compensatory damages with substantial evidence that Vaughn's supervisors made a conscious decision to downplay the sexual harassment complaint that had been made against Vaughn by the mother of the female employee, knowing that to do so would likely result in Vaughn's mistreating a female customer or employee. Cottingham had to support her claim for punitive damages with clear and convincing evidence. After extensively reviewing the evidence and carefully considering the briefs of the parties, we hold that Cottingham made the necessary evidentiary showing to sustain her claim of wanton training and supervision. As previously noted, Vaughn's supervisors did not train Vaughn how to properly detain and handle an accused shoplifter, even though Vaughn detained shoplifters on numerous occasions. Furthermore, Vaughn's fitness for employment was called into question when the mother of a 16-year-old female employee accused Vaughn of making an improper sexual advance toward her daughter. Although Stephens and Suco confronted Vaughn with the mother's accusation and Vaughn denied any wrongdoing, Stephens and Suco did not interview the female employee or file a thorough formal report with Big B's corporate headquarters. The jury could have reasonably inferred from the evidence that Stephens and Suco consciously chose to downplay the incident in order to retain Vaughn, knowing that to do so would likely give Vaughn another opportunity to demean or otherwise mistreat a female customer or employee. We hold therefore, that on Cottingham's *1005 claim of wanton training and supervision Big B was not entitled to a judgment notwithstanding the verdict.
After examining the remaining issues presented by Big B, we hold that all of those issues, with the exception of the one concerning the excessiveness of the punitive damages award, are without merit.
Big B's argument that the punitive damages award must be reduced to $250,000 because there was no evidence of a pattern or practice of intentional wrongful conduct is without merit. The majority of this Court declared Ala.Code 1975, § 6-11-21, unconstitutional as violating Article I, § 11, Alabama Constitution of 1901 ("That the right to trial by jury shall remain inviolate"), in Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993). In the case at issue, a jury awarded $1,000,000 in punitive damages. There is no constitutional law requiring that a jury's award of punitive damages be reduced to $250,000.
The trial court did conduct a Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), hearing. As was noted in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 21, 111 S. Ct. 1032, 1045, 113 L. Ed. 2d 1 (1991), it is the practice of this Court, when excessiveness of a punitive damages award is raised as an issue in an appeal, to consider the following factors in determining whether the punitive damages award is excessive:
499 U.S. at 21-22, 111 S. Ct. at 1045.
Having tested the jury's $1,000,000 punitive damages award by all of these factors, we have determined that under the facts of this case the only factor that would be relevant to the issue of remittitur is "(b) the degree of reprehensibility" of Big B's acts or omissions.
Vaughn was a defendant in this case. Therefore, evidence was admitted and before the jury that Vaughn forced the plaintiff to commit an act of unnatural copulation on him, which was a crime under Ala.Code 1975, § 13-1-110. This evidence was inflammatory but was properly admitted under the claim of assault and battery while Vaughn was a defendant. At the close of all the evidence, the trial court directed a verdict on the assault and battery count in favor of Big B. The plaintiff, in an astute legal maneuver, then dismissed Vaughn as a defendant. When the case was submitted to the jury, Big B was the only defendant. The plaintiff did not cross-appeal from the trial court's order directing a verdict for Big B on the assault and battery count; therefore, it is the law of the case that Big B is not legally liable for Vaughn's forcing the plaintiff to commit fellatio. However, Vaughn's act was so reprehensible that if it had been committed in the line and scope of his employment with Big B, we would not have hesitated to affirm the $1,000,000 punitive damages award against Big B.
When we consider the reprehensibility of the acts and omissions for which Big B could be punished in this case (false imprisonment and wanton failure to train and supervise Vaughn) in light of other punitive damages awards for similar acts and omissions in this state and in surrounding states (Wal-Mart v. Jones, 533 So. 2d 551 (Ala.1988); Delchamps, Inc. v. Morgan, 601 So. 2d 442 (Ala.1992) (reversed on a "`good count, bad count' problem," see Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981)); K-Mart Corp. v. Gordon, 565 So. 2d 834 (Fla.Dist.Ct.App.1990); Jack Eckerd *1006 Corp. v. Smith, 558 So. 2d 1060 (Fla.Dist. Ct.App.1990); Winn-Dixie Stores, Inc. v. Robinson, 472 So. 2d 722 (Fla.1985)), we conclude that the punitive damages award is excessive.
A new trial may be granted because of excessive or inadequate damages. Ala.Code 1975, § 12-13-11(a)(4); Rule 59(a), Ala.R.Civ.P. A jury's verdict must be within the bounds of reason, as perceived by the judicial mind, although it may exceed, or be less than, what any particular judge's life experiences would have it be. Although granting a new trial infringes upon the first jury's findings and verdict, it does so at the latest point in the trial proceedings; it does so with the least intrusion upon the right to trial by jury, consistent with imposing necessary limits upon a jury's power, because the factual issue of the amount that it will take to punish and deter this defendant and others similarly situated is tried by another jury and not by the trial court or this Court. Regardless of the subsequent jury's verdict, there is no attaint, fine, or imprisonment resulting from the action of the first jury as there was at common law. J. Thayer, A Preliminary Treatise on Evidence of the Common Law, at 140-41 (1898); Smith, The Power of the Judge to Direct a Verdict, 24 Colum.L.Rev. 111, 112, n. 46 (1924); Bushnell's Case, 124 Eng.Rep. 1006 (C.P. 1670).
There is statutory authority for this Court to grant a remittitur in lieu of granting a new trial. Ala.Code 1975, § 12-22-71. In remitting a punitive damages award, we must remit only that amount in excess of the maximum amount that a properly functioning jury could have awarded. In this case, we are persuaded that a properly functioning jury could have awarded a maximum of $600,000 in punitive damages to punish Big B for false imprisonment and wanton failure to train and supervise Vaughn and to deter Big B and others from similar actions or failures.
Big B overcame the presumption of correctness that attached to the jury's punitive damages verdict by proving that the verdict was excessive for the purpose of punishing and deterring Big B for the act or omissions for which Big B could be punished. Therefore, we affirm the judgment, conditioned upon the plaintiff's accepting, within 30 days of this judgment, a remittitur of $400,000 of the $1,000,000 punitive damages award. If the plaintiff fails to accept this remittitur within 30 days, the judgment will be reversed and a new trial ordered.
AFFIRMED CONDITIONALLY.
HORNSBY, C.J., and MADDOX, ADAMS, KENNEDY and INGRAM,[*] JJ., concur.
[1] Because this case was not pending on June 11, 1987, the applicable standard for reviewing the sufficiency of the evidence on Cottingham's compensatory damages claim is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). However, the applicable standard for reviewing the sufficiency of the evidence on the punitive damages claim is the "clear and convincing evidence" rule. Ala.Code 1975, § 6-11-20. "Clear and convincing evidence" is defined in § 6-11-20(b)(4) 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."
[2] As previously noted, the trial court ruled as a matter of law that Vaughn's solicitation of the sex act after the police officer had left occurred while Vaughn was acting outside the line and scope of his employment with Big B. This ruling has not been challenged on appeal and is, therefore, the law of this case. See Blumberg v. Touche Ross & Co., 514 So. 2d 922 (Ala.1987). As Cottingham conceded in her brief, "in this appeal, this Court is only presented with the injuries caused before [Vaughn deviated from the line and scope of his employment]."
[*] Although Justice Ingram did not sit for oral argument in this case, he has listened to the tapes. | September 10, 1993 |
898b91c1-1061-4379-9f9d-294b888a713f | Baker v. Pi Kappa Phi Fraternity | 628 So. 2d 423 | 1920919 | Alabama | Alabama Supreme Court | 628 So. 2d 423 (1993)
Scott Allen BAKER
v.
PI KAPPA PHI FRATERNITY.
1920919.
Supreme Court of Alabama.
August 27, 1993.
*424 Davis Carr and H. William Wasden of Pierce, Carr & Alford, P.C., Mobile, for appellant.
Steven L. Terry of Sintz, Campbell, Duke & Taylor, Mobile, for appellee.
HOUSTON, Justice.
The complaint in this case arose from an altercation between Scott Allen Baker and Derek Montgomery Anlage, a member of the Gamma Phi chapter of Pi Kappa Phi social fraternity, an unincorporated association. Baker sued Anlage and Pi Kappa Phi, alleging assault and battery, negligence, wantonness, and a violation of Ala.Code 1975, § 6-5-71 (the Dram Shop Act), and seeking both compensatory and punitive damages. The trial court entered a summary judgment for Pi Kappa Phi and made that judgment final pursuant to Rule 54(b), A.R.Civ.P.[1] Baker appealed. The record contains no substantial evidence of a Dram Shop Act violation by Pi Kappa Phi, and the summary judgment is affirmed as to that claim. However, we reverse and remand as to the assault and battery, negligence, and wantonness claims.
In the early morning hours of January 27, 1992, a confrontation occurred between Baker and Anlage as Anlage was assisting in "closing down" a party at the Pi Kappa Phi fraternity house, located next to the campus of the University of South Alabama. Anlage was an active member of Pi Kappa Phi and Baker was a visitor at the party. The evidence is conflicting as to exactly what sparked the confrontation; however, it appears that the trouble began when Baker, his girlfriend, and another friend began to question the bartender as to what had happened to a number of cans of beer that Baker had brought to the party. This dispute eventually led to Baker's encounter with Anlage. Baker came away from the encounter with a broken jaw and nerve damage to his face.
Baker argues that he presented sufficient evidence to create a fact question as to whether Anlage was acting as an agent of Pi Kappa Phi at the time of the alleged assault and as to whether Pi Kappa Phi had encouraged or authorized Anlage to use physical force against him. Relying on Rothman v. Gamma Alpha Chapter of Pi Kappa Alpha Fraternity, 599 So. 2d 9 (Ala.1992), Pi Kappa Phi takes the contrary positionthat there was insufficient evidence to show that Anlage was acting on its behalf at the time of the altercation or that it had encouraged or authorized Anlage to use any kind of physical force against Baker. Thus, the issue presented on this appeal is whether the evidence was sufficient to allow a jury to decide whether Anlage was acting as an agent of Pi Kappa Phi at the time of the incident and was acting with authorization from the fraternity *425 to use physical force to remove Baker from the party.
The summary judgment was proper in this case if there was no genuine issue of material fact and Pi Kappa Phi was entitled to a judgment as a matter of law. Rule 56, Ala.P.Civ.P. The burden was on Pi Kappa Phi to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Baker to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to Baker and must resolve all reasonable doubts against Pi Kappa Phi. Knight v. Alabama Power Co., 580 So. 2d 576 (Ala.1991). Because this case was not pending on June 11, 1987, the applicable standard for reviewing Baker's claim for compensatory damages is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). The applicable standard for reviewing Baker's claim for punitive damages is, however, governed by the "clear and convincing evidence" standard. Ala.Code 1975, § 6-11-20; see Senn v. Alabama Gas Corp., 619 So. 2d 1320 (Ala.1993), Berry v. Fife, 590 So. 2d 884 (Ala.1991). "Clear and convincing evidence" is defined in § 6-11-20(b)(4) as follows:
As both parties acknowledge, an unincorporated association, such as Pi Kappa Phi, may be liable in tort for the wrongful acts of its members when acting collectively in the prosecution of the business for which it is organized, and it is responsible for the torts of its members or employees when it has encouraged or authorized them. However, in the absence of authorization or ratification by its members, an association like Pi Kappa Phi is not liable for the intentional torts of its members. Rothman, supra.
After carefully examining the applicable portions of the record, and viewing the evidence in the light most favorable to Baker, we conclude that there was sufficient evidence from which a jury could find that Anlage was acting as an agent of Pi Kappa Phi at the time of the alleged assault and that Anlage's use of physical force was not outside the scope of his duties as a member of Pi Kappa Phi. The evidence shows that Anlage was physically the largest and most intimidating member of the Gamma Phi chapter of Pi Kappa Phi. He had been in one fistfight over a disputed trespass on the fraternity's property before the altercation made the basis of this suit. Jerry Lee, the fraternity's vice president, was aware of that fight, in which Anlage had "decked" the individual, disabling him with a single blow. Anlage had a reputation among the fraternity's members as being someone who should not be "messed with." Carl Bronold, the social chairman of Pi Kappa Phi at the time of the incident, testified as follows:
Jerry Lee testified:
The evidence indicated that in a related criminal proceeding that arose out of this incident Lee had referred to Anlage as a "bouncer figure." He testified in this case as follows:
The evidence, when viewed favorably toward Baker, was sufficient under both the "substantial evidence" and the "clear and convincing evidence" standards of review to allow a jury to determine whether the ranking members of Pi Kappa Phi used Anlage as a means of "crowd control" during parties and whether they expected him to use physical force to accomplish his job. We are not persuaded by Pi Kappa Phi's argument that Anlage ceased representing the fraternity the moment before his fist struck Baker's face.[2] The evidence shows that the ranking members of Pi Kappa Phi were clearly aware of Anlage's ability to intimidate others and of his willingness to settle disputes with his fists. This knowledge on the fraternity's part, when viewed in light of the role that Anlage was assigned at fraternity parties, creates a strong inference that it was foreseeable to Pi Kappa Phi that Anlage would back his words up with physical action and that that action was at least impliedly authorized by the fraternity. "For they have sown the wind, and they shall reap the whirlwind."[3]
We note that Rothman is factually distinguishable from the present case. In Rothman, the plaintiff was injured when a fight broke out between his fraternity and another fraternity. There was no evidence in that case to show that the defendant fraternity had encouraged or authorized the actions of its members that resulted in injury to the plaintiff.
The judgment is affirmed as to the claim alleging a violation of the Dram Shop Act. The judgment is reversed as to the assault and battery, negligence, and wantonness claims, and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Baker later dismissed his claims against Anlage with prejudice.
[2] Carl Bronold testified:
"Q. When [Anlage] got into the altercation, was he doing that as a representative of the fraternity?
". . . .
"A. No.
". . . .
"Q. So he was acting on behalf of the fraternity up to the point ...
"A. Up until the point of physical contact."
[3] Hosea 8:7 (King James). | August 27, 1993 |
86058e5d-ac3c-4775-a6f2-8a951356d0bf | Penick v. CADO SYSTEMS OF CENT. ALABAMA | 628 So. 2d 598 | 1921202 | Alabama | Alabama Supreme Court | 628 So. 2d 598 (1993)
Henry L. PENICK
v.
CADO SYSTEMS OF CENTRAL ALABAMA, INC., et al.
1921202.
Supreme Court of Alabama.
November 19, 1993.
*599 Henry L. Penick, pro se.
J. Haran Lowe, Jr. and David L. Rawls, Birmingham, for Cado Systems of Central Alabama, Inc. and Cognition Technology Corp.
James C. Barton, Jr. and Scott W. Ford of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for General Elec. Capital Dealer Distributor Finance, Inc., formerly known as Contel Credit Corp., Inc.
SHORES, Justice.
This case presents an issue of first impression: whether a compulsory counterclaim is an "action" for purposes of Alabama Code 1975, § 6-5-440, which bars a plaintiff from prosecuting two actions in the courts of this State at the same time for the same cause and against the same party. We hold that it is. We affirm in part and dismiss in part.
Two cases were filed on the same day in the Circuit Court of Jefferson County, both based upon a dispute concerning commercial lease agreements for computer equipment. The original agreement was signed November 1, 1989, by Henry L. Penick and General Electric Capital Dealer Distributor Finance, Inc. ("G.E. Capital"), formerly known as Contel Credit Corporation, Inc. A subsequent "Equipment Add-On Agreement," dated December 19, 1989, and a "Lease Modification Agreement," dated November 27, 1991, were also signed. Under the terms of these agreements, Penick was to make monthly payments to G.E. Capital for the lease of computer equipment.
On September 9, 1992, G.E. Capital sued Henry L. Penick in the Circuit Court of Jefferson County, Alabama, the action being designated CV-92-7210.[1] This case was assigned to Judge Claude Hughes. Later that day, Henry L. Penick sued Cado Systems of Central Alabama, Inc. ("Cado Systems"), Cognition Technology Corporation ("Cognition"), and G.E. Capital, in the same court; the action was designated CV-92-7219.[2] This case was assigned to Judge Roger Monroe. On October 20, 1992, Penick filed an answer and counterclaim in CV-92-7210, asserting the same claims against G.E. Capital that he had alleged against the defendants in CV-92-7219.
On December 7, 1992, G.E. Capital moved to dismiss CV-92-7219 on the grounds that CV-92-7210 involved the same facts and issues and arose from the same transactions and occurrences as those alleged by Penick in CV-92-7219. A hearing was scheduled for January 8, 1993. At that hearing, Penick moved to consolidate the two actions. Judge Monroe overruled G.E. Capital's motion to dismiss, and granted Penick's motion to consolidate CV-92-7210 and CV-92-7219. G.E. Capital then moved to dismiss in CV-92-7210. After a hearing, Judge Hughes held the consolidation to be invalid and stated that he would continue to manage CV-92-7210; he referred CV-92-7219 back to Judge Monroe for handling.
After CV-92-7219 was referred back to Judge Monroe, G.E. Capital again moved to dismiss CV-92-7219 as to G.E. Capital; the motion did not relate to the other two defendants in CV-92-7219. On April 2, 1992, Judge Monroe granted G.E. Capital's motion *600 to dismiss. In addition, he dismissed CV-92-7219 in its entirety, stating in his order:
Penick filed no post-judgment motion related to Judge Monroe's order. He did file a notice of appeal to this Court on May 11, 1993. The notice of appeal was not sent to counsel for Cado Systems and Cognition, nor was their counsel listed on the docketing statement filed in this Court. The attorney for Cado Systems and Cognition has filed a motion to dismiss this appeal as to those two parties, asserting that he was never served with the notice of appeal and has been consistently omitted from Penick's certificate of service on filings in this appeal.
We must consider whether the trial court erred in dismissing G.E. Capital in CV-92-7219. G.E. Capital contends that the claims made by Penick are compulsory counterclaims under Rule 13(a), A.R.Civ.P., and that Alabama Code 1975, § 6-5-440, bars him from asserting them in a separate action. Section 6-5-440 provides:
We agree with G.E. Capital. A comparison of Penick's counterclaim in CV-92-7210 and his complaint in CV-92-7219 with G.E. Capital's complaint in CV-92-7210 makes it clear that his counterclaim is compulsory under Rule 13(a). G.E. Capital's complaint against Penick is based upon commercial lease agreements for computer equipment and is based upon Penick's default on the payments owed under the lease. All of Penick's claims in his counterclaim (including his fraud claim) arise out of the commercial lease agreements and, therefore, arise from the same core of operative facts. Thus, they are compulsory counterclaims under Rule 13(a). Turner v. Lassiter, 484 So. 2d 378, 381 (Ala.1985); Ex parte Canal Insurance Co., 534 So. 2d 582, 584 (Ala.1988).
When a counterclaim is compulsory under Rule 13(a), it is a necessary part of the original action. When such a counterclaim is asserted, as it has been by Penick in CV-92-7210, the party asserting the claim is the counterplaintiff. Section 6-5-440 will not allow Penick to be a plaintiff in two separate actions "for the same cause and against the same party." Thus, CV-92-7219 was due to be dismissed as to G.E. Capital.
Penick also contends that the trial judge erred in dismissing Cado Systems and Cognition in CV-92-7219. We need not address that contention, however, because as to these two defendants the appeal is due to be dismissed under Rule 2(a)(2)(D), A.R.App.P., which provides for dismissal of an appeal when the appellant has failed to comply substantially with the Alabama Rules of Appellate Procedure. It is undisputed that Cado Systems and Cognition were not served with a notice of appeal and were not served with a designation of the record as required by Rule 3(c), A.R.App.P. Although "Cado Systems" was listed on the docketing statement (see Rule 3(e), A.R.App.P.) as the party appealed against, it was not served with a copy of the statement, and the only attorney listed on the statement is counsel for G.E. Capital, not Cado Systems. In addition, Penick's brief does not show service on counsel for these two defendants. In fact, Cado Systems and *601 Cognition learned of the appeal only through counsel for G.E. Capital. This was despite the fact that their counsel had filed answers for both corporations.
For the reasons stated above, the judgment of the trial court dismissing G.E. Capital in CV-92-7219 is due to be affirmed. The motion of Cado Systems and Cognition to dismiss the appeal as to them is due to be granted.
AFFIRMED IN PART; DISMISSED IN PART.
HORNSBY, C.J., and MADDOX, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] In its complaint, G.E. Capital sought a writ of seizure for possession of the equipment and a judgment against Penick for the amount owed under the leases.
[2] Penick's complaint is also based upon the leases, and it alleges various contractual and tortbased wrongs, as well as fraud. | November 19, 1993 |
580788be-ed2a-4cb2-bb5c-f7e0d82f613b | Osborne v. Weil | 628 So. 2d 436 | 1912017 | Alabama | Alabama Supreme Court | 628 So. 2d 436 (1993)
Johnny Evans OSBORNE and Helen D. Blevins
v.
Sherwood WEIL and Leslie Weil.
1912017.
Supreme Court of Alabama.
September 3, 1993.
*437 George K. Williams and Charles H. Pullen of Watson, Gammons & Fees, P.C., Huntsville, for appellants.
James H. Richardson and Patrick W. Richardson of Bell Richardson, P.A., Huntsville, for appellees.
HOUSTON, Justice.
The original opinion released on April 30, 1993, is withdrawn and the following opinion is substituted therefor.
The jury returned a verdict for the plaintiffs/purchasers, Sherwood Weil and Leslie Weil, and against the defendants/sellers, Johnny Evans Osborne and Helen D. (Blevins) Osborne, on the Weils' claims alleging fraud, misrepresentation, and deceit arising out of oral and written representations and failures to disclose information about the business, including 7.48 acres of commercial property, known as the "Fishin' Hole," which the Weils purchased from the Osbornes. The representations involved the profitability of the business, the operation of the business, and the condition of the equipment included in the sale. The oral representations were made before the Weils and the Osbornes signed a contract for the sale of the "Fishin' Hole"; that contract, which also contained several representations concerning the business, had been prepared at the Weils' request by a lawyer selected by and acting for the Weils. A jury found for the Weils. The Osbornes appeal from the judgment entered by the trial court on the jury's verdict. We reverse and remand.
The Osbornes' motion for summary judgment, their directed verdict motions made at the close of the Weils' evidence and at the conclusion of all the evidence, and their motion for a judgment notwithstanding the verdict (all motions predicated upon the execution by the Weils and Osbornes of a sales agreement after the alleged oral representations had been made) were denied by the trial court.
The contract contained the following provisions:
(Emphasis added.)
The contract was available for the Weils to read at their lawyer's office. No one prevented them from reading it. They signed it. The Osbornes, who were not represented by a lawyer during the sales process, also signed it.
No matter which standard this Court uses as the appropriate standard for testing reliance in a commercial fraud transactionwhether "reasonable reliance" (Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1087-92 (Ala.1989) (Hornsby, C.J., concurring specially)), or "justifiable reliance" (Hickox v. Stover, 551 So. 2d 259 (Ala. 1989); Johnson v. State Farm Insurance Co., 587 So. 2d 974 (Ala.1981))we conclude that, as a matter of law, the Weils had no right to rely on oral representations made before they executed the contract prepared by their lawyer. Burroughs v. Jackson National Life Insurance Co., 618 So. 2d 1329 (Ala.1993); Leatherwood, Inc. v. Baker, 619 So. 2d 1273 (Ala.1992); O'Connor v. Scott, 533 So. 2d 241 (Ala.1988) (consumer real estate transaction); Credit Alliance Corp. v. Cornelius & Rush Coal Co., 508 F. Supp. 63 (N.D.Ala.1980). We further conclude that, by agreeing to buy the equipment "as is," the Weils could not base a fraud claim on the representation contained in § 4B of the contract concerning the condition of the equipment included in the sale. See O'Connor v. Scott, supra. In addition, we cannot see how the representation in § 5 of the contract, concerning the accuracy of the Osbornes' financial statements, was actionable. It appears to be undisputed that the Osbornes' financial statements were never provided to the Weils before the purchase. Furthermore, there appears to be no contention that the Osbornes' financial statements were inaccurate. The Weils alleged that had these statements been provided to them before the purchase they would have realized that the business was not a good investment. Therefore, the trial court erred in not granting the Osbornes' motion for a judgment notwithstanding the verdict, insofar as the Weils' fraud claims were based on these representations. However, the Weils could base a fraud claim on the representation contained in § 4B of the contract that the health department had issued no citations to the Osbornes. The record indicates that, before selling the business to the Weils, the Osbornes had been cited by the health department for having a well contaminated with bacteria. The materiality of this representation was expressly acknowledged in the contract.
Because the Osbornes specifically challenged the fraud claims on the ground that there was no justifiable reliance on the part of the Weils, and because all but one of the Osbornes' representations could not, as a matter of law, form the basis for the Weils' fraud claims, we must reverse the judgment under the rationale of Aspinwall v. Gowans, 405 So. 2d 134 (Ala.1981), and remand the *439 case for further proceedings consistent with this opinion.
APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES and STEAGALL, JJ., concur.
KENNEDY, J., concurs in the result.
MADDOX, J., dissents. | September 3, 1993 |
0c22b04c-ba5c-4e49-937b-5a26370ec94a | Gober v. Khalaf | 628 So. 2d 416 | 1920686 | Alabama | Alabama Supreme Court | 628 So. 2d 416 (1993)
Patricia GOBER
v.
Dr. Omar H. KHALAF.
1920686.
Supreme Court of Alabama.
August 27, 1993.
*417 David H. Marsh of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., and James D. Forstman of Forstman & Associates, Birmingham, for appellant.
Thomas W. Christian, Deborah Alley Smith, and Jane G. Ragland of Rives & Peterson, Birmingham, for appellee.
HOUSTON, Justice.
Patricia Gober appeals from a judgment based on a jury verdict for Dr. Omar H. Khalaf on Gober's claims of assault, battery, and medical negligence. The issues in this case involve the admission or exclusion of evidence at trial.
A trial court has wide discretion to determine whether evidence is relevant, material, or remote and has wide discretion to exclude or to admit evidence, even if that evidence is of minor probative value, so long as that evidence sheds light on, but does not withdraw from, the main inquiry. See AmSouth Bank, N.A. v. Spigener, 505 So. 2d 1030 (Ala.1986); Ryan v. Acuff, 435 So. 2d 1244 (Ala.1983). However, when evidence would serve little purpose except to arouse the passion or the sympathy of the jury, the trial court may exclude that evidence and may, within its discretion, exclude such other evidence as it deems unduly prejudicial. Valley Mining Corp. v. Metro Bank, 383 So. 2d 158 (Ala.1980).
Gober maintains that the testimony of J.R., a former patient of Dr. Khalaf, regarding another alleged incident was admissible to impeach Dr. Khalaf's testimony that he had never sexually assaulted a patient.
The only testimony elicited from Dr. Khalaf on this subject and the only reference provided by Gober with respect to the testimony to be impeached was that Dr. Khalaf had "never done a sexual assault on one of [his] patients."
Character evidence generally is inadmissible to prove that a party acted in conformity on a particular occasion; such evidence has little probative value and cannot be used as a basis for concluding that the party acted in keeping with a particular good or bad character on the occasion in question, see, e.g., C. Gamble, McElroy's Alabama Evidence § 34.01 (4th ed. 1991); and the general rule is that a witness may not be impeached on a collateral matter. See C. Gamble, McElroy's Alabama Evidence, § 156.01(1) (4th ed. 1991); 3A Wigmore on Evidence § 1003 (Chadbourn rev. 1970). A fact is collateral if it is "admissible neither upon an issue under the pleadings of the case nor for the purpose of impeaching the witness' credibility in some means other than inconsistency." McElroy's Alabama Evidence, § 156.01(3). The fact on which the error is predicated is collateral if it could not have been shown in evidence for any purpose independent of the contradiction. See, Wigmore § 1003. It appears from the record that the testimony of J.R.that Dr. Khalaf touched her in a sexually inappropriate mannerwas not admissible upon an issue under the pleadings nor for the purpose of impeaching Dr. Khalaf's credibility in some means other than inconsistency; it was not admissible for any purpose independent of the contradiction.
Furthermore, even if J.R.'s testimony were determined to be admissible, Gober failed to lay the proper predicate for its admission to impeach Dr. Khalafshe failed to inquire of Dr. Khalaf whether he committed the alleged inconsistent act and she failed to specify when the alleged act was committed and the person with whom the alleged act was committed, so as to allow Dr. Khalaf the opportunity to admit or deny the alleged charge or to give an explanation for the inconsistency. See, e.g., White Consolidated Industries, Inc. v. American Liberty Ins. Co., 617 So. 2d 657 (Ala.1993) (quoting Trussell v. State, 585 S.W.2d 736, 738 (Tex.Crim. App.1979); McElroy's Alabama Evidence, § 157.01(1)-(4) (4th ed. 1991); Ex parte Watts, 471 So. 2d 505 (Ala.1985).
We note that Gober argues that J.R.'s testimony was admissible to prove on the part of Dr. Khalaf a pattern or practice of intentional wrongful conduct, so as to enable her to recover an amount of punitive damages in excess of the $250,000 cap. The cap was eliminated in Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993); therefore, *418 we pretermit any further discussion on this issue.
Gober also maintains that the evidence of "unrelated events" in her life was inadmissible, because, she argues, 1) specific evidence of impropriety is inadmissible in an action for assault unless consent is an issue; 2) she opened no door that would justify the introduction of such evidence; and 3) the prejudicial effect its admission had on the jury far outweighed any probative value.
Gober filed a motion in limine to exclude evidence of other events in her life. The trial court instructed the parties not to delve into specific acts in opening statements, but reserved a ruling on the admissibility of the evidence on the issue of damages or in case Gober put the events in issue. When Gober testified initially, the trial court precluded Dr. Khalaf from cross-examining her about these events in her life, subject to the right to prove these events if they became admissible because of medical testimony as to causes of her alleged mental anguish and distress. Subsequently, Gober offered the testimony of her medical expert concerning what he termed "stressors" in day-to-day life and "life events" that lead to depression.
Dr. Khalaf maintains that because Gober alleged that she suffered emotional distress, depression, nightmares, and loss of sleep as a result of Dr. Khalaf's actions, proof that her injury or the harm she allegedly suffered was caused by something other than the incident that forms the basis of this action was admissible.
In this case, clearly, the evidence of these other "events" in Gober's life was relevant and admissible to help the jury determine whether her depression and mental distress were caused by something other than Dr. Khalaf's alleged sexual assault. See Eason v. Comfort, 561 So. 2d 1068 (Ala.1990); see, also, e.g., Singer Sewing Machine Co. v. Methvin, 184 Ala. 554, 63 So. 997 (1913); Birmingham R.R. & Electric Co. v. Ellard, 135 Ala. 433, 33 So. 276 (1903). Furthermore, nothing in the record supports Gober's contention that the prejudicial effect of the introduction of these events out-weighed any possible probative value.
Based on the foregoing, we conclude that the trial court did not abuse its discretion in excluding the testimony of J.R. or in admitting the testimony of other events in Gober's life.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | August 27, 1993 |
33af3d93-005e-4067-8511-8ec937584af0 | Ex Parte Vaughn | 634 So. 2d 533 | 1911634 | Alabama | Alabama Supreme Court | 634 So. 2d 533 (1993)
Ex parte Madge W. VAUGHN.
(Re Madge W. VAUGHN v. Charles G. VAUGHN).
1911634.
Supreme Court of Alabama.
August 27, 1993.
Rehearing Denied December 3, 1993.
*534 Ernest L. Potter, Huntsville, for petitioner.
David A. Kimberley of Floyd, Keener, Cusimano & Roberts, Gadsden, for respondent.
John L. Capell III and Ellen M. Hastings of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, for amici curiae Madison County Women's Political Caucus, Alabama Women's Political Caucus, Alabama League of Women Voters, American Ass'n of University Women, Alabama Chapter, American Ass'n of University Women, Huntsville Chapter, Churchwomen United-Huntsville, Nat. Expose (Ex-Partners of Service Men [Women] for Equality), Alabama Ex-pose, Alabama Women's Com'n and Rocket City Business and Professional Women.
ADAMS, Justice.
We granted the petition of Madge W. Vaughn for certiorari review of the judgment of the Court of Civil Appeals in Vaughn v. Vaughn, 634 So. 2d 530 (Ala.Civ.App.1992). We reverse and remand.
Madge W. Vaughn and Charles G. Vaughn were married on April 23, 1966, and they were divorced on March 13, 1991. During the marriage, Mr. Vaughn was a member of the United States Army and retired as a Lt. Colonel in October 1986. Since his retirement, Mr. Vaughn has been employed in the private sector, and he has also been receiving military retirement pay. Mrs. Vaughn is currently employed by the Huntsville school system.
After an ore tenus hearing, the trial court entered a divorce judgment providing for the distribution of real and personal property, nonpension financial assets, child support, and alimony payments. The trial court, however, denied Mrs. Vaughn's request for an award of an interest in Mr. Vaughn's military retirement pay, stating, on the basis of Tinsley v. Tinsley, 431 So. 2d 1304 (Ala.Civ.App. 1983), that "military retirement benefits cannot be considered as marital property and may not be included in an award of alimony in gross or in a division of property. It may be considered only as a source of income regarding periodic alimony."
The Court of Civil Appeals affirmed; we granted certiorari review to address the issue of whether the military retirement benefits of one spouse may be considered as marital property and, thus, subject to property division and/or included in an award of alimony in gross. We answer affirmatively.
The standard governing the treatment of military retirement benefits, upon the dissolution of a marriage, in Alabama was set out in Kabaci v. Kabaci, 373 So. 2d 1144 (Ala.Civ. App.1979). The Court of Civil Appeals refused to treat an award of military retirement benefits as either a property settlement or alimony in gross and stated:
Kabaci, 373 So. 2d at 1146. While this premise the "absence of sound authority"may have been valid at the time the Court of Civil Appeals ruled in Kabaci, it is no longer true.
*535 The United States Supreme Court held in McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981), that on dissolution of the marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws. The Supreme Court, however, "recognize[d] that the plight of an ex-spouse of a retired service member is often a serious one," but suggested that the decision of whether "more protection should be afforded a former spouse of a retired service member ... [was] for Congress alone." 453 U.S. at 235, 101 S. Ct. at 2742.
Congress responded to the Supreme Court's suggestion and enacted the Uniformed Services Former Spouses' Protection Act ("USFSPA") (codified in part at 10 U.S.C. § 1408) in 1982. Section 1408(c)(1) (as amended 1990) of the USFSPA provides:
Section 1408(a)(4) (as amended 1990) defines "disposable retired pay" or "retainer pay" as:
The Act has been explained as follows:
It is obvious that the USFSPA does not mandate, but rather, authorizes, state courts to consider military retirement benefits as marital property, and, thus, subject to equitable division. A significant number of state courts have taken notice of this authorization given by the USFSPA and have held that military retirement benefits are subject to distribution as marital property upon the dissolution of the marriage. See, e.g., Young v. Young, 288 Ark. 33, 701 S.W.2d 369 (1986); In re Marriage of Potter, 179 Cal. App. 3d 73, 224 Cal. Rptr. 312 (1986), cert. denied sub nom., Potter v. Abshire, 479 U.S. 1072, 107 S. Ct. 1262, 94 L. Ed. 2d 124 (1987); In re Marriage of Gallo, 752 P.2d 47 (Colo.1988); McMahan v. McMahan, 567 So. 2d 976 (Fla. Dist.Ct.App.1990); Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140 (1987); Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984); In re Marriage of Kennedy, 170 Ill.App.3d 726, 525 N.E.2d 168, 121 Ill.Dec. 362 (1988); Warren v. Warren, 563 N.E.2d 633 (Ind.App.1990); In re Marriage of Harrison, 13 Kan.App.2d 313, 769 P.2d 678 (1989); Jones v. Jones, 680 S.W.2d 921 (Ky.1984); Rearden v. Rearden, 568 So. 2d 1111 (La.App.1990); Murphy v. Murphy, 763 S.W.2d 237 (Mo.App.1988); Patzer v. Patzer, 243 Mont. 34, 792 P.2d 1101 (1990); Walentowski v. Walentowski, 100 N.M. 484, 672 P.2d 657 (1983); Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205 (1990), appeal den., 525 Pa. 664, 583 A.2d 794 (1990); Radigan v. Radigan, 465 N.W.2d 483 (S.D.1991); Adams v. Adams, 787 S.W.2d 619 (Tex.App.1990); Greene v. Greene, 751 P.2d 827 (Utah App.), cert. denied, 765 P.2d 1278 (Utah 1988); Lambert v. Lambert, 10 Va.App. 623, 395 S.E.2d 207 (1990); Butcher v. Butcher, 178 W.Va. 33, 357 S.E.2d 226 (1987); and Parker v. Parker, 750 P.2d 1313 (Wyo.1988).
The Court of Civil Appeals stated in this case that neither McCarty, supra, nor the USFSPA has altered Alabama law in relation to the treatment of military retirement benefits, and it chose not to deviate from the authority of the state; namely, Kabaci, supra, and Ala.Code 1975, § 30-2-52.
Section 30-2-52 provides:
Section 30-2-51 provides:
A plain reading of §§ 30-2-51 and 30-2-52 does not suggest that they preclude the distribution of military retirement benefits as marital property. After carefully considering the federal and state authorities cited above, this Court is persuaded to change the law of this state governing the treatment of military retirement benefits. We hold that disposable military retirement benefits, as defined by 10 U.S.C. § 1408(a)(4), accumulated during the course of the marriage constitute marital property and, therefore, are subject to equitable division as such. Furthermore, *537 to the extent that they are inconsistent with this holding, Kabaci and the cases relying on the rule of Kabaci are overruled.
The judgment of the Court of Civil Appeals is reversed, and this case is remanded for a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur. | August 27, 1993 |
22678d71-c65b-4099-88b2-c5b98104d6a1 | Dodd v. Nelda Stephenson Chevrolet, Inc. | 626 So. 2d 1288 | 1911399 | Alabama | Alabama Supreme Court | 626 So. 2d 1288 (1993)
Jimmy H. DODD
v.
NELDA STEPHENSON CHEVROLET, INC., et al.
1911399.
Supreme Court of Alabama.
August 6, 1993.
Rehearing Denied September 24, 1993.
*1289 Robert H. McKenzie of Holt, McKenzie, Holt & Mussleman, Florence, for appellant.
J.A. Keller of Keller & Pitts, Florence, for Nelda Stephenson Chevrolet, Inc.
Nicholas B. Roth of Eyster, Key, Tubb, Weaver & Roth, Decatur, for General Motors Corp.
A. Stewart O'Bannon, Jr. of O'Bannon & O'Bannon, Florence, for Bob Hembree Motor Co., Inc.
ALMON, Justice.
The plaintiff, Jimmy H. Dodd, appeals from a summary judgment entered in favor of the defendants, Nelda Stephenson Chevrolet, Inc., Bob Hembree Motor Company, Inc., and General Motors Corporation. Dodd's action alleged fraud, suppression, fraudulent concealment, breach of express warranty, and breach of implied warranties of merchantability or fitness for a particular purpose, all in connection with his purchase of a 1990 Chevrolet Camaro R.S. automobile from Nelda Stephenson Chevrolet.
On May 5, 1990, Dodd went to Nelda Stephenson Chevrolet ("Stephenson Chevrolet") in Florence, Alabama, to purchase a car. Because Stephenson Chevrolet did not have the type of car Dodd requested, Stephenson Chevrolet arranged to obtain the car Dodd wanted from Bob Hembree Motor Company, Inc. ("Hembree Motors"), a Chevrolet dealership in Guntersville, Alabama. Almon Truitt, an employee of Stephenson Chevrolet, drove to Hembree Motors and exchanged a new car from Stephenson Chevrolet for a 1990 Camaro.
Truitt returned with the Camaro late in the afternoon on May 5, 1990. Approximately two hours later, Dodd picked it up. Because Stephenson Chevrolet had not had an opportunity to clean the car, it instructed Dodd to return the Camaro six days later to be cleaned.
A day or so after Dodd took possession of the Camaro, he noticed what looked like streaks or sand marks on the right rear quarter panel. When Dodd brought the Camaro *1290 to Stephenson Chevrolet the next Friday, Dodd informed a sales representative of Stephenson Chevrolet of the problem. Billy Ray, the sales representative at Stephenson Chevrolet with whom he had been dealing, informed Dodd that the 36-month warranty covered the problem and offered to repaint the car. Dodd, however, declined the offer to paint the Camaro at that time.
In February 1991, while washing the Camaro, Dodd noticed that a groove that was supposed to be on the right rear quarter panel had been filled in. Suspecting that the Camaro had been damaged and repaired before he had purchased it, Dodd complained to Stephenson Chevrolet. In response, Mrs. Nelda Stephenson, president of Stephenson Chevrolet, conducted a paint test of the area of the Camaro that Dodd claimed had been damaged, repaired, and repainted.
A paint test measures the thickness of the paint on a car to determine whether the car has been repainted. According to Nelda Stephenson's affidavit, an automobile factory can apply paint to a vehicle more thinly than an automobile body repair shop can. The test thus helps determine whether a car has been damaged and repaired after it was manufactured.
Dodd and Stephenson Chevrolet dispute the meaning of the paint test conducted on the Camaro. Both Dodd's affidavit and Ray's affidavit state that the paint on the right rear quarter panel of the Camaro measured 6-8 "milliliters" in depth, while the thickness of the paint on other new cars at the dealership and on other portions of Dodd's Camaro, they said, measured only 2-4 "milliliters." According to the affidavits of Dodd and Ray, Nelda Stephenson said, after concluding the paint test, that the right rear quarter panel had been repainted. However, in her own affidavit, Nelda Stephenson says that she told Dodd only that the paint on the right rear quarter panel of the Camaro measured 6 "milliliters," while paint applied by body shops usually measures around 10-14 "milliliters" in depth.
Dodd also had the Camaro inspected by Dan Sharp, an employee of A-One Body, an automobile repair shop, and Kenneth Davis, owner of Davis Body Shop. Sharp and Davis testified that the irregularity in the groove moldings and the paint finish on the right rear quarter panel indicated that the car had been damaged, repaired, and repainted.
A delivery receipt reflecting the delivery of the Camaro from the factory to Hembree Motors in October 1989 states: "Car has serious paint problems all over. Factory." In his affidavit, Robert L. Hembree, Jr., president of Hembree Motors, testified that the Camaro had suffered no damage while in the possession of Hembree Motors and that Hembree Motors had performed no body work, painting, or repairs on it during the six months it was in the possession of Hembree Motors. Robert Hembree's affidavit also states that the inspection of the car by Hembree Motors upon its delivery revealed no damage to the vehicle. In his affidavit, Almon Truitt states that he did not notice any defects in the Camaro when he picked it up at Hembree Motors and drove it to Stephenson Chevrolet.
A summary judgment, under Rule 56, Ala.R.Civ.P., is proper only when the trial court determines that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. On a motion for summary judgment, when the movant makes a prima facie showing that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact.[1]Cobb v. Southeast Toyota Distributors, Inc., 569 So. 2d 395 (Ala.1990); Bean v. Craig, 557 So. 2d 1249, 1252 (Ala. 1990); Rule 56(e), Ala.R.Civ.P.; § 12-21-12, Alabama Code 1975. The evidence is viewed most favorably to the nonmovant, and all reasonable doubts concerning the existence of a genuine issue of material fact are resolved against the movant. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403, 404 (Ala.1990); Stark v. Troy *1291 State Univ., 514 So. 2d 46 (Ala.1987); Lolley v. Howell, 504 So. 2d 253 (Ala.1987).
Because this case involves multiple claims against multiple defendants, we examine each defendant and the claims against it separately.
Dodd asserts first that Stephenson Chevrolet fraudulently misrepresented that the 1990 Camaro was a "new" car, or, alternatively, that Stephenson Chevrolet fraudulently concealed that it was not "new." Dodd argues, therefore, that the trial court erred in entering the summary judgment in favor of Stephenson Chevrolet because, Dodd says, he presented substantial evidence that, although it had not been previously sold, the Camaro was not "new."
Section 6-5-101, Alabama Code 1975, provides a cause of action for misrepresentations of material fact:
(Emphasis added.) We note that under § 6-5-101 "legal fraud" includes misrepresentations of material fact made "by mistake and innocently," as well as those made either "willfully to deceive, or recklessly without knowledge." Young v. Serra Volkswagen, Inc., 579 So. 2d 1337, 1339 & n. 3 (Ala.1991).
Because we find no evidence that Stephenson Chevrolet made any misrepresentation willfully or with reckless disregard of the truth, we address Dodd's argument that Stephenson Chevrolet innocently or mistakenly misrepresented that the Camaro was "new." To recover under a claim of innocent misrepresentation, a plaintiff must prove (1) that there was a false representation; (2) that it concerned a material fact; (3) that the plaintiff reasonably or justifiably relied on the material misrepresentation; and (4) that the plaintiff was damaged as a proximate result of the reliance. Mahoney v. Forsman, 437 So. 2d 1030 (Ala.1983).
Stephenson Chevrolet argues that in the circumstances of this case it cannot be liable because it made no misrepresentation of fact. Moreover, Stephenson Chevrolet contends, no evidence indicates that it knew of the alleged defects in the Camaro or that it even had an opportunity to discover them. In reply, Dodd argues that even if the dealership did not know of the defects or was unable to discover them while the Camaro was in its possession, Stephenson Chevrolet may nonetheless be liable for innocently misrepresenting that the Camaro was "new."
In support of this argument, Dodd refers to the "reasonable expectation" standard first enunciated in Mathis v. Jim Skinner Ford, Inc., 361 So. 2d 113 (Ala.1978):
361 So. 2d at 115; see also Ford Motor Co. v. Burkett, 494 So. 2d 416 (Ala.1986); Larry Savage Chevrolet, Inc. v. Richards, 470 So. 2d 1168 (Ala.1985); Boulevard Chrysler-Plymouth, Inc. v. Richardson, 374 So. 2d 857, 859-60 (Ala.1979). Thus, under Mathis, implied representations may arise out of the mere sale of a new product, and such representations, if false, may support a claim of fraud. Burkett, 494 So. 2d at 417.
The trial court erred in entering the summary judgment as to the claim of innocent misrepresentation on the part of Stephenson Chevrolet. Drawing all relevant inferences in favor of Dodd, as the applicable standard of review requires, we conclude that, given the circumstances of this case, Dodd presented substantial evidence that Stephenson Chevrolet impliedly represented that the car was "new" and that Dodd relied *1292 on this implied representation when he bought the Camaro. Although no evidence indicates that Stephenson Chevrolet specifically told Dodd that the car he was buying was "new," it is reasonably inferable from the undisputed facts and circumstances of the sale that when Dodd visited Stephenson Chevrolet on May 5, 1990, he was looking for a "new" 1990 Chevrolet Camaro R.S. and that Stephenson Chevrolet impliedly represented that it was selling him one.
We also hold that Dodd's deposition testimony, the affidavit testimony of Dodd and Ray regarding the results of the paint test, and the affidavits of the automobile body repairmen Dan Sharp and Kenneth Davis constitute substantial evidence that the Camaro had been damaged before its sale to Dodd and was therefore not "new." Except in rare circumstances, where a car has undergone repair or alteration so major that it is obviously not "new" or so minor that it undisputedly is "new," the question of whether a car initially sold with repaired damage was "new" when it was sold is one of fact. Boulevard Chrysler-Plymouth, Inc., 374 So. 2d at 857. The affidavits of the automobile body repairmen and the affidavits of Dodd and Ray concerning the results of the paint test constitute "substantial evidence" from that evidence a fair-minded person could reasonably infer that the Camaro had undergone more than minor repairs and adjustments before its sale to Dodd and thus that it was not "new," "in accordance with reasonable expectations." Id., at 859.
Even though Dodd presented no evidence that Stephenson Chevrolet knew of any prior damage to the Camaro, Stephenson Chevrolet may be liable for innocent misrepresentation. Although knowledge of a falsehood or reckless disregard for the truth is an essential element of the tort of deceit, § 6-5-103, Alabama Code 1975, it is not an element of the tort of innocent misrepresentation. See Ex parte Lewis, 416 So. 2d 410, 411-14 (Ala.1982) (Jones, J., concurring specially).
In Hall Motor Co. v. Furman, 285 Ala. 499, 234 So. 2d 37 (1970), this Court addressed this issue in substantially similar circumstances. In Hall, the plaintiff went to Hall Motor Company in Bessemer, Alabama, seeking a Plymouth station wagon of a certain type and color. Although the dealership did not have in stock what the plaintiff wanted, it located one at another dealership in Selma. The plaintiff drove with a sales representative to Selma to examine the car. Pleased with the station wagon, the plaintiff drove it back to Bessemer, where the parties completed the sale. After noticing defects in the car, the plaintiff had it inspected by two automobile mechanics, who informed him that the car had been damaged. The plaintiff brought an action against Hall Motor Company, alleging that the dealership had fraudulently misrepresented to him that the station wagon was a new automobile in good working condition. The evidence presented to the jury showed that the damage had occurred at the factory and that the dealership had been unaware of the damage when it sold the station wagon to the plaintiff. In holding that the trial court erred in permitting an award of punitive damages against the dealership when there was no evidence of any intent to deceive, the Court stated that the evidence was nonetheless sufficient to establish an innocent misrepresentation. Therefore, like the car dealership in Hall, Stephenson Chevrolet may be held liable for innocently misrepresenting that the car it sold to Dodd was "new," even though it was unaware of any prior damage or major alteration.
We now address Dodd's claim alleging suppression of a material fact by Stephenson Chevrolet. Section 6-5-102, Ala. Code 1975, provides:
One can be liable for suppression only of a fact of which one has knowledge. Cornelius v. Austin, 542 So. 2d 1220, 1224 (Ala.1989); Cherokee Farms, Inc. v. Fireman's Fund Ins. Co., 526 So. 2d 871, 875 (Ala.1988); Harrell v. Dodson, 398 So. 2d 272, 276 (Ala.1981).
Dodd introduced no evidence that Stephenson Chevrolet knew of the alleged *1293 defects. There is no evidence that Hembree Motors forwarded to Stephenson Chevrolet the delivery receipt stating "Car has serious paint problems all over. Factory." The evidence is undisputed that Stephenson Chevrolet had possession of the Camaro for only two hours. Undisputed also is the fact that Stephenson Chevrolet did not even have time to clean the Camaro before Dodd took possession of it. A fair-minded person in the exercise of impartial judgment could not reasonably infer from Stephenson Chevrolet's mere possession of the Camaro for two hours that it knew of the alleged defects, much less that it knowingly concealed them with an intent to deceive. In fact, Dodd himself did not notice any problem with the paint until several days after the purchase, when he washed the car, and he did not notice the irregularity in the grooves until almost nine months after buying the car. Dodd has not submitted substantial evidence in support of his claim alleging suppression by Stephenson Chevrolet. The judgment is therefore due to be affirmed as to that claim.
Dodd's complaint also alleged that Stephenson Chevrolet breached an express warranty, an implied warranty of merchantability, and an implied warranty of fitness for a particular purpose. Dodd, however, does not argue or cite authority for the reversal of the judgment as to these warranty claims. Therefore, we affirm the judgment as to these claims on the authority of Young v. Serra Volkswagen, Inc., 579 So. 2d 1337 n. 2 (Ala.1991); Sea Calm Shipping Co., S.A. v. Cooks, 565 So. 2d 212, 216 (Ala.1990); Henderson v. Alabama A & M Univ., 483 So. 2d 392 (Ala.1986).
Dodd's only argument with regard to the claims against Hembree Motors is that he presented substantial evidence to support his claim of fraudulent concealment.[2] Dodd argues that he presented substantial evidence that Hembree Motors knew of the Camaro's serious paint problems while the car was in its possession and that Hembree Motors did not disclose them when it sold the Camaro to Stephenson Chevrolet. Therefore, Dodd argues, Hembree Motors fraudulently concealed that the Camaro had been damaged. In support of his contentions, Dodd notes the October 1989 receipt for the delivery of the Camaro to Hembree Motors, which includes the statement: "Car has serious paint problems all over. Factory."
In reply, Hembree Motors cites the affidavit testimony of Robert L. Hembree, Jr., who stated that while the Camaro was in the possession of Hembree Motors, the Camaro was neither damaged nor repaired. Hembree Motors also contends that its inspection of the car upon its delivery to Hembree Motors revealed no damage to the vehicle and that in his affidavit Almon Truitt stated that he noticed no defect in the Camaro when he delivered it to Stephenson Chevrolet.
To establish a prima facie case of fraudulent concealment of a material fact, a plaintiff must show (1) that the defendant had a duty to disclose a material fact, (2) that the defendant concealed or failed to disclose a material fact, (3) that the defendant's concealment or failure to disclose the material fact induced the plaintiff to act or to refrain from acting, and (4) that the plaintiff suffered actual damage as a proximate result. Soniat v. Johnson-Rast & Hays, 626 So. 2d 1256 (Ala.1993); see Cornelius v. Austin, 542 So. 2d 1220, 1223 (Ala.1989).
Mere silence is not fraudulent in the absence of a duty to disclose. A duty to disclose may arise from the particular circumstances of the case, from a confidential relationship, or from a request for information. Hardy v. Blue Cross & Blue Shield of Alabama, 585 So. 2d 29, 32 (Ala.1991); King v. National Foundation Life Ins. Co., 541 So. 2d 502 (Ala.1989). One may also recover for fraudulent concealment by showing active *1294 concealment of a material fact with an intent to deceive or mislead. § 6-5-103, Alabama Code 1975; Soniat v. Johnson-Rast & Hays; Cornelius v. Austin; Harrell v. Dodson, 398 So. 2d 272, 276 (Ala.1981).
Although Dodd presented substantial evidence that Hembree Motors knew of the Camaro's paint problems, Dodd failed to present substantial evidence that Hembree had a duty to disclose them. As with Stephenson Chevrolet, Dodd produced no evidence of any special circumstances or a confidential relationship.[3] Thus, the summary judgment is correct to the extent that the complaint alleges suppression of a material fact. Neither did Dodd present any evidence of knowing, active concealment of a material fact with an intent to deceive. Although the delivery receipt constitutes substantial evidence from which a reasonable trier of fact could infer that Hembree Motors knew of the paint problems, the record contains no evidence to support the inference that Hembree Motors actively or knowingly concealed these problems with an intent to deceive. See Soniat, 626 So. 2d at 1259; Cornelius, 542 So.2d at 1224-25; Harrell, 398 So. 2d at 277. Moreover, Dodd cites no authority for the proposition that Hembree Motors, as opposed to Stephenson Chevrolet, had any obligation to disclose facts to him or that he is entitled to bring an action based on the failure of Hembree Motors to disclose those facts to Stephenson Chevrolet. Therefore, the trial court properly entered a summary judgment on Dodd's claim of fraudulent concealment against Hembree Motors.
Because Dodd makes no argument in support of his claims against Hembree Motors alleging breach of express warranty, implied warranty of merchantability, or implied warranty of fitness for a particular purpose, the judgment is affirmed as to those claims. Young v. Serra Volkswagen, Inc., supra; Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987).
Because Dodd makes no argument in support of his claims against General Motors, the judgment is affirmed as to General Motors. Young v. Serra Volkswagen, Inc., supra; Bogle v. Scheer, supra.
Based on the foregoing, we reverse the trial court's judgment as to Dodd's claim against Stephenson Chevrolet for innocent misrepresentation; as to all other claims, we affirm.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MADDOX, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
HORNSBY, C.J., and SHORES and INGRAM, JJ., concur in part and dissent in part.
HORNSBY, Chief Justice (concurring in part and dissenting in part):
Although I agree with the majority's holding regarding the claims against Stephenson Chevrolet,[4] I respectfully dissent from its affirmance of the summary judgment in favor of Hembree Motors on Dodd's claim of fraudulent suppression.
As the majority notes, to establish a claim of fraudulent suppression, Dodd must show that Hembree Motors suppressed or concealed a material fact that it was under a duty to disclose, that concealment or failure by Hembree Motors to disclose induced him to act or to refrain from acting, and that Dodd suffered damage as a result. Soniat v. Johnson-Rast & Hays, 626 So. 2d 1256 (Ala. 1993). Unlike the majority, however, I *1295 would hold that Dodd presented substantial evidence creating a genuine issue of material fact as to each of these elements.
Dodd presented substantial evidence that Hembree Motors, unlike Stephenson Chevrolet, knew that the 1990 Camaro he purchased had "serious paint problems all over" when it received it. See Cherokee Farms, Inc. v. Fireman's Fund Ins. Co., 526 So. 2d 871, 875 (Ala.1988) (holding that, as a matter of law, one can be liable only for concealing facts of which one has knowledge); Harrell v. Dodson, 398 So. 2d 272, 276 (Ala.1981). Dodd presented evidence that, on October 22, 1989, when the 1990 Camaro was delivered by Commercial Carriers, Inc., to Hembree Motors, the delivery receipt signed by the Commercial Carrier driver and by the Hembree Motors agent carried the words "Car has serious paint problems all over. Factory." Under general agency law, the knowledge of an agent of Hembree Motors "concerning the subject matter of the agency is imputed to the principal." Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So. 2d 359, 366 (Ala.1993). Accordingly, Hembree Motors is presumed to have known that the 1990 Camaro had "serious paint problems all over" when it was delivered.
In addition, I would hold that Dodd presented substantial evidence creating a jury question as to whether Hembree Motors owed him a duty to disclose material facts regarding the condition of the car. The question whether Hembree Motors owed Dodd a duty to communicate is a question of law. Berkel & Co. Contractors, Inc. v. Providence Hosp., 454 So. 2d 496, 506 (Ala.1984).
Ala.Code 1975, § 6-5-102, provides that an "obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case." Dodd presented evidence that the particular circumstances of the case gave rise to a duty on the part of Hembree Motors to disclose to Dodd material facts regarding the condition of the car.
This Court has acknowledged that one who knows facts that are unknown to the plaintiff owes an obligation to disclose those facts where the plaintiff cannot reasonably be expected to discover those facts by due diligence. Deupree v. Ruffino, 505 So. 2d 1218, 1222 (Ala.1987); Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83, 86 (Ala.1980); Bank of Red Bay v. King, 482 So. 2d 274, 285 (Ala.1985) (holding that a duty to speak depends on the relation of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances). See also Dominick v. Dixie Nat'l Life Ins. Co., 809 F.2d 1559 (11th Cir.1987) (where the accused has superior knowledge of the undisclosed fact and the defrauded party has been induced to take action which he might not otherwise have taken, the obligation to disclose is particularly compelling); Kaye v. Pawnee Constr. Co., 680 F.2d 1360 (11th Cir.1982) (an obligation to communicate may arise in a vendor/vendee relationship where the vendor knows the material facts and has a reason to believe that the person with whom he is dealing is ignorant of those facts and cannot, by ordinary diligence, become acquainted with those facts); First Virginia Bankshares v. Benson, 559 F.2d 1307, reh'g denied, 564 F.2d 416 (5th Cir.1977), cert. denied, 435 U.S. 952, 98 S. Ct. 1580, 55 L. Ed. 2d 802 (1978) (recognizing a duty to disclose where one party has some particular knowledge or expertise not shared by the plaintiff).
As early as 1919, this Court recognized that particular circumstances giving rise to a duty to disclose exist where a car dealer knows material facts regarding the condition of the car that are unknown to the purchaser of that car. Standard Motorcar Co. v. McMahon, 203 Ala. 158, 160, 82 So. 188, 190 (1919). See also Neil Huffman Volkswagen Corp. v. Ridolphi, 378 So. 2d 700, 702 (Ala. 1979).
Imposition of a duty to disclose under these circumstances is consistent with the holdings of other courts. Regarding the particular circumstances of the case giving rise to a duty to disclose, Prosser notes:
Prosser, Torts, Chap. 18, § 106 (4th ed. 1971).
In this case Hembree Motors did not actually negotiate with Dodd for the sale of the car; rather, Hembree Motors negotiated with Stephenson Chevrolet, which, similarly, could not reasonably be expected to have known of the factory paint defects. Dodd presented substantial evidence that Hembree Motors did not disclose its knowledge of the paint defects to Stephenson Chevrolet. In addition, Dodd presented evidence from which one could infer that Hembree Motors knew or should have known that Stephenson Chevrolet wanted the vehicle to sell it to one of its customers.
This Court has repeatedly rejected the argument that a vendor owes a duty to disclose material facts only to the immediate purchaser. Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So. 2d 738, 743 (Ala. 1990); Lawyers Title Ins. Corp. v. Vella, 570 So. 2d 578 (Ala.1990); Hopkins v. Lawyers Title Ins. Corp., 514 So. 2d 786 (Ala.1986) (noting that a defendant's duty to disclose may exist in the absence of a contractual relationship or without dealing between the parties); Kirkpatrick v. White, 289 Ala. 110, 266 So. 2d 268 (1972); Sims v. Tigrett, 229 Ala. 486, 158 So. 326 (1934). Therefore, I believe that under these circumstances Dodd may proceed against Hembree Motors for fraudulent suppression.
I would hold that, in addition to a common law duty to disclose, Hembree Motors also has an obligation under Ala.Code 1975, § 8-19-1 et seq., to disclose material facts regarding the condition of the car. In Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So. 2d 738, 743 (Ala.1990), this Court held that a separate statutory requirement may impose a duty on one to disclose facts that can be the subject of a fraudulent suppression claim.
Section 8-19-5 provides:
(Emphasis supplied.)
Dodd presented substantial evidence that the paint defects in the 1990 Camaro decreased the value of the car. Therefore, I would hold that the implied or express representation of Hembree Motors that the car was new, when in fact it was "deteriorated, reconditioned, reclaimed, used, second-hand or altered to the point of decreasing [its] value," is prohibited by Alabama's Deceptive Trade Practices Act.
The requirements of the Deceptive Trade Practices Act apply to Hembree Motors, an entity involved "in the conduct of ... trade or commerce." § 8-19-5. Dodd presented substantial evidence that Hembree Motors is involved in selling motor vehicles; this activity is included within the definition of "trade or commerce" in § 8-19-3(8). Motor vehicle dealers are not exempt from the prohibitions of Alabama's Deceptive Trade Practices Act. See § 8-19-7(1)-(6) (enumerating the exemptions to the Act). Therefore, I would hold that § 8-19-5 imposed a duty on Hembree Motors to disclose to Stephenson Chevrolet that the car had paint defects.
Furthermore, I would hold that, under the circumstances of this case, the duty on Hembree Motors to disclose pursuant to § 8-19-5(6) extends to Dodd, the ultimate purchaser of the car. The extension of this duty to Dodd is consistent with the purposes of the Act: "The public health, welfare and interest require a strong and effective consumer protection program to protect the interest of both the consuming public and the legitimate businessperson." Ala.Code 1975, § 8-19-2. The statute also provides for a private right of action by consumers and provides for the attorney general to petition for penalties upon a violation of § 8-19-5. In light of the statute's consumer protection nature, I believe that the duty of Hembree Motors to disclose to Stephenson Chevrolet inures to the benefit of Dodd, the ultimate purchaser of the car.
*1297 Dodd also presented evidence that Hembree Motors did not inform Stephenson Chevrolet or him of the paint defect and possible prior damage to the car. This evidence raises a jury question as to whether Hembree Motors suppressed or concealed its knowledge of material facts regarding the condition of the 1990 Camaro. A "material fact," within the meaning of the Alabama fraud statutes, is a fact of such a nature as to induce action on the part of the complaining party. Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985). Dodd's evidence that an agent of Hembree Motors signed the delivery receipt that indicated that the "[c]ar has serious paint problems all over" constitutes substantial evidence from which the trier of fact could reasonably infer that Hembree Motors fraudulently suppressed information regarding the condition of the car, in violation of its duty to disclose.
Furthermore, Dodd presented substantial evidence that concealment or suppression on the part of Hembree Motors induced him to purchase the car and that he suffered actual damage as a proximate result. I believe, therefore, that the majority errs in affirming the summary judgment for Hembree Motors as to the suppression claim. Accordingly, I respectfully dissent as to that portion of the majority's opinion.
SHORES and INGRAM, JJ., concur.
[1] "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
[2] Dodd's only allegations against Hembree Motors were in count four, which alleged suppression of a material fact, and count five, which alleged breach of warranty. We will treat count four as sufficient to allege a claim for fraudulent concealment. We disagree with the dissent, however, in its treatment of the appeal as presenting a claim that Hembree Motors made a fraudulent misrepresentation that the car was a new car and as presenting an issue of whether any such misrepresentation was indirectly made to Dodd.
[3] Dodd did not argue, either in the trial court or in his brief to this Court, that Hembree Motors had a statutory duty to disclose pursuant to Ala. Code 1975, § 8-19-5. Therefore, the judgment for Hembree Motors is not due to be reversed on such a ground.
[4] Although this point is not essential to the resolution of this case, I wish to point out that I disagree with the majority's use of "reasonable reliance" language. The majority cites Mahoney v. Forsman, 437 So. 2d 1030 (Ala.1983), which was decided before this Court adopted the standard of "justifiable reliance" in Hickox v. Stover, 551 So. 2d 259 (Ala.1989). Rather than referring to that standard, the majority indicates that a plaintiff may satisfy the element of reliance by proving "that the plaintiff reasonably or justifiably relied on the material representation." At 1291. (Emphasis supplied.) | August 6, 1993 |
b947f8b5-257d-467f-91ed-ea642548bb00 | WATER WORKS AND SEWER BD. v. Shelby County | 624 So. 2d 1047 | 1920716 | Alabama | Alabama Supreme Court | 624 So. 2d 1047 (1993)
The WATER WORKS AND SEWER BOARD OF the CITY OF BIRMINGHAM
v.
SHELBY COUNTY, et al.
1920716.
Supreme Court of Alabama.
August 20, 1993.
K. Mark Parnell and Charlie D. Waldrep of Gorham & Waldrep, P.C., Birmingham, for appellant.
Frank C. Ellis, Jr. and Conrad M. Fowler, Jr. of Wallace, Ellis, Fowler & Head, Columbiana, for appellee.
Robert E. Sasser and Pamela P. Swan of Sasser & Littleton, P.C., Montgomery, for *1048 amicus curiae Alabama Water and Sewer Institute.
James W. Webb and Bart Harmon of Webb & Eley, P.C., Montgomery, for amicus curiae Ass'n of County Commissions of Alabama.
PER CURIAM.
This controversy concerns the laying of water and sewer lines to housing developments in northern Shelby County, along the Shelby County Highway 41 corridor. Both The Water Works and Sewer Board of the City of Birmingham, a public corporation created pursuant to § 11-50-230 et seq., Ala. Code 1975 ("Birmingham Water Works"), and the Shelby County Commission want to install lines within the Shelby County Highway 41 right-of-way. Birmingham Water Works appeals from the denial of its petition for a writ of mandamus forcing Shelby County to grant it an excavation permit. We affirm the judgment of the trial court denying the petition.
The background of the controversy began in 1989, when Daniel Realty contracted with Shelby County for Shelby County to provide water and sewer service to Daniel Realty's Greystone development. In June 1992, Birmingham Water Works entered into a contract with Bill Eddleman to provide water and sewer service to his development, which would contain 1700 homes. Thus, both entities wanted to install water lines along the Highway 41 corridor. Birmingham Water Works sought to extend its water main from the intersection of Hugh Daniel Drive and Highway 41 west toward U.S. Highway 280 to serve the Eddleman property. Shelby County wanted to install its water line from U.S. Highway 280 east toward Hugh Daniel Drive to the Greystone development. On May 8, 1992, Shelby County submitted an application for an excavation permit to its highway department; the application was granted on the same day. On May 15, 1992, Birmingham Water Works applied for an excavation permit to install a 12-inch water main within the Shelby County Highway 41 right-of-way.
The Birmingham Water Works application was neither granted nor denied. Instead, Shelby County passed Resolution Number XX-XX-XX-XX on July 27, 1992, suspending consideration of all utility permit applications as to Shelby County Highway 41 until such time as a water service study of the area could be completed by John O. Ray, a consulting engineer. The completed study was submitted to the Shelby County Commission on December 14, 1992.
Birmingham Water Works then petitioned the Circuit Court of Shelby County for a writ of mandamus directed to the county, political subdivisions of the county, and county personnel;[1] the petition sought an order forcing the county commissioners to grant the Birmingham Water Works an excavation permit for the installation of a water line within the right-of-way of Shelby County Highway 41.
On January 7, 1993, Circuit Judge D. Al Crowson held a hearing on the matter. The parties stipulated that all of the depositions and deposition exhibits submitted concerning the mandamus proceeding, as well as the "Shelby County Water System County Road 41 Water Study" prepared by John O. Ray, were to be submitted as evidence in the matter. On January 12, 1993, Birmingham Water Works added as additional defendants those individuals who had recently been elected county commissioners.[2] Judge Crowson issued the following order denying the writ of mandamus on January 26, 1993:
On January 27, 1993, Judge Crowson amended his order to tax costs in this action to Birmingham Water Works. Birmingham Water Works appealed on February 8, 1993.
The sole issue is whether the trial court erred in denying the writ of mandamus. Mandamus is an extraordinary remedy, requiring a showing that there is: "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Edgar, 543 So. 2d 682 (Ala.1989); Ex parte Alfab, Inc., 586 So. 2d 889 (Ala.1991).
Having carefully studied the law and the record in this case, we conclude that the judgment denying the writ of mandamus must be affirmed.
(1) Birmingham Water Works did not establish a clear right to this remedy. No statutory or case law establishes an imperative duty on Shelby County to grant an excavation permit to Birmingham Water Works to install its lines within the right-of-way of a Shelby County road. Birmingham Water Works argues that its "right" arises from its authorization to provide services outside the municipal limits of Birmingham; Atkinson v. City of Gadsden, 238 Ala. 556, 561, 192 So. 510 (1939), and its ability to expand or extend its system pursuant to § 11-50-235(a)(4), Ala.Code 1975 (1992 Repl. vol). We recognize the authority and ability provided by those statutes, but they do not convey upon Birmingham Water Works the right to install water lines within the right-of-way of Highway 41. The clear legal right to regulate public roads rests with Shelby County, based on § 23-1-80. We have stated many times that the general superintendence over county roads is with the county commissions. Barber v. Covington County Commission, 466 So. 2d 945, 947-48 (Ala.1985).
(2) Birmingham Water Works did not establish an imperative duty upon Shelby county to perform, accompanied by a refusal to do so. Birmingham Water Works argues that § 10-5-14 establishes a clear legal right for it to lay pipes along Shelby County Highway 41 and places an imperative duty on Shelby County to grant the permit. The reading of § 10-5-14 proposed by Birmingham Water Works would mean that each county government must accept every "contract" offered by utility corporations. Section 10-5-14 applies only to contracts between public utilities and local governments. The statute does not contemplate applications for permits, which are not contracts.
(3) Birmingham Water Works did not exhaust its administrative remedies before the Shelby County Commission, which has not denied the request for the excavation permit; it has only failed to act on it. There is no lack of another adequate remedy, because Birmingham Water Works has the right of eminent domain. § 10-5-1, Ala.Code 1975.
(4) Birmingham Water Works did not properly invoke the jurisdiction of the court. This Court has consistently held that mandamus is not the procedure for reviewing a county commission's discretionary decisions, absent fraudulent, corrupt, or otherwise unfair conduct. Barber v. Covington County Commission, supra, citing Ensley Motor Co. v. O'Rear, 196 Ala. 481, 485, 71 So. 704 (1916), Bentley v. County Commission for Russell County, 264 Ala. 106, 109, 84 So. 2d 490 (1955). Birmingham Water Works argues that it properly invoked the jurisdiction of the court, because, it says, there had been such fraudulent, corrupt, or otherwise unfair conduct on the part of the Shelby County Commission that mandamus would be an appropriate remedy to correct the actions. We do not agree. The trial judge's findings of fact include a finding that the Shelby County defendants "did not refuse plaintiff's permit arbitrarily, capriciously, fraudulently, corruptly, unfairly and/or unjustly, but had legitimate *1051 concerns for the public in not granting a permit to the plaintiff." The record supports that finding.
For the reasons stated above, the judgment of the trial court denying Birmingham Water Works' petition for the writ of mandamus is due to be affirmed.
AFFIRMED.
SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Named as defendants were the Shelby County Highway Department; W. Paul Yeager, as chairman of the Shelby County Commission; Howard Foster, Leon Archer, Frederick Ard, Don Armstrong, Mike Gravois, and George Dailey, in their official capacities as commissioners of Shelby County; and Kenneth R. Cole in his official capacity as Shelby County engineer.
[2] Named as defendants were Leon Archer, Lindsey Allison, Billy Thompson, Phillip Walker, Daniel M. Acker, and Larry Dillard, in their official capacities as commissioners of Shelby County. | August 20, 1993 |
aa5c23ea-0c51-4c09-974d-41144bf97e14 | Allied-Bruce Terminix v. Dobson | 628 So. 2d 354 | 1920473 | Alabama | Alabama Supreme Court | 628 So. 2d 354 (1993)
ALLIED-BRUCE TERMINIX COMPANIES, INC., et al.
v.
G. Michael DOBSON, Wanda C. Dobson, Steven Gwin, and Jan Gwin.
1920473.
Supreme Court of Alabama.
August 13, 1993.
Rehearing Denied September 24, 1993.
Joseph P. Jones, Jr. and T. Julian Motes of Sirote & Permutt, P.C., Mobile, and Robert A. Wills of Wills and Simon, Bay Minette, for appellants.
Alan R. Chason of Chason & Chason, P.C., Bay Minette, for appellees.
ALMON, Justice.
The defendants, Allied-Bruce Terminix Companies, Inc. ("Terminix Service"), and Terminix International Company ("Terminix International") appeal from an order of the trial court denying their motion to compel arbitration of the tort and breach of contract claims filed against them by Michael Dobson, Wanda Dobson, Steven Gwin, and Jan Gwin. The issue for our review is whether the arbitration clause contained in a termite bond is enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA").
In August 1987, Steven Gwin allowed the termite bond on his house in Fairhope, Alabama, to expire, and he purchased a replacement bond from Terminix Service. Terminix Service is an Arkansas corporation that does business in several states, including Alabama, Arkansas, Florida, Georgia, Mississippi, Louisiana, Oklahoma, and Texas. The bond was guaranteed by Terminix International, a limited partnership that has its principal place of business in Memphis, Tennessee.
In 1991, Steven and Jan Gwin agreed to sell the house to Michael and Wanda Dobson. The sales contract required the Gwins to provide written evidence from a licensed pest control company that the company had performed a visual inspection of the house and had observed no active infestation of termites or damage from active infestation. The contract also required that the termite bond be transferred to the Dobsons at the closing of the sale. Because of the existing bond on the house, Terminix Service agreed to perform the inspection and to issue the required *355 statement. At the closing, the Gwins furnished Dobson with a standard Veterans' Administration ("VA") form; the V.A. form provided that Terminix Service had observed no visible evidence of active infestation during the inspection.
The Dobsons later discovered termite damage to the house, and they brought an action against the Gwins, alleging fraud, and against Terminix Service and Terminix International, alleging fraud in connection with the representations in the V.A. form, and alleging breach of contract. The Gwins cross-claimed against Terminix Service and Terminix International. Terminix Service and Terminix International moved to stay the proceedings and to compel the Dobsons and the Gwins to submit their claims to arbitration pursuant to an arbitration clause in the bond. The trial court denied this motion, and the defendants appeal.
Predispute arbitration agreements are unenforceable under Alabama law. Ala. Code 1975, § 8-1-41. However, if an arbitration agreement is voluntarily entered into and is contained in a contract that involves interstate commerce, then the FAA preempts state law and renders the agreement enforceable. A.G. Edwards & Sons, Inc. v. Syvrud, 597 So. 2d 197 (Ala.1992). The Terminix companies contend that, because the United States Supreme Court has held in Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984), that Congress's regulatory power under the FAA is co-extensive with its commerce power, this Court should apply the "slightest nexus" standard first enunciated in Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala.1986), to this situation. This standard provides that if the contract in question has the slightest nexus with interstate commerce, the FAA will apply. Costa & Head; Ex parte Brice Building Co., 607 So. 2d 132 (Ala.1992). Terminix Service and Terminix International argue that, because they are out-of-state entities, and because some of the materials used in fulfilling their duties imposed by the termite bond were brought into Alabama from out-of-state, the bond has at least a "slight nexus" with interstate commerce.
We need not address this argument, however, in light of this Court's decision in Ex parte Jones, 628 So. 2d 316 (Ala.1993).[1] In Jones, we explicitly rejected the Costa & Head "slightest nexus" standard in favor of the standard enunciated in Ex parte Warren, 548 So. 2d 157 (Ala.1989), cert. denied, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989). We held:
628 So. 2d at 318. The Warren standard, which was invoked in Warren to cover only the "narrow" circumstances in which Alabama residents had purchased an automobile for consumer purposes from an in-state dealership, was first set forth by Judge Lombard in a special concurrence in Metro Industrial Painting Corp. v. Terminal Constr. Co., 287 F.2d 382 (2d Cir.), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961):
287 F.2d at 387 (emphasis in original).
Terminix Service and Terminix International argue that the bond involves interstate *356 commerce even under the more restrictive Warren standard. In addition to the evidence cited above in support of their Costa & Head argument, the Terminix companies cite the following in support of their contention that at the time they entered into the contract the parties "contemplated substantial interstate activity": Steven Gwin's testimony that he allowed his bond with a local pest control company to expire so that he could "go with a national company like Terminix"; the fact that the bond instrument showed on its face that it was executed in Memphis, Tennessee; and the fact that the bond contained a statement that it was subject to federal regulation.
A brief survey of cases from other jurisdictions that have applied the standard will be useful in determining whether the parties contemplated substantial interstate activity when they entered the termite bond.
Several cases applying the Warren standard involve contracts for the construction of large projects. In Burke County Public Schools Board of Educ. v. Shaver Partnership, 303 N.C. 408, 279 S.E.2d 816 (1981), the North Carolina Supreme Court held that a contract between a North Carolina school board and an Indiana architectural firm for the construction of school buildings did involve interstate commerce so as to be covered by the FAA. In so holding, the Court stated:
303 N.C. at 418, 279 S.E.2d at 822. The Court then held that the following evidence established that when they entered into the contract the parties contemplated substantial interstate activity: certain contractual provisions called for the Indiana firm to come to the North Carolina building site for various reasons; accounting records on the project were maintained in Kansas; the Indiana firm dealt with suppliers from across the country in performing its contractual duties; and certain design work was performed by a Michigan firm. See also G.D. Searle & Co. v. Metric Constructors, Inc., 572 F. Supp. 836 (N.D.Ga.1983); Dimambro-Northend Assocs. v. Blanck-Alvarez, Inc., 251 Ga. 704, 309 S.E.2d 364 (1983); University Casework Systems, Inc. v. Bahre, 172 Ind.App. 624, 362 N.E.2d 155 (1977).
Some courts have also held the FAA applicable to contracts for the construction of smaller projects. In R.J. Palmer Constr. Co. v. Wichita Band Instrument Co., 7 Kan. App.2d 363, 642 P.2d 127 (1982), the Kansas Court of Appeals held that the FAA applied to a contract for the construction of a music store. The Court held that because the store was to be built out of California redwood, the parties knew that the contract would involve interstate activity.
A smaller number of cases applying the Warren standard involve personal service contracts. For example, in Bennish v. North Carolina Dance Theatre, Inc., 108 N.C.App. 42, 422 S.E.2d 335 (1992), the North Carolina Court of Appeals held that a dancer and his employer contemplated substantial interstate activity when they entered the contract, because the contract provided guidelines on air travel and the employer introduced evidence that the dancer toured outside of North Carolina for a substantial amount of the contract period. See also Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir.1972).
We conclude that the evidence adduced by the Terminix companies does not establish that the parties contemplated substantial interstate activity when they entered the termite bond. Initially, we note that we have held in A.J. Taft Coal Co. v. Randolph, 602 So. 2d 395 (Ala.1992)which was decided under the Costa & Head standardthat it is insufficient for the purposes of invoking the FAA merely to show that one or more of the parties to the contract is located in another state. Therefore, under the more restrictive Warren standard, the fact that the bond *357 stated that it was executed in Tennessee is not determinative. Terminix's second piece of evidence, that the bond stated that it was subject to federal regulation, is based on the following paragraph in the bond:
A bare statement in the bond that Terminix adheres to the requirements of any federal law applicable to its services simply does not show that the parties contemplated that the bond would involve substantial interstate activity in any way. Unlike the contractual provisions in Bennish, supra, it certainly does not put the plaintiffs on notice of the likelihood of substantial interstate activity. Moreover, Gwin's statement that he wished to go with a "national" company is not evidence that he contemplated anything; that statement merely reflects a desire on Gwin's part to receive the added security that many people associate with a large, national company. Finally, the performance of the bond obligations did not involve interstate commerce to such a degree that the parties upon entering the contract must have contemplated substantial interstate activity. Although some materials used in fulfilling the bond obligations may have come from out-of-state suppliers, this is not analogous to those situationssuch as the aforementioned construction contracts involving large projects, or contracts for personal serviceswhere the interstate activity involved in the performance of the contract is so great that it cannot reasonably be said that the parties failed to contemplate substantial interstate activity when they entered into the contract. See Terminix Int'l Co. v. Jackson, 628 So. 2d 357 (Ala.1993).
For the foregoing reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., concurs in the result.
[1] See also Continental Grain Co. v. Beasley, 628 So. 2d 319 (Ala.1993). | August 13, 1993 |
a945ed08-aecd-478a-b491-81e31b8c051e | Ex Parte Pettway | 624 So. 2d 700 | 1921251 | Alabama | Alabama Supreme Court | 624 So. 2d 700 (1993)
Ex parte Lafrance Deangelo PETTWAY.
(Re Lafrance Deangelo Pettway v. State).
1921251.
Supreme Court of Alabama.
August 20, 1993.
W. Lloyd Copeland and T. Jefferson Deen III of Clark, Deen & Copeland, P.C., Mobile, for petitioner.
James H. Evans, Atty. Gen., for respondent.
Prior report: Ala.Cr.App., 624 So. 2d 696.
HORNSBY, Chief Justice.
The petition for writ of certiorari is denied. In denying the petition for writ of certiorari, this Court does not approve or adopt the rationale set out in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). This Court's denial of certiorari review is not an expression of opinion on the merits of a case. Ex parte Cason, 515 So. 2d 725 (Ala.1987).
WRIT DENIED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | August 20, 1993 |
8b3bd70f-e637-48ff-ab21-89dbde624791 | CLARKE-MOBILE COUNTIES GAS DIST. v. Reeves | 628 So. 2d 368 | 1920467 | Alabama | Alabama Supreme Court | 628 So. 2d 368 (1993)
CLARKE-MOBILE COUNTIES GAS DISTRICT, a corporation
v.
Brian K. REEVES and Dixie C. Reeves.
1920467.
Supreme Court of Alabama.
August 20, 1993.
Rehearing Denied October 15, 1993.
Wade B. Perry, Jr. of Johnstone, Adams, Bailey, Gordon and Harris, Mobile, for appellant.
Joseph C. McCorquodale III and Jacqualyn M. Sheffield of McCorquodale and McCorquodale, Jackson, for appellees.
PER CURIAM.
The defendant, Clarke-Mobile Counties Gas District, a corporation ("Clarke Gas"), appeals from the denial of its motion for a *369 new trial, or, alternatively, to alter, amend, or vacate a judgment in favor of the plaintiffs, Brian K. Reeves and Dixie C. Reeves.
The Reeveses had sued Clarke Gas, alleging that without their permission, Clarke Gas employees had buried a gas line on their property and had damaged their property in the process. According to Clarke Gas, it had intended that its employees place the gas line within a Clarke Gas right-of-way adjoining the Reeves property.
The Reeveses sued, alleging an intentional trespass to their property and requesting both compensatory and punitive damages. The trial court, without objection, instructed the jury in terms of an undesignated award. The jury awarded the Reeveses $256,150 in unspecified damages.
At the outset, we note that because the jury did not apportion its award we cannot determine what the award represented. This is a critical problem in addressing Clarke Gas's argument that the jury awarded excessive punitive damages. We cannot reasonably determine that the jury, in fact, awarded any punitive damages.
In City Realty, Inc. v. Continental Casualty Co., 623 So. 2d 1039 (Ala.1993), we recently held that we could not review an allegation that the jury's damages award was excessive where the award could have been either appropriate or excessive (depending on how the jury had apportioned damages), and where, without objection, the trial court had instructed the jury in terms of an undesignated award.
In that case, as here, the parties had not sought the trial court's adherence to Alabama Code 1975, § 6-11-1, which provides:
In this case, we do not reach the question whether the defendant's failure to seek an itemized award under § 6-11-1 prevents us from reviewing the damages issue, because the judgment in this case must be reversed for another reason.
Clarke Gas sought a new trial based on a juror's affidavit stating that after the jury had retired to deliberate, another juror had stated to all the jurors that Clarke Gas had once trespassed on her son's property and had "messed it up."
At trial, the Reeveses had portrayed Clarke Gas as having demonstrated an intentional disregard for their rights as property owners, while Clarke Gas portrayed the Reeves incident as an honest mistake. The juror who testified stated that the other juror's statement about how Clarke Gas had purportedly handled another situation figured into her consideration of the case and affected her decision in returning the verdict against Clarke Gas.
We have stated that "this Court will affirm a trial court's denial of a motion for a new trial if the trial court could have reasonably found that the introduction of the extraneous matter into the jury's deliberations was not prejudicial." Fulton v. Callahan, 621 So. 2d 1235 (Ala.1993). Based on the juror's undisputed testimony that the statement about Clarke Gas affected her decision, the only reasonable inference to be drawn about prejudice is that the extraneous statement was prejudicial.
However, the Reeveses argue here, as they did before the trial court, that the affidavit testimony was not related to "extraneous facts" and, therefore, cannot impeach the jury's verdict. Based on this reasoning, the Reeveses sought, unsuccessfully, to have the affidavit stricken in the trial court.
Generally, the testimony of jurors will not be admitted for the purpose of impeaching their own verdict, except where the testimony "tends to show extraneous facts that have influenced the jury's deliberations and the resulting verdict." Alabama Power Co. v. Turner, 575 So. 2d 551, 556-57 (Ala. 1991); see C. Gamble, McElroy's Alabama *370 Evidence, § 94.06 (4th ed. 1991). In Turner, 575 So. 2d at 557, we stated that facts concerning "`the debates and discussions of the case by the jury while deliberating thereon,' " do not fall within the "extraneous facts" exception. (Citation omitted.) Commonly, statements falling within the "extraneous facts" exceptionstatements that influence the deliberations and the verdict but do not concern the "debates and discussions of the case" during deliberations"are made to the jury by someone not on the jury." Id. This is, however, not always the case. See, e.g., Hallmark v. Allison, 451 So. 2d 270 (Ala. 1984). Here, although the statement in question came from a juror, it nonetheless fits within the "extraneous facts" exception. The juror stated, inter alia, that after the jury had retired to deliberate, the second juror "advised me and the other jurors that Clarke-Mobile Counties Gas District had gone across her son's land and messed it up and did not ask permission. This statement... was taken into account by me and influenced my decision in the case." R. 91. This testimony clearly relates to an extraneous matter that influenced the deliberations and the verdict in this case. Accordingly, we reverse the judgment and remand this case for a new trial.
REVERSED AND REMANDED.
SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON, STEAGALL and INGRAM, JJ., concur in the result.
[1] An unrelated portion of § 6-11-1 has been declared unconstitutional. See Clark v. Container Corp. of America, 589 So. 2d 184, 198 (Ala. 1991). | August 20, 1993 |
fe83b229-e2d3-4634-adab-9650c34b2b7f | Becraft v. Becraft | 628 So. 2d 404 | 1920210 | Alabama | Alabama Supreme Court | 628 So. 2d 404 (1993)
Charles D. BECRAFT, as executor of the estate of Lowell H. Becraft, Sr., deceased
v.
Elizabeth BECRAFT.
1920210.
Supreme Court of Alabama.
August 27, 1993.
*405 Lowell H. Becraft, Jr., Huntsville, for appellant.
John G. Butler, Jr., Huntsville, for appellee.
ALMON, Justice.
The children of Lowell Becraft, Sr. ("Dr. Becraft"), opposed the petition by their stepmother, Elizabeth Becraft, for an omitted spouse's share of Dr. Becraft's estate, Ala. Code 1975, § 43-8-90. The Madison County Probate Court granted Elizabeth's petition, and Dr. Becraft's children have appealed. The issues stated by the children are:
Dr. Becraft was married to Barbara Becraft until Barbara's death in 1985. They had four children, one of whom died without issue. Dr. Becraft had executed a will, in 1984, leaving his entire estate to Barbara or, if she failed to survive him, to their children. After Barbara's death, Dr. Becraft married Elizabeth and remained married to her until his death seven months later. His three surviving children filed his 1984 will for probate, whereupon Elizabeth filed a petition for an omitted spouse's share, pursuant to § 43-8-90.
Section 43-8-90(a) provides:
Dr. Becraft made Elizabeth the beneficiary of a $25,000 insurance policy on his life, and the children argue that Dr. Becraft intended this benefit to be in lieu of a testamentary provision. All three children testified that Dr. Becraft had stated many times that he and Barbara intended their estate to pass to their children. They argue that Dr. Becraft's brief marriage to Elizabeth, a much younger woman, should not disturb this estate plan. Elizabeth testified that she and Dr. Becraft did not have an agreement that the aforementioned life insurance policy was to be her share of his estate, and she generally contradicted the children's testimony as to Dr. Becraft's plans for his estate.
Dr. Becraft's children argue first that the judgment granting Elizabeth's petition for an omitted spouse's share of their father's estate is contrary to the great weight and preponderance of the evidence. Under the ore tenus rule, "a presumption of correctness exists as to the court's findings of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." Cove Creek Development Corp. v. APAC-Alabama, Inc., 588 *406 So. 2d 458, 461 (Ala.1991); Arzonico v. Wells, 589 So. 2d 152 (Ala.1991).
Elizabeth Becraft had the initial burden to show her eligibility as an "omitted spouse." The parties stipulated that Dr. Becraft had executed his will before he married Elizabeth, that Elizabeth was not mentioned in the will, and that they remained married until Dr. Becraft's death. Elizabeth thus established a prima facie case for an omitted spouse's share of Dr. Becraft's estate.
To overcome this prima facie showing, the children must reasonably prove both that Dr. Becraft provided for Elizabeth by gift outside the will and that he intended this gift to be in lieu of a testamentary gift.[1]Hellums v. Reinhardt, 567 So. 2d 274 (Ala. 1990). It is undisputed that Elizabeth was the beneficiary of a $25,000 life insurance policy. The only question is whether the court erred in holding that the children did not reasonably prove that Dr. Becraft intended the insurance proceeds to be in lieu of a testamentary gift.
The evidence presented by both sides to establish Dr. Becraft's intent consists of testimony by interested witnesses. Weighing this evidence, the court determined that Dr. Becraft's children had not carried their burden of showing that the insurance policy was given in lieu of a testamentary gift. The children's testimony that Dr. Becraft told them he intended his estate to go to them is controverted by Elizabeth's testimony. The judge considered this evidence and the circumstances surrounding Dr. Becraft's marriage and death. As we will discuss below, the judge stated that Dr. Becraft was an intelligent, educated man who could be presumed capable of properly looking after his affairs, and that his failure to expressly provide that the life insurance policy was a gift in lieu of a testamentary provision militated against the conclusion that he intended it to be such. Viewing the record as a whole, and in light of the conflicting testimony, we cannot say that the judgment granting Elizabeth an omitted spouse's share was contrary to the great weight of the evidence.
The next three issues are based on the following remarks by the probate judge at the conclusion of the hearing on Elizabeth's petition:
*407 The children contend, in support of their position on the second issue, that the court held that the only defense to a petition for an omitted spouse's share is a showing that the testator executed either a new will, a codicil, or a prenuptial agreement, and they argue that, in so holding, the court erred. We do not read the court's remarks as reflecting such a holding. Rather, the court recited those possibilities simply as examples of how Dr. Becraft could have expressed in writing an intention to provide for Elizabeth outside the will. The court did not err in considering Dr. Becraft's failure to establish in writing that he intended the insurance benefits to be in lieu of a testamentary provision for Elizabeth as a factor weighing on the question whether Dr. Becraft had such an intent.
On the third issue, the children argue that the court held that a gift outside the will must approximate or equal in value the amount the surviving spouse would have received under the Code, see § 43-8-41, and erred in so holding. This argument is based on the following language: "He [Dr. Becraft] provided her [Elizabeth] some but I don't think he provided her as much as the Code intended it to do [sic]." The purpose of § 43-8-90 is to prevent the unintentional disinheritance of surviving spouses. As the committee comments state: "This section reflects the view that the intestate share of the spouse is what the decedent would want the spouse to have if he had thought about the relationship of his old will to the new situation." The size of an inter vivos gift or one that passes outside the estate in relation to the intestate share is relevant to the question of whether the gift was intended as being in lieu of a testamentary provision, and we do not view the court's remark as absolutely requiring that an inter vivos or extra-estate gift be equal to or approximately the same as an intestate share to qualify as a gift in lieu of a testamentary provision.
Finally, the children argue that the court erred by considering facts outside the record in deciding to grant Elizabeth an omitted spouse's share. The judge did mention having known the decedent as an intelligent person, but he was simply "reiterat[ing] the point [Elizabeth's attorney] made." There is no indication that the judge's findings and conclusion were influenced improperly by his acquaintance with the decedent. The judge based his decision on the evidence, and the judgment is sustained by the record.
For the foregoing reasons the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] There is no contention that "it appears from the will" that Dr. Becraft intentionally omitted Elizabeth as a beneficiary of his estate. | August 27, 1993 |
36acfdd0-b299-4341-baf3-ce1702b8a802 | Ex Parte Lacy | 629 So. 2d 691 | 1920871 | Alabama | Alabama Supreme Court | 629 So. 2d 691 (1993)
Ex parte Marvin LACY.
(Re Marvin Lacy v. State.)
1920871.
Supreme Court of Alabama.
August 27, 1993.
*692 M.U. Griffin, Huntsville, for petitioner.
James H. Evans, Atty. Gen., for respondent.
ADAMS, Justice.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
HORNSBY, C.J., and MADDOX, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
ALMON, J., dissents.
ALMON, Justice (dissenting).
I respectfully dissent from the denial of the petition for writ of certiorari. It appears that the instructions would have allowed the jury to find Lacy not guilty of murder on the basis of his defense of justification, i.e., self-defense, but then proceed to consider whether he was guilty of a lesser included offense. Under the very reasoning employed by the Court of Criminal Appeals, the jury's acceptance of the justification defense to the murder charge would compel a verdict of not guilty and would preclude consideration of the lesser included offenses; that court wrote: "If a jury decides that a person is justified in using deadly force to defend himself then he or she is not guilty of any crime, and the defense is perfect." Lacy v. State, 629 So. 2d 688, at 689 (Ala.Cr.App.1993). Thus, from all that appears here, the jury may have found Lacy not guilty of murder because he acted properly in self-defense, but then found him guilty of manslaughter because the judge gave instructions not to consider the defense of justification in regard to that lesser included offense. If the instructions allowed such a result and if the defendant properly objected, this would be reversible error.
Moreover, I do not agree that justification cannot be a defense to reckless manslaughter simply because one must act intentionally in defending oneself. One may act intentionally and with proper justification in taking steps to defend oneself, but then act in a manner that could be construed as reckless or negligent. If the evidence supports the existence of a fact question as to whether the defendant's conduct was proper self-defense or lapsed into recklessness or negligence, the defense of justification would certainly be applicable to a charge of reckless manslaughter or criminally negligent homicide.
Section 13A-3-23, Ala.Code 1975, reads, in pertinent part:
I see nothing in these provisions or in any other Code provisions that would necessarily preclude the application of the defense of justification to a charge of reckless manslaughter or criminally negligent homicide. I am not aware of any principles of law that support this result.
The facts of this case are not before us in any detail, so I am unable to conclude for certain that the trial court committed reversible error in its instructions. However, the materials before us do indicate a probability of merit in the petitioner's arguments. *693 Therefore, I would grant the writ for further consideration, and I respectfully dissent from the denial of the writ. | August 27, 1993 |
c735a241-0b33-45d9-8101-5b83f5825474 | Ex Parte Coral | 628 So. 2d 1004 | 1920372 | Alabama | Alabama Supreme Court | 628 So. 2d 1004 (1993)
Ex parte Robert Lance CORAL.
(Re Robert Lance Coral v. State).
1920372.
Supreme Court of Alabama.
August 27, 1993.
*1005 Terrance G. Reed of Asbill, Junkin & Myers, Chtd., Washington, DC, and W. Terry Travis of George L. Beck, Jr., P.C., Montgomery, for petitioner.
James H. Evans, Atty. Gen., Beth Jackson Hughes, Asst. Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for respondent.
SHORES, Justice.
Robert Lance Coral was indicted on March 7, 1988, in Montgomery County, on two counts of capital murder; Count I was murder committed during a robbery in the first degree, § 13A-5-40(a)(2), Ala.Code 1975, and Count II was murder committed during a burglary in the first degree, § 13A-5-40(a)(4). The jury found him guilty of the lesser included offense of murder (§ 13A-6-2(a)(1)) under Count I of the indictment and guilty of the capital offense of murder committed during a burglary in the first degree as charged in Count II.[1] After a sentencing hearing held before the jury in accordance with §§ 13A-5-43 through -46, the jury returned an advisory verdict, by a majority vote of eight to four, recommending a sentence of life imprisonment without parole for the conviction of the capital offense charged in Count II of the indictment. Thereafter, the trial court held another sentencing hearing in accordance with §§ 13A-5-47 through -52, and sentenced the appellant to death.
In his petition to this Court, Coral raises the same 14 issues that he raised before the Court of Criminal Appeals. The opinions released by the Court of Criminal Appeals provide a thorough treatment of each issue raised by Coral. Coral v. State, 585 So. 2d 248 (Ala.Cr.App.1991); Coral v. State, 628 So. 2d 954 and 628 So. 2d 988 (Ala.Cr.App. 1992).
*1006 Our review of a death penalty case allows us to address any plain error or defect found in the proceeding under review, even if the error was not brought to the attention of the trial court. Rule 39(k), A.R.App.P. "`"Plain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.'" Ex parte Womack, 435 So. 2d 766, 769 (Ala.Cr.App.1983), cert. denied, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983), quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). This Court may take appropriate action when the error "has or probably has" substantially prejudiced the appellant. Rule 39(k), A.R.App.P.
Having read and considered the record, together with the briefs and arguments of counsel, this Court has concluded that the judgment of the Court of Criminal Appeals (see Coral v. State, 585 So. 2d 248 (Ala.Cr. App.1991); Coral v. State, 628 So. 2d 954 and 628 So. 2d 988 (Ala.Cr.App.1992)), must be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, STEAGALL[*] and INGRAM, JJ., concur.
[1] On appeal, Coral contended that he was twice put in jeopardy for the same offense because he was convicted of the lesser included offense of murder under Count I, which alleged the capital offense of murder-robbery, and was also convicted of the capital offense of murder-burglary under Count II. The Court of Criminal Appeals held that it was clear that these two offenses arose out of the same conduct and that his murder conviction constitutes a conviction for the same murder that was an element of the capital offense of murder-burglary for which he was also convicted. The Court of Criminal Appeals held that the appellant was, in fact, sentenced only for the greater offense, and, therefore, that his murder conviction under Count I could not stand. Accordingly, the cause was remanded to the trial court to vacate Coral's conviction for murder under Count I of the indictment. The Court of Criminal Appeals held that Coral's conviction for the capital offense of murder-burglary was proper in this regard and, thus, stands.
[*] Although Justice STEAGALL did not attend oral argument, he has listened to the tapes. | August 27, 1993 |
048da10e-f685-4dfd-9cbd-13b4370bfe51 | Ex Parte Stewart | 659 So. 2d 122 | 1920509 | Alabama | Alabama Supreme Court | 659 So. 2d 122 (1993)
Ex parte Charles Randall STEWART.
(Re Charles Randall Stewart v. State).
1920509.
Supreme Court of Alabama.
September 3, 1993.
Rehearing Denied October 15, 1993.
*123 Michael P. O'Connor, Montgomery, and George R. Giddens, Anniston, for petitioner.
James H. Evans, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for respondent.
PER CURIAM.
Charles Randall Stewart was convicted by a Talladega County jury of capital murder and was sentenced to death. The Court of Criminal Appeals initially remanded the cause to the trial court for further proceedings on two issues, but found no error as to the other issues raised. Stewart v. State, 601 So. 2d 491 (Ala.Cr.App.1992). On return to remand, the Court of Criminal Appeals found no error in the trial court's resolution of the two issues that were the subject of the remand. The Court of Criminal Appeals proceeded to address the propriety of the conviction of capital murder and the sentence of death. That court affirmed Stewart's conviction and sentence. Stewart v. State, 659 So. 2d 120 (Ala.Cr.App.1992). Stewart filed a petition for a writ of certiorari, and it was granted as a matter of right pursuant to Rule 39(c), Ala.R.App.P.
All of the issues raised in Stewart's petition and brief were addressed by the Court of Criminal Appeals, with either a full discussion or a summary statement that no error was presented.[1] As to the issues affecting the entire trial or only the guilt phase, we see no error.
One issue merits some clarification. A particular veniremember mentioned that his wife was on the grand jury then serving, but the district attorney stated, erroneously, that Stewart had been indicted by the prior grand jury. Stewart argues that, if he had known that the veniremember's wife had served on the grand jury that had indicted him, he would have exercised a peremptory strike to prevent that veniremember from sitting on the petit jury. The Court of Criminal Appeals remanded for further inquiry into this issue and, in its opinion on return to remand, stated:
The Court of Criminal Appeals has used the term "absolute bias" as the test for a challenge for cause when there is no statutory ground for such a challenge. Jenkins v. State, 627 So. 2d 1034 (Ala.Crim.App.1992), affirmed, 627 So. 2d 1054 (Ala.1993); Nettles *124 v. State, 435 So. 2d 146 (Ala.Cr.App.), affirmed, 435 So. 2d 151 (Ala.1983). In neither case did this Court repeat the "absolute bias" language, and we express no opinion here as to whether that is the correct test, because Stewart does not argue that the fact that the veniremember's wife served on the grand jury was grounds for a challenge for cause.
Instead, Stewart argues that he was deprived of his right to exercise his peremptory strikes based on truthful answers from prospective jurors, citing Clark v. State, 551 So. 2d 1091 (Ala.1989); Ex parte O'Leary, 417 So. 2d 232 (Ala.1982), cert. denied, 463 U.S. 1206, 103 S. Ct. 3536, 77 L. Ed. 2d 1387 (1983); and State v. Gilbert, 568 So. 2d 876 (Ala.Cr. App.1990).[2] The test applied in these cases is whether the defendant might have been prejudiced by a veniremember's failure to make a proper response.
Here, however, the juror was perfectly forthcoming as to his wife's service on the grand jury. The following is the entire exchange at voir dire:
At the hearing on remand, the juror testified that he had mentioned to the jury that his wife had been on the grand jury that indicted Stewart, but he also testified that she had not told him anything about the case. Stewart focuses his argument on the district attorney's misstatement that the indictment had been returned by a prior grand jury. There is no evidence that the district attorney knowingly misstated this fact, and he testified at the remand hearing that he simply thought Stewart's indictment had been returned earlier than it had.[3] Stewart argues that the district attorney had a copy of the indictment at his counsel table, but there is no indication that he actually looked at it when he stated that the indictment had been returned by the March or April term of the grand jury. Stewart's attorney certainly also had access to a copy of the indictment. If he had wished to pursue the information volunteered by the juror in order to exercise his peremptory strikes, he could have easily looked at the indictment himself.
There is no indication of any wrongdoing or prejudice on the part of the juror. The trial court held a hearing on remand and found no basis for a holding that Stewart might have been prejudiced by the juror's service on the jury. We see no error, and we decline to reverse on this ground.
We have carefully studied all of the arguments affecting the validity of the conviction and we have found no error. Furthermore, Rule 39(k), Ala.R.App. P., provides as follows:
*125 Accordingly, we have reviewed the record for plain error, and we have found no error affecting Stewart's conviction for capital murder that "has or probably has adversely affected the substantial rights of the petitioner."
However, as to the sentence of death, one of the issues discussed by the Court of Criminal Appeals and presented in Stewart's petition does present reversible error. Stewart argues that the trial court's instructions during the sentencing phase were improper because, he argues, they conveyed to the jury the impression that it could find aggravating circumstances other than those enumerated in Ala.Code 1975, § 13A-5-49. The trial court instructed the jury, in pertinent part, as follows:
(Emphasis added.)
Sections 13A-5-45 through -52, Ala. Code 1975, govern sentence hearings in capital cases. Section 13A-5-46(e) provides:
(Emphasis added.) The aggravating circumstances are enumerated in § 13A-5-49, which provides, in pertinent part:
(Emphasis added.)
Stewart argues that, because §§ 13A-5-46(e) and 13A-5-49 definitively establish that *127 the list of aggravating circumstances is exclusive, the trial court erred by instructing the jury that it could consider circumstances (2) and (4) on the statutory list of aggravating circumstances plus "any aggravating circumstances you might find from the facts of the case." Stewart further argues that the trial court's subsequent instructionthat "[y]ou may not consider any aggravating circumstance, other than the circumstance that you have been instructed about"merely refers back to the first erroneous instruction, and therefore exacerbates, rather than ameliorates, the error.
The State initially notes that Stewart's trial counsel did not object to the instruction, and therefore argues that, to be reversible, the instruction must rise to the level of "plain error"; see A.R.App.P. 39(k). The State concedes that the trial court incorrectly said that the jury could generally consider the facts of the case as aggravating circumstances. It contends, however, that the instruction, when considered as a whole, adequately apprises the jury that it was to consider only the second and fourth aggravating circumstances enumerated in § 13A-5-49. It specifically argues that the subsequent instruction noted above clearly refers to the two statutory aggravating circumstances § 13A-5-49(2) and (4), and argues that that subsequent instruction thus cures the isolated, erroneous remark. The Court of Criminal Appeals employed this rationale in holding that the instructions did not constitute error.
The State is certainly correct in arguing that a reviewing court must construe challenged jury charges in their entirety. Harris v. State, 412 So. 2d 1278 (Ala.Cr.App. 1982). However, it is also true that the sentencing stage is a "due process hearing of the highest magnitude," Richardson v. State, 376 So. 2d 205, 224 (Ala.Cr.App.1978), aff'd 376 So. 2d 228 (Ala.1979), and that a reviewing court must carefully analyze the jury instructions to determine if the trial court has fulfilled its duty to properly inform the jury. Proper instructions are absolutely indispensable if the jury is to effectively perform its role[4] in this crucial proceeding.
In light of these requirements, we must reject the argument that this instruction, when viewed in its entirety, clearly apprised the jury of the proper law. The learned and experienced circuit judge inadvertently instructed the jury that it could find other aggravating circumstances from the facts of the case itself. The trial court nowhere explicitly informed the jury that it could not consider nonstatutory aggravating circumstances. Although the trial court obviously did attempt to convey this proposition of law when it stated "You may not consider any aggravating circumstance, other than the circumstance that you have been instructed about," this instruction is itself fraught with ambiguity, because the trial court had at that point already told the jury that "we are concerned with only two out of this list besides any aggravating circumstances you might find from the facts of the case itself," and that "the fact that I instruct you on such aggravating circumstances or define them, does not mean that the circumstances or any other aggravating circumstances have been proven beyond a reasonable doubt."
This potential for confusion is illustrated by comparing the trial court's instructions on aggravating circumstances with its instructions on mitigating circumstances. After informing the jury of the statutory mitigating circumstances in § 13A-5-51, the trial court stated:
(Emphasis added.) The emphasized phrase here is remarkably similar to the first objectionable phrase used by the trial court in describing the aggravating circumstances. Therefore, the jury could have reasonably believed that it was to find aggravating circumstances in the same manner as mitigating circumstances.
*128 This error is crucial, for it is always presumed that the jury will follow the instructions given to it by the trial court.
Parker v. Randolph, 442 U.S. 62, 73, 99 S. Ct. 2132, 2139, 60 L. Ed. 2d 713 (1979) (White, J., dissenting). Although the court correctly instructed the jury in other portions of the charge, the inadvertent erroneous statements directly contradicted the correct ones, and we cannot tell which portion of the charge the jury may have followed. Because the ambiguity in the instruction may well have prevented the jury from correctly carrying out its function, we hold that the instruction constitutes plain error.
It is true that the trial court, in fulfilling its duty as the ultimate sentencing authority pursuant to § 13A-5-47, properly found in its sentencing order that the State had proved two statutory aggravating circumstances beyond a reasonable doubt. However, this does not render the erroneous jury instruction harmless, because this Court held in Ex parte Williams, 556 So. 2d 744 (Ala.1987), that a sentencing jury's mere consideration of an improper aggravating circumstance requires that the sentence of death be set aside, despite the trial court's proper exercise of its sentencing authority:
556 So. 2d at 745.
For the foregoing reasons, the judgment is affirmed as to Stewart's conviction for capital murder, but reversed as to the sentence of death, and the cause is remanded for the Court of Criminal Appeals to order a new sentencing hearing before a jury.
AFFIRMED AS TO CONVICTION, REVERSED AS TO SENTENCE, AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES and KENNEDY,[*] JJ., concur.
ADAMS, J., dissents.
[1] For example, in part XV of its first opinion, 601 So. 2d 491, the Court of Criminal Appeals rejected Stewart's arguments that the trial court erred in its instructions during the guilt phase. The court discussed at length only the "reasonable doubt" instruction, and then concluded, "We have reviewed appellant's other allegations concerning the court's instructions in the guilt phase and find no error." 601 So. 2d at 505. We agree that Stewart's other arguments regarding the instructions during the guilt phase are not sufficiently meritorious to require individual discussion, and we agree similarly with the resolution by the Court of Criminal Appeals of other subissues within the larger issues that are addressed.
[2] Stewart also cites Ex parte Beam, 512 So. 2d 723 (Ala.1987), but that case, like Jenkins and Nettles, involved a challenge for cause, and so is not pertinent.
[3] The indictment was returned on September 27, 1990, and Stewart's trial began on October 22, 1990.
[4] See discussion of Ex parte Williams, 556 So. 2d 744 (Ala.1987), infra.
[*] Although Justice KENNEDY did not sit at oral argument, he has studied the record and listened to the tapes of oral argument. | September 3, 1993 |
db3d7747-83fe-447b-b15c-408371d4f346 | Blackmon v. Downey | 624 So. 2d 1374 | 1920318 | Alabama | Alabama Supreme Court | 624 So. 2d 1374 (1993)
Ron BLACKMON and Frank Garrison
v.
Marcus DOWNEY, Jr.
1920318.
Supreme Court of Alabama.
August 13, 1993.
*1375 Michael S. McNair, Mobile, for appellants.
John W. Cowling of Reynolds & Sayers, Mobile, for appellee.
INGRAM, Justice.
The defendants, Ron Blackmon and Frank Garrison, appeal from a judgment entered in favor of the plaintiff, Marcus Downey, Jr.
Downey sued Blackmon and Garrison for damages. In a four-count complaint and an amended complaint, Downey alleged that Blackmon and Garrison had wrongfully repossessed and converted Downey's automobile and the personal property therein, that they had trespassed on Downey's property while repossessing the car, and that they had illegally sought to charge Downey a usurious rate of interest on a loan.
The trial court entered a default judgment against Blackmon. Sitting without a jury, the trial court heard ore tenus evidence and thereafter entered a judgment against Garrison.
The relevant facts are as follows: Downey entered into a transaction with Blackmon whereby Downey transferred the title to his automobile to Blackmon in exchange for $250.00. Downey agreed to pay Blackmon $55.00 a week for 10 weeks. At the end of 10 weeks, Blackmon was to return the car to Downey. After Downey fell behind on his agreed payments, Blackmon entered Downey's property and took the automobile. The automobile contained personal property that belonged to Downey and others. Downey was told that he could regain possession of the automobile if he paid Blackmon $650.00. Downey was also told that he would have to pay for his own personal property from the automobile.
Garrison operated, and was the principal shareholder of, American Pawn & Car, Inc.[1] The evidence was in dispute as to whether Blackmon was an employee of American Pawn & Car. Moreover, the evidence was in dispute as to whether Garrison was personally involved in the transaction. It is undisputed, however, that Blackmon and Downey were on the premises of American Pawn & Car when they entered into the transaction. It is also undisputed that Downey discussed the transaction with Garrison after the car was "repossessed."
In Gaston v. Ames, 514 So. 2d 877, 878 (Ala.1987), we stated:
Garrison argues that the trial court's judgment against him was without supporting evidence. That is, he argues that there was no evidence before the trial court linking him to the transaction between Downey and Blackmon or to the subsequent repossession. We conclude that, while the evidence was in dispute, there was sufficient evidence before *1376 the trial court upon which to base this judgment.
Citing our recent decision in Floyd v. Title Exchange & Pawn of Anniston, Inc., 620 So. 2d 576 (Ala.1993), Garrison also argues that the trial court improperly applied the law to the facts of this case. We disagree.
In Title Exchange, we held that an automobile certificate of title is "tangible personal property" within the meaning of the Alabama Pawnshop Act.[2] The effect of that decision was to hold that money-lending transactions involving the transfer of automobile certificates of title for the purpose of giving security are "pawn" transactions and not "small loan" transactions governed by the provisions of Alabama's Small Loan Act. Id. at 578. We set out the relevant difference in the regulation of the two types of transactions, as follows: "The Small Loan Act permits an interest rate of either two or three percent per month, depending on the amount of the unpaid balance, § 5-18-15(a), whereas the Pawnshop Act permits a charge of 25% of the principal amount per month. § 5-19A-7(a)." Id. at 578, n. 4.
Blackmon appeals from the trial court's denial of his Rule 60(b), A.R.Civ.P., motion to set aside the default judgment entered against him.
Buchanan v. Collier, 571 So. 2d 1068, 1069 (Ala.1990) (citations omitted). Blackmon argues that Downey's complaint was never properly served upon him and, therefore, that the trial court abused its discretion in denying his Rule 60(b) motion. We disagree.
The evidence before the trial court when it considered Blackmon's Rule 60(b) motion showed that Downey's attorney had attempted to serve Blackmon by mail. It is undisputed that Downey ultimately complied with the provisions of Rule 4.3(c), A.R.Civ.P., dealing with service by publication. Moreover, it is undisputed that Blackmon had notice of the pending action in sufficient time to respond to the claims against him.
We conclude that the trial court did not abuse its discretion in denying Blackmon's motion to set aside the default judgment. Accordingly, the order denying the Rule 60(b) relief is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] American Pawn & Car, Inc., was not named as a defendant in this action and is not a party to this appeal.
[2] Act. No. 92-597, Ala.Acts 1992; Ala.Code 1975, §§ 5-19A-1 through -20 (Supp.1992). | August 13, 1993 |
70abee55-e594-4754-93b4-da7fb102a422 | Pate v. Rollison Logging Equipment, Inc. | 628 So. 2d 337 | 1911153 | Alabama | Alabama Supreme Court | 628 So. 2d 337 (1993)
Alton M. PATE
v.
ROLLISON LOGGING EQUIPMENT, INC., et al.
1911153.
Supreme Court of Alabama.
August 6, 1993.
Rehearing Denied October 8, 1993.
*339 Edward F. Morgan, Tuscaloosa, for appellant.
John A. Owens of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, and William D. King, Carrollton, for Rollison Logging Equipment, Inc., Rollison Logging Equipment of Alabama, Inc. and Laverne Rollison.
William D. Hairston, Jr. of Engel, Hairston & Johanson, P.C., Birmingham, for Associates Commercial Corp.
Thomas R. Jones, Jr. of Rosen, Cook, Sledge, Davis, Carroll & Jones, P.A., Tuscaloosa, for Les Sanderson.
R. Dale Wallace, Jr., Albert L. Jordan and G. Glenn Murdock of Wallace, Jordan, Ratliff, Byers & Brandt, Birmingham, for Independent Life and Acc. Ins. Co.
William J. Donald III of Donald, Randall, Donald & Hamner, Tuscaloosa, for Roosevelt Nat. Life Ins. Co. of America.
MADDOX, Justice.
One of the basic issues presented by this appeal concerns the duties and obligations of the parties in view of the fact that the plaintiff bought credit disability insurance when he financed the purchase of logging equipment that was later repossessed when he failed to make timely payments after becoming disabled. The plaintiff, Alton M. Pate, sued seven defendants, variously alleging breach of contract, negligence, fraud, and conversion. The legal issues vary according to the respective defendants, but the resolution of each centers on whether Pate presented substantial evidence that he is entitled to recover against any of the defendants and whether the trial court properly entered the summary judgments in favor of each of the seven defendants without specifically setting a hearing and before the plaintiff had deposed two defendants. We affirm in part; reverse in part; and remand.
The facts, viewed most favorably to Pate, are as follows:
Pate owned and operated a logging business. In 1984, he bought a loader from the defendant Randy Rollison, of Rollison Logging Equipment, Inc., and later that year he bought a skidder, executing conditional sales contracts naming Rollison Logging Equipment as the secured party. Rollison arranged financing through the defendant Associates Commercial Corporation, a finance company, and assigned the security interests to Associates.
Along with each sale, Pate bought credit life and accident and health insurance to pay his installments if he became disabled. The *340 premiums for the insurance were included in his payments. Rollison arranged the purchase of the insurance through the defendant Les Anderson, d/b/a Anderson Insurance Agency, a broker. To ensure adequate coverage, Anderson placed seven policies with six different insurers, including the defendants Roosevelt National Life Insurance Company of America and Independent Life and Accident Insurance Company.
In January 1985, Pate became disabled with esophagitis and failed to make his payments as required by the contracts. He notified Randy Rollison, who told Laverne Rollison, the company president, who then notified Anderson by letter that Pate was ill and asked that claim forms be sent to Pate. Laverne Rollison also wrote a letter to Pate explaining that there were seven policies and that forms would have to be sent to each insurer each month; he offered to forward Pate's completed forms to the insurers.
Many of the payments from the insurers were late; consequently, Associates added late charges to Pate's account. Pate claims that he did not regularly receive the forms, but that when he did receive them, he completed them and promptly sent them to the insurers. Letters from Anderson to Pate indicate that the payments were late because of Pate's delays in returning the completed forms, improperly completed forms, physician changes, or disputes over whether Pate was totally disabled.
In May 1987, Laverne Rollison notified Pate and Randy Rollison that Associates had given him two options: either repossess the equipment or rewrite the sales contracts. Randy Rollison discussed the options with Pate and proposed executing a new financing arrangement that would combine the two existing contracts. Although Pate expressed concern about entering into a new agreement, he wanted to keep the equipment and, after consulting a lawyer, he signed the new contract.
In January 1989, Laverne Rollison notified Pate that all the insurance policies had expired and that Pate would be responsible for the remaining payments. When Pate had made no payments by July 1989, Rollison, as instructed by Associates, repossessed the loader, along with the trailer to which it was attached. After notifying Pate, Rollison sold the loader.
In February 1990, Pate sued Rollison Logging Equipment, Inc., Rollison Logging Equipment of Alabama, Inc., Associates, and various fictitiously named defendants, for damages based on fraud, conversion, breach of contract, and negligent performance of contractual duties. Through a series of amendments, Pate added Laverne Rollison as a defendant; substituted Anderson, Independent, and Roosevelt for certain fictitiously named defendants with respect to the negligent performance claim and added a claim against those same defendants for breach of contract;[1] and added a claim against Associates for damages based on negligence. The defendants filed separate motions for summary judgment. After a pre-trial conference in February 1992, but without having set a hearing on the summary judgment motions, the trial court entered summary judgments for all defendants on all claims. Pate appeals.
A summary judgment is proper upon a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P. Initially, the burden is upon the moving party to make a showing, but if the moving party makes a prima facie showing of entitlement to a summary judgment, then the burden shifts to the nonmoving party. Maharry v. City of Gadsden, 587 So. 2d 966, 968 (Ala. 1991). Because this action was not pending on June 11, 1987, the nonmoving party must offer "substantial evidence" to overcome the prima facie showing. Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment *341 can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Our standard of review is de novo, Maharry, 587 So. 2d at 968, but we examine the evidence in a light most favorable to the nonmoving party. Moore v. Spiller Associated Furniture, Inc., 598 So. 2d 835, 836 (Ala.1992).
Before addressing whether the summary judgments were substantively proper, we first address Pate's argument that the trial court violated Rule 56(c), Ala.R.Civ.P., by ruling on the motions for summary judgment without first setting a hearing on those motions. Pate argues that he was surprised when the trial court ruled on the motions at the pre-trial conference.
Before the August 1992 amendment, Rule 56(c) provided in part that "[t]he motion shall be served at least 10 days before the time fixed for the hearing," but "this Court [had] construed Rule 56(c) as providing for a ten-day notice of hearing on a motion for summary judgment." Kelly v. Harrison, 547 So. 2d 443, 445 (Ala.1989) (citations omitted). The rule does not require a special hearing, however, because the trial court has a range of discretion in applying Rule 56(c). Id.
Pate had due notice of the pre-trial conference set for February 13, 1992, by which time the motions for summary judgment had been pending for several months. Two days before the pre-trial conference, Pate filed responses, including his own affidavit, to all the motions for summary judgment except Roosevelt National's, to which he had previously responded. In view of these facts, we cannot say that the trial court abused its discretion in not setting a specific hearing on the motions.
Citing Nash v. Cosby, 597 So. 2d 209, 211 (Ala.1992) (Houston, J., concurring specially) ("[t]he Court must provide a level playing field"), Pate argues that the trial judge's comments and actions at the pre-trial conference indicated bias against him. Pate cites what he contends are disparaging remarks, such as a statement by the trial judge that he did not want to hear a response from Pate's counsel to a particular argument, and he cites the refusal of the trial judge to allow him a seventh amendment of his complaint.
A judge is presumed not to be prejudiced, and the moving party has the burden of proving that a judge is biased. Banks v. Corte, 521 So. 2d 960, 962 (Ala.1988). "A mere accusation of bias, unsupported by substantial fact, does not require disqualification of a judge." Id.; see also Cribbs v. Shotts, 599 So. 2d 17, 19 (Ala.1992).
Our review of the transcript of the pre-trial conference shows that Pate failed to meet his heavy burden of showing bias. We view the trial judge's remarks as nothing more than attempts to encapsulate Pate's position according to characterizations made by Pate's own counsel. Even though the trial judge said that he did not want to hear Pate's response to a particular point, he nevertheless allowed Pate's counsel to respond fully. As discussed infra, the trial judge did not abuse his discretion in not allowing Pate to amend his complaint. In connection with Pate's claim of judicial bias, we note that Pate did not file a motion asking the judge to disqualify himself; consequently, Pate has failed to show prejudicial error on this point.
Pate claims fraud, conversion, and negligent performance of contract against the two Rollison companies and Laverne Rollison. These three defendants will sometimes be referred to as "Rollison."
Regarding the fraud claim, Pate must establish: (1) that a misrepresentation of a material fact was made to him; (2) that it was made willfully to deceive or was made recklessly without knowledge; (3) that under the circumstances he justifiably relied upon the misrepresentation; and (4) that he was damaged as a proximate consequence. Harrell v. Arrington, 595 So. 2d 1356, 1358 (Ala. 1992).
*342 Rollison contends that Pate did not justifiably rely on any representations by Rollison when he executed the new contract, because Pate testified that he was concerned about the new contract and was suspicious enough to discuss the matter with a lawyer before signing it. Assuming, arguendo, that this satisfies Rollison's burden of making a prima facie showing, the question becomes whether Pate presented substantial evidence of a genuine issue of material fact as to whether he justifiably relied on Rollison's alleged representationsthat Pate's equipment would be repossessed if he did not sign the new contract and that the new contract would be void if the insurers paid according to the old contracts. Pate claims that these were inducements to get him to sign the new contract.
Pate admits that, based on his experience in buying equipment, he had reservations about rewriting the contracts and that he consulted a lawyer. He asserts, however, that the lawyer did not review the proposed contract. Pate testified, by deposition, that he and Randy Rollison were friends; that he had relied on Randy Rollison to explain the terms of the proposed new contract to him, because he could not read; and that when he signed the new contract, he was very ill and almost bedridden. Unquestionably, Pate incurred greater debt under the new contract. These circumstances, when considered in a light most favorable to Pate as the nonmoving party, constitute substantial evidence from which a jury could conclude that Rollison induced Pate to sign the new agreement and did so knowing that disability insurance benefits were available to prevent a default under the original agreement; therefore, a genuine issue of material issue of fact was presented, which made the summary judgment improper as to the fraud claim against the Rollison defendants.
Pate argues that Rollison converted the loader and the attached trailer by repossessing and reselling them pursuant to the new contract, which Pate contends was induced by fraud. Rollison argues that Associates, acting through Rollison, lawfully repossessed and resold the loader upon Pate's default. See Ala.Code 1975, §§ 7-9-503 and -504. Rollison argues that the trailer was also lawfully repossessed because the contract provided that "[a]ny property other than Collateral which is in or upon the Collateral at the time of repossession may be taken and held without liability until its return is requested by debtor," and that Pate had not requested that the trailer be returned. R. 209.
If Pate proves his fraud claim, then the new contract, pursuant to which the equipment was repossessed and resold, would be void, because fraud vitiates a contract. Brenard Manufacturing Co. v. Pearson, 213 Ala. 675, 676, 106 So. 171, 172 (1925). Even if the new contract was void because of fraud, and repossession and resale were undertaken pursuant to the original contract, there is evidence, albeit disputed, of representations made by Rollison and of other acts and circumstances surrounding the execution of the new contract from which a jury could conclude that the Rollison defendants at least impliedly waived their rights under the original contract. See Industrial Machinery, Inc. v. Creative Displays, Inc., 344 So. 2d 743, 746 (Ala.1977) ("[t]he waiver of contract provisions may be implied from acts and circumstances surrounding the performance of the contract"). Also, in the recent case of Wiley v. General Motors Acceptance Corp., 624 So. 2d 518 (Ala.1993), this Court held that, depending upon the facts of the case, a creditor can have a duty not to repossess a chattel when the creditor knows that there is credit disability insurance and has impliedly promised that the insurance will pay the claim. Consequently, we reverse the summary judgment with respect to the conversion claim against the Rollison defendants.
Pate claims that, as part of a contract to provide insurance, Rollison volunteered to help Pate obtain and return the claim forms and later negligently failed to act after learning that Pate was not receiving forms and when Independent Life sent claim checks to Rollison instead of Pate. However, it appears that Rollison's only involvement *343 with the insurance contracts may have been to ask Pate if he wanted coverage and to ask Anderson to place the insurance. Even if considered a broker or an agent, Rollison was not a party to the insurance contracts and, therefore, could not be liable for breach of those contracts. Ligon Furniture Co. v. O.M. Hughes Insurance, Inc., 551 So. 2d 283, 285 (Ala.1989). The primary case upon which Pate relies, Vines v. Crescent Transit Co., 264 Ala. 114, 85 So. 2d 436 (1955), is inapposite, because without a contract, there can be no breach of a contractual duty. In this respect, the summary judgment was proper as to the Rollison defendants.
Pate further argues, however, that, even without a contractual duty, Rollison assumed a duty to help him. Rollison agreed to help Pate obtain and return the necessary claim forms. Rollison wrote four letters to Anderson to inform Anderson of Pate's disability, to request that forms be sent to Pate, to request that Anderson determine if the insurers were sending the forms, and to request that Pate's claim status be revised because a physician had reported that Pate was only partially disabled. Rollison argues that the letters were written as a courtesy to Pate as a customer, not as a voluntary assumption of a duty.
A duty can arise when a person having no duty to act on another's behalf voluntarily does so. Palomar Insurance Corp. v. Guthrie, 583 So. 2d 1304, 1306 (Ala.1991). Even if Rollison assumed such a duty, however, Pate has offered no substantial evidence of a breach of that duty. The correspondence among Pate, Rollison, and Anderson, and the testimony of Ethel Pate, Alton Pate's wife, indicates that Rollison acted promptly each time Pate asked for help in obtaining forms. The summary judgment was proper regarding the negligent performance-of-contract claim against the Rollison defendants.
Pate claims that Les Anderson, d/b/a Anderson Insurance Agency, breached a contract to make disability payments. Pate candidly admits that "it is doubtful that the plaintiff can prove that Anderson entered into a contract with him to make disability payments." Appellant's brief at 74. Pate's doubts are well-founded. The insurance contracts were between Pate and the insurers. Anderson cannot be liable for breach of contract, because he acted as a broker to place the insurance and was not a party. See Ligon Furniture Co., 551 So. 2d at 285.
Pate also argues that the trial court committed reversible error by entering the summary judgment for Anderson after having granted Pate five days from the pretrial conference to amend his complaint to state a negligence claim.[2] Pate contends that he should have been allowed to amend his complaint to allege that Anderson committed negligence in placing the insurance with six insurers without notifying him that he was doing so. We disagree. Anderson was a broker and not a party to any of the insurance contracts. Once a prospective insured and a broker agree regarding the procurement of insurance, the broker has a duty to use reasonable care to effect coverage and may be liable for negligently failing to do so, e.g., Montz v. Mead & Charles, Inc., 557 So. 2d 1, 4 (Ala.1987); Highlands Underwriters Insurance Co. v. Eleganté Inns, Inc., 361 So. 2d 1060, 1065 (Ala.1978), but Anderson procured the insurance coverage that Pate bought, and that was the extent of his duty.
The denial of leave to amend was a matter within the sound discretion of the trial court. Ex parte Reynolds, 436 So. 2d 873, 874 (Ala.1983). The trial court did not abuse its discretion in denying Pate leave to amend his complaint against Anderson.
*344 The trial court also had discretion to rule on the motions for summary judgment even though Pate had not yet deposed Anderson. The fact that discovery is pending does not bar a summary judgment unless "it can be ascertained that discovery is crucial to the nonmoving party's case," Hope v. Brannan, 557 So. 2d 1208, 1212 (Ala.1989), and the nonmoving party has the burden of showing that the discovery is crucial. Id.
Pate argues that Anderson could provide information that is relevant to the rights, duties, and responsibilities concerning credit insurance. Considering that Anderson fulfilled his duty in placing the insurance, Pate has not shown that his testimony is crucial. The trial court did not abuse its discretion in ruling before Anderson was deposed.
Pate asserts several claims against Associates: breach of contract, negligent performance of contract, negligence, fraud, and conversion. The fraud and conversion claims are based on a theory that Rollison acted as an agent of Associates in inducing Pate to execute the new contract and in repossessing and reselling the equipment. Initially, we note that, contrary to Associates' assertion, Pate has preserved his agency argument regarding the fraud and conversion claims, because he alleged in his complaint that the defendants, including Associates, acted through Rollison in making false representations concerning the conditional sales agreements and in repossessing and reselling the equipment.
In support of its motion for summary judgment, Associates relied in part on the deposition testimony of Laverne Rollison and Randy Rollison and the affidavit of John Moyer, the manager of the Associates office in Indianapolis, Indiana, where the contracts were purchased from Rollison. This evidence reveals that Associates did not participate in the sale of insurance, did not require insurance as a condition of financing, and did not process any claims for benefits. Based on Pate's default under the conditional sales contracts and Associates' rights as Rollison's recourse assignee, Associates asserts that it made a prima facie showing that it was entitled to a summary judgment.
In rebuttal, Pate contends that Associates had a duty to furnish claims information to Roosevelt and to notify Pate that further medical information was required and contends that Associates was negligent in not forwarding the claim forms to him after receiving them from Roosevelt. Pate offers Roosevelt's answers to interrogatories, which indicate that the normal method of activating the insurance was for the debtor to present a claim to the creditor, who would then forward the claim to Roosevelt, and that upon receipt of a properly completed claim form, Roosevelt would send a payment check and letter to Associates with another form and instructions to forward the form to Pate. Along with the answers to interrogatories, Roosevelt filed a record of this account. Associates denies receiving the forms from Roosevelt.
Considered in a light most favorable to Pate as the nonmovant, the evidence reveals that employees of Associates knew: (1) that Pate was disabled; (2) that Pate's installments were being paid by insurance bought at the time the equipment was purchased and financed; and (3) that the insurers required that forms be completed and sent monthly to continue the payments. Again, considering our recent decision in Wiley, we reverse the summary judgment on all claims against Associates except the negligent performance claim and remand the cause to the trial court with instructions to consider the claims in light of the principles of law set out in Wiley. We affirm the summary judgment as to the negligent performance claim, for the same reasons we affirm the summary judgment on the negligent performance claim against the Rollison defendants.
Pate claims damages from Roosevelt and Independent for breach of contract and for negligent delays in paying and handling his claims. Although these insurers paid all that they were obligated to pay under the contracts, Pate asks us to impose upon providers of credit disability insurance not only *345 a duty to pay, but also a duty to pay in a timely manner so as to prevent the creditor from repossessing the secured collateral. He asks us to impose such a duty because, he says, credit disability insurance "is quite distinct from other forms of insurance in that its sole function is to satisfy, on a periodic basis, the debt which it insures," and, he says, "This differs significantly from other forms of accident and health insurance[,] which merely pay a lump sum to the insured following a loss." Appellant's brief at 80. He also asks for damages for consequential loss of income, emotional distress, and mental anguish.
Pate contends that the insurers failed to pay because of a poor company policy of not paying until receipt of proof of disability during the previous claim period. He argues that the delays were exacerbated by Roosevelt's sending forms to Associates instead of directly to him and by Independent's lack of specific claim-filing procedures, which he says resulted in a misdirection of forms and in payment delays.
This Court has consistently refused to recognize a cause of action for the negligent handling of insurance claims. See, e.g., Armstrong v. Life Insurance Co. of Virginia, 454 So. 2d 1377, 1380 (Ala.1984), overruled on other grounds, Hickox v. Stover, 551 So. 2d 259, 264 (Ala.1989); Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 5 (Ala.1981); Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 180 So. 2d 269 (1965). Thus, we affirm the summary judgments for the insurers as to Pate's claims based on negligence. However, in Independent Fire Insurance Co. v. Lunsford, 621 So. 2d 977 (Ala.1993), this Court affirmed a judgment awarding damages for mental anguish based on a breach of a contract of insurance, thus implicitly modifying the rule stated in Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So. 2d 1054, 1056 (Ala.1979) ("the law in this state does not permit recovery for personal injury, inconvenience, annoyance, or mental anguish and suffering in an action for breach of a contract of insurance") and similar cases.[3]
Furthermore, "[i]t is familiar law that a contract of insurance is essentially like all other contracts, and governed by general rules of contract." Hartford Fire Insurance Co. v. Shapiro, 270 Ala. 149, 153, 117 So. 2d 348, 352 (1960) (citations omitted); Farmers & Merchants Bank v. Home Insurance Co., 514 So. 2d 825, 831 (Ala.1987). The general rules of contract provide that "[d]amages should return the injured party to the position he would have been in had the contract been fully performed" and that "[t]hese damages are generally those that flow naturally from the breach." Garrett v. Sun Plaza Development Co., 580 So. 2d 1317, 1320 (Ala. 1991) (citations omitted).
Considering these rules of contract, along with this Court's recent decision in Lunsford, and given the special nature of credit disability insurance and the reasonable expectations of the parties to such a contract of insurance, we hold that the summary judgments for Roosevelt and Independent on Pate's contract claims were improper. As discussed more fully infra, there is substantial evidence supporting Pate's argument that the insurers breached their contracts and substantial evidence that Pate suffered consequential damages as a result.
Regarding Independent, Pate presented one of Independent's interrogatory answersthat its customary practice was to give the customers forms and rate informationtogether with the fact that Independent did not regularly receive forms from Pate, to argue that there is a reasonable inference that Independent did not send any forms. Pate also argues: "Independent set up conditions under which it would pay, but no one ever communicated those conditions to Pate until after he got sick. [Independent] claims it has a policy of insurance with Pate where these conditions appear. It never produced such a policy." Appellant's brief at 39. As evidence that Independent contributed to the delays in payment, Pate asserts *346 that Independent sent all but two payments to Rollison instead of Associates.
In support of its motion for summary judgment, Independent offered the affidavit of the claims examiner assigned to Pate's file. The examiner admits that Independent temporarily withheld some payments, but that it did so because of a medical report indicating that Pate was only partially disabled. Upon investigation, Independent discovered that another reporting physician had not seen Pate at all in 1986. Independent also contends that some of its payments were delayed because of late and sporadic medical reports, with some periods of several months between claims.
Although Pate does not dispute that Independent has paid into court the balance of the amount due plus interest, there are genuine issues of material fact, such as what conditions were required to activate the insurance and, if those conditions were met, whether Independent breached at least an implied contractual duty to pay Pate's installments in a timely fashion; those issues make the summary judgment on the contract claim improper. Furthermore, the trial court's denying Pate the opportunity to depose a representative of Independent was error.
In support of its motion for summary judgment, Roosevelt offered evidence that its practice with Pate was to send forms to Associates along with requests for Pate to complete and return them, and that it paid immediately when it received due proof of disability. Roosevelt attributes any delays to medical reports that indicated only a partial disability. Roosevelt paid all the accrued benefits due after independently confirming Pate's disability, and it has paid interest into the court.
Pate does not dispute that Roosevelt has paid the "cash portion" of the contract, but he argues that whether Roosevelt had good reasons not to pay, and whether, in light of evidence that Associates did not receive forms from Roosevelt, Roosevelt sent forms to be completed for proof of loss, were jury questions. Pate asserts that delays in payment and misdirection of forms caused late charges to be added to his account and eventually caused the repossession and resale of his equipment. The disputes regarding Roosevelt's handling of the claims and its payment procedure make the summary judgment as to the contract claim improper.[4]
We reverse the summary judgment for the Rollison defendants on the fraud and conversion claims. We reverse the summary judgment for Associates on the fraud, conversion, negligence, and breach of contract claims, and remand those claims to the trial court with instructions to consider them in light of Wiley. We reverse the summary judgments for Independent and Roosevelt on the breach of contract claims. We affirm the trial court's judgments as to all other claims against the defendants.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Pate also substituted another insurer, Omaha Financial Life Insurance Company, for one of the fictitiously named defendants, but Omaha Financial Life Insurance Company was later dismissed and is not a party to this appeal.
[2] Pate also argues, for the first time on appeal, that he was a third-party beneficiary of a contract between Anderson and Rollison. We do not address this argument, because "issues not raised in the trial court may not later be raised on appeal." Campbell v. Alabama Power Co., 567 So. 2d 1222, 1225 (Ala.1990).
[3] See Lunsford, 621 So. 2d at 980 (Maddox, J., writing specially) (noting that Lunsford changed the law regarding the recovery of damages for mental anguish in an action for breach of an insurance contract).
[4] Some of the correspondence in the record indicates that the other credit disability insurers apparently paid in a timely manner; at least, they are not parties to this appeal. | August 6, 1993 |
f1a03896-ef99-41d3-bead-ec4647153794 | Ex Parte Bunting Plastic Surgery Clinic | 624 So. 2d 1075 | 1920521 | Alabama | Alabama Supreme Court | 624 So. 2d 1075 (1993)
Ex parte BUNTING PLASTIC SURGERY CLINIC, P.C., f/d/b/a Aesthetic and Plastic Surgery Clinic.
(In re BUNTING PLASTIC SURGERY CLINIC, P.C., f/d/b/a Aesthetic and Plastic Surgery Clinic v. Emmett E. TUCKER, Jr.)
1920521.
Supreme Court of Alabama.
August 20, 1993.
Paul J. Spina III of Duell & Riddle, P.C., Birmingham, for petitioner.
Danny C. Lockhart, Birmingham, for respondent.
STEAGALL, Justice.
Bunting Plastic Surgery Clinic, P.C., formerly doing business as Aesthetic and Plastic Surgery Clinic ("Bunting Surgery"), sued Emmett E. Tucker, Jr., and his former wife, Donna K. Tucker, to collect for medical services rendered to Donna in 1988 while she was married to Emmett. The action was based on a contract executed by Donna wherein she promised to pay for the services. Emmett did not sign this contract; Bunting Surgery sued him under the common law doctrine of necessaries, which required that a husband furnish his wife with "medical and hospital treatment for her cure and comfort comporting with his station in life." Mount v. Baptist Hospital of Gadsden, Inc., 43 Ala. App. 423, 426, 191 So. 2d 262, 264 (1966); see, also, Green v. First Nat'l Bank of Tuskaloosa, 49 Ala.App. 426, 272 So. 2d 895 (1971), reversed on other grounds, 290 Ala. 14, 272 So. 2d 901 (1972), affirmed on remand, 49 Ala.App. 749, 272 So. 2d 904 (1973).
The trial court entered a summary judgment for Bunting Surgery and ordered Donna to pay damages of $9390.24; however, the trial court denied Bunting Surgery's motion for a summary judgment against Emmett. Donna thereafter filed for bankruptcy under Chapter 7 of the Bankruptcy Code and also filed a corresponding suggestion of bankruptcy in the circuit court. Bunting Surgery moved a second time for a summary judgment against Emmett, and the court again denied the motion. The case was scheduled for trial, then continued in anticipation of a settlement.
Shortly after the continuance was granted, this Court released Emanuel v. McGriff, 596 So. 2d 578 (Ala.1992), wherein we held that the doctrine of necessaries violated a husband's right to equal protection under the law because it created "a gender-based classification that is not substantially related to serving important governmental interests." 596 So. 2d at 579. The trial court thereafter entered a summary judgment for Emmett on the basis of Emanuel, and the Court of Civil Appeals affirmed that judgment. 624 So. 2d 1073 (1992). This Court granted Bunting Surgery's certiorari petition to determine whether the Court of Civil Appeals properly affirmed the trial court's application of Emanuel.
*1076 Bunting Surgery argues that this Court never indicated whether Emanuel was to be applied retroactively and that the Court of Civil Appeals erred in applying it retroactively without setting out its public policy reasons for doing so. See Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971).
In Emanuel, a physician and hospital sued the husband's estate under the doctrine of necessaries to recover for services rendered to his wife before his death. After holding that the doctrine was unconstitutional, this Court reversed the trial court's judgment and rendered a judgment for the husband's estate. We therefore applied the new rule of law against the plaintiffs in Emanuel, barring their recovery for services they had provided in reliance upon the doctrine of necessaries. The holding in Emanuel must be applied to any case pending when Emanuel was decided or filed thereafter and in which the issue of constitutionality was timely and properly raised. The Court of Civil Appeals properly applied Emanuel to this case, and its judgment is hereby affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
We can change the common law doctrine of necessaries or we can declare it unconstitutional as violating a husband's right to equal protection under the 14th Amendment of the United States Constitution. There is no equal protection provision in the Constitution of Alabama of 1901. The equal protection provision in the Constitution of Alabama of 1875 was purposefully deleted from the 1901 Constitution at the Constitutional Convention of 1901 (2 Official Proceedings of the Constitutional Convention of 1901, pp. 1622-34, 1639-44, and 2254-60), with the understanding that the only equal protection afforded to citizens of Alabama was the equal protection afforded by the 14th Amendment of the United States Constitution. | August 20, 1993 |
3bded2d7-6c28-4653-bffe-8c348caa2b40 | Holland v. City of Alabaster | 624 So. 2d 1376 | 1920505 | Alabama | Alabama Supreme Court | 624 So. 2d 1376 (1993)
Sherman HOLLAND, Jr.
v.
CITY OF ALABASTER.
1920505.
Supreme Court of Alabama.
August 20, 1993.
*1377 Ralph J. Bolen, Birmingham, for appellant.
Hewitt L. Conwill, Columbiana, for appellee.
PER CURIAM.
This case is before this Court for the second time. The background is set out in Holland v. City of Alabaster, 566 So. 2d 224 (Ala.1990). This case involves a road in the City of Pelham, located in Shelby County, Alabama. The unnamed road connects the end of County Road 64 in the City of Alabaster to the end of Keystone Street in the City of Pelham. Sherman Holland, Jr., executed a petition for declaration of vacation of that portion of the road running through his land. After Pelham passed a resolution assenting to the vacation of that road, Holland blocked access to the road.
The neighboring landowner, Kathleen Hill, and the neighboring city, Alabaster, sued Holland, whose property abutted both sides of the road. Hill requested an abatement of an alleged nuisance and sought damages, contending that Holland's blocking of the road devalued her property by $11,600, because of inconvenience and loss of utility. Alabaster's claim was for the abatement of an alleged public nuisance, i.e., Holland's blocking of the road. Holland, 566 So. 2d 224. The trial court, sitting without a jury, entered a judgment ordering the abatement of a public nuisance, but held that the private nuisance claim was without merit. This Court reversed because of the nonjoinder of a necessary party, the City of Pelham. See 566 So. 2d 224.
Hill and Alabaster then filed an amended complaint, adding Pelham as a party defendant. The case was submitted to the trial court on the previous record and on a viewing of the road by the trial judge. The trial court found that there was no merit to Hill's private nuisance claim. The trial court further found that there was no public necessity to close the road and that the closing of the road was a public nuisance. The trial court ordered Holland to remove any obstructions to the road.
In the present appeal, Holland argues that the trial court erred in voiding the City of Pelham's assent to vacate the road when there was no showing of fraud or corruption. Holland contends that cases involving "the action of a county governing body in the exercise of discretionary powers vested in it is not subject to judicial review except for fraud, corruption or unfair dealing." Bentley v. County Commission for Russell County, *1378 264 Ala. 106, 109, 84 So. 2d 490, 493 (1955). We disagree.
Holland's petition for a declaration of vacation of the road was made pursuant to § 23-4-20, Ala.Code 1975:
When a city is vacating a street, a resolution of assent is not sufficient unless it follows all the requirements of the statute. Bragg Apartments, Inc. v. City of Montgomery, 281 Ala. 253, 201 So. 2d 510 (1967). There is a common law prohibition against the vacation of public ways. Therefore, the vacation statutes are in derogation of the common law and must be strictly construed. Bownes v. Winston County, 481 So. 2d 362 (Ala.1985).
The constitutional guarantee of due process requires that vacation statutes "will be interpreted to protect the property interests of non-consenting property owners affected by the proposed closing, subject only to the rule of remoteness." Gwin v. Bristol Steel & Iron Works, Inc., 366 So. 2d 692 (Ala.1978). Any private right of abutting owners is entirely and completely subordinate to the public right, and any invasion of the street in the way of private use can be justified only on the ground of public necessity. Thetford v. Town of Cloverdale, 217 Ala. 241, 115 So. 165 (1927).
In McPhillips v. Brodbeck, 289 Ala. 148, 266 So. 2d 592 (1972), the trial court set aside a street vacation that had been assented to by the county commission. Affirming, this Court stated:
289 Ala. at 154, 266 So. 2d at 598.
In Williams v. Norton, 399 So. 2d 828 (Ala. 1981), this Court noted that the vacation of the road did not serve the interest of either the public or the abutting land owners, but instead served only the personal and individual interests of the owners who declared the road to be vacated. The record in this case shows that the only complaints about the road came from Holland and that the closing of the road created traffic problems from adjoining roads. The subsequent assent to the vacation of the road by Pelham does not justify the vacation of the road when there was no public necessity.
Based on the foregoing, the judgment of the trial court is affirmed. The other arguments presented on appeal are without merit.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | August 20, 1993 |
35ded099-c64b-44b1-b0f9-c4d0773b09c3 | Ex Parte Thomas | 628 So. 2d 483 | 1921047 | Alabama | Alabama Supreme Court | 628 So. 2d 483 (1993)
Ex Parte Odia B. THOMAS.
(Odia B. THOMAS
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.)
1921047.
Supreme Court of Alabama.
September 3, 1993.
*484 Michael J. Ballamy and Kenneth E. White, Phenix City, for petitioner.
John M. Britton, Phenix City, for State Farm Mut. Auto. Ins. Co.
James R. McKoon, Jr., Phenix City, for Gerald L. Railsback.
KENNEDY, Justice.
Odia B. Thomas petitions this Court for a writ of mandamus ordering the Honorable Paul J. Miller, Jr., as circuit judge of Russell County, to grant her motions for the production and preservation of evidence pertaining to the defendant Gerald L. Railsback's use of drugs, to compel the defendant Railsback to answer questions concerning his drug use that he had refused to answer, and for sanctions for Railsback's refusal to answer those questions. Thomas also seeks to compel the trial court to grant her motion to strike Railsback's amended answers to interrogatories and to grant her motion to amend her complaint to include a claim for uninsured/underinsured motorist benefits against State Farm. We grant the writ in part and deny it in part.
The facts are as follows: Thomas sued Railsback, alleging that he had negligently and wantonly caused an automobile accident that caused her personal injuries and property damage. In her complaint, Thomas also claimed uninsured/underinsured motorist benefits against State Farm Insurance Company. State Farm filed a Rule 12(b)(6), Ala. R.Civ.P., motion to dismiss, which the trial court granted.
Along with the complaint, Thomas submitted interrogatories to Railsback. Question 24 asked: "In the twenty-four hour period preceding the accident did you have, or take any drug, narcotic, sedative, tranquilizer or other form of medication, or anything of an alcoholic nature to drink?" Railsback answered: "Tylenol # 2 and 5 milligram Valium."
Thomas then submitted to Railsback a request for admissions, asking Railsback to admit that he was driving his automobile under the influence of a controlled substance at the time of the collision. Railsback's failure to respond prompted Thomas to file a second request for admissions and to request *485 production of documents (e.g., prescriptions for controlled substances). Railsback again did not respond. Thomas filed a motion to compel, which was granted by the trial court. During deposition testimony, Railsback refused to answer questions concerning his use of drugs after the date of the accident. Railsback later filed three pleadings wherein he moved to amend his response to the interrogatories to state that he did not ingest any drug, medication, or alcohol in the 24 hours before the accident and, thereby, to deny the existence of any of the documents requested by Thomas.
Thomas filed a notice of her intention to serve a subpoena on a nonparty, a Veterans' Administration Hospital, in order to obtain medical records concerning the prescription drugs used by Railsback. Railsback objected to the notice, and the subpoena was not issued. Thomas then filed a motion for production of medical records, a motion to preserve evidence, and a motion to strike Railsback's amended answer to the interrogatories. Thomas then filed a motion to amend her complaint to add a claim against State Farm. The trial court held a hearing and denied all pending motions, except the motion to preserve evidence, which it did not rule upon.
The issues presented by Thomas case are: 1) whether the trial court abused its discretion in denying Thomas discovery and production of Railsback's drug prescriptions and medical records and 2) whether the trial court abused its discretion in denying Thomas's motion for leave to amend the complaint with respect to the claim against State Farm.
A writ of mandamus is a drastic and extraordinary remedy, and to justify issuance of such a writ there must be a clear showing of injury to the petitioner. Ex parte J.E.W., 608 So. 2d 728 (Ala.1992). A writ of mandamus should be issued only when there is a clear legal right in the petitioner to the order sought, an imperative duty upon the respondent to perform, accompanied by refusal to do so, lack of another adequate remedy, and properly invoked jurisdiction of the court. Ex parte TranSouth Financial Corp., 608 So. 2d 385 (Ala.1992).
As to the discovery issue, the trial court has very broad discretion regarding discovery matters. Hunt v. Windom, 604 So. 2d 395 (Ala.1992). This Court will not reverse a trial court's rulings on discovery matters unless there has been a clear abuse of discretion. Home Ins. Co. v. Rice, 585 So. 2d 859 (Ala.1991). The Alabama Rules of Civil Procedure vest broad discretion in the trial court to control the discovery process and to prevent its abuse; that discretion is not unlimited, however, and mandamus is the proper means of review to determine whether the trial court has abused its discretion. Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912 (Ala.1991).
Discovery is not limited to matters competent as evidence at trial. "Relevant," as that word is used in the discovery rules, means relating to the subject matter of the action and having a reasonable possibility that the information sought will lead to other evidence that will be admissible; to be relevant, information need not itself be competent as evidence at trial. Rule 26(b)(1), A.R.Civ.P., Plitt v. Griggs, 585 So. 2d 1317 (Ala.1991).
Thomas argues that there are no other means by which she can obtain Railsback's drug prescriptions and his medical records that would indicate whether Railsback was driving under the influence of a controlled substance at the time of the accident. We agree that Thomas is entitled to discovery of any evidence relating to Railsback's use of drugs and medical records occurring before and at the time of the accident. In addition, the trial court should have granted the motion to preserve evidence of Railsback's medical records that pertain to his medical history before the accident and his medical condition on the date of the accident. However, Thomas is not entitled to discovery concerning Railsback's use of drugs, or his medical history, after the accident. Also, we hold that the trial court did not err in denying Thomas's motion to strike Railsback's amended answer.
Courts are to liberally allow amendments to pleadings, and it is only when a party shows that the trial court abused its *486 discretion in allowing or denying the amendment that the reviewing court will reverse the trial court's decision. Watkins v. Central Contracting, Inc., 603 So. 2d 899 (Ala.1992). The trial court acts within its discretion so long as its disallowance of the amendment to the pleadings is based upon some valid ground, such as actual prejudice or undue delay. Ex parte Reynolds, 436 So. 2d 873 (Ala.1983).
From the record, it is clear that the trial court denied Thomas's amendment because the amendment was filed seven to eight months after the complaint was filed and the motion to dismiss was granted. We cannot say that the trial court abused its discretion, given Thomas's delay in seeking to amend her complaint.
WRIT GRANTED IN PART; DENIED IN PART.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur. | September 3, 1993 |
941fab00-9e84-45f7-b378-ca16bb58d6bd | Jackson v. CIT GROUP/SALES FINANCING | 630 So. 2d 368 | 1911928 | Alabama | Alabama Supreme Court | 630 So. 2d 368 (1993)
Glenda JACKSON, et al.
v.
The CIT GROUP/SALES FINANCING, INC.
1911928.
Supreme Court of Alabama.
September 10, 1993.
Rehearing Denied December 10, 1993.
*369 William C. Elliott of Parnell, Crum & Anderson, P.A., Montgomery, for appellant.
Alan W. Heldman and David W. Proctor of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellee.
PER CURIAM.
The plaintiffs, James S. Jackson, Glenda Jackson, David R. Winslett, and Vickki G. Winslett, appeal from a summary judgment in favor of the defendant, CIT Group/Sales Financing, Inc. ("CIT"). The plaintiffs also appeal from the trial court's dismissal of their claims against various fictitiously named defendants.
The plaintiffs brought this action against CIT and sundry fictitiously named parties, alleging fraud, breach of contract, and violations of the "Mini-Code," § 5-19-1 et seq., Ala.Code 1975, and the Deceptive Trade Practices Act, § 8-19-1 et seq., Ala.Code 1975, in connection with the financing of David and Vickki Winslett's purchase of a mobile home. The issues are: (1) whether the plaintiffs presented substantial evidence of fraud, (2) whether the financing contract is null and void on the basis that it violates the Mini-Code, (3) whether the plaintiffs presented substantial evidence in support of their claim under the Deceptive Trade Practices Act, and (4) whether the trial court erred in dismissing the claims against the fictitiously named parties.[1]
A summary judgment under Rule 56, Ala. R.Civ.P., is proper when the trial court determines that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Lee v. Clark & Assocs. Real Estate, Inc., 512 So. 2d 42, 44 (Ala.1987); George v. Federal Land Bank of Jackson, 501 So. 2d 432, 424 (Ala.1986). When the movant makes a prima facie showing that no genuine issue of material fact exists, the nonmovant then has the burden to introduce substantial evidence creating such an issue. Rule 56; § 12-21-12, Ala.Code 1975; Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990). Like the trial court, this Court reviews the evidence and resolves all reasonable doubts in favor of the nonmovant. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403, 404 (Ala.1990).
Viewed most favorably to the nonmovant plaintiffs, the evidence is as follows:
On September 27, 1984, David Winslett and Vickki Jackson purchased a new 1985 *370 Champion mobile home from Metro Homes. David and Vickki were 18 years old and were about to be married. In order for David and Vickki to obtain financing, her parents, James and Glenda Jackson, in addition to David and Vickki, signed the "security agreement" ("the contract"), setting forth the terms of the credit purchase.
James Jackson, David Winslett, and Vickki Jackson signed the contract in an office of Metro Homes, located in Gardendale, Alabama.[2] None of them read the contract before signing it.[3] In her deposition, Vickki testified that before signing, she asked the Metro Homes representative, a woman who has not been identified, whether the contract was assumable and whether it contained any penalties for prepayment:
When James Jackson, David, and Vickki signed the contract, no CIT representatives were present. The contract, however, consisted of a form agreement prepared by CIT, which displayed its name in the upper left corner of the first page. Under its terms, the plaintiffs made a down payment of $1,680 and financed $15,370, the balance of the purchase price. Under the financing agreement, David and Vickki were to make 180 payments of $231, beginning November 1, 1984. The annual percentage rate was 16.5%; the total cost of the credit purchase, including the down payment, was $43,317.
With regard to assumability, the contract provided in pertinent part:
As to prepayment, the contract provided in part:
We note that the procedure referred to in the contract as the "Rule of 78's" is referred to in § 5-19-4(c)(1)b., Ala.Code 1975, as "the rule of 78ths or sum of the digits method." It is defined in Black's Law Dictionary (6th ed. 1990) under the entry "Rule of 78."
After the plaintiffs signed the contract, Metro Homes assigned it to CIT, in accordance with an assignability provision included in the form contract. David and Vickki first became aware of CIT when they received their first monthly notice of payment due in October 1984. The Winsletts thereafter made timely, monthly payments under the contract.
Later, when the Winsletts became interested in buying a house, they began to look for ways either to sell the mobile home or to have a third party assume the contract. In March 1989, Randy and Kim Higgins, a young, married couple, submitted an application to transfer or assume the contract. CIT denied their application. The Higginses subsequently submitted a second application with two cosigners. Again CIT denied the application. When Vickki inquired why the *371 Higginses' application had been rejected, a CIT representative told her that CIT could not tell her because such information was confidential. According to Vickki's deposition testimony, a CIT customer service representative told her over the telephone that because CIT no longer made mobile home loans, it rarely allowed existing mobile home loans to be assumed by anyone. Vickki also learned for the first time that even if CIT accepted an applicant, the Winsletts would remain liable on the contract.
Discouraged in their attempts to have the note assumed, the Winsletts then tried to sell the mobile home and pay the indebtedness with the proceeds. After receiving an offer from Laura Roberts to buy the mobile home for $11,500, the Winsletts made an offer to CIT to pay the loan for this amount. CIT did not respond. At the time of this offer, the amount necessary to pay the note in full under the Rule of 78ths was more than $16,000.
The plaintiffs brought this action on December 13, 1990, seeking to have the contract held unenforceable and to obtain damages. After more than a year of pretrial discovery, CIT moved for a summary judgment. The trial court entered a summary judgment in favor of CIT on all the claims against it. In addition, the trial court also denied the plaintiffs' motion to certify a class action based on the alleged Mini-Code violation and dismissed all claims against the fictitiously named defendants.
The first issue is whether the plaintiffs presented substantial evidence of fraud.
Although CIT argues that, as a credit corporation, it cannot be liable for the misrepresentations of Metro Homes, an independent retail seller, we note that a provision of the contract subjects CIT to all claims and defenses that the debtor could assert against Metro Homes:
Therefore, under this provision of the contract, CIT was liable for any claim or defense that the plaintiffs could assert against Metro Homes.
The plaintiffs' complaint specifies three alleged misrepresentations:
With regard to the first allegation, the record reveals no substantial evidence that the Metro Homes representative misrepresented any term concerning the assumability of the contract. The provision dealing with assumption of the contract provides that a person buying the commodity from the debtor may assume the remainder of the contract on its original terms; however, such assumption of the contract is "subject to conditions." According to Vickki's deposition testimony, the Metro Homes representative told her that the contract could be assumed. The plaintiffs argue that because the representative did not also inform them that the right to have a third party assume the contract was subject to conditions, i.e., approval by the creditor, the representative misrepresented the term of the contract. We think such an inference is unwarranted from the evidence presented. The Metro Homes representative did not make a false statement that the note was assumable simply by not *372 explaining that assumption would be subject to conditions. Furthermore, any representation that a subsequent purchaser "would be allowed to assume" the note would have constituted a promise to perform an act in the future, and there is no evidence of an intent at the time of the representation not to allow assumption. "To be fraudulent, a promise to perform in the future must be made with a present intent not to perform." B.K.W. Enterprises, Inc. v. Tractor & Equip. Co., 603 So. 2d 989, 993 (Ala.1992).
With regard to the second alleged misrepresentation, our review of the record reveals no evidence that the Metro Homes representative made any representation, false or otherwise, about the schedule of the payments to be made under the contract.
With regard to the third allegation of fraud, we find no substantial evidence that the Metro Homes representative misrepresented any term of the contract when she allegedly told the plaintiffs that they would be able to make monthly payments toward payment of the principal due on the note. The contract signed by the plaintiffs provides for "predetermined interest." Under this method of calculating interest, the total amount of interest accruing over the term of the note is computed in advance and added to the amount financed, i.e., the principal, to reach a gross balance. Each monthly payment, therefore, simply reduces the gross balance due; no part of the payment is applied separately to interest or principal. By contrast, what Don Smith, a CIT executive vice president, referred to as "simple interest" is a method of computing interest based on a stated rate and on the number of days between payments; the amount of each monthly payment received is applied first to interest earned during the period since the last payment and then to principal. Under a "simple interest" contract, therefore, it is possible to produce an amortization schedule; however, according to the undisputed testimony of Don Smith, no such schedule is possible under a "predetermined interest" note.
The plaintiffs argue that because the contract was a "predetermined interest" note, the Metro Homes representative misrepresented its terms when she stated that David and Vickki Winslett would be able to make monthly payments toward the principal amount of the debt. This argument seems founded on an erroneous factual premise, i.e., that the Winsletts have never made any payments toward principal. Although, according to the evidence, it is apparently not possible to produce an amortization schedule for a "predetermined interest" note, the method of calculating a finance charge refund in the event the debtor pays the debt in full, ahead of the schedule, reveals that the Winsletts' monthly payments paid the principal amount of the obligation as well as the interest accrued on it. If the Winsletts had paid the note in full before the termination of the 15-year term, they would have received a credit for unearned finance charge as calculated by the Rule of 78ths method. When the parties entered into this contract, the Rule of 78ths method for calculating finance charge refunds was authorized. § 5-19-4(c), Ala.Code 1975, amended by 1988 Alabama Acts, Act No. 88-87. Thus, undisputed evidence in the record shows that each monthly payment, in effect, went toward an obligation that included both principal as well as interest.
In their brief, the plaintiffs also assert that the note was misrepresented as a "simple interest" financing contract. However, the plaintiffs' complaint fails to state any such allegation of fraud, and the record does not show that the Metro Homes representative made any such representation to the plaintiffs. Moreover, the plaintiffs have not shown what legal injury they suffered by entering into a "predetermined interest" contract as opposed to a "simple interest" contract. There is also no claim that the rate of interest charged under the contract is illegal.
The second issue is whether the contract is null and void as violating § 5-19-6 of the Mini-Code.
Because the Mini-Code is a regulatory statute designed to protect the public, contracts made in derogation of its provisions *373 are null, void, and therefore unenforceable. Derico v. Duncan, 410 So. 2d 27 (Ala.1982).
Section 5-19-6 provides:
(Emphasis added.)
The cautionary language of the contract prepared by CIT stated:
The plaintiffs argue that because the CIT contract places additional language between the required cautionary language and the signature line, it violates § 5-19-6 and is therefore null and void. We disagree.
The seven words added to the statutorily required warning, which direct the borrower's attention to important information on the reverse side of the one-page contract, do not violate § 5-19-6. The purpose for requiring the particular words provided in the statute and for prescribing their placement "immediately" above the space for the borrower's signature is to ensure that the borrower see them, read them, and follow their instruction by preventing the creditor from obscuring or "burying" the warning in the language of the contract. The additional language here includes only seven words, whose presence does not materially reduce the prominence of the cautionary language. Furthermore, because the additional language directs the borrower's attention to terms on the reverse side of the contract, it serves, rather than defeats, the purpose of the statute.
The third issue raised by the plaintiffs is whether the summary judgment was proper on their claim under the Alabama Deceptive Trade Practices Act, § 8-19-1 et seq., Ala. Code 1975.
Section 8-19-5 declares unlawful 21 specifically described acts or practices in the conduct of trade or commerce. Section 8-19-5 also includes a general provision making it unlawful to "[engage] in any other unconscionable, false, misleading or deceptive act or practice in the conduct of trade or commerce." Id. at 8-19-5(23).
The plaintiffs base their claim under the Deceptive Trade Practices Act on the same factual allegations and arguments made in support of their claim of fraud. However, as noted above, the plaintiffs presented no substantial evidence that Metro Homes misrepresented any terms of the contract. Because the plaintiffs presented no substantial evidence to support their allegations of misrepresentation or any other conduct actionable under the Deceptive Trade Practices Act, we hold that the summary judgment on their claim under the Act was proper.
The fourth issue is whether the trial court erred in dismissing the plaintiffs' claims against various fictitiously named parties.
Dismissal of all claims against all the fictitiously named parties was proper. Although their action had been pending for a year and a half before the trial court entered the summary judgment, the plaintiffs had neither identified nor added as defendants any of the parties fictitiously named in their complaint. In its judgment, the trial court concluded that the only parties not before the court, who had any connection with the transaction, were either already known or could be identified easily, e.g., Metro Homes personnel. After carefully reviewing the record, we agree with the trial court and hold that it did not abuse its discretion in dismissing these claims.
Based on the foregoing, we hold that the summary judgment on all the claims against CIT and the dismissal of the claims against *374 the fictitiously named parties were proper. Therefore, we affirm.
AFFIRMED.
MADDOX, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.
HORNSBY, C.J., and SHORES and INGRAM, JJ., concur specially.
HORNSBY, Chief Justice (concurring specially):
The financing scheme employed by the defendants in this case is a "predetermined interest" contract with interest to be refunded according to the "rule of 78ths" upon prepayment. The plaintiffs executed this 15-year contract on December 27, 1984. The amount financed under this contractthe principalwas $15,370.04. After five and one-half years of timely monthly payments, the plaintiffs sought to pay off the contract pursuant to the "no penalty" prepayment terms of the contract. The amount necessary to pay off the contract as of June 27, 1990, was $15,884.58. That is, even though the plaintiffs had already paid defendants $16,458.72 under the contract, the amount required to pay off the debt was still $514.54 more than the original principal amount.
After a close examination of the record, I must agree with the majority that, in this case, the representations concerning the financing scheme were not technically fraudulent at the time the contract was signed. However, the operation of this financing scheme is so oppressive that I have real concern whether such contracts are unconscionable or violate public policy. If such contracts were still legal in our State, I believe that they would be subject to challenge on such grounds. I commend the Legislature for its amendment to the "Mini-Code," see Ala.Code 1975, § 5-19-4(c) (amended 1988), so that the financing scheme used by the defendants in this case can no longer legally apply to extensions of consumer credit for terms longer than 61 months.
SHORES and INGRAM, JJ., concur.
[1] In their brief to this Court, the plaintiffs raise several other issues. However, because these other issues do not relate to claims and allegations made in their complaint, we do not address them.
We note also that the plaintiffs neither make any argument nor cite any authority in support of their breach of contract claim. Therefore, they have waived any issue as to that claim.
[2] When Metro Homes delivered the mobile home, a Metro Homes representative required Glenda Jackson to sign the contract as a condition of delivery.
[3] In her deposition, Glenda Jackson also stated that she did not read the contract before signing it.
[4] A regulation promulgated by the Federal Trade Commission makes it an "unfair or deceptive act or practice," within the meaning of § 5 of the Federal Trade Commission Act, to take or receive a consumer credit contract without including this language. Preservation of Consumer's Claims and Defenses, 16 C.F.R. § 433.2 (1991). | September 10, 1993 |
07d1026e-18d7-4da3-b5f9-726b52ee104b | Henderson v. Superior Ins. Co. | 628 So. 2d 365 | 1920541 | Alabama | Alabama Supreme Court | 628 So. 2d 365 (1993)
Peggy HENDERSON
v.
SUPERIOR INSURANCE COMPANY, et al.
1920541.
Supreme Court of Alabama.
August 20, 1993.
*366 George H. Howell of Howell, Sarto & Howell, Prattville, for appellant.
Paul A. Brantley of Parker, Brantley & Wilkerson, P.C., Montgomery, for appellee.
ALMON, Justice.
Peggy Henderson appeals from an order compelling her to arbitrate her claim against the defendant, Superior Insurance Company ("Superior"), a Delaware corporation.
In Lopez v. Home Buyers Warranty Corp., 628 So. 2d 361 (Ala.1993), we stated:
Likewise, in this case we treat Henderson's filing as a petition for a writ of mandamus directing the trial court to vacate its order compelling arbitration. The issue presented by the petition is whether the arbitration provision of the insurance contract is enforceable.
Mrs. Henderson and her husband purchased an insurance policy from Superior. They purchased it through Reed Brown Insurance Agency, an independent agency in Montgomery. They received the policy in Alabama and paid all their premiums in Alabama. Superior's principal place of business is in Atlanta, Georgia. It has no claims offices or corporate offices in Alabama. All decisions regarding claims are made at Superior's Atlanta offices.
On June 2, 1989, Mrs. Henderson sustained injuries in an automobile accident. She filed an action against two other motorists involved in the accident and later amended her complaint to include a claim against *367 Superior for underinsured motorist benefits. Mrs. Henderson settled the claims against the other two motorists for $100,000, the limits of their insurance policies, but maintains her claim against Superior.
Superior filed a motion to compel arbitration, based on the following language in the insurance contract:
The Alabama Code prohibits enforcement of such predispute agreements to arbitrate: "The following obligations cannot be specifically enforced: ... (3) An agreement to submit a controversy to arbitration." Ala. Code 1975, § 8-1-41(3). The Federal Arbitration Act ("FAA"), however, makes certain arbitration clauses enforceable:
9 U.S.C. § 2. In regard to arbitration clauses to which it applies, this Federal Act preempts state laws that would bar enforcement. See Ex parte Alabama Oxygen Co., 452 So. 2d 860 (Ala.1984) (approving Justice Maddox's earlier dissent at 433 So. 2d 1158 (1983)).
In determining whether a contract is governed by the FAA, this Court has established a two-pronged standard: "there must be (1) a written agreement calling for arbitration and (2) a transaction involving interstate commerce." Maxus Inc. v. Sciacca, 598 So. 2d 1376, 1379 (Ala.1992) (citation omitted). Because the arbitration clause is in the Hendersons' signed insurance contract, the dispositive issue is whether this contract evidences a transaction involving interstate commerce.
This Court has used two approaches in evaluating whether an agreement involves interstate commerce. In Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272, 1275 (Ala.1986), this Court stated that an agreement having even the "slightest nexus" with interstate commerce is within the FAA's scope. In Ex parte Warren, 548 So. 2d 157 (Ala.), cert. denied, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989), this Court applied the standard formulated in Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382 (2d Cir.), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961): "`[W]hether at the time [the parties] entered into [the contract] and accepted the arbitration clause, they contemplated substantial interstate activity.'" 548 So. 2d at 160, quoting 287 F.2d at 387 (emphasis from Metro Industrial).
This Court recently put to rest the question of what standard should be used in evaluating whether the FAA applies to an agreement:
Ex parte Jones, 628 So. 2d 316 (Ala.1993). See also Continental Grain Co. v. Beasley, 628 So. 2d 319 (Ala.1993).
The Hendersons purchased the insurance contract from a local independent insurance agent. They applied for the insurance in Alabama, the contract was delivered to the Hendersons in Alabama, it covered their personal vehicles that were garaged at their home in Prattville, and all premiums were paid in Alabama. The Hendersons dealt exclusively with Reed Brown Agency in Montgomery, Alabama. There is no evidence that the Hendersons contemplated that their contract with Superior would involve substantial interstate activity. The mere fact that Superior *368 is a Delaware corporation operating out of Atlanta, Georgia, does not require a holding that the parties contemplated substantial interstate activity. Terminix International Co. v. Jackson, 628 So. 2d 357 (Ala.1993); A.J. Taft Coal Co. v. Randolph, 602 So. 2d 395 (Ala.1992).
Mrs. Henderson asserts that at the time of contracting she did not contemplate substantial interstate activity, and there is no evidence that the parties contemplated such activity. This contract, therefore, does not fall within the purview of the FAA; the enforceability of its arbitration provision is thus determined by Alabama law. Section 8-1-41(3), Ala.Code 1975, renders the arbitration provision unenforceable. The trial court therefore erred in granting Superior's motion to compel arbitration.
WRIT GRANTED.
HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | August 20, 1993 |
dc87965e-dad8-4650-8d5b-1687e9e82917 | McRae v. SECURITY PACIFIC HOUSING SERV. | 628 So. 2d 429 | 1921108 | Alabama | Alabama Supreme Court | 628 So. 2d 429 (1993)
Joan G. McRAE and C. Michael Stilson, as trustee, intervenor,
v.
SECURITY PACIFIC HOUSING SERVICES, INC.
Virginia W. JOHNSON and C. Michael Stilson, as trustee, intervenor,
v.
SECURITY PACIFIC HOUSING SERVICES, INC.
Charlie DEGRAFFENRIED and C. Michael Stilson, as trustee, intervenor,
v.
SECURITY PACIFIC HOUSING SERVICES, INC.
1921108.
Supreme Court of Alabama.
August 27, 1993.
Jesse P. Evans III and Marvin E. Franklin of Najjar Denaburg, P.C., Birmingham, for C. Michael Stilson as trustee, intervenor.
Richard C. Duell III, Paul J. Spina III, and Edith Jane Schauble of Duell & Spina, P.C., Birmingham, for appellee.
Robert E. Sasser and Dorothy W. Littleton of Sasser & Littleon, P.C., Montgomery, for amicus curiae The Alabama Manufactured Housing Institute.
SHORES, Justice.
The United States Bankruptcy Court for the Northern District of Alabama, Western Division, certified the following question of law to us:
The question of law presented is deemed determinative of three consolidated actions before the United States bankruptcy court for which there is no clear controlling precedent in the decisions of this Court. All three cases are adversary proceedings within the three debtor's reorganization cases under Chapter 13. Security Pacific Housing Services, Inc., is the creditor in all three cases. The Alabama Manufactured Housing Institute has filed a brief in support of the creditor.
The following pertinent facts were also provided by the bankruptcy court for our consideration.
(Emphasis added.)
Section 7-9-403(6) reads as follows:
(Emphasis added.)
In resolving the question before the Court, we look to the historical perspective of § 7-9-403(6). The reason and necessity for a statute are relevant to its interpretation. Ex parte Birmingham Board of Education, 601 So. 2d 93 (Ala.1992). As originally enacted, § 7-9-403 (Ala.Acts 1965, Act No. 549) made no mention of any special durational periods associated with financing statements. Neither were durational periods added by amendment or by the recodification in 1975. However, an amendment adopted in 1981 (Ala.Acts 1981, Act No. 81-311), provided for extending the duration for financing statements when the debtor is a utility "and a filed financing statement so states." The 1981 amendment also changed the language of § 7-9-302 from "motor vehicle required to be licensed" to "motor vehicle required to be registered."
The section was further amended in 1984 to allow for extended durational periods for mobile home financing statements. This amendment was apparently in response to three cases that were consolidated in In re Sewell, 32 B.R. 116 (Bankr.N.D.Ala.1983), in which the United States Bankruptcy Court for the Northern District of Alabama concluded that purchase money security interests in each of the three creditor cases were not perfected because UCC-1 financing statements were not filed. That Court concluded:
The creditor argues that under § 7-9-403(6) a financing statement on a mobile home sold to a consumer that states it is covering a mobile home, remains effective until a termination statement is filed. Simply put, the creditor contends that, if the financing statement recites that the collateral is a mobile home, it is not subject to the five-year limitation of § 7-9-403(2). The debtors and trustee respond with the argument that § 7-9-403(6) requires that, in order for the financing statement to remain perfected after five years, it must explicitly state that it remains effective until a termination statement is filed or else must list a maturity date.
We cannot agree with the creditor that the mere mention of a mobile home in the description of the property on a financing statement would allow for an extended duration of the financing statement until a termination statement is filed. Such a holding would render the five-year search requirement of § 7-9-403(2) meaningless and would create a special class of lenders in this State. We do not believe it was the intent of the legislature in passing this amendment that all other nonpurchase money consumer lenders in the State of Alabama should be subject to the five-year automatic termination rule of § 7-9-403(2), but mobile home manufacturers would not.
Under the creditor's position, the UCC's general rule regarding the duration of financing statements, § 7-9-403(2), would no longer have any application, because a person receiving notice by a filed financing statement would have to search the records for a period in excess of five years. And, if the mere use of the words "mobile home" were enough to extend the duration of the financing statement, a filed statement could constitute a lien on property other than the mobile home for a period in excess of five years. This would frustrate the UCC's general rule and provide unjust consequences. An example would be the financing statement in the case of debtor Degraffenreid, which states:
Under the creditor's interpretation, a lien of unlimited duration would be imposed on the furniture and accessories in the mobile home merely because the financing statement recited the term "mobile home."
Under the rules of statutory construction, we must consider the statute as a whole and must construe the statute reasonably so as to harmonize the provisions of the statute. Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1225 (Ala. 1984); Tate v. Teague, 431 So. 2d 1222, 1225 (Ala.1983); Eagerton v. Terra Resources, Inc., 426 So. 2d 807, 808 (Ala.1982).
We therefore answer the question in the affirmative. The last sentence of Ala. Code 1975, § 7-9-403(6), means that a financing statement perfecting a security interest in a pre-1990 mobile home lapses after five years under § 7-9-403(2), if the financing statement does not state specifically that it will remain effective until a termination statement is filed or contain other indicia of the maturity date of the obligation beyond the five-year period.
QUESTION ANSWERED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] First National Bank of Wetumpka, Ala. v. Sewell, 79 B.R. 36 (N.D.Ala.1984), reversed the judgment In re Sewell.
[2] Although subsequent amendments were passed in 1987 (Ala.Acts 1987, Act No. 87-410) and 1991 (Ala.Acts 1991, Act. No. 91-593), they are inconsequential to this case. | August 27, 1993 |
e21c9047-ce75-435e-865d-4b46ecf0e84e | Metmor Financial, Inc. v. COMMONWEALTH LAND TITLE INS. | 645 So. 2d 295 | 1920477 | Alabama | Alabama Supreme Court | 645 So. 2d 295 (1993)
METMOR FINANCIAL, INC.
v.
COMMONWEALTH LAND TITLE INSURANCE COMPANY.
1920477.
Supreme Court of Alabama.
August 20, 1993.
Rehearing Denied February 4, 1994.
Lee E. Bains, Jr., Maibeth J. Porter and Carl S. Burkhalter of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
J. Pelham Ferrell of Ferrell & Britton, Phenix City, and James A. Byram, Jr. of Balch & Bingham, Montgomery, for appellee.
PER CURIAM.
Metmor Financial, Inc., appeals from a summary judgment entered in favor of Commonwealth Land Title Insurance Company. The issue in this case is whether Metmor presented substantial evidence in support of its allegation of a bad faith failure to pay an insurance claim.
Terry and Carol Love applied to Metmor for a first mortgage loan on a new house they planned to purchase from Walter K. Underwood of Underwood Construction Company. The Veterans' Administration ("VA") was to guarantee the loan. Metmor conditioned its approval of the loan upon compliance with certain VA requirements, one of which was that the house have a 10-year warranty, to be submitted no later than submission of the loan report or loan disbursement. James B. Graham, Jr., a lawyer and a representative of Commonwealth, performed the closing services in regard to the loan.
The Loves contend that Graham closed the loan without ensuring that the house was *296 covered by the VA-required 10-year warranty. The Loves also claim that Graham specifically told them that Metmor had the 10-year warranty and that the warranty would be mailed to them.
Shortly after closing the loan and moving into the house, the Loves had several problems with the house and stopped making their mortgage payments. The Loves sued Underwood and Underwood Construction for breach of contract and sued Metmor for fraud.
Immediately after obtaining the loan, Metmor sold the Loves' note and mortgage to Fleet/Norstar Mortgage Company. Fleet/Norstar subsequently returned the note and mortgage to Metmor because the VA refused to issue a guarantee, because there was no 10-year warranty. Metmor filed a claim with Commonwealth's claims department, which denied the claim.
Metmor cross-claimed against Underwood and Underwood Construction. Metmor also filed a third-party complaint against Commonwealth, alleging breach of contract and a bad faith refusal to pay an insurance claim. Commonwealth moved to dismiss the third-party complaint, contending that Metmor did not have an insurance contract with Commonwealth, but instead had a "closing service letter," which, it said, was only an indemnity agreement.
The closing service letter read as follows:
The trial court denied Commonwealth's motion to dismiss. Commonwealth then filed a motion for reconsideration of that denial, or, in the alternative, for a summary judgment. The trial court entered a summary judgment in favor of Commonwealth and certified *297 it as final, pursuant to Rule 54(b), A.R.Civ.P. Metmor appeals.
A summary judgment is appropriate only when the moving party shows "that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), A.R.Civ.P. Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the nonmoving party must rebut that showing by presenting substantial evidence creating a genuine issue of material fact. § 12-21-12, Ala.Code 1975; Hope v. Brannan, 557 So. 2d 1208 (Ala.1990). The evidence will be viewed in a light most favorable to the nonmoving party. King v. Winn-Dixie of Montgomery, Inc., 565 So. 2d 12 (Ala.1990).
In order to establish a bad faith claim, one must show: (1) "an insurance contract between the parties and a breach thereof by the defendant"; (2) "an intentional refusal to pay the insured's claim"; (3) "the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason)"; and (4) "the insurer's actual knowledge of the absence of any legitimate or arguable reason" or (5) "the insurer's intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim." National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982); see Gillion v. Alabama Forestry Ass'n, 597 So. 2d 1315 (Ala.1992).
Metmor argues that the closing service letter is an insurance contract between Metmor and Commonwealth. We disagree. This Court has previously stated that "although every contract implies an obligation of good faith and fair dealings, the only breach of contract which gives rise to a tort cause of action for `bad faith' is [a] breach of a contract of insurance." Peninsular Life Ins. Co. v. Blackmon, 476 So. 2d 87, 89 (Ala. 1985). An insurer-insured relationship must exist. An insurance contract would be evidenced by one party's entering into a written contract of insurance with the other, by the one's paying premiums to the other, and by the other's placing the premiums into a central fund out of which claims would be paid. Peninsular Life, supra, at 89.
The purpose of the closing service letter is to provide indemnity against loss due to a closing attorney's defalcation or failure to follow a lender's closing instructions. See, Lawyer's Title Insurance Corp. v. Edmar Construction Co., 294 A.2d 865 (D.C.App.1972). It is clear from a reading of the closing service letter that it states Commonwealth's responsibility for the acts of its approved attorney. It is also clear that the closing service letter is not a title insurance policy. "Title insurance" is defined as "insurance of owners of property, or others having an interest therein or liens or encumbrances thereon against loss by encumbrance, or defective titles, or invalidity or adverse claim to title." § 27-5-10, Ala.Code 1975.
We must conclude that Metmor presented no substantial evidence to support its bad faith claim. Therefore, we affirm the summary judgment.
AFFIRMED.
MADDOX, ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
ADAMS, J., concurs in the result. | August 20, 1993 |
621a293f-559d-4e4c-afc7-4c93939d3624 | Maxwell v. Spring Hill College | 628 So. 2d 335 | 1920089, 1920147 | Alabama | Alabama Supreme Court | 628 So. 2d 335 (1993)
Brian MAXWELL
v.
SPRING HILL COLLEGE.
SPRING HILL COLLEGE
v.
Brian MAXWELL.
1920089, 1920147.
Supreme Court of Alabama.
July 30, 1993.
Rehearing Denied September 17, 1993.
Joseph N. Poole III, Montgomery, and John Coleman and J. Martin Lester, Mobile, for appellant/cross-appellee.
Walter M. Cook, Jr. and William E. Shreve, Jr. of Lyons, Pipes & Cook, P.C., Mobile, for appellee/cross-appellant.
PER CURIAM.
Brian Maxwell appeals from the judgment based on the jury's verdict in favor of Spring Hill College ("Spring Hill"), a Jesuit liberal *336 arts college in Mobile, in his action against it for damages based on injuries he sustained in a diving accident.[1] Spring Hill cross-appeals from the denial of its motion for summary judgment and from the denial of its motions for directed verdict, arguing that the complaint was not properly filed within the statutory period of limitations. Because we are resolving this case on procedural grounds, only a brief recitation of the facts is necessary.
Maxwell's accident occurred on April 8, 1989, while he was attending a party sponsored by Spring Hill's Student Government Association on a houseboat called "The Wet Spot." Maxwell was a student at Spring Hill at the time and was scheduled to graduate a few weeks after the party. He and several other students rode buses from Mobile to where the boat was anchored near Gulf Shores. Beer was served on the buses and on the boat, and Maxwell admitted to having had some before arriving. Once there, Maxwell and some friends went immediately upstairs and began discussing whether he should take a dive. After brief deliberation, Maxwell dived from the 14-foot deck into about three feet of water. As a result of the incident, Maxwell was rendered a quadriplegic.
Exactly two years later, on April 8, 1991, Maxwell's mother filed a complaint against Spring Hill and others on her son's behalf but did not provide summonses, service instructions, or addresses until approximately one month later, on May 7, 1991. Spring Hill argues that this manifested a lack of intent to have the complaint served immediately and, therefore, that the filing of the complaint did not commence an action; Spring Hill argued that it was therefore entitled to a summary judgment, based on Ward v. Saben Appliance Co., 391 So. 2d 1030 (Ala. 1980), and its progeny, particularly Latham v. Phillips, 590 So. 2d 217 (Ala.1991), which rearticulated the rule of those cases: "This Court has held that the filing of a complaint, standing alone, does not commence an action for statute of limitations purposes.[2] Rather, the filing must be made with the intention of serving process upon the opposing party or parties." 590 So. 2d at 218 (citations omitted).
Spring Hill correctly asserts that this case is factually similar to Latham. The accident in Latham occurred on March 5, 1988, and the plaintiff filed her complaint on March 2, 1990, although she did not pay the filing fee until March 5, 1990. She did not supply summonses for the defendants when she filed the complaint, nor did she supply them when she paid the filing fee three days later. In addition, no addresses were contained within the complaint and no instructions were given to the clerk concerning how to proceed with service of process. Certified mail summonses were not filed until April 4, 1990, approximately one month after the limitations period had run. One of the defendants moved for a summary judgment, which the trial court entered and this Court affirmed.
In this case, a summons for Spring Hill was not filed until one month after the statutory period had expired. In addition, the address Maxwell's mother provided with that summonsthat of the Mobile law firm of Vickers, Riis, Murray and Curranwas incorrect, because that firm was not authorized in any way, as an agent or otherwise, to receive service for Spring Hill. Service was, therefore, refused by one of the partners in that firm, and service on Spring Hill was not obtained until September 10, 1991.
It is apparent that Spring Hill was entitled to a summary judgment based on the expiration of the statutory limitations period. Spring Hill seeks an affirmance of the judgment it received below. That judgment was based on the jury's verdict. We do not reach the question of whether that verdict was correct, however, because we hold that the *337 judgment Spring Hill received is due to be affirmed on a different ground.
AFFIRMED.
ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Although Maxwell named several other defendants in his complaint, Spring Hill is the only defendant remaining on appeal.
[2] See, also, Dukes v. Jowers, 584 So. 2d 524 (Ala. 1991); Mace v. Centel Business Systems, 549 So. 2d 70 (Ala.1989); Pettibone Crane Co. v. Foster, 485 So. 2d 712 (Ala.1986); De-Gas, Inc. v. Midland Resources, 470 So. 2d 1218 (Ala.1985); Finkelstein v. Lovell, 449 So. 2d 1240 (Ala.1984); and Freer v. Potter, 413 So. 2d 1079 (Ala.1982). | July 30, 1993 |
0f17de3b-76bf-4ce0-925a-2a036943cfd1 | Gabrielson v. Healthcorp of Eufaula, Inc. | 628 So. 2d 411 | 1920600 | Alabama | Alabama Supreme Court | 628 So. 2d 411 (1993)
Glen Alan GABRIELSON
v.
HEALTHCORP OF EUFAULA, INC., and National Healthcare, Inc.
1920600.
Supreme Court of Alabama.
August 27, 1993.
*412 James W. Parkman III of Parkman, Brantley & Lamere, Dothan, for appellant.
William V. Neville, Jr., Eufaula, for Healthcorp. of Eufaula, Inc.
Alan C. Livingston of Lee & McInish, Dothan, for National Healthcare, Inc.
ADAMS, Justice.
Glen Alan Gabrielson appeals from a summary judgment entered in favor of Healthcorp of Eufaula, Inc., on conversion and breach of contract claims and in favor of National Healthcare, Inc., on a fraud claim. We affirm.
On August 19, 1985, Gabrielson entered into a contract with National Healthcare, Inc. During the negotiations, Joe Gribbin, the administrator of Lakeview Community Hospital, told Gabrielson that the hospital, operated by National Healthcare, was a full service hospital providing general services, including obstetrics and pediatrics, that it was well supported by the community, and that it enjoyed a 50% to 60% occupancy rating. Under the terms of the contract, Gabrielson was to relocate from Madison, Iowa, to Eufaula, Alabama, to practice medicine. The contract terms were set for a one-year initial period and provided for the following: the payment of professional fees; an income guaranty; the payment of relocation expenses; leave time for vacation and continuing education requirements; office personnel; an agreement that Gabrielson would be licensed to practice in Alabama and would comply with the laws of the State of Alabama and with the Standards of the Joint Commission on Accreditation of Hospitals; insurance; *413 repayment of monies paid to Gabrielson in the event he ceased to practice medicine in Eufaula; that Lakeview Community Hospital would be the hospital of preference in Gabrielson's practice; that Gabrielson was to operate as an independent contractor and not as an employee of Lakeview Community Hospital; and agreed-upon access to medical records in accordance with § 952 of the Omnibus Reconciliation Act.
Gabrielson opened his medical practice in January 1986, in Eufaula. Immediately upon his arrival in Eufaula, he was informed by Gribbin that the staff pediatrician had resigned. A month and a half after his arrival, he learned that the obstetrics services at the hospital were being discontinued because the staff obstetricians were resigning.
On April 24, 1986, National Healthcare and Gabrielson entered into an addendum to the 1985 contract. Under the terms of the agreement, National Healthcare lent Gabrielson $25,000 in order for him to purchase the medical assets of a deceased physician's practice, and National Healthcare was to purchase the deceased physician's medical records for $25,000. Gabrielson signed a promissory note for the $25,000. The addendum also required Gabrielson to store and maintain a log of the whereabouts of the medical records, and to return the records to National Healthcare if Gabrielson discontinued his medical practice in Eufaula. Gabrielson made a lump sum payment of $2,083.35 on the promissory note for the months of January through May 1987, and he made additional payments through April 1, 1988. On July 1, 1987, National Healthcare, Inc., sold Lakeview Community Hospital to Healthcorp of Eufaula, Inc. As a part of the transaction, the note from Gabrielson to National Healthcare was assigned to Healthcorp.
On March 29, 1989, Gabrielson, at his request, was placed on courtesy staff at Lakeview Community Hospital, and shortly thereafter he closed his practice in Eufaula. He opened a new practice in Dothan in July 1989. In November 1989, Steve Arnold, the new administrator of Lakeview Community Hospital, requested that Gabrielson return the medical records to Healthcorp, as provided by the 1986 addendum. Gabrielson did not return them before leaving Eufaula in 1989, but placed them on the third floor of the building that housed his office. Gabrielson and Arnold exchanged letters concerning the return of the records; however, they were never returned to Healthcorp.
On September 7, 1990, Healthcorp sued Gabrielson, alleging conversion of the medical records and breach of contract. On June 19, 1991, Gabrielson answered and counterclaimed, alleging fraudulent misrepresentation on the part of Healthcorp. On the same day, Gabrielson filed a third-party complaint against National Healthcare, alleging that it had made certain misrepresentations during the 1985 and 1986 contract negotiations. National Healthcare moved to dismiss on the ground that the fraudulent misrepresentation claim was barred by the applicable statute of limitations; Healthcorp moved to dismiss the counterclaim on the same ground. Neither motion to dismiss was ruled on by the trial court.
National Healthcare and Healthcorp filed separate motions for summary judgment based on the pleadings, the discovery, and the deposition of Alan Gabrielson. After a hearing, the court entered a summary judgment in favor of National Healthcare and Healthcorp. The judgment awarded Healthcorp $10,000 in damages on the conversion claim and $33,720.62 on the breach of contract claim. The judgment held in favor of Healthcorp and National Healthcare on the counterclaim and the third-party complaint, respectively, on the ground that those claims were barred by the statute of limitations.
A summary judgment is proper when there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; King v. Breen, 560 So. 2d 186 (Ala.1990). In determining whether a summary judgment was properly entered, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). In determining the existence or absence of a genuine issue of material fact, *414 this Court is limited to a consideration of the factors that were before the trial court when it ruled on the summary judgment motion. Broadmoor Realty, Inc. v. First Nationwide Bank, 568 So. 2d 779 (Ala.1990). However, this Court's reasoning is not limited to that applied by the trial court. Hill v. Talladega College, 502 So. 2d 735 (Ala.1987).
Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden of going forward with evidence demonstrating the existence of a genuine issue of material fact shifts to the nonmovant. Grider v. Grider, 555 So. 2d 104 (Ala.1989). Because this action was filed after June 11, 1987, the nonmovant must meet this burden by "substantial evidence." Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test, the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); § 12-21-12(d).
Gabrielson argues that Healthcorp was not entitled to a summary judgment on its conversion claim because, he says, he demonstrated that he had rightful possession of the medical records and Healthcorp knew that the records were being stored in his office in Eufaula. However, we conclude that the evidence conclusively shows that Gabrielson had no right to possession of the medical records.
This Court stated in Wilder v. Charles Bell Pontiac-Buick, Cadillac-GMC, Inc., 565 So. 2d 205, 206 (Ala.1990):
Under the pertinent provision of the 1986 addendum, Gabrielson was to return the medical records to Lakeview Community Hospital immediately upon the discontinuation of his active practice in Eufaula. He was to also keep a log concerning the whereabouts of the medical records. The record does not reflect why the records were not returned to Healthcorp before Gabrielson moved to Dothan. The record does show, however, that Gabrielson and Arnold exchanged several letters concerning the return of the records. According to the correspondence, the records were placed on the third floor of the building that housed Gabrielson's office; the floor was structurally unsafe. Further, while Gabrielson did agree to provide Healthcorp access to the records, he refused to do so without being released from liability for any injuries that may have occurred during Healthcorp's attempt to retrieve the records from the building.
Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 370, 265 So. 2d 150, 153 (Ala.Civ.App.1972). While Gabrielson's refusal to return the records was not unequivocal, it was unreasonable under the circumstances of this case. Healthcorp sufficiently demonstrated, as provided by the terms of the agreement, that Gabrielson exercised control over property that was legally Healthcorp's; therefore, the summary judgment was proper as to conversion claims.
Gabrielson also argues that the trial court erred by entering the summary judgment in *415 favor of Healthcorp on the breach of contract claim. We conclude that the trial court did not err.
This Court stated in P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928, 931-32 (Ala.1985):
In accordance with the 1986 addendum, Gabrielson borrowed $25,000 from National Healthcare and agreed to repay that amount with interest at 8%. National Healthcare assigned the debt to Healthcorp in July 1989. Gabrielson was indebted to Healthcorp, and his failure to pay the debt constituted a breach of contract. Therefore, the summary judgment was proper as to the contract claim.
The last argument raised by Gabrielson is that the fraudulent misrepresentation claims were not barred by the statute of limitations and, therefore, that the trial court erred in entering the summary judgment on those claims.
Ala.Code 1975, § 6-2-3, provides:
To support his fraud claim, Gabrielson contends that he was misled during the 1985 and 1986 contract negotiations into thinking that Lakeview Community Hospital was a full service hospital; that Lakeview was well supported by the community; that Lakeview maintained an occupancy level of 50% to 60%; and that National Healthcare intended to make certain renovations and improvements to the hospital. He argues, however, that he did not know of the fraud until November 1989. Assuming, without deciding, that National Healthcare made fraudulent misrepresentations to Gabrielson, the record indicates that Gabrielson knew the truth concerning these things before 1989. According to Gabrielson's deposition testimony, he was informed immediately upon his arrival in Eufaula in January 1986, by Gribbin, that the staff pediatrician had resigned. Gabrielson also testified that a month and a half after the pediatrician resigned, the staff obstetricians announced that they would close the obstetrics unit on March 30, 1986. In his affidavit, Gabrielson states that after he opened his practice and began to treat patients, he learned that the patients were not willing to be admitted to Lakeview Community Hospital because they thought it provided poor services. Furthermore, it is obvious that Gabrielson should have learned of the hospital's occupancy level and of the improvements, or lack of improvements, to the hospital earlier than 1989, inasmuch as he began work at the hospital in 1986. Thus, the fraudulent misrepresentation claims were barred by the statute of limitations, and the summary judgment was proper as to those claims.
Based on the foregoing, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | August 27, 1993 |
4da82ae3-1cca-4f15-b3af-99f9ffc08edd | Noble v. State | 45 So. 2d 857 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 857 (1950)
NOBLE
v.
STATE.
7 Div. 19.
Supreme Court of Alabama.
April 13, 1950.
H. Herbert Evans, of Anniston, for appellant.
A. A. Carmichael, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.
FOSTER, Justice.
This is an appeal from a conviction of the offense of carnal knowledge of a girl under twelve years of age, section 398, Title 14, Code, and in another count the indictment charged incest, since the girl is alleged to be the daughter of defendant, section 325, Title 14, Code. The verdict was guilty on the first count.
The first contention is that since the act was with her consent, she was an accomplice and, therefore, that defendant could not be convicted on her uncorroborated testimony on the authority of Denton v. State, 17 Ala.App. 309, 85 So. 41; section 307, Title 15, Code. That was on a charge of incest in connection with a woman over the age of consent. But when it is as to an offense in connection with a girl under the age of consent, she cannot be an accomplice, and the rule has no application. Duncan v. State, 20 Ala.App. 209, 101 So. 472.
*858 It is next insisted that the girl involved in the charge was an incompetent witness because of her age,eight years. The applicable rule in that connection is contained in section 439, Title 7, Code, making children incompetent witnesses when they "do not understand the nature of an oath." This principle existed prior to the statute and apart from it. In the case of Carter v. State, 63 Ala. 52, 35 Am.Rep. 4, it is stated in the same language, where also it is said to be "the duty of the presiding judge to examine him or her, without the interference of counsel further than the judge may choose to allow, in regard to the obligation of the witness' oath; and, in proper cases, to explain the same to one intelligent enough to comprehend what he says; and then to determine whether or not such child shall be sworn and permitted to testify."
Again, in Beason v. State, 72 Ala. 191, the judgment was reversed because the child "manifested an entire want of instruction as to the nature and effect of an oath, of all religious training, and utter ignorance of the existence of a Supreme Being, `the rewarder of truth and the avenger of falsehood.'" To the same effect of McKelton v. State, 88 Ala. 181, 7 So. 38.
In the case of McGuff v. State, 88 Ala. 147, 7 So. 35, 16 Am.St.Rep. 25, the Court held that a girl seven years old was competent to testify when "on voir dire shows an intelligent comprehension of the belief that a falsehood is morally wrong, and that it will be severely punished in the future."
In Walker v. State, 134 Ala. 86, 32 So. 703, a child ten years of age was permitted to testify upon showing sufficient religious and moral training.
In Castleberry v. State, 135 Ala. 24, 33 So. 431, 433, a girl eight years old, who had been thus abused, was allowed to testify, having "exhibited such a degree of intelligence, and understanding of the nature of an oath." "In this, there does not appear there was an abuse of its discretion in such a case," Compare, White v. State, 136 Ala. 58, 34 So. 177, where the child was held to have been incompetent.
The voir dire in the instant case consisted of questions by the court and the answers as follows:
"Q. How old are you, now? Don't be afraid. A. Eight years old.
"Q. When will you be nine? A. June 27th.
"Q. June 27th? A. Yes, sir.
"Q. Do you go to Sunday School? A. Yes, sir.
"Q. How long have you been going to Sunday School? About how long? A. I have tried to go to Sunday School every Sunday, when I was not sick.
"Q. What have you been taught in Sunday School? Did they teach you there, when you told the truth, where you will go when you die? A. Yes, sir.
"Q. What did they teach you? When you tell the truth, when you die, where do you go? A. Go to Heaven.
"Q. If you do not tell the truth, what did they teach you there, if you do not tell the truth? A. You will go to the booger man.
"Q. Go to the booger man? A. Yes, sir."
We do not think that the court abused his discretion in overruling the objection. The intelligence and understanding of the child was also indicated by her appearance and manner under the observation of the court.
Another insistence made by counsel has relation to Mrs. Eddie Noble, wife of a brother of defendant. She testified for defendant tending to show a normal family relation between him, his wife and three children. But they had become separated and divorce suit was pending at the time of trial. On cross examination she testified that prior to February 12, 1949, defendant did not try to force sexual relations on her. That she was present at defendant's house when the officers Pate and Cannon were there "investigating this incident," on February 12, 1949. The State's counsel then asked her the following question: "On that occasion, in the presence of Captain Cannon, Lieutenent Pate, Mrs. Edna Noble *859 and the little girl, and yourself, did Mrs. * * * did you make this statement, or this in substance, that Lester had tried to force sexual relations with you?" Her answer was "No." This question was repeated, objection was made by defendant, because that is not germane to the issues of this case; this defendant was not present; and this witness is not in the shoes of this defendant, and not his representative; and it is immaterial. The State's counsel stated that its purpose was a predicate to impeach the witness and was not offered for any other purpose. There was a prolonged discussion of the question by opposing counsel. Defendant's counsel insisting that it was immaterial evidence and that the witness could not be impeached by such evidence. Additional grounds of objection specified more in detail the grounds which raise the question argued. The court overruled the objection and motion to exclude and an exception was taken. The judge expressed himself as acting on the authority of Lee v. State, 31 Ala.App. 91, 13 So. 2d 583, certiorari denied, 244 Ala. 401, 13 So. 2d 590. See the same case on another appeal, 246 Ala. 69, 18 So. 2d 706.
The substance of the question was repeated in various forms with the same answer and same objection, was overruled and exception taken. In rebuttal the State proved by the witnesses Cannon and Pate that Mrs. Eddie Noble made such statement. Objection was duly made and overruled and exception taken.
The question presented is an interesting one and involves two principles which need analyzing in this connection. One relates to the nature of matter as to which a witness may be impeached for making contradictory statements. The other relates to a consideration of whether the contradictory statements here involved are with respect to such impeachable matter.
To affect the general credit of the witness the contradictory statements must relate to matter which is material to the issue on trial and not to those incidental or collateral facts which are remote in their application to the offense on trial and which would improperly extend the issues or involve the trial of other offenses which have no legitimate bearing on the particular offense under investigation. Langce v. State, 84 Ala. 1, 4 So. 193, 5 Am.St.Rep. 324; 19 Alabama Digest, Witnesses, page 884.
But there is an exception to this rule, that if it has relation to the credibility of the witness in the particular case it is admissible, although it be in respect to collateral or immaterial matter. Whitsett v. Belue, 172 Ala. 256(14), 54 So. 677; Louisville & Nashville R. Co. v. Quinn, 146 Ala. 330, 39 So. 756; Bullard v. Lambert, 40 Ala. 204, 211; Blakely's Heirs v. Blakely's Ex'x, 33 Ala. 611, 619; McHugh v. State, 31 Ala. 317, 320.
The matter as to which evidence of this witness was contradicted related to her general credit, since it does not reflect her attitude toward this particular case, or her animus in giving evidence. It is therefore necessary in order to sustain the ruling of the court that we find that it was material to the issues on trial. The trial court properly understood that to be the proper inquiry.
The witness had testified on cross examination, as we have noted, that defendant had not tried to force sexual relations on her. So that her statement made to the officers that he did so would be competent for impeaching purposes only, if evidence that he had tried to force her was admissible as primary evidence against defendant. 70 Corpus Juris 1046 to 1049. It was on the theory that such evidence was relevant and material that the trial court acted in overruling the objection.
The rule by which that question must be determined has gone through a course of development which has modified the original broad statement and its application. As originally applied, it was broadly stated in sex cases that the evidence of other recent sex offenses or sex depravity is admissible to show intent to indulge in sex experience in the instant case or to identify the defendant as the person who committed the sex act under investigation. Wilkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied, 240 Ala. 52, 197 So. 81; Johnson v. State, 242 Ala. 278, 5 So. 2d 632; Robinson v. State, 243 Ala. 684, 11 *860 So. 2d 732; Lee v. State, 31 Ala.App. 91, 13 So. 2d 583, certiorari denied, 244 Ala. 401, 13 So. 2d 590; Lee v. State, 246 Ala. 69, 18 So. 2d 706.
But there has been a limitation put upon that broad statement. Daniels v. State, 243 Ala. 675, 11 So. 2d 756; Brasher v. State, 249 Ala. 96, 30 So. 2d 31; McKenzie v. State, 250 Ala. 178, 33 So. 2d 488.
In the Wilkins case, supra, the charge was an assault with intent to rape. So that the nature of his intent was an important controverted issue. In the Lee case, 31 Ala.App. 91, 13 So. 2d 583, the question was what was his intent in putting his hand on the child's sex organs. It was held that other acts with his other children shed light on the issue of intent. The same was true as shown on the second appeal in the Lee case, 246 Ala. 69, 18 So. 2d 706. In Johnson v. State, supra, the only question in the case was that of the identity of defendant as the one who committed an act which was not controverted. The Court observed that for the admissibility of such proof the question of identity must be an issue in the case. In Robinson v. State, supra, the Court was dealing with an opening statement by the solicitor as to certain remarks made by defendant in regard to such nature of offenses. The Court referred to the cases above cited and repeated the principle stated in them, and held that the opening statement of the solicitor was not an unnecessary, prejudicial or unwarranted appeal to race prejudice.
The following cases show that it was intended to limit those broad implications in applying the rule:
In Daniells v. State, supra, evidence of another offense was permitted on the issue of identification when there were certain identifying characteristics of the person who committed all the offenses and those characteristics applied to defendant. In the Brasher case, supra, it was said that for the purpose of identification, "the prosecution should not be permitted to give in evidence other crimes of the defendant, committed on or with other persons, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than to show the defendant's bad character or moral delinquency." [249 Ala. 96, 30 So. 2d 35]. And that the rule was not extended in the Wilkins case, supra, "so as to permit the State to introduce evidence of other offenses committed by the accused with third persons for the purpose of identification when such evidence merely tends to show disposition, inclination, propensity or depravity." The McKenzie case, supra, went out on the same day as the Brasher case and referred to the principles of law above quoted from the Brasher case, both cases relying largely on Prof. Wigmore in his work on Evidence, and held that because the other offense proven against defendant had so many of the peculiar characteristics which affected the one on trial and because defendant followed the same peculiar pattern or technique in both instances, that such evidence tended to eliminate the probability that the act in that case was innocent of such intent and therefore relevant.
So that we are now distinctly in the status of holding that there must be something in the two cases to show a relevant connection such as some peculiarity in them applicable to defendant not generally obtaining, or some relevancy to the pending issue other than to show the moral delinquency of defendant.
Whether defendant tried to force sexual relations on this a married woman had no relevancy to the pending issue other than to show the moral delinquency of defendant. It was therefore immaterial and illegal, and the witness could not be impeached by proving different statements in that respect.
There was reversible error in the court overruling the objection of defendant to the testimony of Cannon and Pate as to the alleged statement of this witness.
We will not undertake to analyze all the exceptions noted. Appellant has assigned errors and in that manner, as well as in brief, has called our attention to them each separately. Of course this was not necessary. Section 389, Title 15, Code. *861 However, it has been helpful to us in finding reference to the serious contentions made on the trial. Many of them relate to rulings made on the cross examination of witnesses for the State, especially Mrs. Edna Noble, wife of defendant, who instituted this prosecution. Appellant insists he was unduly restricted in his cross examination of her, a hostile witness, as well as of other State witnesses. But the length to which the court will permit it to extend in respect to collateral and irrelevant matter under section 443, Title 7, Code, is largely discretionary in the trial court. Birmingham Railway, Light & Power Co. v. Lipscomb, 198 Ala. 653, 73 So. 962; Newell Contracting Co. v. Wheeler, 223 Ala. 323, 135 So. 479. We are not willing to say that this discretion was abused, but trial courts should always remember that cross examination may be "thorough and sifting," section 443, supra, extending to the motives and animus of the witness, especially when that is an important factor in the case.
For the error which we have pointed out, the judgment must be reversed and the cause remanded to the trial court.
Reversed and remanded.
BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur. | April 13, 1950 |
056d0dfd-a7fa-4d30-b536-01b7cd259a7e | McDonald v. US DIE CASTING & DEV. | 628 So. 2d 433 | 1921167 | Alabama | Alabama Supreme Court | 628 So. 2d 433 (1993)
John W. McDONALD
v.
U.S. DIE CASTING & DEVELOPMENT COMPANY and David J. Slyman.
1921167.
Supreme Court of Alabama.
August 27, 1993.
Robert H. McKenzie of Holt, McKenzie, Holt & Mussleman, Florence, for appellant.
Steve A. Baccus and Larry B. Moore of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees.
HOUSTON, Justice.
The plaintiff, John W. McDonald, appeals from a summary judgment for the defendants, U.S. Die Casting and Development Company, Inc. ("the company"), and David J. Slyman, the chairman of the company's board of directors and its principal shareholder, in this action seeking damages for breach of contract. We affirm.
These parties have been before this Court on three previous occasions, each case bearing the style McDonald v. U.S. Die Casting & Development Co. See 612 So. 2d 1161 (Ala. 1992); 585 So. 2d 853 (Ala.1991); and 541 So. 2d 1064 (Ala.1989). These cases present a thorough history of this litigation. For purposes of this appeal, however, we note only that McDonald's action was based on allegations that the company terminated his employment in violation of his employment contract. The trial court based its judgment for the defendants on this Court's holding in McDonald v. U.S. Die Casting & Development Co., 612 So. 2d 1161 (Ala.1992). In that case, we affirmed a default judgment for the company and Slyman on their separate claim that McDonald had materially breached the employment contract by failing to perform his job in a satisfactory manner. Thus, the parties are now at issue as to whether McDonald's claim for breach of contract was foreclosed by that default judgment, under the doctrine of res judicata.
After carefully reviewing the record in this case, especially paragraph 5(c) of the employment contract (which gave the company the right to terminate McDonald's employment "for cause, including, without limitation, ... [his] failure or refusal to perform his obligations" to the company), we conclude that there is no genuine issue of material fact and that the defendants were entitled to a judgment as a matter of law. See Rule 56, Ala.R.Civ.P. After previously entering a judgment by default determining that McDonald had failed to perform his obligations under the employment contract, the trial court had no alternative to entering the summary judgment for the defendants in the present case. It is well settled that once an issue has been litigated and a final judgment *434 has been entered on the merits, any further litigation of that issue by the same parties is barred. See Whisman v. Alabama Power Co., 512 So. 2d 78 (Ala.1987). Once McDonald's failure to perform under the employment contract was determined by the default judgment, he was precluded from relitigating that issue.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | August 27, 1993 |
c8dff471-2d94-43f3-82ac-a0f36780203e | Grimes v. Stewart | 628 So. 2d 467 | 1920807, 1920864 | Alabama | Alabama Supreme Court | 628 So. 2d 467 (1993)
Russell H. GRIMES and Arzie Grimes
v.
Brian Ray STEWART.
Brian Ray STEWART
v.
Russell H. GRIMES and Arzie Grimes.
1920807, 1920864.
Supreme Court of Alabama.
September 3, 1993.
Rehearing Denied October 29, 1993.
Charles E. Sharp, Joel A. Williams and Ted L. Mann of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, and James E. Davis, Jr. and M. Ann Wagner of Lanier, Ford, Shaver & Payne, P.C., Huntsville, for appellants/cross-appellees.
J. Allen Brinkley of Brinkley, Chesnut & Aldridge, and Don A. Howard and J. Russell Munger of Uhrig, Munger & Howard, Huntsville, for appellee/cross-appellant.
Davis Carr of Pierce, Carr & Alford, Mobile, and J. Mark Hart of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for amicus curiae, Alabama Defense Lawyers Ass'n.
HOUSTON, Justice.
Brian Ray Stewart sued two former co-employees, Arzie Grimes and his son, Russell H. Grimes, seeking damages under Ala.Code 1975, § 25-5-11(c)(1), part of the Alabama Workers' Compensation Act. Stewart alleged that the Grimeses had allowed him to come in direct contact with benzene, emitted in the form of fumes from gasoline-contaminated soil, and that they had done so with the design, intent, and purpose of causing him to develop leukemia. Stewart developed a rare form of leukemia known as acute lymphoblastic leukemia, T-cell variety.[1] After *468 a lengthy trial, in which extensive medical testimony and numerous exhibits were introduced into evidence, the jury found for Stewart, awarding him $5,250,000 in compensatory damages ($3,000,000 in past damages and $2,250,000 in future damages) and $3,000,000 in punitive damages. The Grimeses moved for a judgment notwithstanding the verdict, or, in the alternative, a new trial or remittitur. The trial court remitted $1,250,000 of the punitive damages award and entered a judgment for Stewart for $7,000,000. The court made that judgment final pursuant to Rule 54(b), A.R.Civ.P. The Grimeses appealed. Stewart cross-appealed, challenging the remittitur.
The dispositive issue in this case is whether there was sufficient evidence to submit Stewart's claim to the jury. If the evidence was not sufficient, then the trial court erred in denying the Grimeses' motion for a judgment notwithstanding the verdict and we must reverse the judgment.
Section 25-5-11(b) provides in pertinent part:
Section 25-5-11(c)(1) provides:
The proof necessary to sustain a claim under this section was clearly set out by this Court in Reed v. Brunson, 527 So. 2d 102, 120 (Ala. 1988):
(Emphasis in original.)
It is undisputed that neither Arzie nor Russell Grimes had any known reason or motivation to harm Stewart, or anyone else. The record clearly shows that, at least outwardly, Stewart had a good personal relationship with the Grimeses. Therefore, to submit his claim to the jury, Stewart had to introduce sufficient evidence to show that the Grimeses had allowed him to come in contact with gasoline-contaminated soil knowing that it was substantially certain that that contact would result in Stewart's developing leukemia.[2]
As previously noted, the evidence introduced during the trial was extensive. Without our setting this evidence out in detail, suffice it to say that, viewed in the light most favorable to Stewart, it did not show that either of the Grimeses, or anyone else for that matter, could have foreseen with any degree of certainty, much less substantial certainty, that Stewart's limited exposure to fumes emitted from gasoline-contaminated soil would cause him to develop leukemia. Although Stewart's medical expert testified that Stewart had developed leukemia as a result of his contact with benzene during his 14-month employment with ATEC (we assume for purposes of this appeal that that testimony supported Stewart's claim that his illness was work-related), the Grimeses' medical expert testified that Stewart's illness was not related to his limited exposure to benzene while working at ATEC. The medical evidence introduced at trial, although indicating that certain high concentrations of benzene are carcinogenic, did not establish any causal link between the kind of limited contact experienced by Stewart (contact with gasoline fumes) and leukemia, much less the rare form of leukemia that he developed. Such a conflict of opinion within the medical community concerning the cause of leukemia, when considered in light of the undisputed evidence that Russell Grimes performed the same kind of work as Stewart, under the same conditions, and that no employee of ATEC, or anyone else performing similar work, had ever been known to develop leukemia by smelling fumes from gasoline-contaminated soil, precludes a judgment for Stewart, as a matter of law. See Harris v. Simmons, 585 So. 2d 906 (Ala.1991); Merritt v. Cosby, 578 So. 2d 1242 (Ala.1991); Lee v. Ledsinger, 577 So. 2d 900 (Ala.1991); Beville v. Spencer, 568 So. 2d 1224 (Ala.1990); Pressley v. Wiltz, 565 So. 2d 26 (Ala.1990); Landers v. O'Neal Steel, Inc., 564 So. 2d 925 (Ala.1990); Williams v. Price, 564 So. 2d 408 (Ala.1990); Bean v. Craig, 557 So. 2d 1249 (Ala.1990); Burkett v. Loma Machine Manufacturing, Inc., 552 So. 2d 134 (Ala.1989); Turnbow v. Kustom Kreation Vans, 535 So. 2d 132 (Ala.1988). Simply put, given the state of the evidence in this case, it would strain logic beyond the breaking point and run completely afoul of the clearly expressed intent of the legislature for us to hold that the evidence was sufficient for a jury to find that Arzie Grimes (who received a two-year degree in basic engineering) and Russell Grimes (who graduated from high school and completed a year and a half of non-chemistry-related college courses and who performed the same kind of work as Stewart) ordered Stewart to sniff gasoline-contaminated soil samples knowing that his developing leukemia was a substantial certainty.
The trial court erred in denying the Grimeses' motion for a judgment notwithstanding the verdict. The judgment is, therefore, reversed and the case is remanded. Stewart's cross-appeal is dismissed as moot.
1920807 REVERSED AND REMANDED.
1920864 DISMISSED.
*470 HORNSBY, C.J., and ALMON, ADAMS, STEAGALL and INGRAM, JJ., concur.
SHORES and KENNEDY, JJ., concur in the result.
[1] Stewart and the Grimeses were employed by ATEC Associates, Inc. ("ATEC"), a national engineering and consulting company. Arzie Grimes, who received a two-year associate's degree in basic engineering from Snead State Junior College in Boaz, Alabama, was the manager of the office in which Stewart worked. Russell Grimes, who graduated from high school and completed a year and a half of non-chemistry-related college courses, was a job foreman. Stewart's responsibilities with the company included testing soil samples that had been taken from under and around exhumed underground gasoline storage tanks. Although these samples were analyzed to determine the extent of gasoline contamination, if any, Stewart was also instructed to sniff the samples to see if he could detect the presence of gasoline. Russell Grimes performed this same kind of work, with the consent of his father, in the same manner and under the same conditions as Stewart die.
Stewart also sued ATEC, seeking workers' compensation benefits; that claim remains pending below.
[2] Because Stewart's claim was not pending on June 11, 1987, the applicable standard for reviewing his compensatory damages claim is the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12, and West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala.1989). However, the applicable standard for reviewing Stewart's punitive damages claim is the "clear and convincing evidence" rule. See Ala.Code 1975, § 6-11-20. | September 3, 1993 |
9c42c34c-75e2-4c24-996c-c8f707b529f5 | Cochran v. Watson | 628 So. 2d 407 | 1920468 | Alabama | Alabama Supreme Court | 628 So. 2d 407 (1993)
Roy Thomas COCHRAN and the City of Saraland
v.
Peggy Busby WATSON, et al.
1920468.
Supreme Court of Alabama.
August 27, 1993.
*408 Vaughan Drinkard, Jr., and C. Gary Hicks of Drinkard, Ulmer, Hicks & Leon, Mobile, for appellants.
Fred W. Killion, Jr., of Killion & Vollmer, P.C., Mobile, for appellees.
ADAMS, Justice.
Peggy Busby Watson and her son, John Watson II, sued Roy Thomas Cochran and the City of Saraland, contending that Cochran, a police office for the City of Saraland, had negligently and/or wantonly operated his police vehicle and that his negligence and/or wantonness had resulted in a collision with Watson's automobile wherein Watson and her son sustained injuries. A jury awarded Peggy Watson damages in the amount of $145,000 in past damages and an additional $30,000 in future damages. The jury awarded John Watson II $5,000. The court entered a judgment on that verdict. We affirm.
The City of Saraland and Cochran raise two issues on appeal. The first issue concerns the admissibility of evidence of certain payments made by the defendants' insurance company to Peggy Watson for medical costs incurred as a result of the accident. We find no error in admitting the evidence of these payments, for the following reasons.
Ms. Watson contends that following the accident she was contacted by The Hartford Insurance Company and that its claims representative told her that the City of Saraland and Cochran were responsible for the accident and that she should submit all medical bills to the claims representative for payment. Watson complied with this request, and all of her medical expenses, with the exception of approximately $190, were paid by Hartford before this action was filed. In addition, Hartford paid Ms. Watson for lost wages and reimbursed her for damage to her automobile that had been caused by the accident. There was further evidence, although disputed, that Officer Cochran admitted liability to Watson's son at the scene of the accident.
At trial, the defendants filed a motion in limine to suppress evidence of the fact that payments had been made to Ms. Watson with regard to the accident. The defendants argued that the payments were made as an offer to compromise or to settle the dispute and that, therefore, the court should apply the well-established rule that offers to compromise are not admissible.
Harris v. M & S Toyota, Inc., 575 So. 2d 74, 79-80 (Ala.1991). While clearly this is the rule, the evidence in this case does not support the contention that any payments made to Ms. Watson constituted an offer to compromise; rather, they are inextricable from offered evidence that Cochran and the City of Saraland admitted liability and, therefore, were making payments in light of that admission.
Creighton v. Norris, 512 So. 2d 111, 112 (Ala. Civ.App.1987).
The second issue is whether the trial court erred in allowing Cochran's superior officer, Sergeant Stafford, to testify regarding his investigation of the accident and to state his finding, pursuant to that investigation, regarding the fault of the parties involved. Even though counsel did object to Officer Cochran's testimony regarding the fact that Stafford had determined Cochran to be at fault,[1] defense counsel made no objection to the admission of the testimony of Sergeant Stafford himself. Furthermore, the defense made no objection as to any predicate made or lacking when Sergeant Stafford began testifying.
This case is unlike Phillips v. Emmons, 514 So. 2d 1369 (Ala.1987), wherein the trooper involved had reconstructed the accident based on "assumed mental processes" as opposed to facts in evidence. Id. at 1371. As Cochran's supervisor, Stafford had the job of investigating the accident and making some determination regarding fault, based on his interviews with the parties involved and his inspection of the accident scene. Stafford did not base his opinion on speculation, but rather formed his opinion after speaking with both parties involved in the accident. In addition, at trial the facts upon which he based his opinion were in evidence.
Furthermore, at trial the plaintiffs contended that Cochran and the City of Saraland admitted liability for the accident. The plaintiffs argue that they offered Stafford's testimony as evidence of an admission of liability on the part of the City. Under the facts of this case, we find no error.
AFFIRMED.
HORNSBY, C.J., and SHORES, KENNEDY and INGRAM, JJ., concur.
[1] Counsel based his objection on the fact that Stafford, as a police officer, could not testify as to his determination of fault without the proper predicate having been laid. | August 27, 1993 |
a0775459-1796-4815-902f-264c7f81b5f3 | Zanders v. ALFA MUT. INS. CO. | 628 So. 2d 360 | 1920814 | Alabama | Alabama Supreme Court | 628 So. 2d 360 (1993)
Deborah ZANDERS
v.
ALFA MUTUAL INSURANCE COMPANY.
1920814.
Supreme Court of Alabama.
August 13, 1993.
Rehearing Denied October 8, 1993.
Hubbard H. Harvey, Demopolis, for appellant.
J. Garrison Thompson of Pitts, Pitts and Thompson, Selma, for appellee.
RICHARD L. JONES, Retired Justice.
The appellant's statement of the case, with which the appellee substantially agrees, is as follows:
Zanders appeals, arguing that the trial court erred in prohibiting Zanders from exercising a peremptory challenge to remove a prospective juror because he had been convicted of a crime. We reverse and remand.
In this Court's recent decision in Ex parte Williams, 627 So. 2d 999 (Ala.1993), we quoted with approval from Heard v. State, 584 So. 2d 556, 560 (Ala.Cr.App.1991): "A connection with or a founded suspicion of criminal activity can constitute a sufficiently race-neutral reason for the exercise of a peremptory strike." Following that quote in Williams, we added: "See also Warner v. State, 594 So. 2d 664 (Ala.Cr.App.1990), reversed, 594 So. 2d 676 (Ala.1992) See also Hawkins v. *361 State, 594 So. 2d 181 (Ala.Cr.App.1991) (raceneutral strike of a black veniremember who knew an expert witness for the defense)."
The appellee, pointing out that all of the above-cited cases involved criminal convictions, strongly urges this Court to restrict Williams's application to criminal trials and to uphold the trial court's rejection of criminality as a sufficiently race-neutral reason for striking a prospective juror in a civil trial. While the argument for a criminal trial/civil trial distinction has a certain degree of persuasion, we believe there are overriding public policy considerations that militate against overly restricting the use of peremptory challenges, lest the right to peremptory challenges be totally consumed by the Batson prohibition.
The elimination of the peremptory challengea device calculated to enhance the chances of a fair and impartial trialis not the goal of Batson; rather, Batson's goal is to eliminate racial discrimination in the jury selection procedure and thus to further ensure the overall beneficent purpose of due process. So long as there is a legitimate nonracial reason for the challenged strike, the Batson principles are not violated.
We hold, therefore, that the principle that "[a] connection with or a founded suspicion of criminal activity can constitute a sufficiently race-neutral reason for the exercise of a peremptory strike," made applicable to a criminal trial in Ex parte Williams, supra, is equally applicable to a civil trial.
Here, because the trial court improperly denied Zanders's right to peremptory challenges, the judgment is reversed and the cause is remanded for a new trial.
This opinion was prepared by retired Justice RICHARD L. JONES, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975, and it is hereby adopted as that of the Court.
REVERSED AND REMANDED.
ALMON, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). | August 13, 1993 |
e462fcb8-0f7e-438d-8597-8f17c59bcd01 | Walling v. Walling | 45 So. 2d 6 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 6 (1950)
WALLING
v.
WALLING.
8 Div. 537.
Supreme Court of Alabama.
March 2, 1950.
Patrick W. Richardson, of Huntsville, for appellant.
John R. Thomas, Jr., of Huntsville, for appellee.
FOSTER, Justice.
This is a suit filed by the wife against her husband for divorce from bed and board, alimony and suit money, and for the custody of their minor child. Appellant filed a cross-bill and sought a divorce a vinculo.
The cause was heard on testimony taken ore tenus in open court, in which a decree was rendered whereby the relief prayed for by the wife was granted, including a divorce from bed and board; awarding her the custody of their minor daughter, eight years of age; providing for the payment of $100.00 per month for the maintenance and support of herself and their child, and also providing $250.00 as attorney's fee for representing complainant. No provision has been made or sought for alimony pendente lite. The decree denied relief on the cross-bill. In this Court appellant has filed an application for an allowance *7 for an attorney's fee for representing her an appeal.
The evidence shows that the parties were married June 4, 1938, and separated in June 1946. The grounds upon which the divorce a mensa et thoro was sought were that of actual violence attended with danger to her life and health, giving details and circumstances of such claim, and because the defendant had become addicted to habitual drunkenness after the marriage, also adultery.
In the cross-bill the husband sought an absolute divorce from complainant, after denying the charge of adultery and cruelty and that he had become a habitual drunkard after the marriage, alleges as a ground for his divorce voluntary abandonment from his bed and board for more than two years next before the filing of the bill for divorce and by an amendment alleges cruelty on her part, in that, she did many times assault, beat, hit and strike him and thereby committed actual violence attended with danger to his health and life and frequently threatened such conduct: also charging adultery with persons unknown to him.
There is no doubt from the evidence in the case that appellant did commit actual violence upon the person of his wife attended under circumstances as to be dangerous to her life or health, and that it was dangerous for her to continue to live with him. The record also shows that he was a habitual drunkard, but it is not clear that he was any worse after he married than he was before, but his drunkenness in connection with his actual violence upon her person magnified the danger to her in respect to him. There was no satisfactory evidence of the charge of adultery, cruelty or voluntary abandonment against appellee.
Appellee, the complainant in this case, had been in the employ of appellant for sometime before their marriage. He had been tax collector of Madison County and she was employed in his office. He owned practically all of the stock of an implement company and she was the bookkeeper and had much to do with the management of that business. In addition to that the appellant owned a considerable amount of real estate, owning approximately 1,266 acres of land, as he testified, a large part of which he inherited, but title was put in his wife's name pending bankruptcy, and was subject to an obligation on his part to pay to his mother $225.00 a year. The land was afterwards conveyed back to him by his wife. He also owned a house and lot in Decatur, a cafe building in Huntsville and another small house and lot together with forty acres of land on Monte Sano Mountain. At the time of his answers to interrogatories, on April 26, 1949, he was, as he testified, collecting gross rents from said property of $5,540.00 annually.
There was an antenuptial agreement entered into between the parties, but the instrument itself was not produced, and the exact nature of its contents was not fully disclosed, but it contained a stipulation that he was to convey to her, in the event they were divorced, a certain dwelling house located on Whiteburg Drive in Huntsville and two pieces of farm land and cafe lots. He did convey some of said property to her and she is now in possession of the dwelling house in Huntsville, but the two pieces of farm land, one of which was known as the Dyas Place and the other known as the Raby Place, according to the evidence, were encumbered and were subsequently sold but she received no consideration for her equity. She has no other property, but she is a business woman and it is shown that she collected for the year 1948 $1783.50 plus $523.34 on a judgment for rent of certain farm land in Morgan County, and for 1949 her income up to the time of the filing of her answers to the interrogatories, on May 26, 1949, was $719.00 plus $269.40, which she likewise collected on said judgment.
The principal points argued by appellant in brief go to the question, first, of whether he became a habitual drunkard after he was married to his wife and whether he committed actual violence upon her person and the ruling of the court on certain matters of evidence that arose during the trial.
*8 The first assignment of error is the overruling of the appellant's demurrer to the bill of complaint. The brief states in support of that assignment of error certain legal principles which are well established in this State, as to which there is no controversy, and on account of which no ground of demurrer is pointed to as one which should have been sustained. We do not find in the demurrer any ground which seems to be well taken, so there was no error in overruling it.
The second assignment of error is based upon the contention that appellee is not entitled to the relief prayed for in the bill of complaint as amended. As we have heretofore stated, we think the evidence amply supports the allegations of the bill in respect to cruelty and fully justified the decree of divorce a mensa et thoro, as prayed in the bill as amended. It is needless to refer in detail to our cases respecting such a bill and particularly to the statutory provisions, sections 36 and 37, Title 34, Code, because the principles of law have been so often reviewed that they do not need further analysis.
The third assignment of error is based upon the denial of relief to appellant on the cross-bill. We have stated in a general way the grounds set up in the cross-bill for the relief sought. We do not think the evidence supports those charges and the relief was properly denied appellant on said cross-bill.
The fourth assignment of error is that the court erred in decreeing a divorce a mensa et thoro. We have previously given our reasons for sustaining the court's decree in granting relief to appellee.
Assignment of error numbered five goes to that feature of the decree which awarded the custody of the child to appellee. We think the evidence is to the effect that it is to the best interest of the child, a girl eight years of age, to be placed in the custody of her mother. There is no reason shown why the mother is not a suitable person to have her custody and, therefore, there was no error in that feature of the decree.
Assignments of error six to nine, inclusive, relate to that feature of the decree which provides for $100.00 monthly for the support of appellee and the child and for attorney's fee of $250.00, which was allowed for the prosecution of this suit in the trial court. The foregoing short statement of facts in respect to appellant's financial condition and ability to pay together with the needs of appellee are sufficient we think to show that the amount awarded is reasonable in every respect. It shows on its face there was no effort to make it hard for the appellant or to make an award out of proportion to the needs and standing of the appellee and the child, all of which is to be taken into consideration in fixing the amount of the allowance.
It would serve no useful purpose to discuss each of the other assignments of error separately. They relate in the main to rulings on evidence made during the progress of the trial. None of them justify a reversal of the decree, in the light of the application which has been made to equity of the principle of Supreme Court Rule 45, Code 1940, Tit. 7 Appendix. Roubicek v. Roubicek, 246 Ala. 442, 21 So. 2d 244; State v. Mobile & Ohio R. Co., 228 Ala. 533, 154 So. 91. We have given careful consideration to all of the assignments of error.
The trial court allowed an attorney's fee to appellee for prosecuting this suit in that court. Mancil v. Mancil, 240 Ala. 404, 199 So. 810; Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Reach v. Reach, 249 Ala. 102, 29 So. 2d 676. On appeal to this Court we may, in our discretion, make an allowance for her representation on appeal when application is made to us to do so. Windham v. Windham, 234 Ala. 309, 174 So. 500; Ex parte Taylor, 251 Ala. 387, 37 So. 2d 656.
If the supersedeas bond on appeal affected the right of the trial court to make an allowance for attorney's fees for defending appellee on the appeal, Ex parte Taylor, supra; Ex parte Apperson, 217 Ala. 176, 179, 115 So. 226, it did not affect the right of this Court in its discretion to do so.
*9 We think the petition to this Court for such allowance ought to be granted in the sum of one-half of that allowed in the trial court. So that a decree will be here rendered affirming the decree in this case and providing for the payment to appellee by appellant of an additional sum of $125.00 as an attorney's fee and all the costs of this cause, both in this Court and in the trial court.
Affirmed with an allowance of an amount for an attorney's fee on appeal.
BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur. | March 2, 1950 |
e2f7c1c8-8ee5-48a9-95c1-2b851932db34 | Hallmark v. Duke | 624 So. 2d 1058 | 1911968 | Alabama | Alabama Supreme Court | 624 So. 2d 1058 (1993)
William C. HALLMARK and Ruby P. Hallmark
v.
Robert C. DUKE, et al.
1911968.
Supreme Court of Alabama.
August 20, 1993.
Patrick M. Sigler and Stephen C. Moore, Mobile, and Callen Sparrow and D. Leon Ashford, Birmingham, for appellants.
Kirk C. Shaw and William Steele Holman II of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
Dennis Riley of Morring, Schrimsher & Riley, Huntsville, for amicus curiae Chrysler Corp.
S. Allen Baker, Jr. and Michael D. Freeman of Balch & Bingham, Birmingham, for amicus curiae The Business Council of Alabama.
Davis Carr of Pierce, Carr & Alford, Mobile, and J. Mark Hart of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for amicus curiae Alabama Defense Lawyers Ass'n.
ALMON, Justice.
The opinion released on March 26, 1993, is withdrawn, and the following opinion is substituted.
The plaintiffs appeal from a summary judgment for five co-employee defendants in a personal injury action filed pursuant to Ala.Code 1975, § 25-5-11(c)(2).[1] The judgment *1059 for the five co-employee defendants was made final pursuant to Rule 54(b), A.R.Civ.P., and this appeal followed. We affirm.
The following summary of essential facts is taken from the trial court's "Opinion and Order on Motion for Summary Judgment":
The plaintiffs sued five co-employees of William HallmarkDuke, Stambuk, Cleveland, Johnston, and Brodbeckalleging both negligence and, pursuant to Ala.Code 1975, § 25-5-11(b) and (c)(2), willful and intentional misconduct. The trial court granted the defendants' motion to dismiss the negligence claim, and the case proceeded on the claims made pursuant to § 25-5-11(b) and (c)(2). The trial court later granted the defendants' motion for summary judgment as to those claims; the plaintiffs appeal from the resulting judgment.
We first address the plaintiffs' argument that the trial court erred in dismissing the negligence claim against the five co-employee defendants and in refusing to declare invalid Act 85-41, Ala. Acts 1985 (the 1985 amendment to the Workers' Compensation Act). This Court held adversely to the plaintiffs' position in the recent case of Jones v. Lowe, 611 So. 2d 345 (Ala.1992); therefore, the dismissal of the negligence claim is affirmed. See, also, Blake v. Big B, Inc., 613 So. 2d 1265 (Ala.1993).
The plaintiffs' remaining claims against these defendants are based on § 25-5-11(b) and (c)(2), which provide, in pertinent part, as follows:
The plaintiffs' amended complaint contains two separate counts alleging willful and intentional conduct on the part of the co-employee defendants. Count 5 alleges that the co-employee defendants willfully and intentionally failed to use the clarifier's splitter box valve, elbow pipe joint, and transfer pipelines, which, claim the plaintiffs, are safety guards and devices. In Count 6, the plaintiffs alleged that the co-employee defendants willfully and intentionally failed to maintain or repair the elbow pipe joint that ruptured and that they willfully and intentionally failed to use "safety devices" to determine whether the clarifier was actually empty and ready for Hallmark to begin work.
The trial court held that the clarifier's transfer lines, elbow pipe joint, and splitter box valve were not safety guards or safety devices, but were "component parts of the clarifier whose principal purpose is to facilitate the work," and that there was no evidence to support the plaintiffs' claim that the five co-employees had willfully or intentionally *1061 failed to use or repair any of the system's components that the plaintiffs contended were safety guards or devices. The court further held that defendant Johnston's using the splitter box valve and the transfer line connecting the splitter box and the clarifier was undisputed evidence precluding the plaintiffs' argument of "failure to use" parts of the system that the plaintiffs claimed were safety devices.
Because this is an appeal from a summary judgment, this Court views the evidence in a light most favorable to the Hallmarks to determine whether there was "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment [could] reasonably infer the existence of the fact sought to be proved" by the plaintiffs. West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala.1989).
In three recent decisions, this Court has interpreted and applied § 25-5-11(c)(2). In Bailey v. Hogg, 547 So. 2d 498 (Ala.1989), the injured employee brought a § 25-5-11(c)(2) action against his employer, who knew that a safety guard, delivered with new machinery to be used at the employer's plant, was never installed on the machinery. This Court held that the employer's willful and intentional failure to install an available safety device (that could have prevented the employee's injury) was tantamount to the statutory intentional removal of a safety guard for reasons other than maintenance or repair, and reversed a summary judgment in favor of the employer.
The reasoning in Bailey v. Hogg was this Court's basis for holding in Harris v. Gill, 585 So. 2d 831 (Ala.1991), that the willful and intentional "bypassing" of a safety device designed to prevent injury was conduct "encompassed within the word `removal'" in § 25-5-11(c)(2). And in Moore v. Reeves, 589 So. 2d 173 (Ala.1991), the willful and intentional failure to repair a safety device, after notice of its malfunctioning and after a complaint by the employee that the machine was unsafe, was held to constitute "removal" of a safety device as contemplated by the statute. Additionally, the Moore decision sets out this Court's interpretation of § 25-5-11(c)(2) in the context of defining the statutory term "safety guard or safety device":
Moore v. Reeves, 589 So. 2d at 177.
Applying the holdings in these three cases to the facts of this case, we hold that the "splitter box," the "transfer lines," and the "ninety-degree elbow joint" are not safety guards or safety devices as contemplated by § 25-5-11(c)(2). Rather, these integral parts of the clarifier system are necessary conduits through which the liquid must travel during the process of making white liquor and were never intended to act as safety mechanisms. Therefore, we affirm that portion of the judgment holding that the "splitter box," the "transfer lines," and the "ninety-degree elbow joint" are not safety devices within the purview of the statute; the trial court correctly entered the summary judgment as to Count 5 of the plaintiffs' complaint.
The trial court also ruled correctly in entering the summary judgment for the defendants on Count 6 of the amended complaint. In Count 6, the plaintiffs alleged that the co-employee defendants willfully and intentionally failed to use every available safety device to determine whether the clarifier was empty after initiating the requested isolation process.
The plaintiffs characterize the evidence before the trial court as including statements by the co-employee defendants and certain nonparty co-employees that 1) components of the clarifier system were meant to be safety devices; 2) some of the actions taken in "isolating" a clarifier for maintenance or repair are taken for safety reasons; and 3) *1062 according to the employer's own post-accident report, some of the actions that should have been taken, but were not taken, on the date of the accident could have prevented Hallmark's injury. The evidence also included Scott Paper Company's official "Accident Report" of this incident, which contained the following data:
The only parts of the clarifier that arguably were safety devices were a lid on the top of the clarifier, a valve on the side, and a valve near the bottom. The co-employee Johnston closed the supply valve, pumped out the clarifier tank until a gauge indicated that no more liquid was flowing, and then closed the output valve to prevent backflow. He then simply did not raise the lid to look into the clarifier to see if it was empty and did not open the valve at the bottom, which would have discharged fluid and thereby shown that the tank was not empty. Defendants Cleveland and Brodbek also had some responsibilities in connection with this procedure, and they also did not inspect the tank to see if it was empty. This is only a failure to verify the results of the isolating and emptying procedures, not an intentional removal of a safety device.
Even accepting that the willful and intentional failure to install a safety device, Bailey v. Hogg, 547 So. 2d 498 (Ala.1989), the willful and intentional bypassing of a safety device by installing an alternative device, Harris v. Gill, 585 So. 2d 831 (Ala.1991), or the willful and intentional failure to maintain or repair a safety device after notification of the danger, Moore v. Reeves, 589 So. 2d 173 (Ala.1991), can come within the terms of § 25-5-11(c)(2), the facts of this case do not come within those terms. The three cited cases involved existing safety devices that the defendants knew not to be functioning as intended. In this case, the lid, the side valve, and the bottom valve were not safety devices: they were not a "shield between the employee and danger so as to prevent the employee from incurring injury while he is engaged in the performance of the service required of him by the employer"; rather, they were simply "component part[s] of the machine whose principal purpose [was] to facilitate or expedite the work." Moore, supra, 589 So. 2d at 177.
The defendants and other co-employee deponents on a few occasions referred to the bottom valve as a safety valve, but they more often objected to questions characterizing it as such, stating that they did not think of it as a safety device. Most of the evidence cited by the plaintiffs as statements by witnesses that the lid, the bottom valve, or the side valve were safety devices was simply testimony by which the witnesses acknowledged that if the valve had been opened or the lid had been opened, the presence of white liquor could have been detected. Even assuming that they were safety devices, they had not been removed, had not been bypassed so as to prevent their proper functioning, and were fully operational. The co-employees simply did not use them to determine whether the tank had been successfully emptied.
The failure to verify that the tank was empty or to "accomplish" a visual inspection, as cited in the accident report, cannot serve, within the meaning of § 25-5-11(c), as evidence of willful and intentional removal of safety devices. Under such a rule, any negligence that pertains to safety or adds to the plaintiff's risk would be actionable. This is the very result the legislature intended to preclude by the 1985 act from which § 25-5-11(c) *1063 derives and which was held constitutional in Reed v. Brunson, 527 So. 2d 102 (Ala.1988).
Because none of the acts alleged or shown by the evidence in opposition to the summary judgment motion could be said to amount to the intentional removal of a safety device, the plaintiffs made no showing of "willful conduct" within the terms of § 25-5-11(c)(2). Therefore, the summary judgment is also due to be affirmed as to Count 6.
OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] The plaintiff William C. Hallmark claimed damages for personal injury. His wife, Ruby P. Hallmark, claimed damages for loss of consortium. The plaintiffs also sued several corporate defendants, alleging defects in the manufacture, installation, maintenance, repair, and inspection of the equipment involved. Those claims are still pending in the trial court. | August 20, 1993 |
63243b1e-8c0a-4cf1-b83f-fb8c54e691ab | Ex Parte Mobile Fixture & Equipment Co. | 630 So. 2d 358 | 1921109 | Alabama | Alabama Supreme Court | 630 So. 2d 358 (1993)
Ex parte MOBILE FIXTURE AND EQUIPMENT COMPANY, INC.
(In re MOBILE FIXTURE AND EQUIPMENT COMPANY, INC. v. ALLIED ALARMS, INC., et al.).
1921109.
Supreme Court of Alabama.
August 27, 1993.
*359 Joseph C. Sullivan, Jr. and Richard E. Corrigan of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for petitioner.
Steven L. Terry of Sintz, Campbell, Duke & Taylor, Mobile, for respondents.
HOUSTON, Justice.
The plaintiff/petitioner, Mobile Fixture and Equipment Company, Inc., is a wholesale supplier of restaurant fixtures and equipment located in Mobile, Alabama. The defendant/respondent, Allied Alarms, Inc., is a locally owned alarm and security service in Mobile, Alabama, with a branch office near Birmingham, Alabama. Allied provides a variety of security and alarm services for approximately 5400 residential and commercial customers. Allied contracted with approximately 500 of its customers to provide a key response service in which Allied retains a key to the customer's building; upon receiving an alarm signal, Allied dispatches a security guard to the premises in order to enter and inspect for burglary, vandalism, or other security-related matters.
Allied contracted to provide security services for Mobile Fixture, with the security services contract most recently renewed on May 26, 1989, for a term of three years. In the contract, Mobile Fixture subscribed to, among other things, the key response service. Through the key response service, after an alarm signal was received from Mobile Fixture, the central office immediately dispatched an Allied guard, notifying the guard of the appropriate coded key number needed to enter the building to inspect for security problems that could have caused the alarm. The guard also waited for the arrival of the area police, who were also notified of the alarm.
Mobile Fixture maintains that throughout the course of its relationship with Allied, Mobile Fixture suffered "a high rate of `shortage' in the inventory which it holds in its warehouse before sale to its customers" and also had a large number of false alarms to which Allied's employees responded. According to Mobile Fixture, it experienced approximately $365,000 worth of inventory and property loss from its merchandise warehouse that was caused by Allied Security guards' responding to false alarms through Allied's key response service. In order to determine the cause of the losses, Mobile Fixture installed hidden cameras in its warehouses, without notifying Allied. After reviewing a videotape that reflected what appeared to be two Allied security guards entering the premises and removing certain merchandise from the warehouse, Mobile Fixture sued Allied and numerous fictitiously named defendants, alleging theft and conversion, breach of contract, negligent and/or wanton performance of contract, breach of fiduciary duty, negligent and/or wanton supervision and hiring, and fraudulent suppression, and alleging that Mobile Fixture was a third-party beneficiary to a security bond or insurance policy covering the actions of the security guards. Mobile Fixture served interrogatories and requests for production upon Allied, some of which Allied answered or complied with, and others to which it objected and did not answer or comply with. Mobile Fixture filed a motion to compel responses and production, which the trial court denied.
The interrogatories and requests for production that were the subject of the motion to compel (and that are the subject of this mandamus petition), and the objections thereto, are as follows:
(See Petitioner's brief, pp. 4-5; Respondent's brief, pp. 3-4.)
In the interrogatories and requests for production, Mobile Fixture also asked Allied to identify all complaints that it had received concerning its employees in the last five years. Allied listed five complaints, including the Mobile Fixture complaint, and subsequently supplemented the list with two more complaints.
Mobile Fixture petitioned this Court for a writ of mandamus directing "Judge McRae to vacate his denial of [Mobile Fixture's] motion to compel and to order him to compel [Allied] to answer interrogatories #4 and #23 and to produce all of the documents requested by request[s] for production #5 and # 7, including the complete customer list of all [Allied] customers and all investigative reports of [Allied] on its employees."
Mandamus, an extraordinary remedy that will not be issued unless the movant has a clear, undisputable right to the relief sought, see Ex parte Rudolph, 515 So. 2d 704 (Ala.1987), is the proper means of review to determine whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders, see Ex parte Allstate Ins. Co., 401 So. 2d 749 (Ala.1981), so as to prevent an abuse of the discovery process by either party. See Ex parte McTier, 414 So. 2d 460 (Ala.1982). The question on review is whether, under all of the facts before the trial court, it abused its discretion. See Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So. 2d 228 (Ala.1978).
Ex parte McTier, supra, at 461.
After hearing oral argument, Judge Ferrill D. McRae denied Mobile Fixture's motion to compel, specifically stating as follows:
(Emphasis in original.)
We note Mobile Fixture's reliance on Ex parte Asher, Inc., 569 So. 2d 733 (Ala.1990), Ex parte State Farm Mutual Automobile Ins. Co., 452 So. 2d 861 (Ala.1984), and Ex parte Allstate Ins. Co., supra, as support for its position that the Court should direct the trial court to order Allied to produce the requested information. Those cases are distinguishable from this case because each of those cases involved fraud claims; in each, the Court allowed discovery of similar fraudulent acts to prove an alleged fraudulent scheme, plan, or design on the part of the defendants. But see, Ex parte McTier, supra. Under the facts of this case, however, Mobile Fixture has not alleged that Allied engaged in any type of fraudulent scheme. We also note Mobile Fixture's reliance on Ex parte McEllen, [Ms. 1911403, October 16, 1992] (Ala.1992), in which the plaintiffs sought discovery of a limited number of investigative reports detailing factual findings and investigations of a former employee. However, this Court withdrew its opinion in Ex parte McEllen on January 12, 1993, and on that date, on motion of the parties, dismissed the case. Moreover, in this case, Mobile Fixture did not limit its request, but sought investigations, management reviews, and field audits of "all" Allied employees.
Based on the foregoing and under the particular facts of this case, we conclude that the trial court did not abuse its discretion in denying Mobile Fixture's discovery requests. Therefore, the petition for the writ of mandamus is denied.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | August 27, 1993 |
9c9e8a87-b163-4b48-bbad-b9c99b85bb0f | Volkswagen of America, Inc. v. Marinelli | 628 So. 2d 378 | 1911644, 1911645 | Alabama | Alabama Supreme Court | 628 So. 2d 378 (1993)
VOLKSWAGEN OF AMERICA, INC., et al.
v.
Lyla MARINELLI, etc., and John J. Madonia, etc.
Nos. 1911644, 1911645.
Supreme Court of Alabama.
August 27, 1993.
*379 Jere F. White, Jr., and Harlan I. Prater IV of Lightfoot, Franklin, White & Lucas, Birmingham, and Ian Ceresney, Michael Hoenig, and William C. Guida of Herzfeld & Rubin, New York City, for appellants.
R. Ben Hogan III and James R. Pratt III of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellees.
*380 MADDOX, Justice.
These appeals arise from a wrongful death action based on a one-vehicle rollover accident involving a Volkswagen motor vehicle known as a "Thing." Volkswagen's major claim of error is that it was deprived of its right to have its theory of the case presented to the jury by proper instructions, because the trial court instructed the jury on the "crashworthiness doctrine" rather than on the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD").
Volkswagen also claims: (1) that it was entitled to an instruction on comparative fault; (2) that the trial court improperly allowed an expert to testify concerning a statistical analysis of the rollover comparison of the accident vehicle with other vehicles; (3) that the jury reached a quotient verdict; and (4) that certain jurors were guilty of misconduct in failing to disclose their prior involvement in litigation.
The accident occurred in March 1989, on Blue Ridge Boulevard in Hoover, Alabama, at a point where the boulevard passes underneath Interstate Highway 65. Blue Ridge Boulevard is a two-lane paved road with one eastbound lane and one westbound lane. The speed limit for the road is 25 miles per hour.
Many of the basic facts surrounding the accident were not disputed. Nicholas Marinelli was driving a 1973 Volkswagen Type 181 vehicle, commonly known as a "Thing." The Thing is a convertible utility vehicle with a detachable hardtop roof.[1] Passengers in the vehicle were Nicholas's sister, Susan Marinelli, who was riding in the right front seat, and her boyfriend, Brian Madonia, who was in the back seat. The three, all teenagers, had been riding around for about 30 minutes before the accident; Nicholas was attempting to teach his sister, who had no driver's license, how to drive. Nicholas had resumed driving at the intersection of Blue Ridge Boulevard and Hackberry Road, and the accident occurred while he was returning to the Marinelli residence. Although the Thing was equipped with functioning seat belts, none of the occupants was wearing a seat belt at the time of the accident.
According to Nicholas Marinelli, an unidentified animal ran in front of the Thing as he was driving eastbound on Blue Ridge Boulevard. Despite the speed limit of 25 miles per hour, he conceded that the vehicle was going "maybe 30" when he first saw the animal approaching from the right side of the road. Nicholas testified:
(R. 571-73.)
The Thing crossed Blue Ridge Boulevard to the left, the rear of the vehicle went off the left side of the road and furrowed into the road's shoulder, and the vehicle rolled over as it reentered the road. Although the vehicle was originally travelling toward the east in the eastbound lane, the vehicle came to rest on its wheels in the westbound lane, with the front end facing to the west.[2]
At the time of the accident, the Thing's hardtop roof was not being used, and, because none of the occupants was wearing a seatbelt, they were ejected from the vehicle. Nicholas, the driver, was thrown clear of the vehicle and suffered only minor injuries. Susan suffered fatal injuries when the top right corner of the windshield frame came in contact with her head after she fell out of the vehicle. Brian fell out of the vehicle and suffered fatal injuries when an area of the right rear door came down on his abdomen. He died during surgery, from massive internal bleeding from a severely lacerated liver.
Nicholas admitted that he was aware of the Thing's brake problems before the accident. The evidence showed that the vehicle was approximately 15 years old and that Nicholas had purchased the vehicle approximately five months before the accident. He had begun experiencing brake problems a month or two after the purchase. In the five months before the accident, the brakes on the vehicle had been repaired by Alternative Garage on at least three occasions. Before the accident, Nicholas was told by a mechanic at Alternative Garage that the Thing needed new brake drums, and at the time of the accident Nicholas had an appointment to have the vehicle repaired a fourth time. Nicholas attributed the brake problems to the age of the Thing. To compensate for the problems, he "would start to brake earlier than usual and drive the car a little bit slower than [he] would usually drive if the brakes worked." (R. 590-91.) The history of the brake malfunction was never characterized by the plaintiffs as a vehicle defect.
On April 25, 1989, Lyla Marinelli, as mother of Susan Marinelli, a minor, instituted a wrongful death action in the Circuit Court of Jefferson County, Alabama, against Volkswagen Aktiengelellschaft,[*] Volkswagen of America, Inc., Volkswagen de Mexico S.A. de C.V. (jointly "Volkswagen"); James E. Bryan, d/b/a Alternative Garage; and various fictitiously named defendants. John Madonia, as father of Brian Madonia, a minor, also instituted a wrongful death action, on June 26, 1989, against Volkswagen, Alternative Garage, and various fictitiously named defendants. The two actions were consolidated on January 2, 1990.
Volkswagen filed an answer to the complaints and to the amendments made to the complaints. Volkswagen's answer, as amended, stated various defenses, including a lack of causal relation between the decedents' injuries and any conduct on the part of Volkswagen, a denial that the vehicle was defective, and numerous affirmative defenses, including contributory negligence, assumption of the risk, product misuse, failure to use the restraint system provided, and a defense that the decedents' injuries were caused by the acts or omissions of others. Alternative Garage also answered, making a general denial and asserting the affirmative defenses of contributory negligence and assumption of the risk. Alternative Garage was granted a summary judgment on January 29, 1990.
The trial began on April 6, 1992. At the close of the plaintiffs' case, Volkswagen moved for a directed verdict on the grounds, inter alia, that no crashworthiness claim should be presented to the jury. Volkswagen renewed its motion for directed verdict at the close of the evidence, at which time the motion was denied. Over Volkswagen's objection, the trial court instructed *382 the jury on the elements of a crashworthiness claim as established in General Motors Corp. v. Edwards, 482 So. 2d 1176, 1191 (Ala. 1985), and the jury, after deliberating, returned a verdict on behalf of each plaintiff in the amount of $783,333.
On appeal, Volkswagen raises five issues for our review.
Volkswagen first argues that it was deprived of its right to have its theory of the case presented to the jury by proper instructions because the trial court instructed the jury on the "crashworthiness doctrine" rather than on the AEMLD.
The trial judge charged the jury as follows:
(R. 1799-1802).[3]
Volkswagen's argument centers primarily upon that portion of the court's instruction stating that "[t]he plaintiff in this case does not claim that [Volkswagen] caused the accident in question." (R. 1799.) Volkswagen argues that this language from the trial court's crashworthiness instruction relieved the plaintiffs from the burden of showing that the alleged defectthe vehicle's unreasonably low track width relative to the height of its center of gravitywas the cause of the accident and the resulting deaths of Susan Marinelli and Brian Madonia. This instruction, according to Volkswagen, also rendered *383 meaningless the substantial evidence presented by Volkswagen that the accident and resulting deaths were caused by factors wholly unrelated to the alleged instability of the Thing.[4] We cannot agree with Volkswagen's argument.
This Court adopted the so-called "crashworthiness doctrine" in General Motors Corp. v. Edwards, where two children died when the car in which they were riding was hit from behind by another car; the car in which the children were passengers burst into flames upon impact. The parents of the children brought AEMLD claims against General Motors Corporation, alleging that the gas tank, the fuel filler neck, and the doors were defectively designed. In Edwards, none of the alleged defects had anything to do with causing the other car to collide with the Edwardses' car. Rather, the allegation was that the deaths of the children proximately resulted from the defective condition of the vehicle, not that the defect caused or contributed to the collision.
In Edwards, this Court acknowledged that a cause of action has always existed under the AEMLD "where a defect in an automobile causes an accident which injures the ultimate consumer or one within the foreseeable scope of the automobile's use." 482 So. 2d at 1181. (Emphasis added.) This Court also recognized that before Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), "where there was no allegation that the defect in the automobile caused the accident to happen, no cause of action arose against the vehicle's manufacturer." 482 So. 2d at 1181. (Emphasis added.) In considering how a crashworthiness claim could arise against a manufacturer, this Court, in Edwards, distinguished a "crashworthiness" claim from those claims involving a defect that caused the injury-causing accident to occur, and described the "crashworthiness doctrine" as follows:
Id. at 1181. In summarizing the difference between a "crashworthiness" claim and an AEMLD claim, the Court said:
Id. at 1191. This Court then set out the elements of the cause of action:
Id.
In the traditional AEMLD case, accident causation and injury causation are one and the same. See, e.g., Veal v. Teleflex, Inc., 586 So. 2d 188, 190 (Ala.1991) (plaintiffs contended that "if the steering cable [on the boat involved in the subject accident] had been functional, the accident would not have happened; therefore, they argue[d], its failure was the proximate cause of the accident"); Harley-Davidson, Inc. v. Toomey, 521 So. 2d 971 (Ala.1988) (plaintiff claimed that the defect in a motorcycle helmet caused the accident where plaintiff, while trying to clear his face shield, lost control of the motorcycle and collided with an oncoming automobile).
It is a basic tenet of Alabama law that "a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction,... and the [trial] court's failure to give those instructions is reversible error." Alabama Farm Bureau Mut. Ins. Service, Inc. v. Jericho Plantation, Inc., 481 So. 2d 343, 344 (Ala.1985). (Citations omitted.) "It is the duty of the trial judge to educate the jury on the law of the case." Grayco Resources, Inc. v. Poole, 500 So. 2d 1030, 1033 (Ala.1986). As the Court in Grayco observed:
Id. (Citations omitted.)
Our standard for reviewing the trial court's instructions is plain. "In reviewing instructions to determine if they correctly set forth the applicable law, [this Court] must *385 read and consider the charge as a whole." Grayco, 500 So. 2d at 1033. (Citations omitted.) The law is clear that the refusal of a requested charge is not error where the trial court's oral charge "substantially and fairly" covers the same principles as the requested charge. Rule 51, Ala.R.Civ.P.; Hamilton Auto Parts, Inc. v. Rea, 580 So. 2d 1328 (Ala. 1991). Rule 51 provides in pertinent part:
Applying the rule governing our review, we have carefully examined the entire oral instruction to the jury, and our examination demonstrates that the court repeatedly instructed the jury that under the AEMLD the plaintiffs bore the burden of proving that a defective and unreasonably dangerous condition in the automobile caused, or contributed to cause, the two deaths. Thus, we conclude that there is no reversible error in this regard. The record shows that the jury was instructed on the definition of "defect" and was given an extensive instruction on proximate cause, intervening cause, and the affirmative defenses raised by Volkswagenmisuse of the product and assumption of the risk.
As the plaintiffs point out, the Court in Edwards stated that an action based on the crashworthiness doctrine may be brought under the AEMLD. In Edwards, the Court held:
482 So. 2d at 1191. (Emphasis added.) In Edwards, this Court held that in a case involving a crashworthiness claim the plaintiff's burden in proving causation is to present proof "[t]hat the defect in the automobile proximately caused his injuries." Id. Instruction 32.22, Alabama Pattern Jury Instructions: Civil, the crashworthiness charge, sets out the plaintiff's burden in proving causation, in identical language. Likewise, the plaintiff's burden in proving causation under A.P.J.I. Instruction 32.08, the AEMLD charge, is to present proof that the plaintiff was injured or damaged "as a proximate result of the defendant's placing on the market [an] unreasonably dangerous [product]." Consequently, the plaintiff's burden in establishing causation is identical whether the theory of liability is the AEMLD (that the defect proximately caused the injury) or the crashworthiness doctrine. Contrary to Volkswagen's position, neither doctrine requires proof of accident causation; rather, both doctrines focus on the alleged defect as being the proximate cause of the injury or damage.
Volkswagen's argument is based upon its claim that this case is not a crashworthiness case because the accident did not involve a "second collision." Such an argument has no basis in logic or fact, because Edwards, which Volkswagen argues presents a "classic" crashworthiness claim, technically did not involve a "second collision" either. In Edwards, the plaintiffs argued that a speeding driver caused an accident that would not have resulted in any deaths had the plaintiff's automobile been properly designed. Likewise, in this case, Nicholas Marinelli's reaction to an animal running out in front of him caused an "accident" (the vehicle's skidding sideways to its path of travel) that plaintiffs claim would not have resulted in any deaths had Nicholas' automobile been properly designed, that is, had it been designed, for example, with a lower center of gravity. Both cases focus on the capacity of the automobile to respond to a foreseeable hazardous situation without causing or enhancing injury. In Edwards, the occupants would not have died if the fuel system had not caught fire. Likewise, in this case, the plaintiffs presented evidence that the occupants would *386 not have died if the Volkswagen Thing had skidded to a stop instead of rolling over.[6]
After reviewing the instruction as a whole, we are convinced that "a fair and reasonable interpretation of the charge as a whole" left to the jury's determination the issue of whether the alleged defects in the vehicle were the proximate cause of the fatal rollover accident in this case. Alabama Power Co. v. Tatum, 293 Ala. 500, 504, 306 So. 2d 251, 254 (1975); Rule 45, Ala.R.App.P. We find no error here because the principles as to which Volkswagen requested a jury instruction were substantially covered in other portions of the trial court's oral instruction.
Volkswagen also argues that the trial court erred by failing to instruct the jury on "comparative fault" despite undisputed evidence that Volkswagen was not solely responsible for the accident and its resulting injuries. In Williams v. Delta International Machinery Corp., 619 So. 2d 1330 (Ala.1993), this Court declined to adopt the doctrine of comparative negligence for this State. Thus, the trial court did not err in failing to give the requested instructions on comparative fault.
Volkswagen next contends that the admission of the expert testimony of Dr. Leon Robertson, one of the plaintiff's expert witnesses, constitutes reversible error. Dr. Robertson, a statistician from Yale University, testified about his statistical analysis of the risk of fatal rollover in regard to the Thing as compared to the risk in regard to other vehicles. According to Volkswagen, evidence of this analysis was improperly admitted because, Volkswagen says, it was based on hearsay and was unreliable in that the analysis did not involve vehicles that were substantially similar to the Thing or circumstances that were substantially similar to those of this accident.
One of the primary issues before the jury was whether an automobile manufacturer can predict the propensity of a vehicle to roll over, based upon the relationship between its track width and the height of its center of gravity. Dr. Robertson's testimony centered on the stability ratio of the Volkswagen Thing. This stability ratio, called the T/2H, was calculated by dividing the track width by twice the height of the center of gravity. The stability ratio of the Thing, as provided in Volkswagen's answers to interrogatories and response to requests for admissions, is 1.14 with four passengers and 1.17 with no passengers. It was Dr. Robertson's opinion that any vehicle with a stability ratio lower than 1.2 is unreasonably dangerous. Dr. Robertson also did some calculations to determine what would be needed to bring the Volkswagen Thing's stability ratio to 1.2.
Although Volkswagen criticizes Dr. Robertson's testimony as unreliable, the plaintiffs offered numerous scientific articles and government studies utilizing the same methodology or a similar one and the same data or data similar to those utilized by Dr. Robertson. In explaining these studies, Dr. Robertson testified that other scientists in his field had reached the same conclusion, that there is a correlation between a vehicle's stability ratio and its propensity to roll over. Volkswagen did not offer an expert to refute Dr. Robertson's data, methodology, or opinions. We conclude that the trial court did not err in allowing this testimony, because the evidence presented by the plaintiffs indicates that it was sufficiently reliable.
Volkswagen also argues that the trial court abused its discretion in allowing the testimony of Dr. Robertson, because it was based in part upon hearsay. Robertson based some of his testimony on information gathered from the Fatal Accident Reporting *387 System ("FARS"). Under the FARS system, established by the federal government in 1975, each state collects information from the police report, the coroner's report, and the Department of Motor Vehicles on each death associated with a moving vehicle where the death occurs within 30 days after the person is hit or ejected. This information is sent to Washington, D.C., where it is placed in a computer file so that anyone in the country can access it. Robertson testified that almost every similar study of automobile-related deaths has been based on FARS data and that the automotive industry publishes papers based on the FARS data. It was Robertson's opinion that the FARS information is reliable and authoritative and is the sort of information that experts use to conduct the type of study that he conducted.
In Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 944, n. 6 (Ala.1983), the Court noted that "[i]n general, only hearsay that is customarily relied on by experts and likely to be trustworthy is a proper basis for an expert opinion." For example, in Seaboard System R.R. v. Page, 485 So. 2d 326, 327-28 (Ala.1986), the Court approved the admission of a National Institute for Occupational Safety and Health publication where the expert testified that it was authoritative in the field. Also, in Police & Firemen's Ins. Ass'n v. Mullins, 260 Ala. 173, 179, 69 So. 2d 261 (1953), the Court approved the admission of a public health bulletin reporting what various scientists had concluded on a particular subject, where the bulletin was identified by the witness as authoritative and as dealing with the particular science. See also, City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939).
In E & S Facilities, Inc. v. Precision Chipper Corp., 565 So. 2d 54, 63 (Ala.1990), the Court stated that "[e]xpert witnesses may, at the discretion of the trial judge, be allowed to testify based in part upon hearsay." The Court further explained that the trial court did not err in allowing the testimony of an expert witness based in part upon hearsay, because the testimony was also based upon his own examination and investigation. Id. The Court also noted that "any conceivable error" in allowing the testimony of the expert was corrected by the instruction given to the jurors that they were not required to accept the conclusions or opinions of the expert witnesses, but must determine for themselves the weight to be accorded such testimony when it was considered in connection with all material evidence. Id. A virtually identical charge was given to the jury in this case. (R. 1816-18.)
The trial court could have concluded that the accident information utilized by Dr. Robertson was the type of information customarily relied on by experts and likely to be trustworthy. The trial court's instructions to the jury properly reflected that Volkswagen's objections to the expert testimony went to the weight of the evidence and not to its admissibility. Thus, we hold that the trial court did not abuse its discretion in allowing it into evidence. See, Seese v. Volkswagenwerk A.G., 648 F.2d 833 (3d Cir.1981) (similar objection to FARS data raised by Volkswagen; however, the trial court held that the any variables in the data went to the weight of the evidence and not to its admissibility).
Volkswagen also argues that Alabama law requires a new trial because, it argues, the jury used the "quotient method" to reach its verdict for each plaintiff. According to Volkswagen, the jury's verdicts in this case did not reflect the fair judgment or the unanimous result of reasoned deliberation. Instead, it argues, the jury rendered compromise verdicts for each plaintiff through a method whereby each juror submitted a judgment amount and a verdict was reached based on the average of those amounts.
In this case, after the jury was excused, the trial court located a sheet of paper in the jury room on which each juror had submitted an amount that he or she thought would represent an appropriate verdict. The figures submitted by the jurors ranged from $0 to $2,000,000. On that sheet of paper, the sum of these amounts, $8,500,000, was divided by 12, the number of jurors, to arrive at an amount of $783,333, which was the amount of the verdict rendered in favor of each plaintiff.[7]*388 Thus, Volkswagen argues that the verdicts are due to be set aside. See, Security Mut. Finance Corp. v. Harris, 288 Ala. 369, 261 So. 2d 43 (1972).
In support of Volkswagen's motion for a new trial, and in an attempt to impeach the verdicts of the jury, Volkswagen submitted the affidavits of jurors Paula Barnett, Leon Franklin, Sharon Holmes, Phillip McCarroll, Lena Russell, and Elizabeth Stipe. In response, the plaintiffs moved to strike those affidavits. The plaintiffs also submitted the affidavits of jurors Leon Franklin, Elizabeth Stipe, and Lena Russell, three of the jurors who had previously given affidavits to Volkswagen. In the affidavits those jurors gave to the plaintiffs, each juror stated that the jury averaged the suggested verdicts of the individual jurors; that the jury did not agree beforehand to be bound by that amount; that there were further discussions and suggested figures after the average of the suggested amounts had been calculated; and that their final verdict in favor of each plaintiff was unanimously reached by voting after the average had been calculated. The plaintiffs additionally filed the affidavits of jurors Syble Carr, Rachel Kirkland, Georgia Sanford, Maudetta Hamby, and Bennie Perrymon, wherein those jurors stated that there had been no prior agreement among the jurors that they would be bound by the result of the averaging process. By order dated June 8, 1992, the trial court struck the juror affidavits submitted by Volkswagen and denied Volkswagen's motion for a new trial.
It has long been the law in Alabama that while jurors are not permitted to impeach their own verdict, they may by affidavit disclose facts to sustain their verdict. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970). In this case, Volkswagen submitted the affidavits of six jurors that tended to impeach the verdicts rendered by the jury; those affidavits were properly excluded by the trial court. The affidavits of the eight jurors submitted by the plaintiffs in support of the verdicts affirmatively showed that there was no prior agreement among the jurors to be bound by a quotient verdict. Because the juror affidavits submitted by the plaintiffs unquestionably established that the verdicts were not the result of a predetermined method of calculation, the trial court did not err in denying Volkswagen's motion for a new trial.
Finally, Volkswagen argues that the jury's verdicts must be vacated because, Volkswagen says, it was prejudiced by the failure of several of the jurors to respond during voir dire examination to questions regarding their involvement in previous litigation. Volkswagen argues that at least three jurors failed to respond to the following question, propounded by counsel for the plaintiffs, regarding whether they had been involved in previous litigation:
Three persons who sat on the juryPhillip McCarroll, Syble Carr, and Rachel Kirklanddid not disclose their involvement in prior litigation. Phillip McCarroll had been sued by State Farm Insurance Company regarding an automobile accident in which he was involved. Syble Carr had been a plaintiff in an action against Gulf Oil Company, alleging both contract and tort claims. Rachel Kirkland had been sued by Jefferson *389 State Junior College. According to Volkswagen, the question was an important one and these jurors' failure to answer it resulted in prejudice to Volkswagen; therefore, Volkswagen says, the jury's verdicts must be set aside and Volkswagen granted a new trial.
Although Volkswagen was given ample opportunity to follow up the questions asked by plaintiffs' counsel as to the potential jurors' involvement in civil litigation, counsel for Volkswagen failed to do so. When a party fails to use reasonable diligence in questioning potential jurors, that party waives any right to later challenge the jury on a motion for new trial. Aaron v. State, 273 Ala. 337, 139 So. 2d 309 (1961), cert. denied, 371 U.S. 846, 83 S. Ct. 81, 9 L. Ed. 2d 82 (1962).
While we are not persuaded that Volkswagen waived its right to complain in this case, we conclude that it is not entitled to a new trial, because we find no "probable prejudice" to Volkswagen. See Union Mortgage Co. v. Barlow, 595 So. 2d 1335 (Ala.1992). An examination of each juror's failure to respond demonstrates that the trial court did not abuse its discretion in denying Volkswagen's motion for a new trial on this issue.
Juror Syble Carr failed to reveal her involvement as a plaintiff in an action against Gulf Oil, filed in 1980 and removed to a federal court in 1981. That action concerned her husband's involvement in a commercial lease of a Gulf Oil station. There were no allegations in the complaint that Syble Carr was in any way involved in the lease or in her husband's dispute with Gulf. Furthermore, Volkswagen presented no proof that Syble Carr was even aware that her husband had filed the action or was aware that she was a party. Because the action did not involve any claim of personal injury, wrongful death, or products liability, there was no proof or even an inference that Mrs. Carr would have been predisposed toward the plaintiffs in this action.
Juror Rachel Kirkland failed to disclose that she had been a defendant in an action filed in 1980. The case action summary sheet from that action shows that a default judgment for $3,498.90 was entered against her in September 1980. There is no indication from the record that Mrs. Kirkland appeared in the action, nor was there any evidence before the trial court that Mrs. Kirkland even knew that the default judgment had been taken against her. Because Rachel Kirkland had been a defendant in the prior litigation, any possible prejudice she might have had likely would have been against the plaintiffs, not Volkswagen.
Juror Phillip McCarroll failed to reveal that he had been a defendant in a small claims action filed in August 1990 that arose out of an automobile accident. The certified record from that action shows that a default judgment for $1,297.44 was entered against Mr. McCarroll, but there is no indication that he ever appeared in court. Furthermore, there was no evidence before the trial court that Mr. McCarroll even knew about the small claims action, and, as with juror Kirkland, any prejudice he might have had likely would have been against the plaintiffs, not Volkswagen.
In Land & Associates, Inc. v. Simmons, 562 So. 2d 140, 149 (Ala.1989), the Court, confronted with an almost identical issue concerning jurors' lack of response to voir dire questioning, noted that "[t]he trial court is in the best position to determine whether there was probable prejudice as a result of a juror's failure to respond to questions during voir dire." Under the facts of this case, we cannot say that the trial court abused its discretion in not granting a new trial for the failure of these three jurors to respond to the questions regarding prior litigation.
Based on the foregoing, the judgment of the trial court is due to be affirmed.
AFFIRMED.
ADAMS, HOUSTON, and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
STEAGALL, J., concurs in part and dissents in part.
STEAGALL, Justice (concurring in part and dissenting in part).
I respectfully dissent from that portion of the majority's opinion regarding the jury's *390 use of the quotient method in arriving at the amount of damages.
Alabama law requires a jury verdict to be unanimous, Cribbs v. Shotts, 599 So. 2d 17 (Ala.1992); that is, the jury must be in full agreement as to liability. In this case, one juror proposed to award no damages at all, thus indicating that that juror had found no liability and that, therefore, the jury was not unanimous as to Volkswagen's liability. However, even assuming that the jury did reach unanimous agreement as to Volkswagen's liability, the amount of proposed damages submitted by each juror ranged from $0 to $2,000,000. Where one juror suggests that no damages be awarded and another suggests an amount nearly three times the amount of damages awarded, the quotient verdict cannot possibly be an expression of the fair judgment of the jurors at the extremes; under such a method, one or two jurors, by awarding amounts either extremely low or extremely high, could force an unfair verdict. See Security Mutual Finance Corp. v. Harris, 288 Ala. 369, 261 So. 2d 43 (1972).
In addition, I do not find that the affidavits submitted by the plaintiffs overcome the presumption that the jury improperly employed the quotient method to determine the damages to be awarded. In those affidavits, eight jurors testified that the jury did not agree in advance to be bound by the quotient verdict. However, Volkswagen was not given the opportunity to cross-examine those jurors on that issue for the purpose of testing the credibility of the jurors, as it should have been. See C. Gamble, McElroy's Alabama Evidence § 94.06(8) (4th ed. 1991).
The record shows that Volkswagen filed a motion to depose the jurors whose affidavits were offered by the plaintiffs and that the trial court denied this motion. Because Volkswagen was deprived of its right to cross-examine these jurors, the jurors' affidavits are not a proper basis upon which to determine whether the jury had agreed to be bound by the quotient verdict. In my opinion, this case should be remanded so that Volkswagen may cross-examine the jurors and so that the trial court may then determine whether the jury rendered an impermissible quotient verdict.
Therefore, I must dissent as to that issue. In all other respects, I concur with the majority opinion.
[1] The Volkswagen Model 181 "Thing" was developed for the German Army in 1968 as a courier wagon used for light-duty transportation. (R. 702, 714, 765, 1337, 1338.) Based on a design originally used during World War II, the Model 181 was adapted to the U.S. civilian market, and approximately 19,500 Volkswagen Things manufactured in Mexico were imported for sale in the United States from September 1972 through July 1974. The Thing featured a rear engine, rear wheel-drive format and weighed less than 2000 pounds.
[2] Although the reconstruction of this accident was disputed, the plaintiffs' expert, Michael Kaplan, testified that, after Nicholas Marinelli initially swerved to avoid the animal, the vehicle performed a 180-degree turn in the road (which Kaplan characterized as a "bootlegger's turn"), travelled backwards and partially off the left side of the road for approximately 40 to 50 feet, and ultimately rolled over as it reentered the road while still travelling backwardsall while the vehicle was in a forward gear and its parking brake was engaged. (R. 1033-43.)
[*] Reporter's note: This party's name is spelled several ways throughout the record.
[3] The above quoted charge essentially mirrors Instruction 32.22, Alabama Pattern Jury Instructions: Civil, on the crashworthiness doctrine.
[4] In its brief, Volkswagen states: "This instruction not only relieved the plaintiffs from the burden of showing that the alleged defectthe Thing's design instabilitycaused the accident, it rendered meaningless the substantial evidence presented by Volkswagen that the accident and resulting deaths were caused by factors wholly unrelated to the alleged defectexcessive speed, brake failure attributable to a lack of maintenance, jerking on the parking brake to stop a moving vehicle, and furrowing in the shoulder of the road."
[5] When it wrote Edwards, this Court applied the "scintilla rule of evidence." That rule was replaced in 1987 by the "substantial evidence rule." See § 12-21-12, Ala.Code 1975.
[6] The plaintiffs presented a strong case that the design of the vehicle caused the rollover in this case. The jury saw two "highway vehicle object simulation" ("HVOSM") computer simulations of the accident. The first, offered by Volkswagen's expert, Ray McHenry, replicated the accident based the dimensions of the Volkswagen Thing and on measurements taken from the accident scene. The second HVOSM simulation was offered through rebuttal testimony of Dr. Michael A. Kaplan, an expert testifying for the plaintiffs. This simulation showed that the rollover would not have occurred if the vehicle had had a stability ratio of 1.2; that ratio could have been obtained by lowering the center of gravity of the vehicle one inch.
[7] According to Volkswagen, the calculation was done incorrectly. The correct quotient figure should have been $708,333.33. The paper shows clearly, however, that the jury mistakenly calculated $783,333.33 to be the average of the proposed verdicts. The paper does not suggest in any way that the jury performed the correct calculation and subsequently adjusted the result from $708,333.33 to 783,333.00. Thus, Volkswagen says it was hit with a "double whammy"an improper quotient verdict and an incorrect calculation, both to Volkswagen's detriment. | August 27, 1993 |
ddc41c1e-ab69-461b-b7d5-5b503bff3c37 | Harrington v. Guaranty Nat. Ins. Co. | 628 So. 2d 323 | 1911843 | Alabama | Alabama Supreme Court | 628 So. 2d 323 (1993)
Perry HARRINGTON
v.
GUARANTY NATIONAL INSURANCE COMPANY and Landmark American National Insurance Company, Inc.
1911843.
Supreme Court of Alabama.
July 30, 1993.
Rehearing Denied October 8, 1993.
*324 Joseph M. Cloud of Morris, Smith, Cloud, Fees & Conchin, P.C., Huntsville, for appellant.
J.R. Brooks and Jeffrey T. Kelly of Lanier, Ford, Shaver & Payne, P.C., Huntsville, for appellees.
KENNEDY, Justice.
The plaintiff, Perry Harrington, appeals from judgments in favor of the defendants, Guaranty National Insurance Company and its parent company, Landmark American National Insurance Company, Inc.
Harrington sued the defendants on claims of "bad faith" refusal to pay an uninsured motorist ("UM") claim and breach of contract. Underlying this lawsuit was Harrington's 1990 involvement in a vehicle accident. At the time of that accident, Harrington was driving a tractor-trailer truck owned by his employer, T. M. Gorham Trucking Company. Just after he rounded a "blind" curve on a two-lane highway, he observed a mobile home towed by a truck encroaching into his lane; also, in an apparent reaction to the encroachment by the mobile home, the driver of the vehicle in front of Harrington had stopped so that that driver's vehicle blocked Harrington's lane. By the time Harrington was far enough around the curve to observe this situation, it was too late for him to take any evasive action other than to veer off the road. Harrington did veer off the road, and his truck overturned, injuring Harrington. The driver of the truck towing the mobile home did not stop, and his identity was unknown.
Harrington's employer, Gorham Trucking, had UM coverage through Guaranty National Insurance Company, a subsidiary of Landmark American National Insurance Company, Inc. (collectively "Landmark"). In August 1990, Harrington's attorney notified Landmark that "Harrington may be entitled to uninsured motorist benefits.... We are currently investigating the accident and will notify you when our investigation is complete." In October 1990, Sandra Swenson, a senior claims adjuster for Landmark, wrote back to Harrington's attorney, stating that there was a "contact requirement" in Gorham Trucking's UM policy. Swenson quoted the pertinent policy language, which defined "uninsured motor vehicle" as: "This is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must hit an `insured,' a covered `auto' or a vehicle that an `insured' is `occupying.'" (Emphasis added). Swenson added, "Per this endorsement, *325 it would appear that there would be no coverage available to Mr. Harrington.... [N]o contact ensued between the insured vehicle and the unknown vehicle listed."
Approximately three months later, on January 16, 1991, Harrington's attorney wrote to Swenson, stating that Harrington was making a claim on the UM coverage and requesting a payment in the amount of the policy limit. He also wrote, "According to the definition of uninsured motorist under the Alabama Code, Mr. Harrington can recover for injuries suffered as a result of a phantom motorist."[1] Swenson wrote back on February 8, 1991, stating the opinion that the policy in question did not cover Harrington's claim because the contact requirement of the UM coverage was not met. Swenson added, "If you have any information which would alter our decision, please contact me immediately." Eleven days later, counsel for Harrington wrote Swenson again, and this time correctly stated that, based on State Farm Fire & Cas. Co. v. Lambert, 291 Ala. 645, 285 So. 2d 917 (1973), the "contact requirement" of the policy was void as against public policy. Three days later, on February 22, 1991, Swenson responded by letter, stating that she had reviewed this new "information." Swenson also conveyed her company's willingness to pay Harrington's claim, and she wrote that she would contact Harrington's attorney "with a settlement offer under the uninsured motorist coverage available to Mr. Harrington," after reviewing Harrington's medical records. Swenson also sent Harrington's attorney a copy of the declarations page of the policy in question, and noted that the policy had a "$40,000 combined single limit."
In sum, approximately one month after Harrington made a claim and within three days of being notified about the Lambert case, Landmark indicated that Harrington's accident was covered and conveyed its willingness to pay on the claim.
Approximately a month after Landmark had done this, but before any agreement was reached as to a settlement amount, Harrington sued Landmark for breach of contract and bad faith refusal to pay, based on Landmark's initial denial of coverage. Landmark moved for a summary judgment, arguing, on the bad faith claim, that Harrington had not offered substantial evidence to rebut its prima facie showing of the absence of a genuine issue of material fact, and arguing that it was entitled to a judgment as a matter of law. On the breach of contract claim, Landmark produced newly acquired evidence as to the identity of the phantom driver and evidence that that driver was insured, to show that the UM coverage did not apply in any event. The trial court granted Landmark's motion for summary judgment, and from this action, Harrington appeals.
We first address Harrington's arguments as to his claim of bad faith.
This Court has stated the elements of the tort of bad faith as follows:
At issue here are elements (d) ("actual knowledge of the absence of any legitimate or arguable reason") and (e) ("intentional failure to determine whether there is a legitimate or arguable reason"), one of which must be shown in support of a bad faith claim.[2] See Jones v. Alabama Farm Bureau Mutual Casualty Co., 507 So. 2d 396, 399 (Ala.1986) (stating that one must prove, as an element of a bad faith claim, either that the defendant had "no lawful basis for the refusal coupled with actual knowledge of that fact" or an "intentional failure to determine ... any lawful basis for such refusal").
Harrington argues that he produced substantial evidence on the "intentional-failure-to-determine" element and argues that a summary judgment is inappropriate as to the element of "actual knowledge of the absence of any legitimate or arguable reason."
A summary judgment is proper where there is "no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law." Ala.R.Civ.P. 56(c). The burden of showing that this standard is met is the movant's. If the movant makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to rebut that showing by presenting evidence creating a genuine issue of material fact. Stephens v. City of Montgomery, 575 So. 2d 1095, 1097 (Ala. 1991). To rebut the movant's prima facie showing, the nonmovant must produce, in support of his or her claim, "substantial evidence" creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
As to whether Landmark had "actual knowledge of the absence of any legitimate or arguable reason" for its initial refusal to pay, Harrington argues that "this is a fact question which is not appropriate for disposition by summary judgment." We disagree. As stated, a summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c).
Harrington presented no proof that Landmark had "actual knowledge of the absence of any reasonably legitimate or arguable reason" for its refusal to pay (e.g., knowledge of the Lambert decision), to rebut Landmark's prima facie showing that it had no such knowledge. Accordingly, the summary judgment was proper as to any bad faith claim by Harrington based on the allegation that Landmark had actual knowledge of the absence of any legitimate or arguable reason to refuse to pay.
Harrington argues alternatively, however, that he produced substantial evidence that Landmark intentionally failed "to determine the existence of a lawful basis" for its denial, i.e., intentionally failed to investigate his claim. Harrington argues that Landmark must have acted intentionally, because, he argues, this is the logical and reasonable inference to be drawn from its claimed or apparent ignorance of the Lambert decision. Harrington states: "The holding in Lambert has been the law of Alabama for 19 years. It is inconceivable an insurer issuing policies in Alabama containing UM coverage would be unaware of this fact." We disagree with Harrington's argument that the fact of this mistake of law is evidence of a conscious intent to injure.
We have stated, "Since recognizing the tort of bad faith in Alabama, this Court has held that proof of mere negligence or mistake is not sufficient to support a claim of bad faith; there must be a ... conscious intent to injure." Davis v. Cotton States Mut. Ins. Co., 604 So. 2d 354 (Ala.1992). In this instance, Landmark made a prima facie showing that it had been mistaken as to the applicable law; and, like most mistakes, Landmark's mistake could have been avoided by the use of more care. However, Harrington presented no evidence to rebut Landmark's *327 prima facie showing, i.e., no evidence that Landmark's "mistake" was the product of a conscious intent to injure Harrington.
In Gillion v. Alabama Forestry Ass'n, 597 So. 2d 1315 (Ala.1992), we addressed a situation similar to this one. In that case, a widow/beneficiary sued SAFECO, alleging bad faith, because it had denied coverage on a group life insurance policy insuring her husband. Policy language provided that if the husband was not actively working when he was originally scheduled to become insured, then he became insured on the first day thereafter that he returned to active work. According to information provided by the widow, it appeared that the husband had been continuously unable to work during the time he was a SAFECO policyholder, and therefore, that he never became insured. SAFECO denied coverage, but wrote to the widow:
Id. at 1318.
On a claim of bad faith based on an "intentional-failure-to-investigate" theory, we held:
597 So. 2d at 1321.
Similarly, in the present case, Swenson discovered policy language that clearly appeared to give Landmark a lawful basis for its initial refusal to pay the claim. She wrote to Harrington's attorney, "If you have any information which would alter our decision, please contact me immediately." Once informed of the Lambert decision (which was also initially undiscovered by Harrington's attorney), Landmark acted within three days to reverse its position.
Based on the foregoing, we affirm the summary judgment as to Harrington's bad faith claim.
On his breach of contract claim, Harrington argues that Landmark breached its contract of insurance with his employer by its "inaction ... in dealing with a claim involving what is often referred to as a `phantom' motorist." Harrington states that this inactivity occurred between the time of "Harrington's initial notice to Landmark of an uninsured motorist claim until the filing of Landmark's suit." Based on the record, this would have been between January 16, 1991, and March 11, 1991.
We are not persuaded by Harrington's arguments that the delay amounted to a breach of contract. We note, for example, that Landmark agreed to pay Harrington's claim, in a then undetermined amount, approximately a month after he made it.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur.
[1] This of course, was not responsive to the question raised by Swenson, whether the "contact requirement" of the policy precluded coverage.
[2] Although in regard to the breach of contract claim the defendants argue that there was no breach, they do not make that argument as to the bad faith claim. | July 30, 1993 |
6c0db53d-4201-4dfd-a85f-b2656884c6ee | Lopez v. Home Buyers Warranty Corp. | 628 So. 2d 361 | 1920330 | Alabama | Alabama Supreme Court | 628 So. 2d 361 (1993)
Juliette G. LOPEZ,
v.
HOME BUYERS WARRANTY CORPORATION, et al.
1920330.
Supreme Court of Alabama.
August 20, 1993.
Rehearing Denied September 24, 1993.
*362 Jere L. Beasley and J. Cole Portis of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for appellant.
Philip S. Gidiere, Jr. of Carpenter & Gidiere, Montgomery, for appellees.
SHORES, Justice.
Juliette Lopez filed an "appeal" from an order of the Circuit Court of Montgomery County compelling her to arbitrate her claims against Home Buyers Warranty Corporation II ("Home Buyers"). The issue here is whether a claim based on a homeowner's warranty is subject to arbitration under the provisions of the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-15.
Because "a petition for a writ of mandamus is the proper means to test a trial court's granting of a motion to arbitrate," Ex parte Alexander, 558 So. 2d 364, 365 (Ala. 1990), we treat Lopez's filing, although it was in the form of an appeal, as a petition for a writ of mandamus requiring the Montgomery Circuit Court to vacate its order compelling arbitration. See A.G. Edwards & Sons, Inc. v. Clarke, 558 So. 2d 358, 360 (Ala.1990). We grant the writ.
Mrs. Lopez and her husband purchased a house in Montgomery, Alabama, from Mr. and Mrs. Glen Browder on August 31, 1989. The Browders had listed the house with, and the sale was conducted in part through agents of, Aronov Realty Company, Inc. ("Aronov"). The Lopezes executed the closing documents on the house while they were in Key West, Florida.[1] The house was covered by a Home Buyers warranty against specified defects. This warranty was issued in 1988 from the Home Buyers office in Denver, Colorado, to the Browders, as the original homeowners. Under the terms of the warranty, a Home Buyers representative was to inspect the house during its construction. The warranty coverage transferred to the Lopezes when they bought the house from the Browders.
Mrs. Lopez moved into the house in June 1990; shortly thereafter, she noticed cracks in the floors and noticed other structural defects. Her attorney notified Home Buyers' regional office in Tucker, Georgia, by letter dated March 1, 1991, of her potential claim under her Home Buyers warranty. A representative from Home Buyers' warranty service office in Denver, Colorado, wrote Mrs. Lopez on March 6, 1991, and informed her of the procedure for filing a claim for coverage of structural damage under her warranty. On April 19, 1991, Mrs. Lopez sued Home Buyers for recovery of the costs of structural repairs to her house. She also sued Aronov, alleging fraud in regard to the sale of the house.
*363 Home Buyers moved to dismiss, or, in the alternative, to compel arbitration under the terms of the arbitration clause contained in the warranty. That arbitration clause states, in part:
On October 19, 1992, the trial court ordered Mrs. Lopez to submit her claims against Home Buyers to arbitration under the terms of the warranty contract. The claims against Aronov have been stayed pending our ruling on the enforceability of the arbitration clause. Although the trial court's order compelling arbitration purported to "dismiss" Mrs. Lopez's claims against Home Buyers, we understand that "dismissal" to be in reality a stay of the proceedings against Home Buyers pending arbitration.
Under Alabama law, the specific enforcement of a predispute arbitration agreement violates public policy unless federal law preempts state law. See § 8-1-41(3), Ala.Code 1975; Wells v. Mobile County Bd. of Realtors, Inc., 387 So. 2d 140, 144 (Ala. 1980); Bozeman v. Gilbert, 1 Ala. 90, 91 (1840). "The FAA applies to a transaction within this state if the contract [1] involves interstate commerce and [2] contains an arbitration clause voluntarily entered into by the parties." A.J. Taft Coal Co. v. Randolph, 602 So. 2d 395, 397 (Ala.1992), citing Ex parte Alabama Oxygen Co., 452 So. 2d 860 (Ala. 1984). To determine whether federal law preempts our public policy against enforcement of predispute agreements to arbitrate, we must examine whether the warranty agreement containing the arbitration provision involves interstate commerce. Ex parte Jones, 628 So. 2d 316 (Ala.1993).
Home Buyers argues that the warranty agreement involves interstate commerce, and, because this dispute arose out of the warranty agreement, that the FAA must apply. In so arguing, Home Buyers relies on the "slightest nexus" test of Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala. 1986), wherein the existence of the slightest nexus between an agreement and interstate commerce would bring the agreement within the ambit of the FAA, thus allowing enforcement of a predispute arbitration provision within the agreement. Id. at 1275.
However, we have recently overruled the Costa & Head "slightest nexus" test in favor of the more reasoned approach of the "contemplation" test applied in Ex parte Warren, 548 So. 2d 157 (Ala.), cert. denied sub nom. Jim Skinner Ford, Inc. v. Warren, 493 U.S. 998, 110 S. Ct. 554, 107 L. Ed. 2d 550 (1989). Ex parte Jones, supra, 628 So. 2d at 318. The Warren test examines whether the parties "contemplated substantial interstate activity" at the time they entered into the contract and accepted the arbitration clause.[2]Ex parte Warren, supra, at 160. Whether the parties contemplated substantial interstate commerce is, of course, to be determined by the facts and circumstances of each case.
The trial court applied the slightest nexus test when it compelled arbitration:
Mrs. Lopez contends that there is insufficient involvement with interstate commerce to require arbitration, because the house was built in Alabama by an Alabama builder for an Alabama resident and was listed for sale through an Alabama real estate agency. Home Buyers points to possible interstate activity by the Lopezes during their purchase and financing of the house, to support its contention that there was sufficient involvement with interstate commerce to require arbitration. "However, for the FAA to apply, the agreement that contains the predispute arbitration provision must involve interstate commerce." Ex parte Jones, supra, 628 So. 2d at 317 (emphasis original). That agreement in this case is the Home Buyers warranty, not the contract for purchase of the house. The warranty does not involve "the production of articles to be shipped in interstate commerce," Continental Grain Co., supra, 628 So. 2d at 323; nor does it require the use of specific materials made by and shipped from out-of-state manufacturers. Ex parte Brice Bldg. Co., 607 So. 2d 132, 134 (Ala.1992); Maxus, Inc. v. Sciacca, 598 So. 2d 1376, 1379 (Ala.1992).
Although Home Buyers contends that under the warranty Mrs. Lopez would have to file a claim in either Georgia or Colorado, we have determined that "[t]he mere use of the telephone and mail by persons in different states to communicate about activity that is purely local" is not a sufficient contact with interstate commerce to require application of the FAA. First Real Estate Corp. of Alabama v. Brown Marx Tower Ltd. Partnership, 620 So. 2d 648 (Ala.1993).[3] Furthermore, it is the scope of the contract containing the arbitration clause, and not the place of performance, that determines the applicability of the FAA when using the "contemplation" test. Continental Grain Co., supra, citing Circle "S" Industries, Inc. v. Berryman, 613 So. 2d 329, 331 (Ala.1993).
In this case, we find no evidence that the parties contemplated substantial interstate activity when they entered into the warranty contract. Therefore, the FAA does not apply. We hold that, under the "contemplation" test, Mrs. Lopez is not required to submit her warranty claims with Home Buyers to arbitration. See Ex parte Alexander, 558 So. 2d 364, 366 (Ala.1990). The writ is due to be granted for the foregoing reasons.
WRIT GRANTED.
HORNSBY, C.J., and ALMON, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
INGRAM, J., concurs in the result.
MADDOX and ADAMS, JJ., dissent.
MADDOX, Justice (dissenting).
I disagree with the majority's use of the "contemplation" test for determining whether the particular transaction involves interstate commerce for purposes of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. Furthermore, I disagree with the majority's conclusion that the trial court erred in compelling arbitration of Mrs. Lopez's claims.
The threshold question is whether the FAA applies to this case. If the Act applies, as I believe it does, then the predispute arbitration agreement is enforceable, see 9 U.S.C. § 2, and whether the agreement would otherwise be unenforceable under Alabama law, see Ala.Code 1975, § 8-1-41(3), would be immaterial.
Does the home warranty agreement involve interstate commerce so as to invoke the *365 FAA and thereby render the arbitration agreement enforceable? I believe that it does.
Section 2 of the FAA provides, in pertinent part, that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction... shall be valid, irrevocable, and enforceable." As the United States Supreme Court has held, in enacting this section, "Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.... Congress has thus mandated the enforcement of arbitration agreements." Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S. Ct. 852, 858, 79 L. Ed. 2d 1 (1984). The Supreme Court noted in Keating that the FAA "permits `parties to an arbitrable dispute [to move] out of court and into arbitration as quickly and easily as possible," 465 U.S. at 7, 104 S. Ct. at 856 (quoting in part Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22, 103 S. Ct. 927, 940, 74 L. Ed. 2d 765 (1983)) (bracketed words added in Keating). The Supreme Court also noted: "Contracts to arbitrate are not to be avoided by allowing one party to ignore the contract and resort to the courts. Such a course could lead to prolonged litigation, one of the very risks the parties, by contracting for arbitration, sought to eliminate." Id.
The United States Supreme Court has also characterized the FAA as "a statute that embodies Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause." Perry v. Thomas, 482 U.S. 483, 490, 107 S. Ct. 2520, 2526, 96 L. Ed. 2d 426 (1987). The House Judiciary Committee Report on the arbitration bill also reflects Congress's intent. That report states in part: "Arbitration agreements are purely matters of contract, and the effect of the bill is simply to make the contracting party live up to his agreement. He can no longer refuse to perform his contract when it becomes disadvantageous to him. An arbitration agreement is placed upon the same footing as other contracts, where it belongs." H.R.Rep. No. 96, 68th Cong., 1st Sess. 1 (1924); see also Ex parte Alabama Oxygen Co., 433 So. 2d 1158, 1170 (Ala.1983) (Maddox, J., dissenting). In Alabama Oxygen, after remand from the United States Supreme Court for further consideration in light of Keating, this Court adopted my dissent as its opinion. Ex parte Alabama Oxygen Co., 452 So. 2d 860, 861 (Ala.1984); see also Ex parte McKinney, 515 So. 2d 693 (Ala.1987).
This Court held in Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala.1986), that "[t]he requirement of the FAA that an arbitration agreement `involve interstate commerce' has been construed very broadly so that the slightest nexus of the agreement with interstate commerce will bring the agreement within the ambit of the FAA." 486 So. 2d at 1275 (citations omitted). I realize that a majority of this Court rejected this "slightest nexus" test in Ex parte Jones, 628 So. 2d 316 (Ala.1993), but I believe that Jones is wrong. See Jones, 628 So. 2d at 318 (Maddox, J., dissenting); and Continental Grain Co. v. Beasley, 628 So. 2d 319 (Ala.1993) (Maddox, J., concurring in the result).
For the reasons cited by the trial court in that part of its order quoted in the majority opinion, I believe that the home warranty agreement, which was transferred to Mrs. Lopez, meets the "slightest nexus" test and that the trial court properly compelled arbitration of the claims; therefore, I respectfully dissent.
[1] The closing documents were sent back and forth between Key West and Montgomery by fax and by private courier. Mr. and Mrs. Lopez closed the purchase on their house with the help of their attorney, who was also in Key West.
[2] The standard in Warren better promotes our strong public policy against the use of predispute arbitration agreements. Its "contemplation" test is to be applied exclusively in determining whether a contract involves interstate commerce for purposes of applying the FAA to arbitration disputes. Continental Grain Co. v. Beasley, 628 So. 2d 319 (Ala.1993).
[3] Although First Real Estate Corp. applied the old "slightest nexus" test in finding insufficient involvement with interstate commerce to require arbitration, its reasoning is certainly applicable to the stricter test required by Ex parte Warren and Ex parte Jones. In First Real Estate Corp., a New York partnership and an Alabama corporation with its principal place of business in New York were found to have insufficient contacts with interstate commerce in a dispute over an Alabama corporation's management of their property within Alabama. | August 20, 1993 |
a86f8406-ef6e-4613-8e4f-6483d1b0c531 | Thomas v. BSE Indus. Contractors, Inc. | 624 So. 2d 1041 | 1920315 | Alabama | Alabama Supreme Court | 624 So. 2d 1041 (1993)
Joel E. THOMAS
v.
BSE INDUSTRIAL CONTRACTORS, INC., et al.
1920315.
Supreme Court of Alabama.
August 20, 1993.
*1042 J. William Lewis and Ronald T. Dudley of Environmental Litigation Group, P.C., Birmingham, for Joel E. Thomas.
Patricia K. Rea of Clark & Scott, P.C., Birmingham, for BSE Indus. Contractors, Inc.
C. Lee Reeves and James S. Williams of Sirote & Permutt, P.C., Birmingham, for D & L Engineers, Inc.
Robert D. Hunter, Augusta S. Dowd and David J. Duke of Lange, Simpson, Robinson & Somerville, Birmingham, for Frank J. Koncewicz.
ALMON, Justice.
Joel Thomas appeals from a summary judgment in favor of the defendants BSE Industrial Contractors, Inc., D & L Engineers, Inc., and Frank Koncewicz, on his claim alleging the tort of outrageous conduct ("outrage"). The issue is whether Thomas presented substantial evidence in support of his claim that the defendants committed the tort of outrage by failing to warn him of the presence of asbestos-filled insulation in his work area. Thomas was an employee of BSE.
In 1990, USX Corporation decided to to install approximately 288 infrared heaters in its sheet mill facility in Fairfield, Alabama. Frank Koncewicz, the project engineer for USX, hired F.J. Evans Company and D & L Engineers to develop plans for the heater project. The Evans Company provided information concerning the best type of heater for the project and how the heaters should be positioned for optimum performance. D & L provided an instructive drawing showing how the heaters should be installedthe drawing illustrated that the heaters should be hung by chains from existing pipes or portions of the building structure in the sheet mill facility.
USX then prepared a "bid package" for the project and sent it to several contractors; the bid package included the D & L drawing and the general specifications for the project. The materials in the bid package specifically warned the contractors that asbestos was present in the area where the heaters were to be hung.
After the bidding process was completed, USX awarded the job to BSE. At a "kick-off" meeting between Koncewicz and Phillip Contorno, BSE's supervisor for the project, Koncewicz told Contorno that BSE was not to disturb any insulation on the pipes because some of it contained asbestos. Koncewicz also told Contorno that if BSE did disturb any insulation during the project, it should notify Koncewicz, who would then have the insulation removed by a qualified asbestos abatement contractor.
Contorno testified in his deposition that Koncewicz told him that the BSE employees could hang heaters from pipes where the insulation was in good condition, but not where the insulation was "raggedy." Contorno testified that just as work on the project was getting underway he imparted this information to two BSE supervisors and four BSE laborers who were responsible for hanging the heaters. Thomas had not yet begun to work on the heater project, and he therefore was not privy to this information. Koncewicz, however, denied that he had told Contorno that BSE could hang heaters from pipes that were covered by insulation that was in good condition.
Thomas worked on the heater project for several weeks during November and December 1990. He testified that his crew hung many heaters by chains from pipes that were covered by insulation. He testified that most of this insulation was in very poor condition and that dust and debris would fall on him as he secured the chain around the pipe. He also testified that an overhead crane used on the job caused the insulated pipes to vibrate, thereby releasing more dust in his vicinity as he worked on the heaters. Although fairly early in the job a USX supervisor or employee did tell Thomas not to knock any insulation *1043 off the pipe, Thomas stated that this USX representative did not inform him that the insulation contained asbestos. Thomas testified that he was not apprised of the fact that the insulation covering the pipes in the sheet mill contained asbestos until the job was nearly completed. Because of this, Thomas did not wear any protective respiratory devices or protective clothing while working on the heater project.
After discovering that the insulation in the work area contained substantial amounts of asbestos,[1] Thomas brought an action in the United States District Court for the Northern District of Alabama against USX based on its failure to warn him of the asbestos, on theories of outrage, negligence, gross negligence, and wantonness ("Thomas I"). Judge Sam C. Pointer entered a summary judgment in favor of USX on Thomas's negligence and wantonness claims, holding that these claims had not accrued, because of Thomas's lack of a demonstrable clinical injury from the asbestos exposure. Judge Pointer also entered a summary judgment on the outrage claim, holding that USX's conduct was not "extreme and outrageous" under the test enunciated by this Court in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1981). Judge Pointer stated that because the evidence showed that USX had, in the documents contained in the bid package, notified BSE of the presence of the asbestos and that Koncewicz had informed Contorno orally of the presence of the asbestos, there was no substantial evidence that USX's conduct was "atrocious and utterly intolerable" and therefore no jury question on the outrage claim. Thomas appealed Judge Pointer's decision to the Eleventh Circuit Court of Appeals.
After Judge Pointer entered a summary judgment for USX, Thomas brought this action against Koncewicz, BSE, and D & L Engineering in the Jefferson County Circuit Court ("Thomas II"). Soon thereafter, Thomas's counsel filed in the same court a complaint against USX, D & L, and BSE on behalf of John Moncrief, Thomas's coworker, for injuries allegedly incurred by the exposure to asbestos during the heater project; this action was later removed to the District Court for the Northern District of Alabama. After removal, Judge Seybourne Lynne dismissed BSE from the Moncrief action; he also entered a summary judgment in favor of USX and D & L, holding that the conduct of these parties could not be characterized as "extreme or outrageous." Following Judge Lynne's ruling, the Jefferson County Circuit Court entered a summary judgment as to all the defendants in Thomas II. Soon after the circuit court ruled in Thomas II, the Eleventh Circuit Court of Appeals affirmed, per curiam and without opinion, Judge Pointer's decision in Thomas I.
The applicable standard for this Court's review of a summary judgment is the substantial evidence rule. Under this rule, once the movant has shown, prima facie, that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law, the nonmovant must introduce substantial evidence to rebut this showing. A.R.Civ.P. 56; Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
This Court first recognized the tort of outrage, or intentional infliction of emotional distress, in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1981). In Inmon, the Court held that to present a jury question the plaintiff must present sufficient evidence that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. The Court defined the second element of the tort of outrage as follows: "By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as *1044 atrocious and utterly intolerable in a civilized society." Inmon, 394 So. 2d at 365 (quoting Restatement (Second) of Torts, § 46 cmt. d, at 72 (1948)).
Thomas alleges that the defendants intentionally exposed him to unacceptable levels of risk by requiring him to work near deteriorated insulation that they knew contained asbestos, without warning him of the presence of the asbestos. Thomas presents as support for these allegations an internal memo concerning the heater project prepared by Koncewicz; in this document, Koncewicz stated that the steam piping in the sheet mill facility was badly deteriorated and that repair would be costly because the piping was covered by insulation containing asbestos. Thomas also seeks to buttress these allegations by showing that USX violated several OSHA regulations pertaining to asbestos and that USX violated its own asbestos policy. Moreover, Thomas argues that Tom Alley and Bob Parduethe D & L employees who drafted the sample drawingalso knew that the pipes in the sheet mill were covered by asbestos-laden insulation, but nevertheless recommended that the heaters be hung exclusively from these pipes. Thomas argues that, given the vast amount of medical evidence now available concerning the deleterious effects of asbestos, the actions of the defendants constitute "extreme and outrageous" conduct.
This Court has consistently held that the tort of outrage is a very limited cause of action that is available only in the most egregious circumstances. As a consequence, this Court has held in a large majority of the outrage cases reviewed that no jury question was presented. See, e.g., Mohacsy v. Holiday Inns, Inc., 603 So. 2d 956 (Ala.1992); Moore v. Spiller Associated Furniture, Inc., 598 So. 2d 835 (Ala.1992); Bloodsworth v. Morgan, 593 So. 2d 55 (Ala.1991); Butler v. Aetna Finance Co., 587 So. 2d 308 (Ala.1991); Baker v. State Farm General Ins. Co., 585 So. 2d 804 (Ala.1991); Anderton v. Gentry, 577 So. 2d 1261 (Ala.1991); Farley v. CNA Ins. Co., 576 So. 2d 158 (Ala.1991); Goodwin v. Barry Miller Chevrolet, Inc., 543 So. 2d 1171 (Ala.1989); Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208 (Ala.1988); Lumpkin v. Cofield, 536 So. 2d 62 (Ala.1988); Gallups v. Cotter, 534 So. 2d 585 (Ala.1988); Williams v. Marcum, 519 So. 2d 473 (Ala.1987); Handley v. Richards, 518 So. 2d 682 (Ala.1987); Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602 (Ala.1987); Jackson v. Colonial Baking Co., 507 So. 2d 1310 (Ala.1987); Therrell v. Fonde, 495 So. 2d 1046 (Ala.1986); McIsaac v. WZEW-FM Corp., 495 So. 2d 649 (Ala.1986); Surrency v. Harbison, 489 So. 2d 1097 (Ala.1986); Logan v. Sears, Roebuck & Co., 466 So. 2d 121 (Ala. 1985). In fact, in the 12 years since Inmon was decided, all cases in which this Court has found a jury question on an outrage claim have fallen within only three categories: 1) cases having to do with wrongful conduct in the context of family burials, see Whitt v. Hulsey, 519 So. 2d 901 (Ala.1987) (reckless desecration of family burial ground by adjacent landowner sufficient to present a jury question as to claim of outrage), Levite Undertakers Co. v. Griggs, 495 So. 2d 63 (Ala. 1986) (defendant undertaker's wrongful retention of the remains of plaintiff's husband to force payment of funeral expenses sufficient to present a jury question as to claim of outrage), and Cates v. Taylor, 428 So. 2d 637 (Ala.1983) (defendant's withdrawal of permission to use a burial plot 30 minutes before the planned burial sufficient to present a jury question on claim of outrage); 2) a case where insurance agents employed heavy-handed, barbaric means in attempting to coerce the insured into settling an insurance claim, National Security Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala.1983); and 3) a case involving egregious sexual harassment, Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala.1989).
Given the limited nature of this cause of action, as indicated by the above-cited cases, we hold that the conduct of the defendants Koncewicz and D & L Engineering cannot be characterized as "atrocious and utterly intolerable in a civilized society." Inmon, 394 So. 2d at 365. Although USX may well have failed to comply with certain OSHA regulations and regulations of its own concerning asbestos, there is in the record evidence that Koncewicz did personally warn Contorno of the presence of asbestos in Thomas's work area. Furthermore, the record *1045 reveals that Koncewicz provided BSE with documents that specifically warned of asbestos in the work area. In light of this evidence, Koncewicz's conduct clearly is not sufficiently reprehensible to support a claim of outrage.
Nor does the conduct of D & L Engineering rise to such a level. The drawing submitted by D & L does appear to portray one of the heaters hanging from an existing pipe in the sheet mill, and we shall assume for purposes of discussion that Koncewicz and BSE did in fact rely exclusively on the drawing in instructing the BSE employees as to where to hang the heaters. However, a notation on the drawing states that the heaters are to be hung by a chain "around existing pipe or structure." Therefore, the D & L drawing does not recommend that the heaters be hung exclusively from pipes. D & L also points out that the notation refers only to pipes generally, and that only the steam pipes in the sheet mill were covered with asbestos-laden insulation. It argues that other types of pipe in the sheet mill, namely water and air pipes, could have been used hang the heaters, and its drawing did not preclude either USX or the BSE supervisors from instructing the BSE workers to hang the heaters from the water or air pipes. This contention is persuasive, and we therefore hold that D & L's recommendation in its drawing to hang heaters from "existing pipe or structure" cannot be characterized as extreme and outrageous conduct.
The question of "extreme and outrageous conduct" is closer with respect to BSE. Koncewicz denies Contorno's assertion that Koncewicz told him that BSE could hang the heaters from any pipe whose insulation was not "raggedy." Moreover, Thomas was not in the original group of BSE employees and supervisors that Contorno advised in this regard; Thomas began working on the heater-hanging crew at a later time, and he testified that he was never told anything about asbestos by the BSE supervisors. This failure to warn is exacerbated by the fact that BSE, as an independent contractor on the heater project, was contractually and legally responsible for the safety of its employees and by the fact that the record reveals that BSE was warned of the presence of asbestos in the work area.
However, the judgment in favor of BSE is correct, because Thomas presented no substantial evidence that he had suffered emotional distress so severe that a reasonable person could not be expected to endure it. Thomas alleged in his complaint that he is afraid that he will contract cancer because of his exposure to asbestos, and he testified that he feels like a "walking time bomb." These generalized apprehensions do not rise to the level of the extreme, severe emotional distress for which an action will lie, at least because his apprehensions are not supported by any clinical indications that he has been injured by his exposure. When asked about the general emotional distress occasioned by the exposure, Thomas replied:
When, later in his deposition, he was asked specifically about his fear of cancer, Thomas responded:
This testimony does not indicate the severe emotional distress this Court has hitherto required before holding that an outrage claim may be presented to the jury. Cf. Cates v. Taylor, 428 So. 2d 637 (Ala.1983). Thomas argues, however, that this traditional yardstick for measuring emotional distress is inapplicable here because he is aware that any asbestos-related disease will probably *1046 remain dormant for a long time; he cites the Fifth Circuit Court of Appeals' decision in Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th Cir.1986), cert. denied, 478 U.S. 1022, 106 S. Ct. 3339, 92 L. Ed. 2d 743 (1986), as support for the proposition that "cancerphobia" can constitute emotional distress in asbestos cases, even in the absence of present emotional problems.
This Court has no quarrel with the proposition that the fear of cancer may constitute legally cognizable emotional distress in an appropriate case. However, Jackson is inapposite to this situation, because the Jackson plaintiff already had a physical diseaseasbestosisand he presented overwhelming evidence, in the form of expert medical testimony, that he was in fact likely to contract cancer from his exposure to asbestos. The court held that under the circumstances, Jackson's fear was fully justified and constituted a compensable injury even though he had not specifically voiced his fear. The court expressly declined to decide whether the fear of cancer could constitute a compensable injury where the plaintiff is unable to demonstrate that he is likely to contract cancer.
Thomas has not shown that he is likely to contract cancer from his exposure to asbestos. His medical expert, Dr. Michael Conner, testified that Thomas has probably suffered cellular damage from asbestos exposure. However, Dr. Conner's opinion was based entirely on a history given to him by Thomas, and Dr. Conner also stated that Thomas has exhibited no clinically verifiable injury. Although Dr. Conner did state that Thomas "runs a significant risk for the development of future asbestos-related diseases," he was unable to state with any reasonable specificity the probability that Thomas would develop an asbestos-related disease in the future. Therefore, we hold that Thomas's generalized fear of cancer, unsupported by any clinical evidence, does not rise to the level of "severe emotional distress" necessary to present a jury question on the tort of outrage.
For the foregoing reasons, the judgment of the trial court is hereby affirmed.
AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Thomas removed a piece of the insulation from the sheet mill facility and had it analyzed at the laboratories of ERG Engineering, Inc. The ERG report reveals that the insulation contained substantial amounts of asbestos. | August 20, 1993 |
e859aced-8dde-436b-a153-8fff52e882a5 | Ex Parte State Ex Rel. VETP | 646 So. 2d 551 | 1920526 | Alabama | Alabama Supreme Court | 646 So. 2d 551 (1993)
Ex parte STATE of Alabama ex rel. V.E.T.P.
(Re STATE of Alabama ex rel. V.E.T.P. v. E.W.T.)
1920526.
Supreme Court of Alabama.
August 27, 1993.
William Prendergast and Lois Brasfield, Asst. Attys. Gen., for petitioner.
Leon Garmon and Michael L. Allsup, Gadsden, for respondent.
KENNEDY, Justice.
The State, through its Department of Human Resources, petitioned for certiorari review of the Court of Civil Appeals' judgment denying a writ of mandamus in a paternity case when paternity had been adjudicated in 1989 by a default divorce judgment.
The facts in this case are as follows: V.E.T.P. and E.W.T. were married on March 15, 1979. Their child R.J.K.[1] had been born on November 14, 1976, and E.K., the subject of this case, was born on December 5, 1978, to V.E.T.P.
On February 17, 1989, V.E.T.P. sued for divorce. On July 27, 1989, the trial court entered a default judgment, finding, among other things, that E.W.T. was the father of E.K. and ordering him to pay child support. On August 13, 1992, E.W.T. filed a motion denying that he was the father of E.K. and requesting a blood test.
The district court granted the motion for a blood test on October 7, 1992. DHR petitioned the Court of Civil Appeals for a writ of mandamus ordering the trial court to withdraw its order for the blood test. The Court of Civil Appeals denied the writ, without an opinion.
At the outset, we note that 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; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte State ex rel. Harrell, 588 So. 2d 868 (Ala.1991). The issue in this case is whether the Court of Civil Appeals erred in denying the writ of mandamusspecifically, whether the doctrine of res judicata *552 barred E.W.T. from challenging the adjudication as to E.K.'s paternity.
Recently, this Court released Ex parte W.J., 622 So. 2d 358 (Ala.1993). In that case, W.J. filed a Rule 60(b), Ala.R.Civ.P., motion for relief from judgment in 1991, arguing that blood tests conclusively proved that he was not the father of a minor child that had been the subject of a 1981 paternity adjudication. The trial court set aside the 1981 paternity adjudication, finding that W.J. was not the father of the child. The Court of Civil Appeals reversed the trial court's order, holding that the doctrine of res judicata barred relitigation of the paternity determination. We affirmed the judgment of the Court of Civil Appeals, holding that because W.J. had failed to appeal from the 1981 judgment and had failed to seek relief from the judgment pursuant to Rule 60(b) within a reasonable time, the trial court should not have considered W.J.'s motion. The doctrine of res judicata prevents the same parties from relitigating issues determined by a court of competent jurisdiction; therefore, W.J. was barred from challenging paternity. Ex parte W.J., 622 So. 2d at 302.
In this case, E.W.T. did not answer or appear in the divorce proceeding, and a default judgment was entered against him on July 29, 1989. The trial court specifically held in the judgment that E.K. was a child of the marriage. E.W.T. did not timely move to set aside the default judgment pursuant to Rule 55(c), A.R.Civ.P., and he did not appeal from the judgment. Neither did he file a Rule 60(b) motion for relief from the judgment. Even if E.W.T. had timely filed a Rule 60(b) motion, we would conclude that he has shown nothing to indicate that he is entitled to extraordinary relief pursuant to Rule 60(b).
Based on the foregoing, the Court of Civil Appeals erred in denying the petition for the writ of mandamus. Therefore, we reverse that court's judgment and remand the cause with instructions to issue a writ of mandamus ordering the Etowah County District Court to withdraw its order for the blood test intended to determine the paternity of E.K.
REVERSED AND REMANDED.[*]
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] E.W.T. had been found to be the father of R.J.K. by the district court on December 20, 1977.
[*] Note from the reporter of decisions: The Court of Civil Appeals had denied the writ of mandamus, without opinion (AV92000058). On remand from the Supreme Court, the Court of Civil Appeals on September 21, 1993, issued the writ of mandamus, without opinion. | August 27, 1993 |
f9255618-4aec-4864-972c-a822312dfdf5 | Patterson v. Hays | 623 So. 2d 1142 | 1920538, 1920722 | Alabama | Alabama Supreme Court | 623 So. 2d 1142 (1993)
Larry Dewayne PATTERSON, Sr., et al.
v.
Dr. Leonard John HAYS III.
Larry Dewayne PATTERSON, Sr., et al.
v.
Dr. Leonard John HAYS III, and Dr. John Hugh Campbell.
1920538, 1920722.
Supreme Court of Alabama.
July 30, 1993.
*1143 Leon Garmon and Michael L. Allsup, Gadsden, for Larry Dewayne Patterson, Sr., et al.
Thomas W. Christian, Robert E. Cooper and Deborah Alley Smith of Rives & Peterson, Birmingham, for Dr. Leonard John Hays III.
W. Stancil Starnes, Walter W. Bates and Scott M. Salter of Starnes & Atchison, Birmingham, for Dr. John Hugh Campbell.
HOUSTON, Justice.
In # 1920538, the plaintiffs appeal the trial court's denial of their Rule 60(b), Ala.R.Civ. P., motion for relief from judgment (CV-89-759); and in # 1920722, the plaintiffs appeal the trial court's dismissal of their claim for damages for personal injuries (CV-92-937). The cases are procedurally complex.
September 15, 1989: Original complaint filed in # 1920538 by Larry Dewayne Patterson, Sr., on behalf of himself and his wife Christie Michelle Patterson, who was physically and mentally incapacitated, against Dr. Leonard John Hays III, alleging medical malpractice and seeking compensatory and punitive damages for personal injuries to Christie. Larry Sr. individually claimed damages for loss of consortium.
May 22, 1990: Amended complaint adding Dr. John Hugh Campbell, seeking damages for personal injuries to Christie.
October 23, 1990: Amended complaint adding claim by Larry Dewayne Patterson, Jr., the minor child of the Pattersons, against Dr. Hays for loss of the society and consortium of Larry Jr.'s mother.
November 2, 1990: Dr. Hays moved to dismiss Larry Jr.'s loss of society and consortium claim.
December 21, 1990: Dr. Campbell moved for summary judgment on all claims against him.
March 14, 1991: The trial court dismissed Larry Jr.'s loss of society and consortium claim on the grounds that there was no such cause of action in Alabama. No appeal was taken.
March 27, 1991: The trial court entered a summary judgment for Dr. Campbell on all claims against him and made the judgment final pursuant to Rule 54(b), Ala.R.Civ.P. No appeal was taken.
May 8, 1991: Forty-second day from the entry of the summary judgment for Dr. Campbell.
October 8, 1991: Christie died.
October 16, 1991: Amended complaint by Larry Sr. against Dr. Hays for damages for personal injuries suffered by Christie from the time of the allegedly negligent treatment in November 1988 to her death on October 8, 1991, for damages for wrongful death, and for damages for loss of consortium; and by Larry Jr. against Dr. Hays for loss of consortium.
November 1, 1991: Dr. Hays moved to dismiss the personal injury claim against him.
May 22, 1992: The trial court dismissed the personal injury claim against Dr. Hays and Larry Jr.'s loss of consortium claim, and the case was tried on the wrongful death claim and Larry Sr.'s loss of consortium claim.
June 17, 1992: Jury verdict for Dr. Hays on the wrongful death claim and on Larry Sr.'s loss of consortium claim.
June 19, 1992: Judgment entered on the jury verdict.
August 3, 1992: The trial court denied Larry Sr. and Larry Jr.'s motion for judgment notwithstanding the verdict, or, in the *1144 alternative, for a new trial. No appeal was taken.
September 4, 1992: King v. National Spa & Pool Institute, Inc., 607 So. 2d 1241 (Ala. 1992), decided.
September 14, 1992: Expiration of the 42 days for appeal from the August 3 ruling.
October 23, 1992: Larry, Sr. and Larry, Jr. filed a Rule 60(b)(5) and (b)(6), Ala. R.Civ.P., motion for relief from judgment.
December 29, 1992: The trial court denied the Rule 60(b) motion.
December 31, 1992: Larry Sr. and Larry Jr. appeal from the trial court's denial of their Rule 60(b) motion. Appeal # 1920538 involves Dr. Hays; it does not involve Dr. Campbell.
On September 15, 1989, Larry Dewayne Patterson, Sr., on behalf of himself and his wife Christie Michelle Patterson, who was physically and mentally incapacitated, sued Dr. Leonard John Hays III and (by amendment) Dr. John Hugh Campbell, alleging medical malpractice and seeking compensatory and punitive damages for personal injuries to Christie.[1] Larry DeWayne Patterson, Sr., individually, sued Dr. Hays for loss of consortium. Larry Dewayne Patterson, Jr., the minor child of the Pattersons, sued Dr. Hays and Dr. Campbell for loss of his mother's society and consortium; the trial court dismissed this claim for failure to state a claim upon which relief could be granted.
Dr. Campbell moved for a summary judgment on all claims against him; the trial court granted his motion and made the summary judgment final pursuant to Rule 54(b), Ala.R.Civ.P. The Pattersons did not appeal from the judgment for Dr. Campbell.
On October 7, 1991, the case proceeded to trial on the Pattersons' claims against Dr. Hays based on Christie's alleged personal injuries. On October 8, 1991, Christie died; after her death the trial court declared a mistrial and dismissed the jury. On October 15, 1991, Larry Sr. moved for substitution, deletion, and realignment of the parties, which the trial court granted. The following day, Larry Sr. and Larry Jr. filed an amended complaint that "supplant[ed] and supersede[d] the complaint and all prior amendments thereto." In count one of this amended complaint, Larry Sr. and Larry Jr. sought compensatory and punitive damages from Dr. Hays for negligently and wantonly causing the personal injuries suffered by Christie in November 1988, as a result of the alleged malpractice, and for causing her to endure pain and suffering until her death on October 8, 1991; in count two they sought punitive damages from Dr. Hays for the wrongful death of Christie. In count three, Larry Sr. sought damages from Dr. Hays for loss of consortium; and in count four, Larry Jr. sought damages for Dr. Hays for loss of his mother's society and consortium.
Dr. Hays moved to strike or to dismiss the personal injury claims against him and to dismiss the claim by Larry Jr. for loss of his mother's society and consortium. The trial court granted the motions. The case, therefore, proceeded to trial "as a wrongful death case" and on Larry Sr.'s loss of consortium claim. The jury rendered a verdict for Dr. Hays; the trial court entered a judgment on that verdict. Larry Sr. and Larry Jr. moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial, which the trial court denied on August 3, 1992. They did not appeal.
Approximately one month later, within the time allowed for Larry Sr. and Larry Jr. to appeal, this Court released its opinion in King v. National Spa & Pool Institute, Inc., 607 So. 2d 1241 (Ala.1992), substantially changing the law in Alabama. King held that an action for personal injuries survives the death of an injured plaintiff even if the death occurs as the result of the personal injuries that were the subject of the pending action and that in such a case the personal *1145 injury action may be prosecuted along with a wrongful death action.
Larry Sr. and Larry Jr. argue that, because King overruled every authority on which the trial court had relied in dismissing their personal injury claim against Dr. Hays, it would be inequitable and manifestly unjust to allow the dismissal to stand. Consequently, based on the holding in King, they filed a Rule 60(b)(5) and (b)(6), Ala.R.Civ.P., motion for relief from the judgment, seeking a trial on their claims for compensatory and punitive damages based on the personal injuries Christie suffered from the date of her alleged injury in November 1988 until her death on October 8, 1991. The trial court denied the Rule 60(b) motion. Larry Sr. and Larry Jr. appeal. We affirm.
Although the holding in King v. National Spa & Pool Institute, supra, substantially changed the law in Alabama, the rule of law announced in King had no retrospective application, but rather affected the King case and "all similar cases pending at the time of [the King] decision." 607 So. 2d at 1246. (Emphasis added.) This case was not pending at the time of the King decision and, therefore, King has no application to this case.
Furthermore, "[a] change of law does not always, or perhaps even often, constitute such changed circumstances as to justify relief," J. Hoffman & S. Guin, Alabama Civil Procedure, § 12.40 (Cumm.Supp.1992). 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). The King decision was totally unrelated to the parties or the circumstances in this case.
In addition, under Rule 60(b)(6), relief is granted only in those extraordinary and compelling circumstances when the party can show the court sufficient equitable grounds to entitle him to relief, but relief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments. See the Comment to Federal Rule of Civil Procedure 60(b). As the Court held in Nowlin v. Druid City Hosp. Bd., 475 So. 2d 469 (Ala.1985), Rule 60 is no substitute for an appeal and is not available to relieve a party from his failure to exercise the right of appeal.
In this case, Larry Sr. and Larry Jr. failed to appeal from the adverse judgment on the personal injury claim, even though the decision in King and the change in the law upon which they rely occurred before the expiration of the time for appeal.
The trial court did not abuse its discretion in denying the Rule 60(b) motion. Therefore, the judgment in # 1920538 is affirmed.
October 5, 1992: New complaint filed by Larry Sr., individually, as administrator of the estate of Christie Patterson, deceased, and as father and next friend of Larry Dewayne Patterson, Jr., against Dr. Hays and Dr. Campbell for medical malpractice, seeking damages for personal injuries suffered by Christie from the date of the alleged injury in November 1988, until her death on October 8, 1991. The complaint also sought damages for Larry Sr. for loss of his wife's consortium and damages for Larry Jr. for loss of his mother's society and consortium.
November 3, 1992: Drs. Hays and Campbell moved the trial court to dismiss this new complaint, claiming that the claims against them were barred by res judicata, collateral estoppel, and the statute of limitations.
January 6, 1993: The trial court dismissed the complaint.
*1146 February 10, 1993: Larry Sr. and Larry Jr. appealed from that dismissal.
On October 5, 1992, "pursuant to King v. National Spa and Pool Institute," Larry Dewayne Patterson, Sr., individually; as administrator of the estate of Christie Patterson, deceased; and as father and next friend of Larry Dewayne Patterson, Jr., sued Dr. Hays and Dr. Campbell for personal injuries suffered by Christie from the date of the alleged injury in November 1988, until her death on October 8, 1991. The complaint alleged medical malpractice against Dr. Hays and Dr. Campbell and sought damages for personal injuries to Christie prior to her death; damages for Larry Sr. for loss of his wife's consortium; and damages for Larry Jr. for loss of his mother's society and consortium. Dr. Hays and Dr. Campbell moved to dismiss the complaint, alleging that the claims were barred by the doctrine of res judicata, the doctrine of collateral estoppel, and the statute of limitations. The trial court granted the motions. Larry Sr. and Larry Jr. appeal from the dismissal. We affirm.
The complaint in appeal # 1920538 and the complaint in appeal # 1920722 both allege that Dr. Hays and Dr. Campbell committed malpractice in the care and treatment of Christie Patterson and that as a proximate result she suffered personal injuries. The same recovery was sought in both cases recovery for personal injuries caused by the malpractice of Dr. Hays and Dr. Campbell; recovery by Larry Sr. for the loss of his wife's consortium because of the personal injuries she suffered; and recovery by Larry Jr. for the loss of his mother's society and consortium caused by the personal injuries she suffered.
The elements of res judicata are (1) a prior judgment on the merits, (2) rendered in a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits. See Thomas v. Lynn, 620 So. 2d 615 (Ala.1993). "Where these elements are present, the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue that was or could have been litigated in the prior action." Garris v. South Alabama Production Credit Association, 537 So. 2d 911, 914 (Ala.1989).
In # 1920538, the summary judgment of March 27, 1991, the dismissals of March 14, 1991, and May 22, 1992, and the judgment of June 19, 1992, on the jury verdict for Dr. Hays, taken together, constitute a "prior judgment" on the merits rendered by a court of competent jurisdiction involving the same parties and the same cause of action as are involved in # 1920722. The plaintiffs did not appeal from any aspect of that "prior judgment." Consequently, the "prior judgment" rendered in case CV-89-759 and addressed in regard to appeal # 1920538 bars all claims asserted in CV-92-937 (addressed in regard to appeal # 1920722), and the trial court properly dismissed the complaint. The judgment in # 1920722 is affirmed.
Although we note the plaintiffs' argument that "Alabama's denying a child a right to prosecute a loss of consortium claim for injuries to his parent does not reflect a universal view," that is the law in Alabama. Any further discussion is unnecessary.
1920538 AFFIRMED.
1920722 AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Patterson also sued Baptist Memorial Hospital of Gadsden, Baptist Health Services, and Dr. Robert Cruitt. However, these defendants entered into a pro tanto settlement with the Pattersons for $500,000 and were dismissed from the case. There were also other defendants who were granted summary judgments from which there was no appeal or who were dismissed along the way. Therefore, they are not parties to this appeal. | July 30, 1993 |
aab57a5b-ede7-4e66-a7c8-b6637e07d476 | Lozier Corp. v. Gray | 624 So. 2d 1034 | 1920215 | Alabama | Alabama Supreme Court | 624 So. 2d 1034 (1993)
LOZIER CORPORATION
v.
Delaine S. GRAY.
1920215.
Supreme Court of Alabama.
August 20, 1993.
*1035 S. Jack Livingston of Livingston, Porter & Paulk, P.C., Scottsboro, and James N. Nolan of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
J. Michael Broom, P.C., Decatur, for appellee.
KENNEDY, Justice.
The defendant, Lozier Corporation, appeals from a judgment based on a verdict for the plaintiff, Delaine Gray. Lozier argues that the trial court should have granted its motion for a judgment notwithstanding the verdict (JNOV). Gray alleged that Lozier violated § 25-5-11.1, Ala.Code 1975, a statutory exception to the "employee-at-will" doctrine,[1] by terminating her employment with Lozier, she says, in retaliation for her making a workers' compensation claim. Section 25-5-11.1 provides:
Underlying this case are two workers' compensation claims, one that Gray made before she applied for a job at Lozier, and which Gray failed to disclose on her job application, and a claim made while she was at Lozier that led to Lozier's discovery of the previous claim.
Gray's first claim was made in 1987, after the convenience store where she then worked was robbed while she was on duty. The armed assailant in that robbery had threatened Gray's life, and Gray requested benefits for a psychological injury. This claim was promptly denied, and Gray evidently did not pursue it further. She left the employ of the convenience store and was hired by Lozier in 1988.
*1036 Lozier makes metal shelves and metal products for retail stores. In 1990, Gray injured her back while moving a pallet at Lozier, and, based on her injury, she filed a workers' compensation claim. Lozier's termination of Gray occurred after Gray's mother complained to the Lozier plant manager about how slowly this claim was being processed and after Lozier officials had discovered the prior undisclosed claim. Lozier says it fired Gray because she had not disclosed her earlier workers' compensation claim in response to an application question about the existence of any prior "claim." Lozier officials testified that Gray had violated a written company policy against "willful omission of pertinent data on [the] employment application." R. 132. Lozier's written rules provide that "[f]ailure to observe these rules will be grounds for disciplinary action, up to and including discharge." Id.
Lozier argues that Gray did not produce "substantial evidence" at trial in support of her claim of a retaliatory discharge. Because this action was commenced after June 11, 1987, Ala.Code 1975, § 12-21-12, applies; that section requires proof by "substantial evidence" to create an issue of fact and thereby defeat a motion for a directed verdict or for a JNOV. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); Ala. Code 1975, § 12-21-12(d).
Gray, who has only a 10th-grade education, testified that when she completed the Lozier application, she thought she was answering truthfully in stating that she had filed no prior workers' compensation claims, because, she said, the compensation request in question had been promptly denied. Gray's testimony indicates that Gray had believed that unless a request for benefits was deemed payable, it was not a "claim"; that if she had made a "claim" in 1987 she would not have been denied benefits, and conversely, since she was denied benefits she had failed to make a "claim."
Gray testified that she stated this perception to Lozier officials when they confronted her with the misstatement on her job application. She denies having stated to Lozier officials that she had intentionally deceived them. In contrast, Lozier officials testified that Gray had admitted that she "falsified" the information as to the prior workers' compensation claim. Lozier states, however, that "it does not seek, and never has sought, information about prior workmen's compensation claims to screen applicants." According to Lozier, it was wholly irrelevant to its hiring decision as to Gray that she had filed a prior claim.
This, of course, contradicts Lozier's assertion that in firing Gray, it was merely adhering to a policy of terminating any employee who committed a "willful omission of pertinent data on [their] employment application." Lozier itself denies that the "omitted" answer was "pertinent data."
Moreover, there was evidence at trial from which the jury could have found that Lozier's contention that it fired Gray for acting "willfully" was a mere pretext. Gray's testimony as to her understanding of what a workers' compensation "claim" is suggests that she did not willfully mislead Lozier, as does evidence that when she applied for a job at Lozier she was forthcoming with other health-related information. For example, she revealed on her application documents that she had undergone heart surgery and had previously been diagnosed with cancer. She stated also that she smoked and suffered from frequent or chronic coughing. R. 129. If Gray had intended to hide health-related information that might damage her chances of employment, it is wholly illogical that she would have so candidly disclosed potentially serious health problems. We conclude that Gray presented substantial evidence in support of her claim.
Lozier argues also, however, that the jury verdict was excessive as to compensatory and punitive damages. As to punitive damages, the trial court conducted a post-trial Hammond hearing to review the propriety of the jury's award. See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). Lozier stipulated that the award would not have an *1037 undue financial impact on it, but argued, inter alia, that the jury could not properly have found that it was so culpable, or so profited from its termination of Gray, as to warrant $100,000 in punitive damages. See Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989) (discussing factors that are relevant in determining, post-trial, whether a punitive damages award is excessive; among the factors are the "reprehensibility of the defendant's conduct," the "financial position of the defendant," and whether "the wrongful conduct was profitable to the defendant").
The trial court found that the punitive damages award was not excessive. We agree.
Punitive damages "must not exceed an amount that will accomplish society's goals of punishment and deterrence." Green Oil Co., 539 So. 2d at 222. However, a presumption of correctness applies to jury awards of punitive damages. Shoals Ford, Inc. v. Clardy, 588 So. 2d 879, 884 (Ala.1991). "[A] judgment based on a jury verdict awarding punitive damages will be affirmed, in the absence of evidence that the verdict was `plainly and palpably wrong and unjust.'" King Motor Co. v. Wilson, 612 So. 2d 1153, 1156 (Ala.1992).
There was evidence that Lozier acted with a wrongful intent when it fired Gray from her job. Aside from the gravity of wrongfully depriving Gray of what was her livelihood, we note the chilling effect of retaliatory discharges.
McClain, 578 So. 2d at 1301.
In McClain, the Court's discussion of the "chilling effect" of a wrongful termination obviously extends to a chilling effect, not only on the employee who may be in the position to make a claim and thereby risk being terminated, but on others in the defendant's employ. Lozier's arguments on this issue overlook the potential chilling effect on a potentially large group of employees, and the potential "gain" to Lozier from having fewer claims filed.
Given the foregoing, we are not persuaded that the punitive damages award in this case was excessive.
As to the jury's award of $200,000 in compensatory damages, however, we agree with Lozier that the jury erred. At most, there was evidence of only $11,053.50 in compensatory damages.
As stated, Gray has a 10th-grade education. Before working for Lozier, she had been employed in a series of jobs, working as a cashier, a waitress, and a grocery store clerk. Her highest hourly wage was $3.75. At Lozier, Gray received health insurance worth $175 a month as a benefit of her employment and received one week of paid vacation a year. She testified that just before her termination she worked an average of 10 hours a week of overtime at $11.475 an hour, and 40 hours at her regular rate of $6.75 an hour. Gray testified to having lost six months of wages before she found another job. She also testified to being offered and to having accepted four jobs since leaving Lozier. All of those jobs paid less per hour than her job at Lozier, but more than she had earned before working at Lozier.
Gray alleged in the trial court that her future ability to obtain employment like the employment she had enjoyed in the past has been impaired because Lozier fired her. However, there was no evidence at trial that Lozier's termination of Gray caused Gray to be less marketable as an employee. In fact, as stated, Gray has been offered and has accepted at least four jobs since being terminated and is earning a greater wage than she earned before the Lozier employment.
Gray presented no evidence that she suffered any mental anguish as a result of her termination.
In sum, the evidence at trial as to compensatory damages shows only that Gray lost $270 a week for 26 weeks in regular pay and $114.75 a week for 26 weeks in overtime pay, *1038 plus 6 months' worth of health benefits valued at $175.00 a month, all totalling $11,053.50. Accordingly, the trial court erred in denying a JNOV as to the jury's compensatory award of $200,000.
Finally, Lozier argues that the trial court erred in failing to grant it a new trial, because, says Lozier, a juror left the jury room during deliberations and returned after speaking to someone about the deliberations. As to extraneous matters and the jury's deliberations, the trial court stated: "[The] evidence does not ... create any inference of wrongful conduct by the jurors, the bailiffs, nor anyone else involved in the trial of this case...." The trial court denied Lozier's motion for a new trial.
Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala.1990); see Savage Industries, Inc. v. Duke, 598 So. 2d 856, 858 (Ala.1992).
After thoroughly reviewing the evidence produced on this issue, we find Lozier's contentions to be without evidentiary support. For example, the juror cited by Lozier as testifying that "[a] juror left the jury room and returned after having spoken to someone about deliberations" in fact testified, "I don't remember whether they [other jurors] had been outside [the jury room] or not." R. 486.
Given the foregoing, we affirm the denial of a new trial and the denial of a JNOV as to punitive damages. We reverse that portion of the judgment awarding compensatory damages, and we remand this case for the entry of an order consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
SHORES, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result.
[1] The employee-at-will doctrine "provides that an employment contract terminable at the will of either the employer or the employee may be terminated by either party at any time with or without cause." McClain v. Birmingham Coca-Cola Bottling Co., 578 So. 2d 1299, 1300 (Ala. 1991). | August 20, 1993 |
82b4d50c-99b8-42d5-bb64-ec812889416e | Barber v. Fields | 624 So. 2d 532 | 1911892 | Alabama | Alabama Supreme Court | 624 So. 2d 532 (1993)
Beverly BARBER, et al.
v.
Lawrence FIELDS, individually and as Mayor of Pell City; M.H. Wyatt, individually and as Building Inspector for the City of Pell City, Alabama.
1911892.
Supreme Court of Alabama.
July 16, 1993.
Rehearing Denied September 10, 1993.
*533 Ralph J. Bolen, Birmingham, for appellants.
*534 Peyton Lacy, Jr., Stephen A. Rowe and James C. Pennington of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
MADDOX, Justice.
This case arises from a dispute between the City of Pell City and landowners over a 1990 City ordinance that cut off water and other services to new customers whose property was located beyond the City's corporate limits. The City of Pell City, its mayor, and its building inspector (hereinafter together referred to as "City") sought a declaratory judgment to determine whether the City's actions in enacting and enforcing the ordinance caused the City to be liable to Beverly and Roddy Barber and Amatex, Inc., the Barbers' development corporation (hereinafter together referred to as the defendants). In the complaint for a declaratory judgment, the City alleged that the defendants had water meters placed on their property located within the city limits, with the intention to extend City water service to a house and property that were outside the city limits. The City alleged that it was not required to extend water and other services to the defendants' property because the property had been expressly declared to be outside the city limits, by order of the United States District Court for the Northern District of Alabama. The trial court entered a summary judgment for the City and the defendants appeal. The parties raise several issues:
(1) Whether a release executed by the City and Beverly Barber in 1988 has preclusive effect as to the counterclaim made by the defendants in the 1990 federal action, which was later remanded to the St. Clair Circuit Court and which forms the basis for this action.
(2) Whether the mayor and the building inspector are immune from suit based upon qualified or good faith immunity.
(3) Whether the ordinance withdrawing water service from the defendants' property violated the procedural due process guarantees of notice and an opportunity to be heard.
(4) Whether the City is estopped from halting services to the defendants' property, which they claim was allegedly developed in reliance on the availability of city water service.
(5) Whether the defendants preserved for appeal their arguments of estoppel and due process violations.
(6) Whether the City's action in enacting the ordinance violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Between 1984 and 1986, the defendants purchased four adjacent parcels of land in St. Clair County. It appears from the record that some of the land is within the Pell City corporate limits and that some of it is outside. The defendants subdivided the land and built houses on two lots, which they subsequently sold. The defendants received a water permit from the City, and the City installed water meters to service the two improved lots. After the first two houses were sold, the defendants decided to develop the remaining land as a subdivision, which they called "Shadowood." A small triangular-shaped strip of the defendants' land, called "the triangle," served as the common location for the water meters that served the first two houses built by the defendants and those that were subsequently built as part of the Shadowood subdivision.
The defendants then began to build houses in Shadowood. The defendants built the first house within the City's corporate limits, and during the construction of the second house, a dispute arose as to whether the lots were within the City's corporate limits and whether the Barbers were required to obtain building permits. The City contended that although the second house was outside the city limits, a building permit was nonetheless required. Since the City had not issued a building permit, the City issued a "stop-work" order for the project. As a result of that dispute, Beverly Barber in 1987 filed an action in a federal court against the City, the mayor, the building inspector, and the members of the city council. It appears from the record that Beverly Barber was the sole plaintiff in the 1987 litigation. In her 1987 *535 action, Beverly Barber alleged, inter alia, that the City's 1969 annexation of her property was invalid because, she said, the City had failed to comply with the preclearance requirements of the federal Voting Rights Act. She also contended that the City's stop-work order on the second Shadowood house, based on her noncompliance with the City's building code, was a "taking" in violation of the Equal Protection and Due Process Clauses of the United States Constitution.
After a hearing on the Voting Rights Acts issues by a three-judge panel designated by the Eleventh Circuit Court of Appeals, the district court entered an order stating that the parties had agreed that the City did not preclear the annexation with the Department of Justice, but had agreed that the annexation would "shortly be cleared, and that the annexation [would] thereafter comply with the Voting Rights Act." Consequently, the court dismissed with prejudice Beverly Barber's Voting Rights Act claims and determined that the subject property was "not located within the corporate limits of ... Pell City."
Beverly Barber amended her 1987 complaint to allege that the City had refused to provide water to her property located outside the City limits. She stated:
Thereafter, the parties entered into settlement negotiations, and they eventually settled their remaining claims in December 1988. In its final order, the district court enjoined the City from interfering with ingress to and egress from Beverly Barbers' "metered" property by the routes previously employed for the delivery of any and all city services to the property. The 1987 litigation was terminated when Beverly Barber and the City executed a "Joint Release and Settlement Agreement," with Beverly Barber receiving $40,000 from the City. In pertinent part, the agreement states:
The property that was the subject of the 1987 litigation was later purchased by the Etheredge family and is referred to as "the Etheredge property." Sometime after the resolution of the 1987 dispute, the defendants approached the mayor about extending water service to the Etheredge property, which was located outside the city limits. The mayor approved the installation of a water meter to service the Etheredge property and the City installed the meter for the Etheredge property on the triangle. The defendants then installed a water pipe from the meter to the Etheredge property. Subsequently, the defendants received water permits and had two more water meters installed on the triangle to serve two houses they planned to build. Prior to the completion of the houses to be served by the newly installed meters (and before water service was actually initiated), the Pell City council passed Ordinance No. 90-913, from which the present dispute arose. The ordinance, enacted April 23, 1990, states in part:
*536 The ordinance contained a provision that exempted from its application those already receiving such services from the City as of the date the ordinance became law. About a week after the ordinance became law, the City removed from the triangle the meters that had been installed for the defendants more than a year earlier. Shortly thereafter, pursuant to § 6-6-223 Ala.Code 1975, and Rule 57, Ala.R.Civ.P., the City sought a judgment declaring the ordinance valid, both generally and as applied to the defendants. The defendants removed the City's action to the United States District Court for the Northern District of Alabama and filed a counterclaim pursuant to 42 U.S.C. § 1983, seeking equitable relief and damages. The City moved the district court to remand the case to the St. Clair Circuit Court on the grounds of lack of federal subject matter jurisdiction. The motion to remand was initially denied by the federal district court, but was subsequently granted. Before the case was removed to circuit court, the district court entered an order declaring the defendants' property to be outside the city limits. The circuit court entered a summary judgment for the City based on qualified immunity and based on the court's finding that the 1988 release executed between Beverly Barber and the City barred the defendant's 1990 counterclaims.
We first address the question whether the 1988 release executed between Beverly Barber and the City precludes the defendants from pursuing the claims set out in their 1990 counterclaim. The City argues that the defendants are barred by the doctrine of res judicata from relitigating issues that it says were raised or should have been raised in the 1987 federal litigation. Moreover, the City contends that the 1988 "Joint Release and Settlement Agreement" between Beverly Barber and the City is an accord and satisfaction and effectively bars the defendants from relitigating their claims.
The doctrine of res judicata is a well-established principle of law:
Ex parte State ex rel. Harrell, 588 So. 2d 868, 869 (Ala.1991). "If these elements are present, then any issue that was, or could have been, adjudicated in the prior action is barred from further litigation." Croft v. Pate, 585 So. 2d 799, 800 (Ala.1991). It appears from the record that although Roddy Barber was not a party to the 1987 litigation, the court held that the 1987 litigation involved the same parties as the 1990 action. Therefore, because a judgment was entered on the merits by a court of competent jurisdiction, the only issue regarding the doctrine of res judicata is whether the defendants' claims were presented or could have been presented in the 1987 action. Karagan v. City of Mobile, 544 So. 2d 872 (Ala.1989). The same cause of action exists when the same evidence applies in both actions. Waters v. Jolly, 582 So. 2d 1048 (Ala.1991).
In the 1987 litigation, Beverly Barber alleged that it was a violation of the Equal Protection Clause for the City to refuse water service to her land that was located beyond the City's corporate limits. The 1990 litigation involves a similar question by the defendants, but the cause of action is not the same. The 1990 action involves claims by the defendants that the City violated their federally protected rights when it passed an ordinance and then removed water meters for which they had obtained permits and paid fees. Although city water service is involved in both cases, the question of whether the water meters were lawfully removed was not litigated in the 1987 action; therefore, the second element set out in First State Bank of Altoona v. Bass (cited in the quotation from Harrell, supra) is not present. We hold that the doctrine of res judicata does not bar the defendants' claims in this case.
The City also argues that the defendants are barred by accord and satisfaction *537 because of the 1988 "Joint Release and Settlement Agreement." This Court has written: "The elements necessary to establish accord and satisfaction are as follows: (1) proper subject matter, (2) competent parties, (3) assent or meeting of the minds, and (4) consideration." Austin v. Cox, 492 So. 2d 1021, 1022 (Ala.1986). However, we have also written:
Austin v. Cox, 523 So. 2d 376, 379 (Ala.1988) (citation omitted.)
The 1988 agreement between Beverly Barber and the City states in part that Barber "waives, discharges and releases [the City] from any and all claims ... which [Beverly Barber] has, had or may have ... arising from, ownership of property [or] ... denial of equal protection ... to and including the date of this agreement." (Emphasis added.) The defendants allege that this language creates an ambiguity. We agree. The release was dated December 18, 1988, and the meters were removed from the defendants' property on May 7, 1990. The release does not contemplate future action, but action "to and including the date of this agreement." The water meters were installed on the defendants' property sometime in April 1989 and were removed by the City in May 1990. Therefore, we conclude that the 1988 release does not constitute an accord and satisfaction.
The next issue we address is whether the City officials are immune from suit based upon qualified or good faith immunity. Although the law extends immunity to municipalities in certain contexts, the law also recognizes that "[a] municipal corporation, which supplies its inhabitants with water, does so in the capacity of a private corporation, and not in the exercise of the power of local sovereignty." City of Montgomery v. Greene, 180 Ala. 322, 60 So. 900 (1913) (citations omitted). Municipalities stand upon the same footing in this respect as would an individual or a private corporation. Id. "`In contracting for water works to supply itself and its inhabitants with water, the city is not exercising its governmental or legislative powers, but its business or proprietary powers. The purpose of such [a] contract is not to govern its inhabitants, but to obtain a private benefit for the city itself and its denizens.'" Weller v. City of Gadsden, 141 Ala. 642, 645, 37 So. 682, 685 (1904), quoting 1 Dillon on Mun.Corp. § 27.
In Birmingham Water Works Co. v. Ferguson, 164 Ala. 494, 51 So. 150 (1909), a case dealing with water service, an individual sued a municipal water company for breach of contract when the water to the plaintiff's residence was shut off without notice. At issue was whether there was a contract between the water works and the customer. This court concluded, "Whether or not the contract existed depended upon oral testimony, and it was a proper question for the determination of the jury." 164 Ala. at 503, 51 So. at 153. The defendants allege that a contract was formed between them and the City when the City agreed to install water meters on their property. Whether such a contract was formed is a fact question for a jury to decide.
In reviewing a summary judgment we take into account the same factors that the trial court considered, see, e.g., Havens v. Trawick, 564 So. 2d 917, 919 (Ala.1990), and we resolve all reasonable doubts in favor of the nonmovant. Id. The movant has the initial burden of showing that no genuine issue exists as to any material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. If the movant makes this prima facie showing, then the burden shifts to the nonmovant. E.g., Maharry v. City of Gadsden, 587 So. 2d 966, 968 (Ala.1991). For actions brought after June 11, 1987, the nonmovant must offer "substantial evidence" to overcome the prima facie showing, see Ala.Code 1975, § 12-21-12; substantial evidence is "evidence of such *538 weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Our review is de novo. See, e.g., Maharry, 587 So. 2d at 968.
The defendants allege that the City agreed to install water meters on their property with knowledge that the defendants planned to extend City water service beyond the City's corporate limits. Despite this knowledge, the defendants say, the City agreed to install the meters. The meters were in place on the defendants' property for more than one year before the City passed Ordinance No. 90-913. The defendants allege that the meters were suddenly removed from their property about one week after the ordinance was enacted and that this removal occurred without notice or an opportunity to be heard. Moreover, the defendants allege that the City provides water to other customers beyond the City's corporate limits, but refuses to extend the "grandfather" clause of the ordinance to their situation and that the City's refusal, in part, is in retaliation for Beverly Barber's 1987 litigation.
Resolving all reasonable doubts in favor of the nonmovant, we conclude that the City did not meet its initial burden of showing that no genuine issue exists as to any material fact. Because we must hold that the summary judgment was entered in error, we need not address the remaining arguments advanced by the parties. Accordingly, the summary judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur. | July 16, 1993 |
c701cd75-817e-4620-b565-78d3228d33c3 | Steele v. Steele | 623 So. 2d 1140 | 1920400 | Alabama | Alabama Supreme Court | 623 So. 2d 1140 (1993)
Timothy L. STEELE, as executor of the Estate of Samuel D. Steele, deceased
v.
Linda G. STEELE, individually and as widow of Samuel D. Steele, deceased.
1920400.
Supreme Court of Alabama.
July 30, 1993.
*1141 J. Gusty Yearout and C. Jeffery Ash of Yearout, Myers & Traylor, P.C., Birmingham, for appellant.
James R. Knight of Knight & Griffith, Cullman, for appellee.
KENNEDY, Justice.
The defendant appeals from a declaratory judgment entered in favor of the plaintiff, Linda Steele.
The sole issue is whether an antenuptial property agreement barred the wife from receiving a share of damages from a wrongful death action brought on behalf of the deceased husband.
The facts are as follows: In 1989, Linda married Samuel Dewey Steele for the third time. In regard to that marriage, they signed an antenuptial property agreement. Samuel died in 1991, survived by Linda, three sons by a former wife, and an adopted daughter. Samuel's will named his son, Timothy Steele as the executor of the estate. Linda signed a waiver of notice in regard to the probate of the will and did not contest the will. Subsequently, Timothy filed a wrongful death action on behalf of the estate arising out of medical treatment rendered to Samuel immediately prior to his death.
Linda then filed a complaint seeking a judgment declaring that she would be entitled to receive one-half of the proceeds, if any, recovered in the wrongful death action filed by Samuel's estate. The circuit court determined that Linda would be entitled to one-half of any damages awarded, based on § 6-5-410 and § 43-8-41, Ala.Code 1975.
We note that although the wrongful death action is pending, a bona fide justiciable controversy exists as to whether Linda, as surviving spouse, has a legal right to any damages awarded pursuant to the Wrongful Death Act even though she signed an antenuptial agreement limiting her claims against the husband or his estate. See, Moss v. Williams, 489 So. 2d 575 (Ala.1986); Warren v. Rasco, 457 So. 2d 399 (Ala.1984).
In a wrongful death action, "[t]he damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions." § 6-5-410(c). The relevant statute of descent and distribution provides that "[i]f there are surviving issue one or more of whom are not issue of the surviving spouse," then one-half of the intestate estate passes to the surviving spouse. § 43-8-41(4).
The Wrongful Death Act, § 6-5-410, creates the right in the personal representative of the decedent to act as agent by legislative appointment for the effectuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages. Carter v. City of Birmingham, 444 So. 2d 373 (Ala.1983), cert. denied, 467 U.S. 1211, 104 S. Ct. 2401, 81 L. Ed. 2d 357 (1984). It is apparent from the plain language of the Wrongful Death Act that damages awarded pursuant to that statute are distributed according to the statute of distribution and are not part of the decedent's estate. The damages from a wrongful death award pass as though the decedent had died without a will.
Crosby v. Corley, 528 So. 2d 1141, 1143 (Ala. 1988) (father was entitled to proceeds from wrongful death of his daughter despite evidence *1142 that he had sexually abused daughter during her life).
In this case, the antenuptial agreement has no effect on any proceeds from the pending wrongful death action. The Wrongful Death Act and the applicable statute of distribution mandate that the surviving spouse receive one-half the proceeds of the action if any are awarded. When the wording of a statute is distinct and unequivocal, there is no room for judicial statutory construction. Crosby, supra.
We note that Linda and Samuel, in signing the antenuptial property agreement, each agreed to dispose of his or her own property. It is clear from the agreement that neither party contemplated a wrongful death action when they signed the agreement, as wrongful death proceeds are neither part of the decedent's estate nor a property right. Hatas v. Partin, 278 Ala. 65, 175 So. 2d 759 (1965).
Based on the foregoing, we affirm.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | July 30, 1993 |
086d934c-b363-4e8e-b44e-2c719231e410 | Johnston v. Green Mountain, Inc. | 623 So. 2d 1116 | 1920106 | Alabama | Alabama Supreme Court | 623 So. 2d 1116 (1993)
T.D. "Johnny" JOHNSTON
v.
GREEN MOUNTAIN, INC., et al.
1920106.
Supreme Court of Alabama.
July 16, 1993.
*1117 John A. Wilmer of Wilmer & Shepard, P.A. and J. Allen Brinkley of Brinkley, Chestnut & Aldridge, Huntsville, for appellant.
Lee H. Zell, Susan S. Wagner and Patricia Clotfelter of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for appellees.
STEAGALL, Justice.
T.D. "Johnny" Johnston began working as a sales manager for Green Mountain, Inc., in *1118 April 1988. Johnston's employment contract provided that he was to receive a salary of $50,000 his first year with Green Mountain and, thereafter, an annual base salary of $40,000 and "commissions equal to one-half percent (½) of the amounts actually received by the Employer during the applicable year from gross sales for such year in excess of ($2,000,000.00) (`Commissions')." Johnston also signed deferred compensation and trust agreements providing that no amount would be payable if Johnston voluntarily terminated his employment prior to the expiration of the initial five-year term of employment.
Keith Schonrock and his wife joined with Gerry Donovan and his wife in 1986 to form Green Mountain, a franchise of Uniglobe Travel (hereinafter "Uniglobe"); together, the Schonrocks own 98%, and the Donovans own 2%, of the stock in Green Mountain. The company makes airline, hotel, and car rental reservations and provides related travel services for corporate and individual customers and derives nearly all of its income from sales commissions paid by airlines, hotels, and other providers of travel services. Green Mountain acquired the assets of Madison Travel (hereinafter "Madison") in May 1989. Schonrock had joined with four other persons in 1969 to form a company called M & S Computing, which later became Intergraph Corporation, and, on April 30, 1990, that company and Green Mountain signed a contract whereby Green Mountain agreed to pay to Intergraph all sales commissions and related revenues generated by Intergraph commercial travel in exchange for exclusive on-premises access by Green Mountain to Intergraph employees in order to solicit leisure travel business. Intergraph also agreed to pay Green Mountain a nominal fee for recordkeeping. Green Mountain entered into a consulting contract with Intergraph on January 17, 1990, under which Schonrock served as an independent contractor to Intergraph on matters unrelated to the travel business. The consulting fees pursuant to this agreement were $5,000 a month and were paid directly to Green Mountain. Schonrock was not personally compensated for his services.
In June 1990, Green Mountain received two awards from Uniglobe for outstanding sales. According to Schonrock and Donovan, sales for periods since the Madison acquisition are as follows:
Johnston approached Donovan in July 1990 to discuss his commissions and was told that, under the applicable provision of his contract, the Intergraph and Madison sales would be excluded in calculating his commission. At issue was the "amounts actually received" portion of the provision. During a February 11, 1991, meeting with Johnston, Donovan presented Johnston with a "talking paper" concerning his compensation, which read, in part:
Throughout the month of February, discussions between Johnston and Donovan and Schonrock became deadlocked and, on March 7, 1991, Johnston resigned from his employment with Green Mountain.
In his complaint, as amended, against Schonrock, Donovan, and Green Mountain, Johnston alleged breach of contract (Count I) and fraud (Count II) and sought to have Green Mountain's corporate identity disregarded and to impose personal liability on Schonrock and Donovan (Count III). The trial court dismissed Count I as to Schonrock and Donovan individually. It entered a summary judgment for all of the defendants on Counts II and III and on that portion of Count I which sought commissions and salary that allegedly accrued following Johnston's resignation. Finally, the trial court denied that portion of the defendants' motion for summary judgment pertaining to Johnston's claim for deferred compensation as well as Johnston's motion for partial summary judgment on Counts I and III. Thus, Johnston's claim in Count I that Green Mountain breached its employment agreement with him by failing to pay his commissions is still pending in the trial court.[2] Johnston appeals from the summary judgment made final pursuant to Rule 54(b), A.R.Civ.P.
Johnston's alter ego argument is twofold. He contends that Schonrock and Donovan had him assume "numerous duties and responsibilities" that were unrelated to Green Mountain and for which his sole compensation was his salary from Green Mountain. Specifically, Johnston claims that his involvement in two organizationsExecutive Connection and Friends of Recreational Ice Activities ("FRIA")precluded him from soliciting business for Green Mountain and, thereby, increasing his commissions. He also claims that Schonrock's "symbiotic" relationship with Intergraph prompted Intergraph to enter into the exclusive sales agreement with Green Mountain, the revenues from which were not included in calculating his commissions.
Executive Connection was formed in 1987 to handle travel services that were outside the scope of the normal commercial travel arrangements handled by Uniglobe, particularly aircraft and limousine charters. It was originally owned by the Schonrocks and another couple, Alan and Inez Wilson, but the Donovans later bought the Wilsons' interest. Executive Connection's board of directors named Johnston vice president of the company in June 1988. Schonrock testified at his deposition regarding Johnston's involvement with Executive Connection as follows:
FRIA is a volunteer organization in which Schonrock and the Donovans were involved. After Johnston began working for Green Mountain, Schonrock asked Johnston if he would chair a committee to raise money for FRIA, and Johnston agreed. During Johnston's involvement with FRIAwhich lasted until he left Green Mountainthe organization raised approximately $1,500,000.
The defendants contend that Johnston has failed to show that he was harmed by their allegedly improper actions. In order to pierce Green Mountain's corporate veil, Johnston must show not only that the dominant party has complete control and domination of the subservient corporation's finances, policy, and business practices but also that it misused that control to Johnston's detriment. First Health, Inc. v. Blanton, 585 So. 2d 1331 (Ala.1991). "Mere domination or control of a corporation by its stockholder cannot be enough to allow a piercing of the corporate veil. There must be the added elements of misuse of control and harm or loss resulting from it." Id. at 1335 (citations omitted).
Although Schonrock and his wife are the majority shareholders of Green Mountain, there is no evidence that either one of them controlled Green Mountain to the extent that it had no separate mind, will, or existence of its own.[3] See First Health, 585 So. 2d at 1334. Assuming for the sake of argument that Schonrock exercised excessive control of Green Mountain, his dealings with Intergraph did not amount to misuse of that control nor did they proximately cause Johnston's alleged harm. Green Mountain's contract with Intergraph was a mutually beneficial arrangement that, if anything, maintained Green Mountain's corporate integrity. Green Mountain received the exclusive, on-site privilege of soliciting Intergraph employees' personal travel business in exchange for the sales commissions and related revenue on Intergraph's commercial travel. Although the financial wisdom of this arrangement is questionable, it does not evidence misuse of control.
Similarly, Johnston has not demonstrated that he was harmed by his involvement with Executive Connection and FRIA.[4] His argument is, essentially, that the time he spent with those organizations prevented him from soliciting business for Green Mountain. If anything, Johnston's civic activities could have generated potential business for Green Mountain and, ultimately, commissions for himself. Schonrock characterized the benefits of Green Mountain's involvement with FRIA as "enormous community publicity, good spirit, and recognition for our work in a municipally sanctioned project." Indeed, Johnston acknowledged in his deposition that there were business advantages to his involvement with FRIA:
There is simply no evidence that Johnston's involvement with Executive Connection and FRIA was involuntary or that it was a condition of his employment. Thus, the summary judgment with regard to Count III is due to be affirmed.
Johnston contends that Green Mountain's refusal to include the revenues from the Madison and Intergraph sales amounted to an anticipatory breach of his employment contract and entitled him to post-resignation salary and commissions. As noted earlier, the breach of contract issue is still pending in the trial court. However, even if the jury were to find that Green Mountain breached the commissions provision of Johnston's employment contract, he would not necessarily be entitled to post-resignation salary and commissions. In order for there to be an anticipatory breach, or repudiation, of a contract, the breach must be substantial:
Draughon's Business College v. Battles, 35 Ala.App. 587, 590, 50 So. 2d 788, 790 (1951). See, also, Shirley v. Lin, 548 So. 2d 1329, 1334 (Ala.1989).
Green Mountain's refusal to include the Madison and Intergraph sales did not evidence that Green Mountain intended not to be bound by Johnston's contract. Rather, it amounted to a conflicting interpretation of the commission provision. "`Mere refusal, upon mistake or misunderstanding as to matters of fact or upon an erroneous construction of [a contract provision] ... is sufficient to constitute a breach of that provision, but it does not amount to a renunciation or repudiation of the policy.'" Box v. Metropolitan Life Ins. Co., 232 Ala. 447, 449, 168 So. 220, 222 (1936) (emphasis added) (citation omitted). Thus, the summary judgment with regard to the anticipatory breach aspect of Count I is also due to be affirmed.
Johnston alleges both promissory fraud and suppression of a material fact in Count II of his complaint. He contends that the defendants induced him to leave his position with Eastern Airlines based on a compensation and commission plan that they did not intend to follow. He also contends that they withheld the amounts that Green Mountain actually received from its sales with an intent to deceive him regarding his compensation.
Proof of the following elements is necessary to sustain an action for promissory fraud: (1) a misrepresentation, (2) of a material existing fact, (3) upon which the plaintiff justifiably relied, (4) which proximately caused injury or damage to the plaintiff. Vance v. Huff, 568 So. 2d 745, 750 (Ala.1990). In addition, the plaintiff must show that, at the time of the alleged misrepresentation, the defendant intended not to do the acts promised and intended, instead, to deceive the plaintiff. Vance v. Huff, supra. See, also, Campisi v. Scoles Cadillac, Inc., 611 So. 2d 296 (Ala.1992).
Johnston's promissory fraud claim fails, because the actions complained ofthe Madison acquisition and the Intergraph contract (these are the only sales that Johnston alleges were wrongfully excluded in calculating his commissions)were not existing facts when Johnston's contract was executed. There is also no evidence that the defendants *1122 intended not to perform in accord with the commissions provision, because the Madison and Intergraph deals were not consummated until a year after Green Mountain had employed Johnston. Green Mountain did not acquire the assets of Madison until May 1989over one year after Johnston was hiredand, according to Donovan's deposition testimony, Green Mountain had no business relationship with Intergraph until after September 1, 1989, the target date for the Intergraph/Green Mountain transition.
Johnston's suppression claim also fails. Throughout his deposition, Johnston acknowledged that he was apprised of the Madison and Intergraph negotiations and was provided with revenue figures when he asked for them:
The summary judgment with regard to Johnston's fraud and suppression claims contained in Count II is, therefore, also due to affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] This is the date of the answer to the interrogatory calling for this information.
[2] In concluding that Johnston's motion for partial summary judgment with regard to Count I was due to be denied, the trial court reasoned that the commissions provision of Johnston's employment contract is ambiguous and that a jury should decide the issue of its proper construction. Johnston contends that the provision mandates that his commission be based on gross sales, and the defendants contend that it is based on amounts actually received by Green Mountain from gross sales.
[3] In light of his and his wife's 2% ownership interest in Green Mountain, Donovan's financial control of the corporation was limited at most.
[4] Johnston was compensated for his work with Executive Connection. In a provision similar to that in his employment contract, Johnston was to receive commissions in the amount of one half percent of the revenues received by Executive Connection. | July 16, 1993 |
81919bda-9ca0-4e7e-bbf6-51e719f1f415 | Ex Parte RCL | 627 So. 2d 920 | 1920138 | Alabama | Alabama Supreme Court | 627 So. 2d 920 (1993)
Ex parte R.C.L.
(Re T.I. v. R.C.L.)
(In the Matter of R.N.C.)
1920138.
Supreme Court of Alabama.
August 20, 1993.
William L. Mathis, Jr. of Lee, Sullivan & Mathis, Birmingham, for petitioner.
T.I., pro se.
MADDOX, Justice.
This is a dispute over the custody of R.N.C., a four-year old girl, between the mother, T.I., and the paternal grandmother, R.C.L.[1] We granted the grandmother's certiorari petition to review the reversal by the Court of Civil Appeals of the trial court's judgment awarding custody to her. We reverse and remand.
Most of the relevant facts are stated in the opinion of the Court of Civil Appeals, which should be read in conjunction with this opinion. We recite only those facts necessary for our discussion.
During 1989, following the child's birth in February of that year, the grandmother cared for the child while the mother was ill, and the grandmother has had continuous custody since the child was seven months old. On November 6, 1989, the grandmother petitioned for temporary custody of the child, offering in support an affidavit of her son, *921 the child's father, J.M.C., alleging that the mother had recently been released from a mental hospital and was mentally unstable and that it was in the child's best interests for the grandmother to have temporary custody. The trial court awarded the grandmother temporary custody that same day.
On February 22, 1991, the mother petitioned for custody, alleging that the child had been taken from her without her permission; that it was in the child's best interests to be returned to her; and that she was a fit and proper person to have custody. Following a hearing on February 26, 1991, at which several witnesses, including the mother and the grandmother, testified, the trial court ordered, "after consideration of the [p]etition, stipulations by the attorneys of record, and agreements of the parties," that temporary custody of the child remain with the grandmother and that the Department of Human Resources ("DHR") conduct home studies of the mother and the grandmother and make a report of these studies. The trial court delayed making a permanent custody order.
The trial court held another hearing on October 24, 1991. The witnesses were the mother, the father, the grandmother, the mother's sister, a friend of the mother, the father's ex-wife, and a DHR social worker. Following the hearing, the trial court found that "from all testimony offered the child has thrived in [the grandmother's] custody" and that the mother was "presently unfit to have custody of this minor child," in part because "[she] has a history of moving from city to city and has not shown to this Court's satisfaction that she can provide a stable home for the minor child." The trial court ordered that custody remain with the grandmother but awarded the mother visitation rights.
Upon the mother's appeal, the Court of Civil Appeals reversed and remanded, holding that the mother had "a presumptive superior right to the custody of her child" that was unaffected by the original award of temporary custody because the mother had had no notice of the grandmother's petition and had had no opportunity to be heard, and holding that the mother was not "guilty of such misconduct or neglect that she is unfit or unsuited for custody," and therefore that "her superior right to custody" had not been overcome. T.I. v. R.C.L., 627 So. 2d 916 (Ala. Civ.App.1992) (citing Ex parte Terry, 494 So. 2d 628 (Ala.1986)). That court ordered the trial court to award custody to the mother.
The grandmother asserts that the decision of the Court of Civil Appeals conflicts with certain prior decisions, on several grounds. We need not set out or address each ground, because we consider one ground to be dispositivewhether the decision conflicts with the holding of Ex parte McLendon, 455 So. 2d 863, 865 (Ala.1984), that the presumption in favor of a natural parent "does not apply after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a nonparent."
Although the grandmother does not dispute that the mother had no notice and no opportunity to be heard on the original petition, she argues that the order continuing temporary custody with her was a prior decree removing custody from the mother, after notice and a hearing. She also argues that the mother voluntarily forfeited custody of her child. On either basis, she says, according to McLendon, "the Court of Civil Appeals has incorrectly clothed the mother with a presumptive superior right to custody and incorrectly shifted the burden of proof to the grandmother." Petitioner's brief at 7.
On the grandmother's application to the Court of Civil Appeals for rehearing, that court addressed the "prior decree" exception to the presumption in favor of the mother and concluded that the order continuing custody with the grandmother was not an award of temporary custody, but was instead a pendente lite order, to which the McLendon rule does not apply. That court did not address the "voluntary forfeiture" exception.
We agree that this was a pendente lite order, because the trial court directed that home studies of the parties be conducted, and the trial court also reserved the question of permanent custody; therefore, it seems clear that the trial court intended for *922 the order to be effective only during the pendency of the litigation. Furthermore, as to an issue not previously addressed by this Court, but consistent with a number of decisions of the Court of Civil Appeals, we also agree that the McLendon rule does not apply to pendente lite orders, so that such orders do not defeat the presumption in favor of the natural parent. E.g., Wright v. Wright, 602 So. 2d 421 (Ala.Civ.App.1992); J.F. v. A.G., 607 So. 2d 234 (Ala.Civ.App.1991); and Sims v. Sims, 515 So. 2d 1 (Ala.Civ.App.1987).
The trial court did not state its reasons for shifting the burden of proof to the mother. If it did so because of the prior order continuing custody with the grandmother, then, according to our holding, it erred. However, if it shifted the burden based on a finding that the mother voluntarily forfeited custody, then the shifting of the burden of proof to the mother was proper and the application of the presumption in favor of the mother by the Court of Civil Appeals was inconsistent with McLendon.
In any event, the Court of Civil Appeals should not have applied the presumption and ordered that custody be awarded to the mother without knowing the trial court's basis for shifting the burden of proof. For this reason, we reverse the judgment and remand the case to the Court of Civil Appeals, with instructions to remand the cause to the trial court for further proceedings. Upon remand, the trial court should state its reasons for shifting the burden of proof to the mother, or, if it determines, in light of this opinion, that its findings do not support shifting the burden of proof to the mother, then it should determine whether the grandmother met her burden of proof.
REVERSED AND REMANDED WITH INSTRUCTIONS.
ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] T.I. contended at the custody hearing that R.C.L.'s son, J.M.C., is not the child's father, but the trial court found that a common law marriage existed between J.M.C. and the mother and referred in its order to J.M.C. as the father, and paternity is not an issue in this case; consequently, we consider R.C.L. to be the paternal grandmother. | August 20, 1993 |
177e9b2b-c456-4743-9d8a-89361c3f93fc | Masonry Arts, Inc. v. MOBILE COUNTY COM'N | 628 So. 2d 334 | 1911964 | Alabama | Alabama Supreme Court | 628 So. 2d 334 (1993)
MASONRY ARTS, INC.
v.
The MOBILE COUNTY COMMISSION and Harmon Contract W.S.A., Inc.
1911964.
Supreme Court of Alabama.
July 30, 1993.
Rehearing Denied October 8, 1993.
Edward P. Meyerson and Hub Harrington of Najjar Denaburg, P.C., Birmingham; and Peter S. Mackey of Burns, Cunningham & Mackey, Mobile, for appellant.
Lawrence M. Wettermark of Collins, Galloway & Smith, Mobile, for Mobile County Commission.
Larry U. Sims and Joseph P.H. Babington of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for Harmon Contract W.S.A., Inc.
INGRAM, Justice.
This appeal arises from the trial court's refusal to enjoin the Mobile County Commission from awarding a public works contract to Harmon Contract W.S.A., Inc. Masonry Arts, Inc., according to its complaint, "[brought] this action to enjoin the letting or execution of the curtainwall contract as a citizen of the State of Alabama pursuant to § 39-5-5 of the Code of Alabama (1975), and as a bona fide unsuccessful bidder pursuant to § 41-16-61 of the Code of Alabama (1975)." After a hearing at which it heard oral testimony, the trial court specifically found that the defendants had not violated the Alabama Competitive Bid Law (§ 41-16-27, Ala.Code 1975) and that Masonry Arts was not entitled to the injunctive relief sought. After the trial court's decision, the County executed the contract and Harmon began performance.
Masonry Arts filed a notice of appeal with this Court; however, it did not request a stay of execution of the trial court's order pending appeal. The County and Harmon argue that, because the contract has been awarded and executed, the appeal is moot. We agree; therefore, we dismiss the appeal.
*335 The sole relief sought by Masonry Arts was an injunction against the County and Harmon to prevent the execution of the contract. After the trial court held that the County had not violated the competitive bid law in awarding the contract to Harmon and denied the request for a permanent injunction against the execution of the contract, the County and Harmon executed the contract and Harmon began work. The trial court's order was not superseded by the appeal, because Masonry Arts did not seek a stay of the trial court's judgment pending appeal. See Rule 8, Ala.R.App.P.
The action is moot because the trial court is no longer capable of granting the injunction requested by Masonry Arts. See Morrison v. Mullins, 275 Ala. 258, 259, 154 So. 2d 16, 18 (1963) (an appeal will be dismissed as moot "if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief"); see also City of Apalachicola v. Board of County Commissioners of Franklin County, 567 So. 2d 22, 22-23 (Fla.Dist.Ct.App.1990); Wagner v. Boggess Coal & Supply Co., 57 Ohio Law Abs. 270, 272, 94 N.E.2d 64, 65 (App.1950). The record reveals that Masonry Arts clearly limited its request for relief to a request that the trial court enjoin the execution of the curtainwall contract, and, in oral argument before this Court, Masonry Arts conceded that its request for injunctive relief to prevent the execution of the curtainwall contract was moot. Therefore, we dismiss this appeal as moot.
APPEAL DISMISSED AS MOOT.
MADDOX, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
KENNEDY, J., concurs in the result. | July 30, 1993 |
5ea6a385-8819-4149-ba37-457b8206ecbb | Ex Parte MacOn County Greyhound Park | 634 So. 2d 997 | 1920979 | Alabama | Alabama Supreme Court | 634 So. 2d 997 (1993)
Ex parte MACON COUNTY GREYHOUND PARK, INC.
(In re Patsy Coker NICKERSON, as widow of Rex Douglas Nickerson, deceased, et al. v. MACON COUNTY GREYHOUND PARK, INC., et al.)
1920979.
Supreme Court of Alabama.
July 30, 1993.
*998 Fred D. Gray and Ernestine Sapp of Gray, Langford, Sapp, McGowan & Gray, Tuskegee, and William Haynes of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioner.
K. Rick Alvis of Lucas, Alvis & Kirby, Birmingham, for respondents.
STEAGALL, Justice.
Patsy Coker Nickerson, as the widow of Rex Douglas Nickerson, and their three minor children sued Macon County Greyhound Park, Inc., and Victory Lounge, an unincorporated business owned by John T. Sistrunk; the action was filed pursuant to Ala.Code 1975, § 6-5-71, the Dram Shop Act. The Nickersons alleged that the defendants unlawfully sold alcoholic beverages to Rex Douglas Nickerson and that the sale proximately caused an automobile accident that resulted in his death. The sale of alcoholic beverages occurred in Macon County and the accident occurred in Montgomery County. The Nickersons sued in Montgomery County, and the defendants moved to transfer the case to Macon County. The trial court denied the defendants' motion, but entered an order transferring the action to Elmore County, where the Nickersons reside. Macon County Greyhound Park petitions this Court for a writ of mandamus directing the trial court to vacate its transfer order and to transfer the cause to Macon County.
Under Ala.Code 1975, § 6-3-7, a domestic corporation may be sued for personal injury in the county where the injury occurred or in the county where the plaintiff resides if the defendant does business by agent in that county. Here, venue for the claims against Macon County Greyhound Park would be proper in Elmore County only if it "does business" in that county. The record does not show that Macon County Greyhound Park conducts sufficient activities in Elmore County to establish that it "does business" there; accordingly, venue is proper where the injury occurred.
In its order, the trial court held that the injuries the Nickersons allege occurred and continue to occur in Elmore County, where they reside. This rationale conflicts with our holding in Ex parte Graham, 634 So. 2d 994 (Ala.1993), decided this same day, wherein this Court examined the issue of where an "injury" occurs for purposes of § 6-3-7. There the Court established the following standard:
Graham, 634 So. 2d at 997.
The Nickersons allege, of course, that the defendants' sale of alcohol to Rex Douglas Nickerson caused bodily harm to him; however, under the Dram Shop Act, the intoxicated party or his estate has no cause of action for injuries to the intoxicated party. Weeks v. Princeton's, 570 So. 2d 1232 (Ala.1990). The family members of the intoxicated party are protected under the Act and may be compensated for the injuries they themselves suffer. Weeks. Here, the Nickersons allege injuries of mental and emotional stress, as well as loss of services and consortium. Under the rule established in Graham, these injuries "occurred" in Macon County, where the wrongful sale of alcohol took place; accordingly, that is the proper venue for this action.
We note that a second venue statute applies to this case. Ala.Code 1975, § 6-3-6, provides that personal actions against an unincorporated organization may be brought in any county where the unincorporated organization does business or has in existence a branch or local organization. The record shows that Victory Lounge's sole location is in Macon County.
Based on the foregoing, we must hold that the trial court erred in denying the defendants' motion to transfer the cause to Macon County and in transferring the cause to Elmore County. Mandamus is the appropriate remedy where a trial court has improperly transferred a cause, Ex parte Water Works Bd. of the Town of Gulf Shores, 508 So. 2d 242 (Ala.1987); accordingly, the petition is granted.
WRIT GRANTED.
MADDOX, SHORES, HOUSTON, KENNEDY and INGRAM, JJ., concur. | July 30, 1993 |
d4d501de-71a9-4642-b748-93d3018b1781 | Bay City Const. Co., Inc. v. Hayes | 624 So. 2d 1031 | 1912009 | Alabama | Alabama Supreme Court | 624 So. 2d 1031 (1993)
BAY CITY CONSTRUCTION COMPANY, INC.
v.
Henry HAYES, Sr.
1912009.
Supreme Court of Alabama.
August 20, 1993.
*1032 Thomas R. McAlpine of Sintz, Campbell, Duke & Taylor, Mobile, for appellant.
Vaughan Drinkard, Jr. and C. Gary Hicks of Drinkard, Ulmer, Hicks & Leon, Mobile, for appellee.
ADAMS, Justice.
Bay City Construction Company, Inc., ("Bay City"), appeals from a judgment based on a jury verdict awarding damages to Henry Hayes, Sr., on a breach of contract claim. We affirm.
In October 1989, Bay City offered Hayes a job supervising a construction project on a naval base in Charleston, South Carolina. As part of the agreement, Hayes was to receive $15 per hour, expenses, and 20% of the profit from the project. Bay City subsequently entered into a written agreement with the Federal Government, and that agreement incorporated a statement of Hayes's duties.
Before the project in South Carolina was completed, Bay City requested that Hayes supervise a construction project in Alabama. Hayes agreed to supervise the project in Alabama, with the understanding that he was still to receive 20% of the profit from the South Carolina job, as previously agreed. Prior to the completion of both jobs, Hayes entered into a rehabilitation program and was thus unable to supervise the project in Alabama to completion.
In December 1990, Hayes met with Bay City to discuss the percentage of the profits he was to receive from the South Carolina project. Bay City tendered Hayes a $19,984.16 check, telling him that the total profit on the South Carolina project was about $79,000, which was lower than it had anticipated. After that, Hayes received information indicating that Bay City's actual profit on the project was $780,000.
In January 1991, Hayes sued Bay City, alleging breach of contract and fraud. Bay City moved for a summary judgment. The court denied the motion as to the breach of contract, but entered summary judgment as to the fraud count. A jury awarded Hayes $140,050.20, and the court entered a judgment in accordance with that verdict. Bay City appealed.
Bay City argues that Hayes's claim was barred under the theory of accord and satisfaction. We disagree.
We stated in Leisure American Resorts, Inc. v. Carbine Constr. Co., 577 So. 2d 409, 411 (Ala.1990):
The record in this case does not reveal a dispute as to the amount due to Hayes. According to the terms of the agreement, Hayes was to receive $15 per hour, expenses, and 20% of the profit on the South Carolina project. When Bay City tendered the $19,984.16 check to Hayes, he expressed reservations about whether the amount of the check was correct; but, he said, because of his outstanding financial obligations, he accepted the check. Hayes's reservations in accepting the check do not evidence a dispute concerning the amount due, as Bay City contends. The dispute is whether Bay City accurately represented that the amount Hayes received was 20% of Bay City's profit from the South Carolina project. The jury could have found from the evidence that Hayes and Bay City had not entered an accord and satisfaction.
Bay City argues that the contract between it and Hayes violated the Statute of Frauds and was therefore void. We disagree.
This Court stated in Land v. Cooper, 250 Ala. 271, 276, 34 So. 2d 313, 316 (1948):
The parties entered into an oral agreement in October 1989. Under the terms of the agreement Hayes was to supervise the South Carolina construction project, which consisted of the repair of two buildings located on a naval base in Charleston. Hayes's duties under the contract were incorporated into a written agreement between Bay City and the Federal Government. Neither contract stipulated a time frame for the performance of Hayes's duties. Based on the evidence presented at trial, the jury could have determined that the contract between Bay City and Hayes could have been performed within one year and, therefore, that it was not void under the Statute of Frauds.
Bay City further argues that, notwithstanding the Statute of Frauds, this Court should not enforce the contract because, it *1034 argues, Hayes failed to substantially perform his part of the contract. We disagree.
We stated in Cobbs v. Fred Burgos Constr. Co., 477 So. 2d 335, 338 (Ala.1985), that whether a party has substantially performed a promise under the contract is a question of fact to be determined from the circumstances of each case. Furthermore, "substantial performance" of a contract does not contemplate exact performance of every detail, but performance of all important parts. Mac Pon Co. v. Vinsant Painting & Decorating Co., 423 So. 2d 216 (Ala.1982).
Under the terms of the agreement, Hayes was to supervise the construction project in South Carolina. Before that project was completed, Bay City asked Hayes to supervise a construction project in Alabama. The general contractor for the South Carolina project testified that when Hayes left South Carolina to work on the project in Alabama, the South Carolina project was substantially completed; the general contractor said the project was then complete except for a few items that had been held up by other subcontractors.
Whether Hayes substantially performed his duties under the contract was a question of fact to be determined by the jury. The jury apparently found that Hayes substantially performed the contract, and such a finding would be supported by the evidence.
Last, Bay City argues that the trial court erred in granting Hayes's motion in limine to prevent the introduction of evidence concerning his medical problems and financial situation. We disagree. The trial court has broad discretion in evidentiary matters. State v. Askew, 455 So. 2d 36 (Ala.Civ.App. 1984). After reviewing the record, we cannot conclude that the trial court abused its discretion.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., concurs in the result. | August 20, 1993 |
ac7a2b58-68a4-4582-88b9-cc01f1ea2ebf | Long v. Jefferson County | 623 So. 2d 1130 | 1920146 | Alabama | Alabama Supreme Court | 623 So. 2d 1130 (1993)
Robert D. LONG and Judy L. Long
v.
JEFFERSON COUNTY.
1920146.
Supreme Court of Alabama.
July 30, 1993.
*1132 Mark E. Martin, Birmingham, for appellants.
Charles S. Wagner, Asst. County Atty., Birmingham, for appellee.
HOUSTON, Justice.
The plaintiffs, Robert D. Long and his wife, Judy L. Long, appeal from a summary judgment for the defendant, Jefferson County, in this action to recover damages for trespass and negligence. We affirm in part, reverse in part, and remand.
In 1973 the plaintiffs purchased a house in a subdivision in Jefferson County. A title examination made in 1973 by Chicago Title Insurance Company ("Chicago Title") failed to disclose that in 1902 the county had acquired an easement by condemnation across what is now the plaintiffs' property and that in 1907 the county had constructed an underground sewer on its easement. The petition for condemnation, the commission to assess damages, and the report of the commissioners were all recorded in the final record of the probate court.
The plaintiffs' house was built in 1939 directly over the sewer, and a cast iron pipe was installed in the floor of the basement through which sewage could be discharged directly into the sewer. The ground around and under the plaintiffs' house began to sink in October 1987, causing structural damage to the house. After being notified of the problem by the plaintiffs, county representatives inspected the plaintiffs' property and informed them that the county's sewer had collapsed. The county representatives also told the plaintiffs that the county had an easement across the plaintiffs' property and that the county would not assume responsibility for any of the damage. The county did reroute the sewer and it filled that section of the old sewer that ran under the plaintiffs' house with concrete to prevent further deterioration. The plaintiffs filed this action on October 25, 1989.[1]
Our standard of review in this case is well settled. The summary judgment was proper if there was no genuine issue of material fact and the county was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the county to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If it made that showing, then the burden shifted to the plaintiffs to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to the plaintiffs and must resolve all reasonable doubts against the county. Knight v. Alabama Power Co., 580 So. 2d 576 (Ala.1991). Because this case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989), citing Rowden v. Tomlinson, 538 So. 2d 15, 19 (Ala.1988) (Jones, J., concurring). Simply stated, an issue is genuine if reasonable persons could disagree. Olympia Produce Co. v. Associates Financial Services of Alabama, Inc., 584 So. 2d 477 (Ala.1991).
The following issues have been presented for our review:
With regard to the first issue, the plaintiffs contend that the condemnation judgment was void as to them under Ala.Code 1975, § 35-4-90, which provides in pertinent part as follows:
The plaintiffs argue that they were unaware when they purchased their house that it had been built above a sewer. They also maintain that the condemnation proceeding was not reflected in the real property records of the probate court and, therefore, that it was outside their chain of title and did not constitute constructive notice to them of the existence of the county's easement.
The plaintiffs rely on Fort Payne Water Works Board v. Sparks, 600 So. 2d 230 (Ala. 1992), a case factually similar to the present case, in support of their argument that the county's condemnation proceeding was outside their chain of title and, thus, that it did not provide them with constructive notice of the county's sewer easement. In Fort Payne, this Court, relying on State v. Abbott, 476 So. 2d 1224 (Ala.1985), held that the Sparkses did not have constructive knowledge of an easement that had been acquired by the water works board through a 1984 condemnation proceeding because there was no evidence of the condemnation proceeding in the "real property records" of the probate court when they purchased their property. Responding to the board's argument that the recording requirement of § 35-4-90 was satisfied because the petition for condemnation was recorded in the final record of the probate court and the condemnation judgment was recorded in the probate court minutes, this Court stated:
600 So. 2d at 232.
In Abbott, the state was seeking enforcement of a right-of-way that it had acquired through a 1939 condemnation proceeding. The defendants had purchased the property in 1965, and they argued that they had not been provided with notice as to the existence of the right-of-way because the documents relating to the condemnation had not been recorded in the probate court at the time they purchased the property. Thus, in Abbott, through an oversight and contrary to the probate judge's specific instructions, the condemnation judgment was not filed for record in the probate court. The specific issue addressed in Abbott was whether a condemnation judgment was a "conveyance of real property" within the meaning of § 6887, Code of 1923 (now § 35-4-90). This Court concluded in Abbott that a condemnation judgment operates as a transfer of title to *1134 land from the landowner to the condemning authority upon payment of the required compensation, see Southern Natural Gas Co. v. Ross, 290 Ala. 195, 275 So. 2d 143 (1973), and, as such, must be recorded in the probate court to be operative as to future purchasers for value. However, this Court did not hold in Abbott, as was suggested in Fort Payne, that a purchaser for value is not provided with constructive notice of a condemnation proceeding noted in the final record of the probate court. Consequently, Abbott does not support this Court's holding in Fort Payne.
Pursuant to Ala.Code 1975, § 35-4-50, "[c]onveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate." (Emphasis added.) Section 35-4-51 provides in pertinent part:
Section 35-4-58 states in part:
Section 35-4-63 reads as follows:
Although certain affidavits are specifically required to be recorded in the deed records of the probate court, see § 35-4-71, we can find no statutory requirement, other than as set out in § 35-4-131 and § 35-4-136, that a probate court record documents evidencing a condemnation proceeding in any particular record book. The legislature in 1971 amended Title 47, § 66, of the Alabama Code of 1940 (now § 35-4-131) so as to require that notice of a pending condemnation proceeding be filed in the lis pendens record of the probate court. The legislature also amended § 70 of that same title (now § 35-4-136) so as to require that notice of the resolution of the condemnation proceeding and of the "devolution" or passing of title to the land also be promptly noted in the lis pendens record. See Abbott at 1226-27.
Therefore, because the condemnation at issue in Fort Payne, which took place in 1984, was not noted in the lis pendens record of the probate court as required by statute, the result reached by this Court in that case was correct. However, there is no statutory basis for concluding that, before the legislature's action in 1971, evidence of a condemnation proceeding as shown by the final record of the probate court did not provide constructive notice of the condemnation proceeding. We conclude, therefore, that before the legislature's amendment of what is now § 35-4-131 and § 35-4-136 in 1971, condemnation proceedings, as reflected in the final record of the probate court, served to provide constructive notice to the world that title to the subject property either was, or, if the condemning authority's payment of the compensation is not noted in the record, could have been, transferred to the condemning authority. To the extent that Fort Payne is to the contrary, it is hereby overruled.
Although the record on appeal does not show whether a condemnation judgment was ever entered for the county, it does show *1135 that the petition for condemnation, the commission to assess damages, and the report of the commissioners were recorded in the final record of the probate court.[2] In White v. Boggs, 455 So. 2d 820, 821-22 (Ala.1984), this Court, quoting Jefferson County v. Mosley, 284 Ala. 593, 599, 226 So. 2d 652, 656 (1969), explained:
Charged by law with notice of the county's condemnation proceeding, the plaintiffs were charged with notice of everything that a reasonable inquiry would have disclosed. The probate court record reflected that the county was the condemning authority involved in the 1902 condemnation proceeding. The plaintiffs could have easily inquired of the county as to whether it had constructed a sewer on what later became their property.
Therefore, the plaintiffs were not purchasers for value without notice within the protection of § 35-4-90 and, consequently, the county's easement was not void as to them. The county was entitled to a judgment as a matter of law on the trespass claim.
However, the county has provided us with no authority that would support the proposition that the validity of the easement alone entitled it to a judgment as a matter of law on the negligence claim. The county, which did not raise the defenses of contributory negligence or assumption of the risk, and which did not submit any evidence indicating that the construction of the plaintiffs' house was illegal, was under a duty to exercise reasonable care in the construction and maintenance of sewers and drains under its control. See our discussion of the third and fourth issues, infra.
In light of our resolution of the first issue, the second issue is moot. In any event, we note that the county waived the second issue by not arguing below that it had acquired a sewer easement across the plaintiffs' property under the doctrine of prescription. It is a familiar standard of appellate review that issues cannot be raised for the first time on appeal. See Totten v. Lighting & Supply, Inc., 507 So. 2d 502 (Ala.1987).
As for the third and fourth issueswhether the county was under a duty to exercise reasonable care in the maintenance and operation of its sewer system and whether the doctrine of substantive immunity shields the county from liability for damages arising out of the operation of its sewer systemthe county takes the position that it owed no duty to the plaintiffs to construct or maintain a sewer that would not collapse under the weight of a house. We note, however, that cities and counties are generally responsible for damage caused by the negligent operation and maintenance of sewers and drains under their control. See, e.g., Cook v. County of St. Clair, 384 So. 2d 1, 5 (Ala.1980) ("[t]here is no restriction to the type of suit that may be brought against [a] countytort or contract"); see, also, Hilliard v. City of Huntsville, 585 So. 2d 889 (Ala.1991); Waterworks & Sewer Board of the Town of Ardmore v. Wales, 533 So. 2d 212 (Ala.1988); Terry v. City of Sheffield, 484 So. 2d 389 (Ala.1986); City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985); Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419 (1957); City of Birmingham v. Estes, 229 Ala. 671, 159 So. 201 (1935); City of Birmingham v. Greer, 220 Ala. 678, 126 So. 859 (1930). In Rich v. City of Mobile, supra, a narrow exception to the general rule of municipal liability was recognized. In Rich, the doctrine of substantive immunity was held to apply to those cases involving public service activities of governmental entities that are "so laden with the public interest as to outweigh the incidental duty to individual citizens." *1136 410 So. 2d at 387-88. The Court in Rich explained:
Id. at 387. Although Rich has not been limited to facts identical to those of that case, see, e.g., Hilliard v. City of Huntsville, supra; Ziegler v. City of Millbrook, 514 So. 2d 1275 (Ala.1987), we have not been cited to a case (and our research has not disclosed one) in which the doctrine of substantive immunity, as discussed in Rich, has been specifically extended so as to apply to counties. Nonetheless, even if logic and public policy were to dictate such an extension of the doctrine, it would not shield the county from liability in the present case. Here, the plaintiffs have alleged and presented evidence tending to show that the county constructed its sewer with knowledge that houses would likely be built over or in close proximity to it. Obviously, houses were built over the sewer. The evidence suggests that the sewer was not designed or constructed so as to withstand the weight of a house for an extended length of time and there is no evidence that the county ever inspected or otherwise attempted to ascertain whether that section of its sewer that ran under the plaintiffs' house might need additional support or whether it might need to be rerouted around the plaintiffs' property.
In City of Mobile v. Jackson, supra, the plaintiffs sued the city to recover damages to their real and personal property caused by the overflow of a drainage system that flooded their property. Rejecting the city's argument that Rich was applicable under the facts of that case, we held:
474 So. 2d at 649. Recently, in Hilliard v. City of Huntsville, supra, this Court cited with approval Town of Leighton v. Johnson, 540 So. 2d 71 (Ala.Civ.App.1989). In Johnson, the city created the defect that caused the injury by knocking a hole in a manhole cover and thereby allowing raw, untreated sewage to flow into a drainage ditch near the plaintiff's property. Although this Court in Hilliard held that the immunity doctrine recognized in Rich protected the city from any liability from the alleged negligent inspection of electrical wiring in an apartment complex, we specifically distinguished Johnson. Noting that the Court of Civil Appeals had correctly ruled in Johnson that the narrow exception to the general rule of liability recognized in Rich was not applicable, we stated in Hilliard that the Court of Civil Appeals had "merely refused to hold that the substantive immunity rule changed the tort laws governing municipal operations." 585 So. 2d at 892. Hilliard is consistent with City of Mobile v. Jackson, supra, and other cases in which municipal liability for negligence in the design *1137 or maintenance of sewer and drainage systems has been recognized. County commissions are authorized under Ala.Code 1975, § 11-3-11,
A county, like a city, is under a duty to exercise due care when it constructs and operates a sewage or drainage system, and it may be liable for damages proximately caused by its negligence. Because the doctrine of substantive immunity as recognized in Rich would not shield the county from liability, the county would not be entitled to a judgment as a matter of law based on that doctrine.
The last issue is whether the plaintiffs' claims are barred by the applicable statutes of limitations.[3] As previously noted, however, because the county's sewer easement was valid as to the plaintiffs, the county could not be liable for trespass. Consequently, we need not determine whether the plaintiffs' trespass claim was timely filed.
Under Ala.Code 1975, § 6-2-38(n), "[a]ll actions commenced to recover damages for injury to the person or property of another where a principal or master is sought to be held liable for the act or conduct of his agent under the doctrine of respondeat superior ... must be brought within two years" after the cause of action has accrued. A negligence cause of action accrues as soon as the plaintiff is entitled to maintain the action, i.e., at the time of the first legal injury, regardless of whether the full amount of damages is apparent. Watson, Watson, Rutland Architects, Inc. v. Montgomery County Bd. of Educ., 559 So. 2d 168 (Ala. 1990); Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979). The record in the present case shows that the plaintiffs' negligence cause of action accrued sometime in October 1987, when the ground around their house began to sink. The plaintiffs filed this action on October 25, 1989. By not introducing evidence of the day in October 1987 on which the damage to the plaintiffs' property first occurred, the county failed to make a prima facie showing that it was entitled to a judgment as a matter of law on the negligence claim based on the statute of limitations.
Insofar as it pertains to the trespass claim, the judgment is affirmed. However, insofar as it pertains to the negligence claim, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and KENNEDY, JJ., concur.
STEAGALL, J., concurs in the result.
ALMON, SHORES and INGRAM, JJ., concur in part and dissent in part.
INGRAM, Justice (concurring in part; dissenting in part).
The majority has concluded that, before the legislature's actions in 1971 (which required that condemnation orders, as well as notice of condemnation proceedings, be filed in the lis pendens records), condemnation proceedings, as reflected in the final record of the probate court, served to provide constructive notice that title to property was or could have been transferred to the condemning authority. I believe this issue has been squarely presented to this Court in State v. Abbott, 476 So. 2d 1224 (Ala.1985), and has been decided to the contrary. Therefore, I must respectfully dissent.
In Abbott, this Court was confronted with the question "whether the State, by failing to record a condemnation order ..., can be *1138 divested of its title to a highway right-of-way under [Ala.Code 1975, § 35-4-90]." The condemnation order was dated December 21, 1939; therefore (because it was pre-1971) it was not required by statute (§ 35-4-136) to be recorded in the lis pendens record. In construing the recordation statute (§ 35-4-90) the Abbott Court held that (1) an order of condemnation is a conveyance of real property; (2) an order of condemnation is a transfer of title to real property; and (3) a mere entry of an order of condemnation is not sufficient notice that title to land has been transferred. Specifically, the Court held that § 35-4-90 included orders entered in condemnation proceedings, "even though the State of Alabama and the Alabama Power Company, as amicus curiae, both strongly insist that orders of condemnation have never been considered by them to be transfers of title which have to be recorded." 476 So. 2d at 1226.
Justice Maddox, writing for the Court in Abbott, at 1228, concluded his analysis by noting that "[i]f our construction of § 35-4-90 is considered by the legislature to be contrary to its intent, the legislature is free to amend § 35-4-90 to specifically provide that orders of condemnation [prior to 1971] need not be recorded." As of this date, the legislature has not amended § 35-4-90.
In May 1992, writing for the Court, I authored Fort Payne Water Works Board v. Sparks, 600 So. 2d 230 (Ala.1992). The facts in Fort Payne reveal that a condemnation judgment dated 1984 was noted in the "minute book" of the probate court. It was not, however, recorded in any of the real property records (nor was it recorded in the lis pendens record as required by Act No. 181, Acts of Alabama, Second Special Session, 1971) at the time of the sale of the land to the Sparkses, the purchasers for value. We held in Fort Payne that the easement was outside the purchasers' chain of title and that they did not have constructive notice of it.
In deciding Fort Payne, this Court looked to Abbott and § 35-4-90. We held that "because the judgment of condemnation in which the prohibitive easement is contained was not recorded in the real property records of the probate court until after the [purchasers] had purchased the property, the easement was outside the chain of title to the property." 600 So. 2d at 232. However, as Justice Houston points out in the majority opinion in the present case, we could have simply held that because the condemnation judgment was entered after 1971, the case was controlled by Ala.Code 1975, § 35-4-136, which required that the order be recorded in the lis pendens record. Because this was not done in Fort Payne, the requirements of the statute were not met and the easement was outside the chain of title.
Nevertheless, I believe some of the statements in Fort Payne are dicta; but the holding is sound. Rather than holding that the easement was outside the chain of title, based on § 35-4-136, we based the opinion in Fort Payne on Abbott and its construction of § 35-4-90. We held that because the easement was contained only in the minute entry and was not recorded in the real property records of the probate court, the easement was outside the chain of title. I am satisfied that this is what Abbott said.
As noted above, I am at odds with the majority only concerning pre-1971 condemnation orders that have not been recorded in the real property records. The recordation statutes are designed to aid the general public in determining the title to property. They are to provide a means whereby one desiring to purchase land may ascertain if there is anything that affects the title to that land. Although I believe that a purchaser is under an obligation to dutifully search the records to determine an accurate history of the title of the property in question, I cannot find it in the public interest to require a search of every minute entry or file folder in the probate judge's office. In my opinion, this would be an onerous burden on the would-be purchaser. I do not believe that pursuant to § 35-4-90 the "final record" or "minute entry" in a condemnation proceeding constitutes notice to a purchaser for value. Rather, I believe that the better reasoned solution (as stated in Abbott) is that for a pre-1971 condemnation order to be considered within the chain of title, the condemnation order must be recorded in the real property record books. I am satisfied that that is the solution *1139 this Court adopted in Abbott when it construed § 35-4-90.
For this reason, I respectfully dissent from the majority opinion as it concerns the trespass claim against the County. As to the negligence claim, I concur.
ALMON and SHORES, JJ., concur.
[1] The plaintiffs also named Chicago Title as a defendant, seeking damages for breach of contract, negligence, and wantonness. After the summary judgment had been entered for the county and made final pursuant to Rule 54(b), A.R.Civ.P., the plaintiffs proceeded to trial on their claims against Chicago Title. However, the trial court directed a verdict for Chicago Title at the close of the plaintiffs' case and the plaintiffs did not appeal the judgment entered on that directed verdict.
[2] Attached to the county's brief on appeal is a copy of what is represented to be the 1902 condemnation judgment in favor of the county, as recorded in the probate court minutes. Because this document is outside the record, we cannot consider it in determining whether the summary judgment for the county was proper. See Sheetz, Aiken & Aiken, Inc. v. Louverdrape, Inc., 514 So. 2d 797 (Ala.1987).
[3] The county raised the statute of limitations defense in its answer to the plaintiffs' complaint, but it did not argue in support of its motion for summary judgment that it was entitled to a judgment based on that defense. However, the record indicates that the trial court specifically brought the issue up during the hearing on the motion and that the plaintiffs discussed the issue in a subsequent brief filed in support of their motion to vacate the summary judgment. | July 30, 1993 |
5aeddaf0-c171-4d4b-9279-d788464972fa | State Farm Fire and Cas. Co. v. Green | 624 So. 2d 538 | 1920307 | Alabama | Alabama Supreme Court | 624 So. 2d 538 (1993)
STATE FARM FIRE AND CASUALTY COMPANY
v.
Thomas G. GREEN.
1920307.
Supreme Court of Alabama.
July 23, 1993.
*539 Michael B. Beers and Christopher J. Hughes of Beers, Anderson, Jackson & Smith, P.C., Montgomery, for appellant.
G. William Gill of McPhillips, Shinbaum & Gill, Montgomery, for appellee.
HOUSTON, Justice.
State Farm Fire and Casualty Company ("State Farm") appeals, pursuant to Rule 5, A.R.App.P. ("Appeal by permission"), from the trial court's interlocutory order denying its motion for a summary judgment. We affirm.
Thomas Green leased a commercial building and certain items of business-related personal property to James Barnes, who purchased insurance coverage on Green's personal property from State Farm. After the building and its contents (including the personal property owned by Green) were damaged by fire, Green sued Barnes, alleging negligence, and State Farm, alleging that he was a third-party beneficiary under the State Farm policy and, therefore, that he was entitled under that policy to be compensated for the damage to his personal property. State Farm moved for a summary judgment, taking the position that Green could not maintain such an action directly against it without first obtaining a judgment against Barnes, or, in the alternative, that if such an action was proper, there was insufficient evidence that Green was intended to receive a direct benefit from the policy. The trial court denied State Farm's motion and State Farm appeals.[1]
Two issues are presented for our review:
With regard to the first issue, State Farm correctly points out that when the liability of an insurer to pay for injuries suffered by a third party is predicated on the establishment of the liability of its insured to that third party, a direct action by the third party against the insurer is not permitted under Alabama law until the third party has obtained a judgment against the insured. See Howton v. State Farm Mutual Automobile Ins. Co., 507 So. 2d 448 (Ala.1987); Stewart v. State Farm Ins. Co., 454 So. 2d 513 (Ala.1984); Maness v. Alabama Farm Bureau Mutual Casualty Ins. Co., 416 So. 2d 979 (Ala.1982); see, also, Ivory v. Fitzpatrick, 445 So. 2d 262 (Ala.1984). However, as Green correctly observes, the rule is also well established in Alabama that one for whose benefit a contract is made, although he is not a party to the agreement and does not furnish the consideration therefor, may maintain an action on the contract against the promisor. Stating the rule otherwise, a third party can enforce a contract entered into between others for his direct benefit. This Court has held that a third party can sue an insurer directly under a third-party *540 beneficiary theory without first obtaining a judgment against the insured, provided that the insurer's liability is not predicated on the establishment of the liability of its insured. See Employers Ins. Co. of Alabama v. Rhodes, 240 Ala. 226, 198 So. 616 (1940); Barlowe v. Employers Ins. Co. of Alabama, 237 Ala. 665, 188 So. 896 (1939). See, also, Howton v. State Farm Mutual Automobile Ins. Co., supra. Therefore, the pivotal question presented by the first issue is whether State Farm's contractual obligation to pay for Green's damaged property is predicated on the establishment of Barnes's legal liability to Green for the damage to that property.
The State Farm policy contained in the record is divided into two sections. Section one ("Property Coverages") provides, in pertinent part, as follows:
Section two of the policy ("Comprehensive Business Liability") reads in part as follows:
"Property damage" is defined in section two as follows:
After examining the record, specifically the policy and the testimony of the State Farm agent who sold it to Barnes, we cannot agree with State Farm that its contractual obligation to pay for Green's damaged property is "clearly" predicated on the establishment of Barnes's legal liability to Green. The pertinent portions of section one, as set out above, indicate that State Farm may be contractually bound, to the extent of the policy limits, to pay for the damage done to Green's property, irrespective of the legal liability of Barnes. In addition, the availability of liability coverage under section two of the policy and the provision in that section excluding coverage for damage to the property leased to an insured suggests that State Farm intended for personal business property to be covered under section one of the policy, regardless of whether its insured is legally liable to a third party. We note State Farm's reliance on the following language from section one: "The limit of the Company's liability shall not exceed the amount for which the insured is legally liable...." However, this language, although it appears clear when considered by itself, must be considered in its proper context. The entire provision, as previously set out in this opinion, reads as follows:
A fair reading of this provision, as a whole, indicates that that part relied on by State Farm may refer, at least in part, to the insured's liability for any expenses that he may incur in repairing or replacing damaged property, not to the insured's liability to the lessor of personal business property. Under this interpretation, the language relied on by State Farm could be applicable no matter whose property was damaged (the insured's or the third party's). However, if we placed on this language the interpretation urged by State Farm then it would be difficult to imagine how this limitation on liability could apply when only the insured's property is damaged.[3] When asked to explain what this provision meant, Cedric Bradford, the agent who sold the policy to Barnes, stated that he was "not sure" and that an explanation of the policy would have to come from his claims officer.
It seems to us that the trial court would have been justified in concluding that section one of the policy is ambiguous as to whether a judgment against Barnes is a condition precedent to State Farm's contractual obligation to pay for Green's property. Therefore, we cannot hold that State Farm is entitled to a judgment as a matter of law under the rationale of Stewart v. State Farm Ins. Co. and Maness v. Alabama Farm Bureau Mutual Casualty Ins. Co., supra.
*542 With regard to the second issue, we conclude that the evidence is sufficient to create a fact question as to whether Green was intended to receive a direct benefit under the policy. The evidence, viewed in the light most favorable to Green, Rule 56, A.R.Civ.P., indicates that Barnes purchased the policy in part to protect Green, should any of Green's property be damaged while in Barnes's possession. The record also indicates that State Farm's agent, Cedric Bradford, was shown a copy of the lease between Barnes and Green and that he understood that the policy was intended to benefit Green, as a third-party lessor. Moreover, the very purpose of the policy was to protect "others" whose property might be damaged while in the possession of the insured. As the policy clearly shows, State Farm even reserved the right to adjust a claim directly with the owner of property damaged while under lease to its insured. See Mutual Benefit Health & Accident Ass'n of Omaha v. Bullard, 270 Ala. 558, 567, 120 So. 2d 714, 723 (1960) ("[t]he intention of the parties disclosed by the writing and surrounding circumstances known to the parties, and not their motive, determines the rights of the third-party beneficiary"); see, also, 4 Corbin, Contracts § 781, at 70 (1951) (there is no requirement that the intended beneficiary be in existence or be identifiable at the time the contract is entered into; it is sufficient that he be identifiable at the time performance is due). We are, therefore, not persuaded by State Farm's argument that it is entitled to a judgment as a matter of law on the ground that Barnes's primary motive in purchasing the policy was to protect himself, or on the ground that the word "others" as used in the policy did not include Green.
For the foregoing reasons, the trial court's order denying State Farm's motion for a summary judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and INGRAM, JJ., concur.
[1] The notice of appeal filed in this case also carried the name of the insured, Barnes; however, in fact, only State Farm and Green are parties to this appeal.
[2] Although the record is not clear, it appears that Barnes did not purchase the comprehensive business liability coverage under section two. However, section two of the policy is relevant in determining the scope of the coverage provided under section one.
[3] The record indicates that State Farm has paid Barnes for the damage done to his personal property. It is obvious, therefore, that State Farm construes this limiting language as applying only when a third party's property is damaged while being held by its insured. | July 23, 1993 |
c6f00157-6164-4d17-bdf8-7acfaa1ff838 | Ex Parte Steadham | 629 So. 2d 647 | 1920254 | Alabama | Alabama Supreme Court | 629 So. 2d 647 (1993)
Ex parte Jo Ann STEADHAM, et al.
(Re Jo Ann STEADHAM, et al. v. BOARD OF ZONING ADJUSTMENT OF the CITY OF MOBILE, et al.)
1920254.
Supreme Court of Alabama.
August 27, 1993.
Norman J. Gale, Jr. of Clay, Massey & Gale, P.C., Mobile, for appellants.
John L. Lawler of Finkbohner, Lawler & Olen, and Jim H. Fernandez of Fernandez, Ollinger & Combs, Mobile, for appellees.
MADDOX, Justice.
This is a dispute over the grant of a use variance by the Zoning Board of Adjustment of the City of Mobile ("Board") to the Boys' and Girls' Clubs of Greater Mobile. We granted the petition for the writ of certiorari, filed by several nearby landowners, to review the affirmance by the Court of Civil Appeals of the trial court's dismissal of the petitioners' appeal from the Board's decision, based on a finding that the petitioners lacked standing. We reverse and remand.
The facts are stated in the opinion of the Court of Civil Appeals. Steadham v. Board of Zoning Adjustment, 629 So. 2d 645 (Ala. Civ.App.1992), should be read in conjunction with this opinion. We recite only those facts necessary to our discussion.
The Board granted the Boys' and Girls' Clubs a use variance for property zoned R-1, *648 single-family residential, to build and maintain an environmental youth corps facility, to be used for alternative sentencing programs for nonviolent juvenile offenders. The petitioners appealed pursuant to Ala.Code 1975, § 11-52-81, which provides, in pertinent part: "Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court.... [T]he action in such court shall be tried de novo."
After conducting a hearing, the trial court held that the petitioners were not "parties aggrieved" and, therefore, that they lacked standing to challenge the Board's decision. Based on that finding, the trial court dismissed their appeal.
The Court of Civil Appeals affirmed, holding that the trial court did not abuse its discretion in determining that the petitioners were not "parties aggrieved" as contemplated by § 11-52-81. That court based its holding on the minimal evidence presented by the petitioners in support of their proposition that the proposed use of property for the youth corps facility would have an adverse impact on their property and the substantial evidence presented by the respondents indicating that the proposed use, which was approved by the Board, would have no adverse effect on the use, enjoyment, or value of neighboring property.
The petitioners contend that this holding conflicts with Ex parte Marshall Durbin & Co. of Jasper, Inc., 537 So. 2d 496 (Ala.1988), wherein this Court noted:
537 So. 2d at 497-98.
The petitioners argue that they "have vigorously presented their case and have an interest in protecting the value of their property and in maintaining the residential character of their neighborhood," Petitioners' brief at 8, and, therefore, that they have standing to challenge the Board's decision.
Specifically regarding the issue of standing under § 11-52-81, in Crowder v. Zoning Board of Adjustment, 406 So. 2d 917 (Ala.Civ. App.), cert. denied, 406 So. 2d 919 (Ala.1981), the Court of Civil Appeals held:
406 So. 2d at 918 (quoting in part Cox v. Poer, 45 Ala.App. 295, 297, 229 So. 2d 797, 799 (1969)); see also Gulf House Ass'n, Inc. v. Town of Gulf Shores, 484 So. 2d 1061, 1063 (Ala.1985).
This case is not like Gulf House, upon which the Board relies, because, in that case, this Court specifically found that "[t]he evidence... [was] insufficient to show that Gulf House was `aggrieved.'" 484 So. 2d at 1063. In that case, the party claimed a right to a view of the Gulf of Mexico, and this Court held that there was no legal right to such a view.
Having reviewed the record in this case in light of the principles discussed above, we conclude that the petitioners presented enough evidence to show that the board's decision "could have" an adverse effect upon them. There was testimony, albeit disputed, that the petitioners would suffer diminished property values as a proximate result of the zoning variance. This satisfies the petitioners' burden of showing that each of them was a "party aggrieved" by the board's decision, within the meaning of § 11-52-81.
*649 Our holding addresses only the issue of standing. We express no opinion as to the decision on the merits by the trial court and the Court of Civil Appeals that the petitioners had suffered no adverse effect from the zoning decision.
Based on the foregoing, we reverse the judgment of the Court of Civil Appeals and remand with instructions to remand the cause to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
INGRAM, J., dissents.
INGRAM, Justice (dissenting).
The majority concludes that the petitioners presented enough evidence to meet the burden of showing that they were "parties aggrieved." I disagree.
The only evidence presented by the petitioners concerned their fears of having this facility in proximity to their properties and their fear that their properties would be reduced in value. However, the petitioners' own expert testified that such a use variance did not have a significant impact upon the residential character of the neighboring property. He testified that the wooded buffer zone between the facility's property and the petitioners' property would partially obstruct visibility of the facility.
Based upon the evidence presented, I conclude that the petitioners here did not present sufficient proof of any adverse effect that the changed status of the rezoned property has, or could have, on the use, enjoyment, and value of their property. Crowder v. Zoning Board of Adjustment, 406 So. 2d 917 (Ala.Civ.App.1981); Cox v. Poer, 45 Ala.App. 295, 229 So. 2d 797 (1969). Therefore, I must respectfully dissent. | August 27, 1993 |
3aae9170-c659-4e05-84e6-ff99e7374f99 | CENTURY 21-REEVES v. McCONNELL CADILLAC | 626 So. 2d 1273 | 1920534 | Alabama | Alabama Supreme Court | 626 So. 2d 1273 (1993)
CENTURY 21-REEVES REALTY, INC., and Iris Reeves,
v.
McCONNELL CADILLAC, INC., and General Motors Corporation.
1920534.
Supreme Court of Alabama.
July 23, 1993.
Rehearing Denied August 27, 1993.
*1274 John W. Parker, Mobile, for appellants.
M. Lloyd Roebuck, Mobile, for McConnell Cadillac, Inc.
Richard T. Dorman and Patricia J. Ponder of McRight, Jackson, Dorman, Myrick & Moore, Mobile, for General Motors Corp.
HOUSTON, Justice.
The plaintiffs, Century 21-Reeves Realty, Inc., and its president, Iris Reeves ("Century 21"), appeal from separate summary judgments for the defendants, General Motors Corporation ("GM") and McConnell Cadillac, Inc. ("McConnell"), in this action seeking damages for breach of warranty, fraud, and negligence. We affirm in part, reverse in part, and remand.
The following material facts in this case are undisputed: Century 21 leased a Cadillac DeVille automobile from General Motors Acceptance Corporation ("GMAC") in 1985. GM had built the automobile and sold it to GMAC. The automobile was equipped with an "HT-4100" engine. GM had had a problem with this kind of engine in that it would leak coolant slowly around a gasket into the engine's crank-case, thereby reducing the lubricating capabilities of the engine's oil and causing damage. However, GM automobiles equipped with this kind of engine that were built midway through 1985, such as the one purchased by Century 21, were serviced at the factory before shipment, to correct this problem. GM adopted a program whereby notices were to be mailed to owners and dealers detailing the potential problem with the HT-4100 engines. Owners whose automobiles had not been serviced at the factory were to be mailed notices stating that dealer services were available to correct the problem and informing them that GM was providing *1275 an extended limited warranty on the engine. That warranty covered, for 48 months or 50,000 miles, whichever occurred first from the date the automobile was placed in service, repairs or adjustments to the covered components of the engine that were needed because of defects in material or workmanship. It also provided:
(Emphasis in the warranty document.) Owners whose automobiles had been serviced at the factory were to be mailed similar notices and were also to receive the extended engine warranty.
When Century 21 leased the automobile from GMAC, it was covered by the extended limited warranty on the engine as well as by a 12-month, 12,000 mile, general GM limited warranty. Century 21 also purchased a five-year, unlimited mileage, extended service contract covering the automobile. Although not a warranty, that contract covered the cost of certain repairs that might be made to the automobile. Upon expiration of its lease in 1990, Century 21 purchased the automobile from GMAC. Neither GM nor McConnell was involved with the negotiations leading up to Century 21's purchase of the automobile. Shortly after Century 21 had purchased the automobile, the engine overheated and was damaged as a result. Although the GM limited warranties, as well as the extended service contract, had expired by the time the automobile's engine failed, GM and McConnell offered to replace the engine at no cost to Century 21. Century 21 rejected this offer.
Century 21 sued, claiming against GM breach of warranty and fraud, alleging that GM had breached both express and implied warranties covering the automobile and that GM had suppressed material information concerning the problem that it had had with the HT-4100 engine. Against McConnell, Century 21 claimed fraud and negligence, alleging that McConnell had also suppressed material information concerning the automobile's engine and that McConnell had negligently failed to repair the automobile.
Our standard of review in this case is well settled. The summary judgments were proper if there was no genuine issue of material fact and each defendant was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the defendants to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. If they made that showing, then the burden shifted to Century 21 to rebut that showing by presenting evidence creating a genuine issue of material fact. In determining whether there was a genuine issue of material fact, we must view the evidence in the light most favorable to Century 21 and must resolve all reasonable doubts against the defendants. Knight v. Alabama Power Co., 580 So. 2d 576 (Ala. 1991).
After carefully reviewing the briefs of the parties and the applicable portions of the record, we conclude that the summary judgment for GM was proper as to Century 21's breach of warranty claims. The undisputed evidence shows that the express GM limited warranties covering the automobile had expired by the time the engine failed. Furthermore, pursuant to Ala.Code 1975, § 7-2-316 ("Exclusion or modification of warranties"), GM had expressly limited the duration of any implied warranties of merchantability (§ 7-2-314) and fitness for a particular purpose (§ 7-2-315) to the duration of the extended limited warranty on the engine.
We also conclude that the summary judgment for GM was proper as to Century 21's fraud claim. The undisputed evidence shows that Century 21 purchased the automobile from GMAC, not from GM. GM was not involved with the negotiations leading up to Century 21's purchase of the automobile from GMAC. GM, which had no confidential relationship with Century 21 (in fact, GM had no contacts with Century 21 at all), had serviced Century 21's automobile at the factory *1276 to correct the problem with the engine. Although GM may have misjudged the effectiveness of its efforts to rectify the problem with the engine's gasket, we can find no basis under the circumstances of this case upon which to impose a duty on GM's part to disclose information concerning the automobile directly to Century 21. See Cobb v. Southeast Toyota Distributors, Inc., 569 So. 2d 395 (Ala.1990).[1]
Century 21's fraud claim against McConnell was based on allegations that McConnell had failed to inform Century 21 of the problem that GM had had with the HT-4100 engine. The evidence shows that Iris Reeves's husband, A.C. Reeves, took the automobile to McConnell on August 16, 1990, shortly before Century 21 purchased it from GMAC. Reeves testified that he told a McConnell service representative that the air conditioner and radio antenna were not working properly. He further testified that he told the representative that the automobile's "coolant light" had come on and that he asked that the automobile be "checked out" before Century 21 purchased it. The repair order prepared by the service representative contained no reference to a complaint concerning the "coolant light"; it did state that the "A/C light [had come] on." Mr. Reeves testified that when he picked up the automobile he was told that it was "ready." Mr. Reeves made no specific inquiries as to the mechanical work that had been performed on the automobile. The air conditioner and the radio antenna were repaired. Subsequently, the engine on the automobile overheated and was damaged as a result.
After carefully reviewing the record, we conclude that the summary judgment for McConnell was proper as to Century 21's fraud claim. The undisputed evidence shows that the engine in Century 21's automobile had been serviced by GM at the factory to correct the problem caused by the leaking gasket. McConnell, which had been notified of that fact by GM, was never informed by Century 21, before August 16, 1990, of any problem with the automobile's engine that could be associated with the engine's coolant leaking into the crankcase. McConnell adamantly disputed Mr. Reeves's testimony that he told its service representative about the "coolant light." Mr. Reeves testified that he never said anything to the representative about the "A/C light." Therefore, viewing the evidence in the light most favorably to Century 21, we must conclude for purposes of this appeal that Mr. Reeves told the service representative that the "coolant light" had come on and that the representative misstated on the repair order that the "A/C light" had come on. The obvious result of this "failure to communicate" would have been that McConnell would not check, or would not adequately check, the automobile's cooling system. However, we can see no evidentiary support for Century 21's allegations that McConnell had specific information concerning the automobile's engine that would have given rise to a duty on its part to inform Century 21 about the problem that GM had had with the HT-4100 engine.
We disagree, however, with the trial court's entry of the summary judgment as to Century 21's negligence claim against McConnell. As previously noted, the evidence, when viewed in the light most favorable to Century 21, indicates that Mr. Reeves informed McConnell, through its service representative, that the automobile's "coolant light" had come on. Although McConnell disputes Mr. Reeves's testimony, a fact question was presented as to whether McConnell's service representative exercised reasonable care under the circumstances in transcribing Mr. Reeves's complaint onto the repair order so that the engine's cooling system could be thoroughly inspected.
We note McConnell's argument that, because the engine was never "broken down" for an examination as to the exact cause of the engine's failure, the summary judgment should be affirmed on the ground that Century 21 failed to present any expert testimony as to the proximate cause of the damage (i.e., *1277 evidence showing that the engine was damaged as a result of the engine's coolant leaking around the gasket and into the crankcase). Initially, we point out that McConnell apparently presented no evidence tending to show that its alleged negligence was not the proximate cause of the engine's damage. Therefore, the burden never shifted to Century 21 to present any evidence concerning the proximate cause of the damage. In any event, the record contains the following testimony of Edwin McConnell:
This testimony, which was properly before the trial court when it considered the summary judgment motion, was sufficient to present a fact question as to the proximate cause of the damage to the engine.
For the foregoing reasons, the summary judgment for GM was proper and, therefore, it is due to be affirmed. The summary judgment for McConnell was proper as to the fraud claim and, therefore, it is due to be affirmed as to that claim; however, the summary judgment for McConnell was improper as to the negligence claim and it is due to be reversed as to that claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX and SHORES, JJ., concur.
KENNEDY, J., concurs in the result.
[1] The record shows that GM adopted a plan to notify owners of record of automobiles equipped with the HT-4100 engine of the problem that it had had with the gaskets. The record is unclear; however, as to whether GMAC or Century 21 actually received specific notice of the engine's problematic history. | July 23, 1993 |
1eb8861f-7f08-4e3c-acc0-064959d22b61 | Ex Parte Graham | 634 So. 2d 994 | 1920483 | Alabama | Alabama Supreme Court | 634 So. 2d 994 (1993)
Ex parte Michael K. GRAHAM.
(In re Michael K. GRAHAM v. BOB MANDAL NISSAN, INC., et al.)
1920483.
Supreme Court of Alabama.
July 30, 1993.
Andrew T. Citrin, Michael A. Worel and David G. Wirtes, Jr. of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for petitioner.
Michael S. McGlothren and Steve Olen of Olen & McGlothren, P.C., Mobile, for Douglas Johnstone and Bob Mandal Nissan, Inc.
Michael D. Knight of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, and Craig P. Niedenthal of Rumberger, Kirk & Caldwell, Orlando, FL, for Nissan Motor Corp. in U.S.A.
STEAGALL, Justice.
In April 1990, Michael Graham purchased a Nissan Sentra automobile from Bob Mandal Nissan, Inc. (hereinafter "Mandal Nissan"), a dealership located in Mobile County. Several times thereafter, Graham took the vehicle back to Mandal Nissan for repair of an apparent defect that caused the vehicle to "jerk" or swerve to the side when changing lanes.
In September 1990, Graham was riding as a passenger in his automobile on a public roadway in Baldwin County when it suddenly swerved to the right and overturned several times, ejecting Graham and the driver. Graham sued Mandal Nissan and Nissan Corporation, USA (hereinafter "Nissan USA"), alleging that Nissan USA had defectively manufactured the vehicle and that Mandal Nissan had negligently repaired it and that his injuries were the direct result of their negligence. The defendants moved to transfer the action from the Mobile Circuit Court to the Baldwin Circuit Court, and the trial court granted these motions. Graham seeks a writ of mandamus directing the trial court to vacate its transfer order.
*995 Graham first recognizes that the applicable venue statute is Ala.Code 1975, § 6-3-7, which provides:
Graham argues that, for purposes of § 6-3-7, a "personal injury" occurs in the place where the alleged negligent act or omission occurs and not in the place where the damage ensues. He relies upon Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So. 2d 1356 (Ala.1993), a fraud case wherein this Court held that in § 6-3-7 "injury" refers to the wrongful act or omission of the corporate defendant and not to the resulting damage to the plaintiff; thus, in SouthTrust we concluded that venue is proper under § 6-3-7 where the wrongful act or omission was committed. Graham argues that this rule should be applied in bodily injury cases, as it is in fraud and libel cases, and concludes that venue in this case is proper in Mobile County where the alleged negligent repair of the vehicle was performed.
Our holding in SouthTrust was based on Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921), wherein this Court examined at length the issue of where an "injury" is deemed to have "occurred" for purposes of the corporate venue statute. The Court analyzed Ala.Code 1907, § 6112, which was later recodified as § 6-3-7, and held:
207 Ala. at 44, 92 So. at 197.
Because Age-Herald was a libel case, this Court held that the proper venue for the action was the county where the libeling party published the remarks, not where they were received and where the resulting damage occurred. This rule has been applied in later libel cases, Ex parte Arrington, 599 So. 2d 24 (Ala.1992); Ex parte First Alabama Bank of Montgomery, N.A., 461 So. 2d 1315 (Ala.1984), and has recently been extended by this Court to apply to fraud cases. Ex parte SouthTrust Bank of Tuscaloosa County, N.A., supra. In each of these cases, this Court reiterated that the legal meaning of "injury" in a tort action is the act or omission of the defendant, not the damage that the plaintiff suffers as a result of the defendant's act or omission.
Graham recognizes that in Ex parte Townsend, 589 So. 2d 711 (Ala.1991), this Court applied a different interpretation of § 6-3-7 to a "personal injury" action involving a domestic corporate defendant. In that case, the plaintiffs were injured when the garbage truck they were riding in crashed in Etowah County, as the result of a faulty garbage compactor unit sold by the defendant in Jefferson County for installation in the garbage truck. The plaintiffs sued in Jefferson County; however, the court transferred the case *996 to Etowah County on motion of the defendants. This Court denied the plaintiffs' petition for a writ of mandamus directing the trial court to vacate the transfer. The Court noted that the plaintiffs and witnesses to the accident resided in Etowah County, as did the wrecker driver and the medical personnel who attended to the plaintiffs. The Court also noted that the accident was investigated in Etowah County and that the physical evidence in the case, including the vehicle itself, was located in Etowah County. The Court held that the injury thus occurred in Etowah County and venue was proper there.
Mandal Nissan and Nissan USA argue that Townsend created an exception whereby the legal definition of "injury" set out in Age-Herald would not apply in "personal injury" cases where the defendant's act or omission results in bodily harm to the plaintiff. They insist that there is a difference between the damage suffered in bodily injury cases and the damage suffered in the context of fraud or libel, and that there is therefore justification for the exception.
We recognize that in the everyday practice of law, a "personal injury" action is a case wherein the defendant's breach of a duty owed to the plaintiff results in bodily harm to the plaintiff; in that context, "personal injury" is interpreted literally. In interpreting the term "personal injury," as it is used in the venue statute, this Court has expanded the meaning of the term to include mental distress, annoyance, inconvenience, humiliation, and other manifestations of mental distress, as well as direct bodily harm. Ex parte First Alabama Bank of Montgomery, N.A., supra. While this Court has not sought to classify one type of claim above another, it has previously indicated that there is to be a distinction between "personal injury" actions involving bodily injury and those actions involving the less traditional "personal injury" of mental distress.
In Drennen Motor Car Co. v. Evans, 192 Ala. 150, 68 So. 303 (1915), the Court construed § 6112, Code of 1907, the predecessor of today's corporate venue statute, in pari materia with § 6110, Code of 1907, which was the predecessor of today's individual venue statute, to determine the proper venue for a "personal action." The individual venue statute provided that a "personal action" against an individual defendant could be brought either in the county of the defendant's permanent residence within the state or at the place where the act or omission occurred. The Court gave the following analysis:
192 Ala. at 155-56, 68 So. at 305.
With this holding, the Court recognized that noncontractual personal actions such as fraud and libel actions could be brought under the corporate venue statute, but differentiated between a "personal action" and a "personal injury action." In holding that a "personal action" could be brought "where the act or omission occurred," the Court was careful to make personal injury actions an exception to this rule.
In Associated Grocers of Alabama v. Graves Co., 272 Ala. 158, 130 So. 2d 17 (1961), *997 an equity case, this Court again held that the corporate venue statute should be construed in pari materia with the individual venue statute. Quoting the language found in Drennen, the Court again held that in all "personal actions, other than personal injury actions," the corporate venue statute required that an action be brought where the corporate defendant resided or did business or at the place where the act or omission occurred. 272 Ala. at 162, 130 So. 2d at 20.
With these cases, the Court effectively established a different rule of venue for personal injury actions such as fraud and libel actions, which were formerly known as merely "personal actions," and negligence actions based on bodily injury, which are "personal injury actions" in the popular sense, without excluding either type of claim from the corporate venue statute. This differentiation is borne out in the Court's dissimilar holdings in the Age-Herald line of cases, which involved "personal actions," and Townsend, which was a "personal injury" case in the popular sense. We now bring focus to these holdings by establishing the following interpretation of § 6-3-7: In personal injury actions where the defendant's wrongful act or omission causes the plaintiff to suffer mental and/or emotional distress, or other nonbodily injuries, the injury occurs in the county where the defendant's wrongful act or omission occurred. In personal injury actions where the defendant's wrongful act or omission causes bodily harm to the plaintiff, the injury occurs in the county where the bodily harm occurs. We emphasize that both types of actions are properly brought under § 6-3-7; our holding in this case does nothing to alter the well-settled rule that the term "personal injury" encompasses mental and/or emotional distress, as well as bodily harm.
In applying this standard in the instant case, we hold that venue is proper in Baldwin County, where the accident occurred and where the bodily harm to the plaintiff resulted. The trial court's order transferring the case was thus proper; accordingly, the petition for the writ of mandamus is denied.
WRIT DENIED.
MADDOX, HOUSTON, KENNEDY and INGRAM, JJ., concur.
SHORES, J., concurs in the result. | July 30, 1993 |
07af1aa9-4ea3-47a3-856c-10abdd9311ec | Kelly v. Arrington | 624 So. 2d 546 | 1920145 | Alabama | Alabama Supreme Court | 624 So. 2d 546 (1993)
Leon F. "Buddy" KELLY, Jr.
v.
Richard ARRINGTON.
1920145.
Supreme Court of Alabama.
July 23, 1993.
*547 Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellant.
Joe R. Whatley, Jr. and Samuel H. Heldman of Cooper, Mitch, Crawford, Kuykendall & Whatley, Donald V. Watkins, and Kenneth L. Thomas of Thomas, Means & Gillis, Birmingham, for appellee.
PER CURIAM.
The sole issue presented by this appeal is whether statements made by the mayor of Birmingham about an assistant United States attorney could reasonably be understood by the average layperson as defamatory; if so, then the defendant's summary judgment in this defamation action must be reversed.
The defendant, Richard Arrington, is the mayor of the City of Birmingham. The plaintiff, Leon F. "Buddy" Kelly, Jr., is an assistant United States attorney for the Northern District of Alabama. Kelly sued Arrington in the Circuit Court of Shelby County, but his case was subsequently transferred to Jefferson County.[1] Arrington subsequently moved for a summary judgment, arguing that, as a matter of law, his statements were not defamatory. The court granted the motion. Kelly appeals. We affirm.
Mayor Arrington wrote and published a column entitled "Mayor's Comments: Some Post Election Observations," on October 17, 1991, in the Birmingham Times. The article was republished in the Birmingham News/Birmingham Post-Herald on Saturday, October 19, 1991, and again in the Birmingham News on October 21, 1991. The portion of the article at issue reads as follows:
Kelly contends that these statements were defamatory because, Kelly says, in them Arrington *548 accused Kelly of being in collusion with federal agents and private individuals to illegally solicit and publish information to incriminate Arrington during his re-election campaign for mayor. Kelly argues that they relate directly to his professional and personal integrity and ethics and that "[t]he crux of this lawsuit is that defendant has jeopardized plaintiff's livelihood and career." Kelly states that "[a] United States Attorney can be disciplined or terminated for even discussing the subject of an investigation," and that "[Arrington's] charges are even more serious because [Arrington] charged [him] with leaking information to influence and interfere with a municipal election." Kelly says that Arrington's statements could be reasonably understood by the average layperson as defamatory and, therefore, that they were actionable.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering a summary judgment. The rule requires the trial court to determine (1) that there is no genuine issue of material fact and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have been stated by the Court as follows:
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala. 1989) (quoting Schoen v. Gullege, 481 So. 2d 1094 (Ala.1985)).
The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
We now address whether the statements could have been understood as defamatory. Whether a communication is reasonably capable of a defamatory meaning is a question of law. Camp v. Yeager, 601 So. 2d 924, 926 (Ala.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 967, 122 L. Ed. 2d 122 (1993); Harris v. School Annual Publishing Co., 466 So. 2d 963, 964 (Ala.1985). "[I]f the communication is not reasonably capable of a defamatory meaning, there is no issue of fact, and summary judgment is proper." Harris, 466 So. 2d at 964-65. "However, if the trial court finds that the statement is reasonably capable of a defamatory meaning, `it is then for the jury to say whether [the statement was] in fact so understood.'" Camp, 601 So. 2d at 927, quoting W. Page Keeton, et al., Prosser and Keeton on Torts, § 111, at 781 (5th ed. 1984).
The test to factually determine the defamatory nature of a statement was described in Loveless v. Graddick, 295 Ala. 142, 148, 325 So. 2d 137, 142 (1975), as follows:
In addition, this Court has set out the following principle for determining whether a printed statement was defamatory:
McGraw v. Thomason, 265 Ala. 635, 639, 93 So. 2d 741, 744 (1957).
If the words employed in the allegedly defamatory publication are understood to impute dishonesty or corruption to an individual, they are actionable. Gray v. WALA-TV, 384 So. 2d 1062, 1065 (Ala.1980). Words are defamatory per se if they directly tend to prejudice anyone in his office, profession, trade, or business, or in any lawful employment by which he may gain his livelihood. Id.
In an affidavit filed in opposition to the motion for summary judgment, Kelly said, in part:
Kelly summarizes his argument about the defamatory nature of the statement as follows:
Arrington summarizes his argument, in his brief, as follows:
We are persuaded that the statements made by Mayor Arrington could not reasonably *551 be understood by the average layperson as having a defamatory meaning; therefore, no material issue of fact was presented. Consequently, the summary judgment was appropriate.
Based on the foregoing, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in the result.
MADDOX, Justice (concurring in the result).
Although I concur in the affirmance of the summary judgment, it is not because "the statements ... could not reasonably be understood by the average layperson as having a defamatory meaning," but because of the holding in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), a case decided "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks upon government and public officials." 376 U.S. at 270, 84 S. Ct. at 721. See Camp v. Yeager, 601 So. 2d 924 (Ala.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 967, 122 L. Ed. 2d 122 (1993), a case in which the alleged defamatory statement was made about a public official during a political campaign and may have been understood as accusing the official of misconduct in office while he was a member of the Public Service Commission. In a dissenting opinion in that case, I said that "[c]onsidering the Supreme Court's review in New York Times of the history of the First Amendment, it is clear to me that the Court came ever so close to holding that political speech, even speech that is false and defamatory ... has absolute protection under the First Amendment" (emphasis original), 601 So. 2d at 931, and I included the following quote from New York Times:
601 So. 2d at 901 (quoting 376 U.S. 254, 271, 84 S. Ct. 710, 721, quoting from Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S. Ct. 900, 906, 84 L. Ed. 1213 (1940) (emphasis added in my dissent in Camp)).[2]
That the newspaper article here in dispute was capable of a defamatory meaning seems clear. In the article, Arrington accused Kelly, an assistant United States attorney, of being in collusion with federal agents and private individuals to illegally solicit and publish information to incriminate the mayor, and also, within the same article, the mayor accused Kelly of ongoing efforts to influence and maliciously interfere with his mayoral campaign. In his concluding comments, the mayor accused Kelly of "unethical" conduct; if that statement was true, Kelly could have been disciplined or his employment terminated, under federal law.
The statements in this article, therefore, are not substantially different from the statement made by the defendant in Camp v. Yeager, in which a majority of this Court, applying the test of Loveless v. Graddick, 295 Ala. 142, 325 So. 2d 137 (1975), reversed a summary judgment for the defendant. I think that the Court is being inconsistent, but I concur in the result.
[1] Arrington asked the Shelby Circuit Court to dismiss for lack of venue or, in the alternative, to transfer the action. His motion was denied, but on Arrington's petition, this Court issued a writ of mandamus requiring the transfer to Jefferson County. Ex parte Arrington, 599 So. 2d 24 (Ala. 1992).
[2] For a full understanding of my views on First Amendment protections, see my dissent in Camp v. Yeager, 601 So. 2d 924, 926 (Ala.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 967, 122 L. Ed. 2d 122 (1993). | July 23, 1993 |
880d0492-93a5-47ba-b41e-2710b98960dd | Chaney v. Waddell | 624 So. 2d 545 | 1921293 | Alabama | Alabama Supreme Court | 624 So. 2d 545 (1993)
Inez CHANEY, et al.
v.
Glenn WADDELL, et al.
1921293.
Supreme Court of Alabama.
July 23, 1993.
John L. Sims, Hartselle, for appellants.
Sherman B. Powell, Jr., Decatur, for appellees.
*546 HOUSTON, Justice.
In 1975, Albert L. Waddell ("A.L.") gathered his eight children together and showed them a drawing that divided a 40-acre tract of land he owned near Hartselle, Alabama, into 8 parcels. He then had an attorney draw up 8 deeds to the property, reflecting the results of the drawing and giving a 5-acre tract to each child. The deeds were prepared and signed. Thereafter, he placed the deeds in a safe deposit box that he maintained, and the deeds stayed there until his death in 1990. The safe deposit box was in the name of A.L. Waddell, as well as one of his children who had access to the box; and A.L. kept the key to the box in his possession throughout his life. The deeds were never recorded.
Following A.L.'s death, three of his heirs at law petitioned for a sale of the land and a division of the proceeds, contending that title to the land had passed pursuant to "the laws of intestate descent," naming the other heirs as defendants. Some of the defendants counterclaimed for a judgment declaring that title had passed to the children by the deeds, alleging that "the property described in the complaint ... was conveyed by warranty deeds ... dated April 10, 1975, from grantor A.L. Waddell, to the eight (8) children of A.L. Waddell, heirs of the estate of A.L. Waddell [and that the] conveyance was completed at the time of the execution [and] delivery of said warranty deeds on or about April 10, 1975." The counterclaim sought a determination that the property had been "divided by said warranty deed."
After hearing ore tenus testimony, some of which the trial court properly excluded under the Dead Man's Statute, § 12-21-163, Ala. Code 1975, the trial court held that "[t]he subject property [was] jointly owned by the plaintiffs and defendants and [could not] be equitably divided or partitioned" and ordered the land sold and the proceeds divided. Some of the counterclaimants appeal. We affirm.
When a trial court has heard ore tenus testimony, its judgment based upon that testimony is presumed correct and will be reversed only if, after a consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment is found to be plainly and palpably wrong. See, e.g., King v. Travelers Insurance Co., 513 So. 2d 1023 (Ala.1987).
Suffice it to say, without further discussion, that the record contains no evidence that A.L. "delivered" the deedsno evidence of a present intent to divest himself of title to the property; no evidence that he gave up control and dominion or possession of the property during his lifetime; no act that placed the deeds beyond his control. See McDuffie v. First National Bank of Tuskaloosa, 450 So. 2d 451 (Ala.1984). We conclude that the trial court's judgment is not "plainly and palpably wrong." To the contrary, it is well supported by the evidence in the record.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | July 23, 1993 |
d180c77c-b517-4097-91d6-171884472c08 | Willingham v. United Ins. Co. of America | 628 So. 2d 328 | 1911937 | Alabama | Alabama Supreme Court | 628 So. 2d 328 (1993)
Roger WILLINGHAM and Vera Willingham
v.
UNITED INSURANCE COMPANY OF AMERICA, et al.
1911937.
Supreme Court of Alabama.
July 30, 1993.
Rehearing Denied September 3, 1993.
S. Shay Samples and James P. Rea of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellants.
*329 David K. Howard and Benjamin H. Albritton of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees.
INGRAM, Justice.
Vera and Roger Willingham appeal from a summary judgment in favor of the defendants, United Insurance Company of America and its agents Wayne Hester and Mark Ross. The Willinghams sued United, Hester, and Ross, alleging fraud, breach of contract, negligence, conversion, and unjust enrichment. In their brief, however, the Willinghams make arguments only with regard to the fraud and conversion claims. Accordingly, the summary judgment with regard to the other claims is affirmed. Rule 28, A.R.App.P.
A summary judgment is proper when the motion and the materials submitted in support thereof, and those presented in opposition thereto, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P. To defeat a properly supported motion for summary judgment, the nonmoving party must present substantial evidence supporting its claims and creating a genuine issue of fact. Ala.Code 1975, § 12-21-12. To satisfy the "substantial evidence test," the nonmoving party is required to present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). "[O]n review of a summary judgment, we must view all the evidence in a light most favorable to the nonmovant and we must entertain all reasonable inferences from the evidence in favor of the nonmovant." Lee v. City of Gadsden, 592 So. 2d 1036, 1038 (Ala.1992).
The relevant evidence, considered in a light most favorable to the Willinghams, shows: The Willinghams were the foster parents of four children: T.S., T.C., A.S., and J.S. In 1987 Mark Ross, an agent of United, contacted the Willinghams and offered to sell them a $5,000 life insurance policy on the life of T.S. Ross filled out the application, and Mrs. Willingham signed on behalf of herself and her husband. While Ross was aware that the Willinghams were T.S.'s foster parents, he indicated on the application that they were T.S.'s mother and father.
In 1988 Hester, another United agent, contacted the Willinghams and offered to sell them life insurance policies on the lives of T.C., A.S., and J.S. Hester filled out the applications, and Mrs. Willingham signed them. Hester later added the label "mother" next to Mrs. Willingham's signature.
The United agents assured the Willinghams that the policies would cover foster children. Accordingly, the Willinghams paid premiums on the policies from the time they made the applications until they later came to believe that the policies were invalid.
In September 1989 an agent of Life of Georgia Insurance Company contacted the Willinghams and offered to sell them insurance policies on the lives of the four children. When the agent learned that the Willinghams were the children's foster parents, he informed them that Life of Georgia would not write life insurance on foster children. Mrs. Willingham also contacted other insurance companies, and they informed her that they would not write life insurance policies on foster children.
Having become suspicious regarding the validity of the life insurance policies, Mr. Willingham contacted James Langcuster, a district manager for United. When asked whether United would write life insurance policies on foster children, Langcuster said that it would not. In response to the Willinghams' demand for a refund of their premium payments, Langcuster stated that he would first have to consult with United's attorney.
The Willinghams testified that Langcuster later contacted them and informed them that the policies would be placed under a "Loving Care Program." Langcuster testified that he submitted the question to United's legal department. He was informed that United would honor the policies on the Willinghams' foster children. Langcuster denied any discussion of a "Loving Care Program," but he stated that he informed the Willinghams that *330 the policies would be honored. It is undisputed that none of the children has died and that no claims have been made on the policies insuring their lives. However, believing that the policies were invalid, the Willinghams stopped making premium payments on them.
While Hester knew that life insurance policies had to be supported by an insurable interest, he did not know that United would not write policies on foster children. However, he never inquired as to whether a foster parent and foster child relationship was sufficient to support an insurable interest. An internal memorandum directed United's underwriters not to write insurance policies on foster children. This memorandum was circulated only to underwriters and not to sales agents. Hester and Ross testified that they did not know that United had decided not to write such policies.
The Willinghams argue that the trial court erred in entering the summary judgment in favor of United. They allege that United and its agents fraudulently represented to them that the life insurance contracts insuring the lives of the foster children were valid and enforceable. They argue that they presented substantial evidence to defeat United's properly supported motion for summary judgment on their fraud claim.
In order to prove their fraud claim, the Willinghams would have been required to show that United made a false representation concerning an existing material fact, that they relied on that representation, and that they suffered damage as a proximate result of such reliance. Harmon v. Motors Insurance Corp., 493 So. 2d 1370, 1373 (Ala.1986). United, however, argues that the Willinghams would also have been required to prove the additional elements of promissory fraud. Specifically, United argues that the Willinghams would have had to prove that United, at the time the alleged misrepresentation was made, did not intend to perform the act promised, and that United, at the time, had the intent to deceive. General Motors Acceptance Corp. v. Covington, 586 So. 2d 178 (Ala.1991). We conclude that this is not a case of promissory fraud. The alleged misrepresentation had to do with the validity of the life insurance policies at the time they were sold and not whether United intended to perform the promises embodied in the policies.
The evidence shows that United's agents represented to the Willinghams that the life insurance policies would cover foster children. Mrs. Willingham testified that she specifically asked one of the agents whether United could write valid life insurance policies on the lives of foster children. The agent told her that the policies were valid and that they would cover the children and that benefits would be paid by the company in the event a claim was made.
United does not deny that its agents made these statements to the Willinghams. Rather United argues that when the policies were issued, they were valid in all respects. United further argues that even if the policies were not supported by an insurable interest there still was no fraud because United agreed to honor the policies.
The first issue with which we are presented is whether the relationship between the Willinghams and their foster children was sufficient to create in the Willinghams an insurable interest in the lives of their foster children. If the relationship was not sufficient to create an insurable interest, then we must determine whether there were specific circumstances of this relationship that could give rise to an insurable interest. The relationships or circumstances that can give rise to an insurable interest are set out in Ala.Code 1975, § 27-14-3(a):
Although this Court has not directly addressed the issue of whether the relationship between foster parents and a foster child is, in and of itself, sufficient to give rise to an *331 insurable interest, we now conclude that the language of § 27-14-3(a) does not allow for such a construction. The second part of the statutory definition of an insurable interest is "a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law." § 27-14-3(a). (Emphasis supplied.) While the Willinghams had been entrusted by the state with the care of these four foster children, the Willinghams were not related to the children either by blood or by law. Therefore, the second circumstance set out in the quoted portion of § 27-14-3(a) cannot be the basis for finding an insurable interest.
We further conclude that United presented no evidence of circumstances that would invoke the first of the two statutory bases. That is, there is no evidence of circumstances that would give rise in the Willinghams to a reasonable expectation of pecuniary advantage through the continued life of the foster children and a consequent loss by reason of their death. There is no evidence that the Willinghams had any expectation that all of the foster children would even continue to live with them.[1] Moreover, there is no evidence that the Willinghams should have reasonably expected a pecuniary loss by reason of the death of one of the children. In an internal memorandum concerning the insurability of foster children, United's chief underwriter stated: "These children are wards of the state and foster parents have no legal rights over them. No state would refuse to bury them." (Emphasis in original.)[2]
We hold that absent special circumstances, such as dependency or financial responsibility, the relationship between a foster parent and a foster child is not sufficient to create in the foster parent an insurable interest in the life of the foster child.[3] Because there was no evidence of any such special circumstances before the trial court, we conclude that the policies issued by United insuring the lives of the Willinghams' foster children are void due to a lack of an insurable interest.
United next argues that its agents did not make a misrepresentation to the Willinghams, because, it says, it agreed to honor the insurance policies. We conclude that United's alleged reaffirmation of its agreement to pay on the policies cannot be made binding against United and therefore cannot be set up as a defense to a fraud claim.
In Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696 (1957), this Court addressed the validity of an insurance policy taken out by a woman to insure the life of her deceased husband's niece. After concluding that the policy in question was not supported by an insurable interest, the Court further concluded that life insurance policies that are not supported by insurable interests are illegal and void because they are repugnant to public policy. 267 Ala. at 183, 100 So. 2d at 705.
In Bell v. National Life & Accident Insurance Co., 41 Ala.App. 94, 123 So. 2d 598 (1960), the Court of Appeals considered whether the doctrine of estoppel can apply to make enforceable a life insurance policy that is otherwise void because of a lack of an insurable interest. The Court held:
41 Ala.App. at 99, 123 So. 2d at 601. (Emphasis supplied.) See also, Alabama Gold *332 Life Insurance Co. v. Mobile Mutual Insurance Co., 81 Ala. 329, 1 So. 561 (1887); American Equitable Assurance Co. v. Powderly Coal & Lumber Co., 225 Ala. 208, 142 So. 37 (1932).
In light of the cases discussed above, we conclude that even if United reaffirmed its promise to pay on the Willinghams' policies in such a way that would otherwise give rise to an estoppel, there would still be no way for the Willinghams to enforce that promise against United. In fact, United could not choose to voluntarily pay a claim based on one of the Willinghams' policies.
In sum, we conclude that the Willinghams presented substantial evidence that United's agents made false representations of material existing facts regarding the policies insuring the lives of the four foster children. That is, the agents, knowing that the insured children were foster children, represented to the Willinghams that the policies were valid and enforceable. As we have set out above, the policies were void from their inception and were utterly unenforceable.
United further argues that the summary judgment was properly entered against the Willinghams' fraud claim because, United says, the Willinghams did not produce substantial evidence that they relied on the representations made by United agents. Specifically, United argues that the Willinghams did not rely on Langcuster's assurances that the policies were valid and that claims on them would be paid. United argues that because the Willinghams relied on the assertions made by representatives of other companies, they cannot now seek to hold United liable for fraud.
We conclude, however, that the "reliance" in question is not that which arose at the time the Willinghams decided to stop paying their premiums. Rather, our focus is on whether the Willinghams relied on the representations made by United's agents at the time the Willinghams decided to purchase the insurance policies. We conclude that the Willinghams presented substantial evidence that they did rely on the representations made by United's agents, Hester and Ross.
The final issue to address in determining whether the summary judgment against the Willinghams' fraud claim was proper is whether the Willinghams presented substantial evidence that they were damaged as a result of the alleged misrepresentations made by United's agents.
Actual damage is an essential element of a cause of action alleging fraud. Ala.Code 1975, § 6-5-100; Reeves v. Porter, 521 So. 2d 963 (Ala.1988). United principally argues that because the Willinghams did not make any claims on the policies and were not denied any benefits, the Willinghams did not incur any actual damage. We disagree.
In Moore v. Liberty National Life Insurance Co., 581 So. 2d 833 (Ala.1991), we affirmed a summary judgment in favor of an insurer where the insured had made no claims on the policy and was not denied any benefits. That case is distinguishable from the present case, however. In Moore an agent of the defendant insurer made unauthorized loans against the insured's policies. When the insured discovered the unauthorized loans, Liberty National removed the loans from the policies and notified the insured of the steps it had taken to remedy the situation. Id. at 834. It was undisputed that the insured never made any claims on the policies and was never denied any request to borrow against, the policies. Id. In short, there was no evidence that the plaintiff in Moore ever suffered any damage.
In the present case, it is similarly undisputed that the Willinghams never made any claims on the policies insuring the lives of their foster children. However, based on our discussion above regarding the validity of the policies, the policies purchased by the Willinghams were void from their inception. While the Willinghams were paying premiums on the policies, they believed that they were receiving valid insurance coverage, but they never actually received anything of value.
We reject United's contention that, as a matter of law, the payment of insurance premiums is not sufficient evidence of damage to support a claim of fraud against an insurer. See, Liberty National Life Insurance Co. v. Waite, 551 So. 2d 1003 (Ala.1989); Brewton v. *333 Alabama Farm Bureau Mutual Casualty Insurance Co., 474 So. 2d 1120 (Ala.1985). The undisputed evidence that the Willinghams paid premiums on the four life insurance policies is sufficient to support their claim that they were damaged as a proximate result of United's alleged misrepresentations.
In light of our disposition of the issues discussed above, we conclude that the trial court erred in entering the summary judgment as to the Willinghams' fraud claim. Therefore, as to that claim, the summary judgment is reversed.
The Willinghams also claim that by collecting and retaining the premiums on the four life insurance policies, United and its agents converted the Willinghams' money.
Conversion is a wrongful taking, detention, or interference, or an illegal use or misuse of another's property. Greene County Board of Education v. Bailey, 586 So. 2d 893, 898 (Ala.1991). "The gist of the action is the wrongful exercise of dominion over property to the exclusion of or in defiance of a plaintiff's rights, where the plaintiff has a general or special title to the property or the immediate right to possession." Id. (citing Ex parte SouthTrust Bank of Alabama, N.A., 523 So. 2d 407 (Ala.1988)).
In this case, the plaintiffs are seeking damages for the conversion of money. We have held that ordinarily "an action will not lie for the conversion of money." Greene County Board of Education, 586 So. 2d at 898. When the money at issue is "`specific money capable of identification,' claims for conversion may be appropriate." Covington v. Exxon Co., 551 So. 2d 935, 938 (Ala.1989) (quoting Hunnicutt v. Higginbotham, 138 Ala. 472, 35 So. 469 (1903)). In Covington, we recognized that when funds are segregated into a separate account, such as an escrow account, those funds may be the subject of a conversion. Id., at 939.
The Willinghams principally rely on Gillis v. Benefit Trust Life Insurance Co., 601 So. 2d 951 (Ala.1992). In that case the plaintiff and his wife had paid premiums on a health insurance policy issued by the defendant. The defendant refused to pay a claim submitted by the plaintiff's wife; the plaintiff sued, alleging, inter alia, conversion of the premium payments. Id., 601 So. 2d at 951-52. The trial judge in that case granted the defendant's motion for a summary judgment, and this Court reversed.
The dispositive issue in Gillis was whether the money paid as premiums was sufficiently identified to be subject to conversion. In that case, the plaintiffs had selected a premium payment plan whereby the insurance company drew funds directly from the plaintiffs' checking account. We reversed the summary judgment, concluding that "[the plaintiff] presented substantial evidence that the money in question was identifiable." Id., at 952.
The present case is similar to Gillis in that both cases involved the payment of insurance premiums. That, however, is as far as the similarity goes. In Gillis, the insurance premiums were drawn by the defendant insurance company directly from a specific account belonging to the plaintiffs. In the present case, the only evidence is that the premiums were paid by the Willinghams to United. There is no evidence that leads us to conclude that the subject money is or was in any manner segregated or identifiable.
Even if the Willinghams are entitled to a refund of their premiums or to other money damages, the relationship between the Willinghams and United is akin to that of a debtor and creditor. We have stated that where there is "only a relationship of debtor or creditor, an action for conversion of funds representing the indebtedness will not lie against the debtor." Lewis v. Fowler, 479 So. 2d 725, 727 (Ala.1985) (citing Lyxell v. Vautrin, 604 F.2d 18 (5th Cir.1979)).
If we were to hold that the money paid by the Willinghams to United in the form of premiums is sufficiently identifiable or segregated to give rise to a cause of action for conversion, we would be expanding the scope of that cause of action far beyond our holding in Gillis. In fact, the established rule that, generally, there is no cause of action for the conversion of money would, for all practical purposes, be abolished. We decline to take *334 that step at this time. Accordingly, the summary judgment in favor of United and its agents is affirmed as to the conversion count.
The summary judgment in favor of United and its agents is affirmed as to the conversion count; it is reversed as to the fraud count; and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., dissents.
[1] While the Willinghams have adopted one of the foster children and two of the others still live with them, the record also shows that one of the foster children has been transferred to another foster home.
[2] This memorandum is evidence that United knew that foster parents ordinarily do not have a reasonable expectation of pecuniary loss due to the death of a foster child. The memorandum also reflects United's policy regarding the insurability of foster children.
[3] In addition to being the necessary result under § 27-14-3(a), this also appears to be the general rule deducible from the authorities on the issue. See, Insurable interest of foster child or stepchild in life of foster or step parent, or vice versa, 25 A.L.R. 1547, 1548 (1923); 43 Am.Jur.2d Insurance, § 982 (1982). | July 30, 1993 |
d945c941-3b69-4b32-b399-c67cab6f2be7 | Garner v. Covington County | 624 So. 2d 1346 | 1911100, 1911105, 1911150, 1911151 | Alabama | Alabama Supreme Court | 624 So. 2d 1346 (1993)
Gina GARNER, as the mother of Jonathan Garner, a deceased minor
v.
COVINGTON COUNTY and City of Opp.
CITY OF OPP
v.
Gina GARNER, as the mother of Jonathan Garner, a deceased minor.
CITY OF OPP
v.
Ruth OWENS.
CITY OF OPP
v.
Sharon DAVIS.
1911100, 1911105, 1911150 and 1911151.
Supreme Court of Alabama.
June 25, 1993.
Rehearing Denied August 13, 1993.
*1347 J. Keith Givens and J. Farrest Taylor of Cherry, Givens, Peters, Lockett & Diaz, P.C., Dothan, for appellant/cross-appellee Gina Garner.
John B. Givhan and William B. Alverson, Jr. of Albrittons, Givhan, Clifton & Alverson, Andalusia, for appellee/cross-appellant City of Opp.
Peter A. McInish of Lee & McInish, Dothan, and W. Sidney Fuller, Andalusia, for Covington County.
James H. Evans, Atty. Gen., and Marc Givhan, Deputy Atty. Gen., for State.
Frank J. Tipler, Jr. and James Harvey Tipler of Tipler and Tipler, Andalusia, for Ruth Owens and Sharon Davis.
James W. Webb and Bart Harmon of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for amicus curiae Ass'n of County Commissions of Alabama.
Jack Drake of Drake & Pierce, Tuscaloosa, and Bruce McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.
Ken Smith, League counsel, Alabama League of Municipalities, amicus curiae in support of appellees.
ALMON, Justice.
These appeals arise from wrongful death and personal injury actions filed by Gina Garner, Sharon Davis, and Ruth Owens against the City of Opp and Covington County. The plaintiffs alleged that the defendants had negligently maintained a stop sign at an intersection and had thereby caused an automobile accident in which Davis and Owens suffered injuries and Garner's minor son was killed. The jury returned verdicts in favor of Covington County in all three actions, and returned verdicts against Opp awarding Davis $42,000 and Owens $100,000 in their personal injury actions, and awarding Garner $750,000 in her wrongful death action based on the death of her minor son. The trial court reduced the $750,000 verdict to $100,000 pursuant to Ala.Code 1975, § 11-93-2, and entered judgments for the plaintiffs.
Opp, in the appeals numbered 1911105, 1911150, and 1911151, appeals from the trial court's denial of its motion for j.n.o.v. Opp specifically argues that the trial court erred because, it says, the plaintiffs failed to prove that the actions of Opp were the proximate cause of the injuries and the death. Opp also argues that the trial court erred in instructing the jury that Opp, as a matter of law, had a legal duty to maintain the intersection.
Gina Garner also raises several issues in her appeal, number 1911100. Garner first argues that the trial court erred in submitting to the jury the question of whether Covington County had a duty to maintain the intersection. Garner also argues that the trial court erred in failing to give her requested jury instruction as to the duty of the county. Last, Garner challenges the constitutionality of the $100,000 "cap" imposed by Ala.Code 1975, § 11-93-2, on the recovery of damages against governmental entities.
The facts leading up to the institution of these actions are as follows:
On August 12, 1988, Sharon Davis and her mother, Ruth Owens, travelled by automobile from Luverne to Opp to pick up Davis's niece and nephew and bring them back to Luverne. Because Davis had never been to Opp before, she met her brother on Highway 331 and followed him into town. Davis's brother travelled southward on Maloy Street; both he and Davis stopped at the intersection of Maloy Street and Old Perry Store Road. After picking up the children, Davis returned by the same route, approximately one hour later, this time heading northward on Maloy Street.
*1348 As Davis approached the intersection of Maloy Street and Old Perry Store Road, she slowed her automobile but failed to come to a complete stop. There was a stop sign at the intersection, but it was covered by a red crape myrtle bush and was not visible. As Davis entered the intersection, her car was struck by a truck heading westward on Old Perry Store Road. Davis's 19-month-old nephewwho was Gina Garner's sonwas thrown from the car and suffered fatal injuries. Davis and Ruth Owens also suffered substantial injuries from the accident. Neither Davis nor Owens has any memory of the accident.
At trial, Davis testified that she never saw a stop sign at the intersection. The plaintiffs introduced photographs of the intersection taken by a witness who appeared on the scene immediately after the accident. These photographs illustrate that the stop sign was not visible to Davis when she entered the intersection, and this fact is substantially undisputed. The plaintiffs also questioned Keith Wilson, a witness who had followed Davis as she drove northward on Maloy street toward the intersection. Wilson testified that Davis slowed down considerably before entering the intersection, but that her brake lights never came on and she never completely stopped.
The defendants introduced deposition testimony in which Davis stated that she had seen the back of the stop sign and had recognized it as a stop sign when she had stopped at the Maloy Street/Old Perry Store Road intersection on the way into town. The defendants also questioned John Bryan, a policeman who spoke with Davis at the hospital soon after the accident. Bryan testified that Davis told him that she thought she had run a stop sign immediately before being struck by the truck.
After the close of the evidence, the jury returned verdicts in favor of the plaintiffs against Opp; the jury found in favor of Covington County. The trial court subsequently reduced Garner's verdict of $750,000 to $100,000, pursuant to § 11-93-2.
Opp argues that its motion for j.n.o.v. should have been granted because, it argues, the plaintiffs failed to prove that the failure of Opp to maintain the intersection was the proximate cause of the injuries and the death. Opp asserts that Davis knew of the stop sign before she entered the intersection and merely failed to stop. Opp also contends that testimony of Davis or Owens as to the cause of the accident is necessary to the maintenance of the action. Because neither Davis nor Owens could testify as to causation, Opp contends that any attempt to establish causation is mere conjecture. Opp relies heavily on Smoyer v. Birmingham Area Chamber of Commerce, 517 So. 2d 585 (Ala. 1987), and Peoples v. Town of Ragland, 583 So. 2d 221 (Ala.1991), to support this argument.
The facts of Smoyer and Peoples are, however, distinguishable from those in this case. In Smoyer, the plaintiff's car was struck by a car leaving a hotel driveway and entering the highway. He brought an action alleging that the hotel driveway had been negligently designed and maintained. This Court held that there was simply no causal connection between any negligence of the hotel and the plaintiff's injury. We specifically pointed out that no one could testify that the person leaving the hotel did not stop; therefore, it was impossible to infer that the condition of the driveway contributed to the accident. Here, Wilson did testify that Davis did not come to a complete stop before entering the intersection. Also, there is evidence from which the jury could reasonably conclude that the obstructed stop sign was the immediate cause of the injury, while in Smoyer the accident occurred well after the driver had exited the hotel driveway.
In Peoples, this Court held that the plaintiff failed to establish that the lack of a traffic control device at an intersection proximately caused her injuries. Although we did find it significant that the plaintiff was unable to testify as to the cause of the wreck because of memory loss, the issue ultimately turned on the actions of the plaintiff: she accelerated into the oncoming traffic after "creeping out" into the intersection to see beyond a wall that blocked her view. Therefore, neither Peoples nor Smoyer compels a holding that the plaintiffs here failed to establish proximate cause as a matter of law. Also, *1349 neither case stands for the proposition that one injured in an accident must testify as to causation to be entitled to recover.
The question of proximate causation is ordinarily one for the jury, if reasonable inferences from the evidence support the plaintiff's theory. Marshall County v. Uptain, 409 So. 2d 423 (Ala.1982). Here the question is particularly suited for the jury because of the conflicting nature of the evidence. While the defendants did produce evidence tending to show that Davis knew of the existence of the sign, the jury was justified in inferring that Davis did not know of the sign. For example, the fact that Davis slowed down considerably before entering the intersection does not, ipso facto, establish that she knew the stop sign was there. Motorists who are unfamiliar with particular routes may merely have a tendency to slow down before entering any unmarked intersection. Furthermore, the fact that, after the accident, she stated to Officer Bryan that she thought she had run a stop sign does not establish as a matter of law that she knew the stop sign was there as she entered the intersection. Therefore, we hold that the trial court did not err by denying Opp's motion for j.n.o.v.
Opp next argues that the trial court erred in instructing the jury that Opp, as a matter of law, had a duty to maintain the intersection, while submitting to the jury the question of Covington County's duty. Opp contends that this instruction unfairly prejudiced it in the jury's consideration and that it is entitled to a new trial.
Opp's argument is without merit. The trial court instructed the jury pursuant to Instruction 27.01, Alabama Pattern Jury Instructions (Civil). That instruction charges that municipalities have the duty of maintaining their streets in reasonably good condition; this has long been the law in Alabama. See Ala.Code 1975, § 11-47-190; Hale v. City of Tuscaloosa, 449 So. 2d 1243 (Ala. 1984); Jacks v. City of Birmingham, 268 Ala. 138, 105 So. 2d 121 (1958). Here, it is undisputed that the intersection is within the Opp city limits. Also, there was evidence that, before the accident occurred, Opp knew of the dangerous condition of the intersection. Based on these considerations, we hold that the trial court did not err in charging the jury as it did.
In appeal number 1911100, Garner raises several issues concerning the duty of Covington County to maintain the intersection.[1] Initially, Garner argues that the question of duty in a negligence action is always a question of law for the court, and that therefore the trial court committed reversible error by submitting to the jury the question of whether Covington County had a duty to maintain the intersection.
Garner is correct in saying that some of our cases have held that the duty issue is solely a question of law for the trial court. The strongest statement of this rule is in Sungas, Inc. v. Perry, 450 So. 2d 1085 (Ala. 1984), where Justice Jones, writing for the majority, stated:
450 So. 2d at 1089 (quoting 57 Am.Jur.2d Negligence § 34 (1971)).[2] Other Alabama cases, however, have held that "[w]here the facts upon which the existence of a duty *1350 depends, are disputed, the factual dispute is for resolution by the jury." Alabama Power Co. v. Brooks, 479 So. 2d 1169, 1175 (Ala.1985) (quoting Alabama Power Co. v. Alexander, 370 So. 2d 252, 254 (Ala.1979)). We believe that the Brooks/Alexander formulation of this rule is preferable to the "bright-line" rule enunciated in Sungas.[3] Although the existence vel non of a duty is ordinarily a question of law for the court, it is not error to submit the question to the jury if the factual basis for the question is in sufficient dispute: to allow the trial court to determine such questions would undermine the traditional factfinding function of the jury. This is particularly true here, because the facts upon which a determination of Covington County's duty rests are in substantial dispute. We hold, therefore, that the trial court properly submitted the duty issue to the jury.
Garner next argues that the trial court erred in refusing to grant her motion for a new trial as to Covington County. Garner's argument is essentially that the jury's determination of the duty question in favor of Covington County is against the great weight of the evidence.
The test for determining whether a county or a municipality has a duty to maintain a roadway is whether it has a right to control, or to participate in the control, of the roadway. Maharry v. City of Gadsden, 587 So. 2d 966, 968 n. 1 (Ala.1991); Harris v. Macon County, 579 So. 2d 1295 (Ala.1991).[4] Here, the issue of Covington County's right to control, or to participate in the control of, the Maloy Street/Old Perry Store Road intersection was sharply disputed. There was evidence tending to show that Covington County did exercise a right of control. For example, the stop sign was on a right-of-way owned by Covington County; Covington County engaged in maintenance projects around the intersection; Covington County installed safety devices at the intersection after the accident; and portions of the testimony of Bill McClain, the Covington County engineer, suggested that the maintenance of the intersection was a joint undertaking.
McClain also testified, however, that Covington County had no understanding with Opp as to the maintenance of the intersection. He also testified that Maloy Street was not a county road; that all remedial measures undertaken by Covington County were undertaken solely at the request of Opp; and that Covington County had no notice before the accident of the dangerous condition of the intersection. In light of the contradictory evidence concerning Covington County's right to control the intersection, we hold that the trial court did not err in denying Garner's motion for new trial.[5]
Garner's final argument is that the trial court erred in reducing the $750,000 verdict to $100,000. She argues that Ala. Code 1975, § 11-93-2, contravenes the right to jury trial as guaranteed by Art. I, § 11, Alabama Constitution of 1901.
In pertinent part, § 11-93-2 provides:
Section 11 of the Constitution provides "That the right of trial by jury shall remain inviolate."
*1351 This Court, in Home Indemnity Co. v. Anders, 459 So. 2d 836 (Ala.1984), rejected arguments that § 11-93-2 "violates the remedy provisions of Article I, § 13, and denies equal protection as guaranteed in Article I, § 1," of the Constitution. The Court quoted the following with approval from Stanhope v. Brown County, 90 Wis.2d 823, 842, 280 N.W.2d 711, 719 (1979):
459 So. 2d at 841 (emphasis added).
This Court, in Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 165 (Ala.1991),[7] noted:
Garner's argument that § 11-93-2 violates § 11 must be addressed in the context of the unique status of counties and cities as governmental entities. Because they are creations of the sovereign, the State of Alabama, and because they exercise certain governmental functions that are dependent upon tax dollars, actions against them have always been subject to reasonable regulation by the legislature on a basis not applicable to actions against individuals and other entities.
This legislative power over municipalities and counties can be seen from the debates in the Constitutional Convention of 1901 regarding a provision that would have limited that power. The debates show that the delegates considered the regulation of municipal liability to be a matter particularly within legislative control. The committee on municipal corporations proposed a separate article on the subject.[8] In bringing the proposed article to the floor, Mr. Weakley, a member of the committee, made the following statement: "It has become manifest to the people of Alabama in the last two years that the question of municipal government is one of greatest public concern." Official Proceedings of the Constitutional Convention of the State of Alabama (1901), vol. III, p. 3688. Section 1 of the proposed article would have read, "All municipal corporations shall have the right to sue and shall be subject to be sued in all courts in like manner as natural persons." After objections were raised, this section was tabled. Id., pp. 3689-95.
On the following day, further debates were held on the proposed section. We reproduce a significant portion of those debates, because they materially affect the question before us:
Official Proceedings, supra, vol. III, pp. 3755-62 (emphasis added). Section 1 was not again taken from the table and its provisions were not adopted into the Constitution.
It was clearly the delegates' understanding that, absent the incorporation into the Constitution of the proposed section, the Legislature would have power to regulate actions against municipalities. The delegates obviously viewed actions against municipal corporations as being different from actions against private corporations or individuals. This view is sustained by a reading of the cases on the subject, both before and after the Convention. Because the constitutional framers deliberately and specifically declined to add any constitutional preservation of the then-existing limited statutory provision for actions against municipalities, such actions were (and are) subject to legislative control.
This conclusion is supported not only as a matter of constitutional history but also as a matter of policy. Having considered § 11-93-2 in the context of a § 11 challenge, we conclude that the principles discussed in Anders correspond to the views of the delegates to the 1901 Constitutional Convention and that those principles apply to an analysis under § 11.
Similar arguments hold true for actions against counties; in fact, actions against counties have been even more sparingly allowed than actions against cities, and have been even more rigorously controlled by the legislature. Indeed, it was long held that unless the legislature specifically granted a right of action against a county, no such action would lie. See Hudson v. Coffee County, 294 Ala. 713, 321 So. 2d 191 (1975).
Thus, the liability of cities and counties has been imposed, if at all, only with due regard for the competing needs of conserving public funds and of compensating injured parties and with deference to the legislature in regulating and balancing these matters. In Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975), the Court held that the governmental/proprietary function test would no longer be used in determining whether an action would lie under Alabama Code 1975, §§ 11-47-190 through -192. In Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So. 2d 631 (1975), the Court held that the rationale of Jackson applied to counties. In so changing the doctrines of municipal and county liability, however, the Court acknowledged the legislature's power to pass laws regulating municipal and county liability:
Jackson, 294 Ala. at 600, 320 So. 2d at 75 (emphasis added).
In light of the foregoing discussion, we hold that § 11-93-2 does not violate the right to jury trial guaranteed by § 11 of the Constitution. If a plaintiff's cause of action carries a right to jury trial, a jury may be demanded in an action against a city or county. Because cities and counties are exercising *1355 governmental functions, however, and because judgments against them must be paid out of public moneys derived from taxation, the reasonable limitation of § 11-93-2 on awards against them must be sustained. If the Constitutional Convention had adopted the proposed limitation on the legislative power to regulate actions against municipalities, we would probably reach a different result. Given this constitutional history, however, we cannot say that § 11-93-2 violates the constitution.
For the foregoing reasons, we affirm the judgment awarding Garner $100,000 from the City of Opp. As stated earlier in the opinion, we hold against the appellant Garner on the issues concerning the duty of Covington County to maintain the intersection, and we affirm the judgment on the verdict in favor of Covington County. We also reject, for the reasons stated above, the arguments by the City of Opp on the issues raised in its appeals.
1911100AFFIRMED.
1911105AFFIRMED.
1911150AFFIRMED.
1911151AFFIRMED.
SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
HOUSTON and STEAGALL, JJ., concur in the result.
MADDOX, Justice (concurring specially).
In Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975), when a majority of this Court abolished municipal immunity, the majority said:
294 Ala. at 600, 320 So. 2d at 75.[9] (Emphasis supplied.)
The act being challenged was adopted by the Legislature after the opinion in Jackson was released. In view of that strong statement about legislative power, there should be no question about the Legislature's power to put a cap on damages in actions against municipalities. Consequently, I concur with the portion of the majority opinion upholding the constitutionality of the statute that puts a cap on damages in actions against municipalities, and I write specially only to address statements in the opinion that seem to suggest that legislative power to limit the recovery of damages, whether compensatory or punitive, might be limited to actions against governmental entities,[10] and to state again, as I have on other occasions,[11] what I believe is the role of this Court when faced with a constitutional challenge to a legislative enactment.
The majority's statements about the difference between governmental entities and individuals or private corporations seem to suggest that the Legislature, because of the provisions of §§ 11 and 13 of the Constitution, might be prohibited from regulating the recovery of damages in civil actions against individuals and private corporations. I clearly do not believe that either § 11 or § 13 prohibits legislative action, if there is a valid *1356 legislative purpose to support the legislation, of course. For example, in Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), an employer challenged the original worker's compensation law on the ground that the legislature could not require an employer to pay damages for an injury without proving fault on the employer's part. This Court, finding a sufficient quid pro quo for the exercise of legislative power, upheld the legislative alteration of the common law. In Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939), this Court held that the Legislature could adopt the so-called "guest statute" and by it immunize certain persons from a lawsuit. In Reed v. Brunson, 527 So. 2d 102 (Ala.1988), this Court upheld a legislative act that immunized co-employees from suit in certain factual settings. I realize, of course, that during the past 20 years more and more challenges have been made to legislative power on the ground that legislative enactments violate either § 11 or § 13 of the Alabama Constitution, and this Court, unfortunately, has found that such violations have occurred. I believe that those cases failing to recognize legislative power were incorrectly decided, and I have spelled out my reasons in dissenting opinions. See footnote 3.
The result reached in this case is consistent with that strong statement of legislative power in Jackson v. City of Florence, where this Court specifically "recognize[d] the authority of the legislature to enter the entire field [of municipal tort immunity], and further recognize[d] [the Legislature's] superior position to provide with proper legislation any limitations or protections it deems necessary in addition to those already provided [by law]"; consequently, I agree with the result, but because the opinion contains statements that seem to suggest that when this Court is faced with a similar challenge in a case involving a nongovernmental defendant, the result will probably be different, I wanted to state why I think the Legislature's power to enact the statute at issue here does not rest upon such a slender reed as who the defendant might be, but rests upon a much more substantial and lasting basethe plenary power of the Legislature.
HOUSTON, Justice (concurring in the result).
I have a problem with the following sentence in the majority opinion: "If the Constitutional Convention had adopted the proposed limitation on the legislative power to regulate actions against municipalities, we would probably reach a different result." Opinion at 1355. Because I consider this sentence dictum, I have not sufficiently researched this; and, therefore, I am not comfortable in saying at this time that we "would probably reach a different result." I concur with the rest of the majority opinion.
[1] This Court held in Yates v. Town of Vincent, 611 So. 2d 1040 (Ala.1992), that a city and a county cannot concurrently exercise control over the same roadway. The parties here have not argued this case on this basis, so we address the case as it is presented by the parties. Under Yates, however, the instruction that Opp had a duty to maintain the intersection was obviously correct, because Maloy Street and the Old Perry Store Road were clearly under Opp's control. Moreover, under Yates, the submission to the jury of the issue of whether Covington County had a duty would at most be harmless error, because Yates would support a directed verdict for the county and because the jury returned a verdict for the county.
[2] At least one other case, Alabama Power Co. v. Dunaway, 502 So. 2d 726 (Ala.1987), has held that the duty question is solely a question of law for the trial court.
[3] We note that the language in 57 Am.Jur.2d Negligence § 34, which was relied on by Justice Jones in Sungas, has been somewhat diluted in the latest version of the treatise. Although 57A Am.Jur.2d Negligence § 86 (1989)which is very similar to § 34 of the 1971 versionstates that some jurisdictions hold that the duty issue is for the court, the language is no longer cast in the absolute; the words "never ... for the jury" do not appear in the new section.
[4] These two cases were distinguished or limited in Yates, supra, n. 1.
[5] Garner also argues that the trial court's failure to give the jury an affirmative charge concerning Covington County's duty, based on Instruction 27.01, A.P.J.I., was error. This argument is meritless: the facts upon which the existence of Covington County's duty depended were disputed; therefore, a charge placing a duty upon Covington County as a matter of law would have not been proper.
[6] The term "governmental entity" includes municipalities and counties. Ala.Code 1975, § 11-93-1.
[7] Moore held unconstitutional under § 11 a cap on "noneconomic" damages in medical malpractice actions.
[8] The proposed sections that were adopted by the Convention became a division of Article XII, "Corporations," rather than a separate article.
[9] The opinion in Jackson was written by Justice Shores, with whom Justices Faulkner, Jones, Almon, and Embry, concurred; Chief Justice Heflin dissented, without opinion; Justice Merrill dissented, with an opinion in which Justice Maddox concurred.
[10] The majority states that the result reached is based, at least in part, upon "the unique status of counties and cities as governmental entities," and upon the fact that "[t]he delegates [to the 1901 Constitutional Convention] viewed actions against municipal corporations as being different from actions against private corporations or individuals." Opinion at 1354. (Emphasis added.)
[11] See, Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala.1991) (Maddox, J., dissenting); Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334 (Ala.1980) (Beatty, J., dissenting, and joined by Maddox, J.); and Grantham v. Denke, 359 So. 2d 785 (Ala.1978) (Maddox, J., dissenting). | June 25, 1993 |
493e4b96-1385-420f-918d-06335bb39c7b | Loerch v. National Bank of Commerce of Birmingham | 624 So. 2d 552 | 1920314 | Alabama | Alabama Supreme Court | 624 So. 2d 552 (1993)
Dorothy L. LOERCH,
v.
NATIONAL BANK OF COMMERCE OF BIRMINGHAM.
1920314.
Supreme Court of Alabama.
July 30, 1993.
Rehearing Denied September 10, 1993.
W.S. Pritchard, Jr. and William S. Pritchard III of Pritchard, McCall & Jones, Birmingham, for appellant.
Cathy S. Wright and Cynthia G. Lamar of Maynard, Cooper, Frierson & Gale, Birmingham, for appellee.
KENNEDY, Justice.
The defendant, Dorothy L. Loerch, appeals from a declaratory judgment in favor of the plaintiff, National Bank of Commerce of Birmingham ("NBC"). We reverse and remand.
The controlling issue is whether the assignment and pledge of a jointly held certificate of deposit ("CD"), which was signed by only one joint owner even though the document itself specifically required the signature of both, is valid.
On January 9, 1990, Herbert Loerch purchased from NBC a $60,000 CD in the joint names of "Herbert J. Loerch or Dorothy L. Loerch." One week later, Mr. Loerch pledged the CD to NBC, guaranteeing payment of a line of credit extended by NBC to Jones and Associates Advertising, Inc.
Although the "Assignment and Pledge" form was signed only by Mr. Loerch, the form, which had been provided by NBC, clearly contained a provision at the bottom of the document stating that "on joint accounts or jointly held certificates of deposit (Mr. and Mrs.) all co-owners must sign this form." (C.R. 55) (Emphasis added).
Mr. Loerch died on April 10, 1991. Mrs. Loerch was advised by a notice from NBC that the CD would mature on January 9, 1992, and would be renewed for a year at the simple interest rate in effect at the time of renewal.
On January 8, 1992, NBC filed a claim against Herbert Loerch's estate, stating that the loan guaranteed by the CD was due. Mrs. Loerch, through counsel, demanded that NBC surrender the CD to her.
NBC sued Mrs. Loerch, seeking a judgment declaring that the pledge was enforceable and asking the court to enforce Herbert Loerch's pledge of the joint account as security for the past due note. Mrs. Loerch counterclaimed, seeking damages for an alleged conversion. The trial court granted NBC's motion for summary judgment on all claims and counterclaims and entered a judgment *553 declaring the assignment and pledge valid.
We note first that it is undisputed that the CD in question was jointly held by the Loerches. That being the case, the language at the bottom of the NBC form clearly precluded the assignment of the CD without the signatures of both Loerches. We are not persuaded that the "Mr. and Mrs." language in the wording of the provision had any effect on the nature of the jointly held estate.
The intention of the parties controls in construing a written contract, and the intention of the parties is to be derived from the contract itself, where the language is plain and unambiguous. Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025 (Ala.1983). Likewise, in Flowers v. Flowers, 334 So. 2d 856, 857 (Ala.1976), this Court held that, absent evidence to the contrary, "the words of an agreement will be given their ordinary meaning."
It appears that NBC, by acting without the signature of Mrs. Loerch, was violating its own agreement. It further appears that its violation made the assignment invalid from the outset. We note that the language of an instrument is to be construed most strictly against the party drafting the instrument. See Morrow v. Wood, 411 So. 2d 120 (Ala.1982).
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | July 30, 1993 |
b7a74696-a748-4f4e-bed4-46a35521877b | Robinson v. State | 629 So. 2d 1 | 1920422 | Alabama | Alabama Supreme Court | 629 So. 2d 1 (1993)
Ex parte State of Alabama.
Re Edward Louis ROBINSON
v.
STATE.
1920422.
Supreme Court of Alabama.
August 6, 1993.
*2 James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for petitioner.
Edward Louis Robinson, pro se.
ADAMS, Justice.
We granted the State's petition for certiorari review of a judgment of the Court of Criminal Appeals. Edward Louis Robinson appealed to that court from the Mobile Circuit Court's denial of his motion for relief from conviction or sentence. That court remanded for a hearing on the question whether the State had given proper notice of its intent to seek sentence enhancement under the Habitual Felony Offender Act. Robinson v. State, 629 So. 2d 1 (Ala.Cr.App.1992). We reverse and remand.
In the original action, Robinson pleaded guilty to a charge of murder, and, on April 8, 1991, was convicted. On May 23, 1991, on the basis of a prior felony conviction, he received an "enhanced" sentence of 25 years' of imprisonment, pursuant to the Habitual Felony Offender Act, Ala.Code 1975, § 13A-5-9. The Court of Criminal Appeals affirmed his conviction on October 11, 1991, by an unpublished memorandum, see 595 So. 2d 924, and this Court, on April 24, 1992, having issued a writ of certiorari, quashed that writ.
On May 29, 1992, Robinson petitioned the trial court, pursuant to Ala.R.Crim.P. 32, for post-conviction relief, alleging, inter alia, that at the time of his conviction he was not given sufficient notice of the State's intention to invoke the sentence enhancement provisions of the Habitual Felony Offender Act, and that, consequently, his sentence was illegal and unauthorized by law. The trial court denied Robinson's Rule 32 petition, holding that the requested relief was barred by the "preclusion of remedy" provisions of Rule 32.2(a)(5), because Robinson had not presented the issue of inadequate notice during the direct appeal of his conviction and sentence.[1] Robinson appealed.
The Court of Criminal Appeals remanded the case, citing Connolly v. State, 602 So. 2d 452 (Ala.1992), for the proposition that relief was not barred by Robinson's failure to raise the notice issue on direct appeal. In its petition for certiorari review, the State contends that Connolly is inapplicable, and that, instead, the disposition of this case is controlled by Ex parte Lockett, 548 So. 2d 1045 (Ala.1989). We agree.
In Connolly, a case involving successive convictions on retrials of a felony charge, this Court held that the State's failure at one trial to notify the defendant of its intent to rely on a particular prior felony conviction at the sentencing hearing did not preclude the State from using that conviction at a sentencing hearing following a subsequent retrial, providing notice was properly given before it was used in the subsequent sentencing hearing.[2] Because the notice issue addressed in Connolly was presented through certiorari review of a judgment on direct appeal of a conviction and sentence, the ruling in Connolly in no sense implicated Rule 32, as does this case. Otherwise expressed, nothing can be inferred from Connolly regarding the effect of the defendant's failure to present the issue of inadequate notice during his direct *3 appeal of the conviction and sentence. That precise question was, however, squarely presented in Ex parte Lockett.
In Ex parte Lockett, the defendant, pursuant to Ala.R.Crim.P. 20 (Temporary), the predecessor of Rule 32, sought post-conviction relief from his conviction and sentence on the ground that the State had failed to notify him properly of its intention to seek enhancement of his sentence through the use of a prior felony conviction. The State contended that Rule 20.2(a)(5) barred relief, because the defendant, although he could have done so, had failed to raise the notice issue during his direct appeal of the conviction and sentence. This Court agreed with the State, saying:
548 So. 2d at 1048. See also Ex parte Thomas, 549 So. 2d 95 (Ala.1989) (following Ex parte Lockett).[3] (Note that the provisions of Temporary Rule 20.2(a)(5) now appear at Rule 32.2(a)(5).)
The issue presented here differs in no relevant respect from the one presented in Ex parte Lockett. We hold, on the authority of that case, that Robinson's claim that the State failed to give him sufficient notice of its intention to seek enhancement of his sentence through the use of a prior felony conviction is not a proper ground for Rule 32 relief, because he failed to raise that issue in the appeal of his conviction and sentence. Rule 32.2(a)(5). Consequently, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Rule 32.2(a) provides:
"(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
"(1) Which may still be raised on direct appeal under the Alabama Rules of Appellate Procedure or by post-trial motion under Rule 24; or
"(2) Which was raised or addressed at trial; or
"(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
"(4) Which was raised or addressed on appeal or in any previous collateral proceeding; or
"(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b)."
(Emphasis added.)
[2] Connolly involved successive convictions and sentencing hearings, because the defendant twice succeeded in securing the reversal of his conviction and a retrial of the cause.
[3] Our holdings in Ex parte Lockett and in Ex parte Thomas necessarily imply that such claims do not relate to the trial court's jurisdiction, and, consequently, are not excepted from Rule 32.2(a)(5) on the ground that "[t]he court was without jurisdiction to render judgment or to impose sentence." Rule 32.1(b) (emphasis added). | August 6, 1993 |
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