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ae7d2a86-6947-487e-a81e-9e45346e665d | McGarry v. Flournoy | 624 So. 2d 1359 | 1920142 | Alabama | Alabama Supreme Court | 624 So. 2d 1359 (1993)
Melinda McGARRY
v.
Donald FLOURNOY.
1920142.
Supreme Court of Alabama.
August 6, 1993.
*1360 Michael J. Crow of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for appellant.
J. Robert Faulk of McDowell, Faulk & McDowell, Prattville, for appellee.
ALMON, Justice.
Melinda McGarry, the plaintiff, appeals from a summary judgment for the defendant, Donald Flournoy, in McGarry's action alleging fraud in the sale of a used automobile. The issue is whether McGarry presented substantial evidence that Flournoy fraudulently misrepresented that the car had not been wrecked.
Flournoy, who resides in Prattville, saw an advertisement in an Atlanta newspaper for the sale of a 1987 Nissan Maxima automobile. On or about March 30, 1991, he telephoned the owner, Chang Gill Yoon, and went to Atlanta with the intention of buying the automobile. Flournoy met with Yoon in a parking lot for about 20 minutes, during which time he looked under the car's hood and at the car's interior. Flournoy agreed to buy the car for $8,000, and he filled out a bill of sale on a form he had brought with him from Prattville. Flournoy wrote on the bill of sale that the car was sold "as is where is." Yoon signed the bill of sale and the "assignment of ownership" portion of the certificate of title. Flournoy did not put his name in the space on the bill of sale for the buyer's name or in the blank for the name of the assignee of the certificate of title.
Flournoy testified in deposition that, on his drive from Atlanta back to Prattville, he decided that the car would not meet his needs. He therefore advertised the car for sale in Prattville. On or about April 4, 1991, McGarry saw the ad and telephoned Flournoy. The next day the two met, so that McGarry could inspect and test drive the vehicle. She drove the car for about 20 minutes and, she testified in her deposition, was impressed with it.
The next day, a Saturday, McGarry telephoned Flournoy about the car again. He brought the car to her house so she could drive and inspect it a second time. She asked him whether the car had ever been wrecked, to which he responded, "Not to my knowledge." McGarry agreed to buy the car. Flournoy gave her the bill of sale signed by Yoon in Atlanta and completed both it and the assignment of the certificate of title in McGarry's name. McGarry testified that she wanted the car inspected by a mechanic:
She also asserts in her brief that she told Flournoy that the sale was conditioned on the vehicle's passing such an inspection, but there is no evidence supporting this assertion that the sale was conditional. McGarry paid Flournoy $8,500 for the car.
On the Monday after the sale, McGarry took the car to a Montgomery Nissan dealership to have it inspected. The dealer's inspection report noted that the right rear wheel was bent. McGarry testified that the dealer's employee told her that the car might have been in a wreck. McGarry next took *1361 the car to McGriff Auto Service, Inc., where Walter McGriff, after inspecting the underside of the vehicle, determined that it had "sustained significant structural damage, all of which has not been repaired" and that the right side wheelbase was about three-quarters of an inch shorter than the left side wheelbase. After receiving this information, McGarry told Flournoy she wanted to return the car for a refund. He volunteered to help with repairs but would not take back the vehicle.
McGarry filed a three-count complaint alleging breach of contract, fraud by suppression of material facts, and fraud by misrepresentation of material facts. Flournoy filed a motion for summary judgment, supported by McGarry's answers to interrogatories and by depositions of the parties and another witness. The trial court granted Flournoy's motion as to all counts of McGarry's complaint.
A summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. Once the moving party makes such a prima facie showing, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403 (Ala.1990). When reviewing a summary judgment, this Court views the evidence in the light most favorable to the nonmovant. Stephens v. City of Montgomery, 575 So. 2d 1095, 1097 (Ala.1991).
The elements of a fraud claim are: (1) a misrepresentation of a material fact; (2) made willfully to deceive or recklessly without knowledge; (3) which was justifiably relied upon by the plaintiff under the circumstances; and (4) which caused damage as a proximate consequence. Ala.Code 1975, § 6-5-101; Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 749 (Ala.1990). McGarry argues that Flournoy knew or should have known that the automobile was damaged but fraudulently answered, when she inquired whether it had been wrecked, "Not to my knowledge." She cites Commercial Credit Corp. v. Lisenby, 579 So. 2d 1291, 1294 (Ala. 1991), and Boswell v. Coker, 519 So. 2d 493 (Ala.1987), for the proposition that, although a seller of a used car ordinarily has no duty to disclose defects to a buyer, such a duty does arise if the buyer inquires.
Lisenby and Boswell both involved the sale of used residences. Even assuming that the principles stated therein would apply to the sale of used automobiles, McGarry submitted no substantial evidence in opposition to Flournoy's showing that he made no misrepresentation. "Bare argument or conjecture will not satisfy [McGarry's] burden to offer facts to defeat the motion." Riggs v. Bell, 564 So. 2d 882, 885 (Ala.1990). McGarry testified that she had no personal information from which to believe that Flournoy knew the car was wrecked. Instead, she asks the Court to accept her assertion that Flournoy knew or should have known about the damage, based on the following: (1) her claim that he had more knowledge of Nissans and cars in general than she; (2) her claim that he had inspected the car in Atlanta; and (3) her disputed statement that Flournoy told her his son had put brakes on the car and had aligned its front end at a Firestone store where he worked. Even if these assertions are supported by the evidence, they do not support an inference that Flournoy knew the car was damaged. The evidence indicates that the damage could not be detected until the car was viewed from underneath. Flournoy is not a mechanic, and there is no evidence that he viewed the car from underneath. Thus, her first two assertions as to Flournoy's superior knowledge are only speculation, not supported by substantial evidence.
The third assertion is not based on substantial evidence creating a genuine question of material fact. Although both Flournoy and his son deny that the son inspected or worked on the car, for purposes of reviewing the summary judgment we accept McGarry's statement as true. However, she did not submit substantial evidence that the alleged defects were so obvious that the son would necessarily have seen them. McGarry testified that the mechanic at the Nissan dealership could say only that the car might have been wrecked and could not tell the extent of *1362 the damage. There is no evidence from McGriff that the defects were so obvious that anyone replacing the brakes or aligning the front end would have seen them. Thus, there was no substantial evidence that the son saw the alleged defects, much less that he told his father about them.
McGarry thus did not submit substantial evidence from which one could reasonably infer that Flournoy actually knew of the damage. She argues that she can support her fraud claim by showing that he should have known of the damage. Such evidence might support a claim of innocent or reckless misrepresentation against a defendant who answered "No" to the question "Has the car been wrecked?" However, Flournoy answered only, "Not to my knowledge." Evidence that he should have known would not be sufficient to show that he did know and thus would not be evidence that the statement "Not to my knowledge" was false. McGarry has not carried her burden of showing that Flournoy made a fraudulent misrepresentation when he stated that, to his knowledge, the car had not been wrecked. Thus, the summary judgment is due to be affirmed as to the claim alleging misrepresentation of material facts.
The summary judgment is also correct as to the claim alleging suppression of material facts, because of the lack of evidence that Flournoy knew of the alleged damage. An action for suppression will lie only if the defendant actually knows the fact alleged to be suppressed. Cherokee Farms, Inc. v. Fireman's Fund Ins. Co., 526 So. 2d 871, 875 (Ala.1988).
McGarry also argues that there was not a valid contract between herself and Flournoy. She claims that there was no meeting of the minds, no mutual assent to the terms of the contract. She alleges, alternatively, that the agreement between the two included her opportunity to have the vehicle inspected and to return it for a refund if it did not pass inspection. Neither of these arguments presents a basis for reversal. McGarry did not allege invalidity of the contract in her complaint, and the alleged invalidity was not presented on the summary judgment motion. McGarry did allege breach of contract in her complaint, but she did not submit substantial evidence that Flournoy agreed to make the sale contingent on a later inspection.
McGarry failed to present substantial evidence creating a genuine issue of material fact. Therefore, the summary judgment is due to be affirmed.
AFFIRMED.
ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur. | August 6, 1993 |
b1e72cf2-b4df-42d1-81fe-c5068e196cb5 | Rudolph v. Lindsay | 626 So. 2d 1278 | 1911570 | Alabama | Alabama Supreme Court | 626 So. 2d 1278 (1993)
Susan A. RUDOLPH, as administratrix of the Estate of Daniel E. Rudolph, deceased
v.
Dr. Trevor R. LINDSAY; Trevor R. Lindsay, M.D., P.C.
1911570.
Supreme Court of Alabama.
July 30, 1993.
Rehearing Denied September 24, 1993.
Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellant.
W. Stanley Rodgers and George E. Knox, Jr. of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
HORNSBY, Chief Justice.
The issue in this medical malpractice case is whether the defendant's summary judgment was proper on the basis that the plaintiff had not presented evidence of the standard of care. We reverse and remand.
*1279 Daniel E. Rudolph was admitted to Huntsville Hospital after stabbing himself in the chest. He was evaluated by a psychiatrist, Dr. Trevor R. Lindsay, M.D., who discharged him several days later with instructions for outpatient treatment. Four days later, Rudolph committed suicide by shooting himself.
Daniel Rudolph's wife, Susan A. Rudolph, as the administratrix of Daniel Rudolph's estate, sued Dr. Lindsay individually and his professional corporation, Trevor R. Lindsay, M.D., P.C., alleging that Dr. Lindsay negligently assessed Daniel Rudolph and negligently discharged him without suicide precautions, and that Daniel Rudolph's death occurred as a proximate result of Dr. Lindsay's negligence. Dr. Lindsay answered and moved for a summary judgment. The trial court entered a summary judgment in Dr. Lindsay's favor, and Mrs. Rudolph 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)(3), Ala.R.Civ.P. As the moving party, Dr. Lindsay had the burden of proving that there was no genuine issue of material fact.
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala. 1989) (quoting Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985)).
In moving for a summary judgment, Dr. Lindsay primarily relied on his own affidavit, in which he recited his qualifications, his familiarity with the standard of care required of psychiatrists, and his recollection of the care he gave to Rudolph, and in which he then stated:
C.R. 17.
In response to Dr. Lindsay's motion for summary judgment, Susan Rudolph offered the affidavit of Dr. Harry Doyle, M.D., a psychiatrist practicing in Philadelphia, Pennsylvania. After reciting his qualifications and portions of Daniel Rudolph's medical history from records and other materials that he had reviewed, Dr. Doyle stated:
C.R. 24.
The trial court's order reads, in pertinent part, as follows:
Pruitt v. Zeiger, 590 So. 2d 236 (Ala.1991), the case relied on by the trial court, was not a case involving a summary judgment; rather, in that case this Court reviewed the sufficiency of the deposition of the plaintiff's medical expert offered in support of the plaintiff's medical malpractice claim at trial. The trial court in Pruitt considered whether the plaintiff's medical evidence was sufficient to meet the plaintiff's burden of proof in order to establish his case at trial. When the trial court determined that the plaintiff's medical expert's deposition was insufficient to meet the plaintiff's burden, the plaintiff had nothing to support the case and declined to continue the trial. Because Pruitt was not a summary judgment case, there was no presumption, as there is in this case, requiring that the evidence be viewed most favorably to the nonmovant.
On the particular facts of Pruitt, the Court found that the testimony of the plaintiff's expert that there had been poor communication among the medical personnel involved in the case insufficient to constitute substantial evidence of a breach of the required standard of care. That is, the Court determined that there was nothing explicitly stated or to be reasonably inferred from the testimony that could serve as a reference point for determining what the defendant should have done, i.e., for determining the "standard of care." Within the context of the "substantial evidence" test, Ala.Code 1975, § 12-21-12, the Court required that the plaintiff's expert witness "enumerate the prevailing medical procedures in the national medical community that reasonably competent physicians would *1281 ordinarily utilize when acting in the same or similar circumstances." Pruitt, 590 So. 2d at 238.
The essence of Pruitt was that the plaintiff failed to present "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." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). In Pruitt, the "fact sought to be proved" was a breach of the standard of care required of a similarly situated physician. That is, without some reference to the content of the defendant's communication, or the persons to whom that communication should have been directed, or what the communication should have been, there was no substantial evidence from which to infer a breach of the standard of care; proof of such a breach is required in order for a plaintiff to recover in an action under Ala.Code 1975, § 6-5-548.
Pruitt was unusual in that there was nothing in the testimony of the plaintiff's expert that explicitly or implicitly supplied substantial evidence of the standard of care. Absent some specific discussion of the nature of the "lack of communication" that the plaintiff alleged resulted in a failure of appropriate medical care, there was nothing to support an inference as to what the defendant did or failed to do that constituted malpractice. In most medical malpractice cases, the standard of care is sufficiently established by reference to particular acts of the defendant. Pruitt does not add a new element to the plaintiff's burden of proof under Ala.Code 1975, § 6-5-548; reference to an explicit failure to show a standard of care was warranted in Pruitt because of the particular deficiencies of the deposition relied on by plaintiff at trial to establish the requisite failure of appropriate medical care.
Further, Pruitt does not imply any change in the settled law of summary judgment analysis in medical malpractice cases. That analysis was stated in full at the outset of this opinion, and it remains consistent with summary judgment analysis in all other types of cases. See, e.g., Willard v. Perry, 611 So. 2d 358 (Ala.1992); Brooks v. Goldhammer 608 So. 2d 394 (Ala.1992); Smith v. Medical Center East, 585 So. 2d 1325 (Ala.1991); Morris v. Young, 585 So. 2d 1374 (Ala.1991); Parrish v. Russell, 569 So. 2d 328 (Ala.1990); Ex Parte Hatton, 547 So. 2d 450 (Ala.1989); and Yarbrough v. Springhill Memorial Hospital, 545 So. 2d 32 (Ala.1989). The analysis in Pruitt as to the standard of care would apply in regard to a summary judgment only where the movant's affidavit was so deficient that no standard of care could be inferred. For example, the simple assertion, "I did not breach the standard of care," would not shift the burden to the nonmovant, in light of Pruitt.
In the present case, the standard of care is already sufficiently established by the defendant's affidavit in support of his motion for summary judgment. Dr. Lindsay indicated that he discussed the pending release with the patient, considered the patient's treatments and representations as to stability, and checked and evaluated the likely environment of the patient after release. These particular acts supply substantial evidence as to the standard of care for a medical professional like Dr. Lindsay in the circumstances of this case. That is, reasonable people can infer that the inquiries and evaluations performed by Dr. Lindsay are what a treating psychiatrist should do in a similar situation, and that Dr. Lindsay would not disagree with that inference.
In effect, Dr. Lindsay defined a standard of care by the acts specified and indicated that by performing the acts he had provided the same care that other similarly situated health care providers would have provided. This is sufficient to meet the requirement in Pruitt that facts be set out sufficiently to indicate what the health care provider should have done in order that the factfinder might determine whether the health care provider breached the standard of care. Hence, Dr. Lindsay contends that he has not committed malpractice and is entitled to a judgment as a matter of law. Under the usual summary judgment analysis, Dr. Lindsay's affidavit is sufficient to shift to the plaintiff the burden of rebuttal.
The next question we must consider, making every reasonable inference in favor of the nonmovant, here the plaintiff, is whether Dr. *1282 Doyle's affidavit was sufficient to create a genuine issue of material fact and thereby rebut the defendant's prima facie showing. Dr. Doyle's affidavit disagrees with Dr. Lindsay's assertions as to the proper extent of evaluation before a patient's release and disputes the correctness of Dr. Lindsay's diagnosis. As in Dr. Lindsay's affidavit, the standard of care is implicit in Dr. Doyle's assertion of what Dr. Lindsay should have done. Although Dr. Doyle did not specifically state that he was familiar with the standard of care, his recitation of qualifications supports an inference that he is familiar with the appropriate standard. Dr. Doyle stated in his affidavit that Dr. Lindsay breached the standard of care by "failing to assess the potential for suicide in light of the prior suicide attempt and his underlying psychosis." Dr. Doyle's affidavit also indicates that Dr. Lindsay breached the standard by failing to more fully evaluate the decedent in light of his prior suicide attempt and in discharging the decedent without instituting suicide precautions. The standard of care, the care that Dr. Lindsay should have provided, is sufficiently inferable from the substance of Dr. Doyle's affidavit.
There is, therefore, a disagreement between these two medical experts, Dr. Lindsay and Dr. Doyle, as to the extent and quality of care that should have been delivered. This is exactly the material issue of fact that is reserved for the trier of fact. The summary judgment was therefore inappropriate in this case.
Accordingly, the summary judgment is reversed, and the cause remanded for further proceedings pursuant to this opinion.
REVERSED AND REMANDED.
ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
ALMON and SHORES, JJ., concur specially.
MADDOX and STEAGALL, JJ., dissent.
ALMON, Justice (concurring specially).
I agree that the affidavits submitted by the defendant, Dr. Lindsay, and by the plaintiff's expert, Dr. Doyle, present a fact question as to whether Dr. Lindsay breached the standard of care, and I agree that the trial court erred in holding Dr. Doyle's affidavit deficient for failure to "establish the standard of care." I write separately because I think that the Court in Pruitt v. Zeiger, 590 So. 2d 236 (Ala.1991), unduly required, or at least unduly emphasized the need for, a health care expert witness to "establish the standard of care."
In medical malpractice cases, "the plaintiff must offer expert testimony as to what is or is not the proper practice, treatment, and procedure." (Emphasis added.) Bates v. Meyer, 565 So. 2d 134, 136 (Ala.1990); Rosemont, Inc. v. Marshall, 481 So. 2d 1126, 1129 (Ala.1985), both citing Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969). Bates and Rosemont are two of the three principal cases cited in Pruitt, the other being Dobbs v. Smith, 514 So. 2d 871 (Ala.1987). Admittedly, Bates, Rosemont, Dobbs, and other cases cited therein and in Pruitt do speak of "establishing the standard of care," but the evidence in those cases and in Pruitt was deficient in failing to indicate in any manner that the defendant's conduct fell below the appropriate standard of care. I do not read any cases before Pruitt as holding that a medical expert witness's testimony was inadmissible or insufficient to present a fact question simply because the witness neglected to "enumerate" (Pruitt's term) the procedures required by the standard of care. Rather, the cases have properly focused on whether the witness presented substantial evidence that the defendant breached the standard of care.
Rosemont was an action against a "skilled and intermediate care nursing facility," a "hospital" within the purview of the Medical Liability Act, see Ala.Code 1975, § 6-5-481. The plaintiff presented no expert testimony that Rosemont, in failing to successfully restrain his mother, "did not use that degree of care, skill and diligence used by skilled and intermediate care nursing facilities generally in the community." 481 So. 2d at 1129. The Court therefore reversed a judgment on a verdict for the plaintiff.
Dobbs underwent eye surgery at the hands of Smith, an ophthalmologist, and suffered *1283 subsequent complications. The Court affirmed a judgment based on a directed verdict for Smith:
514 So. 2d at 872 (emphasis added). Thus, Dobbs is not a case where the plaintiff submitted testimony by a properly qualified expert, predicated on the facts of the case, expressing an opinion that the defendant's care fell below the standard and proximately caused injury, but simply failing to "establish the standard of care."
Nor is Bates such a case. Bates contended that Dr. Meyer had "lost" a biopsy taken from his wrist and thereby had caused him to undergo further surgery for another biopsy. The evidence indicated that Dr. Meyer had sent Bates's biopsy to a research lab instead of sending it to the routine pathology lab. Dr. Meyer supported his summary judgment motion with his affidavit stating that "[i]n exercising, accessing, and treating Emmett C. Bates, [he] exercised that degree of care, skill, and diligence, which is ordinarily possessed and used by physicians in the national medical community in the same general line of practice under similar circumstances." 565 So. 2d at 136. Although the Court cited the language from Dobbs stating that a plaintiff must "establish the standard of care," it did not base its judgment on such a failure. On the contrary, it implicitly treated Dr. Meyer's affidavit as sufficient to shift the burden to Bates, and held:
565 So. 2d at 136-37.
Pruitt affirmatively relied on the plaintiffs' failure to "establish the standard of care," but an examination of the plaintiffs' evidence as set out in the opinion shows that their expert simply failed to show any identifiable failure by Dr. Zeiger to follow the appropriate standard of care. Dr. Zeiger had performed lumbar disc surgery on Pruitt. Complications required further surgeries, and Pruitt experienced nausea, fever, vomiting, and swelling of the abdomen. Pruitt alleged that he "`received a cut' to his small intestine and another to his sciatic nerve during the course of treatment by Dr. Zeiger." 590 So. 2d at 237. He offered the deposition of Dr. Lawrence C. Taylor. The Court's opinion includes the following:
"Although Dr. Taylor alluded to a `break-down' in communication throughout his testimony, he failed to explain the manner in which communication was deficient. It was incumbent upon Dr. Taylor to explain how `physicians ... in the same general neighborhood, and in the same general line of practice,' Ala.Code 1975, § 6-5-484(a), would communicate under the circumstances presented in this case. A blanket statement that communication was poor does not establish a standard of care. `In order to establish a physician's negligence, the plaintiff must offer expert medical testimony as to the proper practice, treatment, or procedure.' Dobbs [, supra]. Dr. Taylor did not describe a procedure that rises to the level of a standard of care. He merely gave his opinion as to what Dr. Zeiger should have done under the circumstances presented in this case. `The law does not permit a physician to be at the mercy of testimony of his expert competitors, whether they agree with him or not.' Sims v. Callahan, 269 Ala. 216, 225, 112 So. 2d 776, 783 (1959).
"Although Dr. Taylor was repeatedly asked to describe the standard of care, he was unable to define that standard or describe any procedure that Dr. Zeiger was required to follow in order to comply with the standard of care. The following is representative of the broad statements made by Dr. Taylor in response to this line of questioning:
"Testimony that the care rendered was `below the standards' without establishing those standards does not satisfy the Pruitts' burden. Before the expert witness can establish a deviation from the standard of care, the witness must establish the standard from which the deviation occurred.
"In Hines v. Armbrester, 477 So. 2d 302 (Ala.1985), this Court stated:
590 So. 2d at 238-39. The judgment in Pruitt could have been affirmed simply on the basis that Dr. Taylor did not present substantial evidence that Dr. Zeiger's care had fallen below the standard of care. I think the *1285 opinion placed undue emphasis on the need to "establish the standard of care."
Section 6-5-548(a), Ala.Code 1975, provides: "In any action ... against a health care provider for breach of the standard of care the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in a like case." On motion for summary judgment, this burden does not devolve upon the plaintiff until the defendant makes a proper prima facie showing.
Rule 56(e), Ala.R.Civ.P. This burden does not require the plaintiff, or the defendant for that matter, to prove the standard of care, as such; rather, it requires the plaintiff to prove that the defendant "failed to exercise such reasonable care, skill and diligence as other similarly situated health care providers ... ordinarily ... exercise in a like case."
Certainly, an expert proposing to give evidence that a defendant health care provider has breached the standard of care can give more persuasive evidence by stating what the defendant should have done or what similarly situated health care providers in the exercise of ordinary and reasonable care would do, but I do not think a rote recitation of such evidence is necessary to make an affidavit or a deposition sufficient to withstand a summary judgment motion. The very purpose of expert testimony is to give opinions, and if the expert properly establishes his expertise and properly sets forth the facts on which he bases his opinion, it should be sufficient for him to give an opinion that the recited facts constitute a breach of the standard of care.
The majority in this case retreats from the Pruitt rule somewhat by stating that the standard of care is inferable from the affidavit. I would overrule Pruitt to the extent it held Dr. Taylor's deposition insufficient to meet the plaintiff's burden of proof at trial simply because it failed to establish the standard of care.
The Pruitt rule presents the prospect of summary judgment arguments in which the parties engage in the secondary debate of what the standard of care is and whether the evidence actually establishes it, rather than the primary question of whether the defendant has presented substantial evidence that he did not breach the standard of care, and if so, whether the plaintiff has presented substantial evidence that he did. The standard of care is the degree of care, skill, and diligence that a similarly situated health care provider would exercise "in a like case." Therefore, evidence of the standard of care will involve the recitation of the facts of the plaintiff's case. Why then is it not sufficient, at least on a summary judgment motion, to recite those facts and then say that, in the witness's opinion, it is substandard care to do what the defendant did? Obviously, if the expert states a bare conclusion, his evidence may not be substantial evidence of a breach, but he can say what he thinks was wrong with the care that was given without necessarily saying everything that should have been done. The defendant has no such burden of establishing counterfactuals; he can simply say, "This is what I did, and this is what the standard of care requires."
Section 6-5-548 establishes a relatively high threshold for an expert to be a "similarly situated health care provider" and therefore qualified to testify against the defendant. If a witness meets this test, he will usually be familiar with the standard of care. His expertise being established, he should not have to give all of the details of his specialized knowledge that make him an expert. I do not think such a witness's affidavit or deposition should necessarily be held inadequate because he fails to "establish" the standard of care. Potentially, the Pruitt rule requires the witness to recapitulate all pertinent portions of his medical training.
As I view Pruitt, the principal question was whether the trial court erred in granting the defendant's motion to strike the deposition of the plaintiff's expert, Dr. Taylor. The *1286 motion was based on the argument that "Dr. Taylor's testimony was based upon `hindsight and speculation,'" 590 So. 2d at 237, not on an argument that Dr. Taylor failed to establish the standard of care. Under either the defendant's argument or the issue addressed by the Court, the true question was whether Dr. Taylor's deposition was competent, admissible evidence. I have read the deposition in that case, and it is certainly true that Dr. Taylor's testimony was equivocal and admittedly speculative. He admitted that the greater degree of communication he advocated would not have changed the outcome of Pruitt's treatment, but would only have achieved results sooner. I agree that the deposition testimony would not have satisfied Pruitt's burden of proof. Dr. Taylor was apparently unavailable to supplement his deposition testimony, so the trial court did not err in disallowing the deposition as evidence.
An entirely different question is presented here, where there is simply a motion for summary judgment supported by the defendant's affidavit and an opposition to that motion principally through the affidavit of an expert on behalf of the plaintiff. Dr. Lindsay did not move to strike Dr. Doyle's affidavit. The parties simply joined issue on the merits and, apparently, raised the Pruitt rule at the hearing on the summary judgment motion. Even assuming that an expert should testify at trial as to the treatment that was required by the standard of care,[2] I think the question on a summary judgment motion is whether, viewing the evidence in a light most favorable to the nonmovant, the defendant's affidavit prima facie shows that he met the standard of care and, if so, whether the plaintiff's expert witness has given substantial evidence that the defendant's conduct did not meet the standard of care. The defendant's affidavit will ordinarily "establish the standard of care" simply by the defendant's assertion that what he did met the standard of care. I do not think the absence of evidence of what the defendant should have done is fatal to an affidavit on behalf of the plaintiff, at least if it can be fairly inferred from the affidavit that the witness is properly qualified, that he knows the standard of care, and that he holds the opinion that the defendant's conduct fell below the standard in an identifiable and actionable manner.
The majority opinion adequately sets out the substance of Dr. Lindsay's and Dr. Doyle's affidavits. Dr. Lindsay summarizes his treatment of Rudolph and makes a prima facie showing that he did not breach the standard of care, but Dr. Doyle's affidavit gives cogent and identifiable reasons for his opinion that Dr. Lindsay did breach the standard of care and thereby caused Rudolph's death. I agree that these affidavits demonstrate that a genuine issue of material fact is presented and that Dr. Lindsay is not entitled to a judgment as a matter of law. For the reasons stated herein, I concur to reverse the summary judgment for Dr. Lindsay.
SHORES, J., concurs.
MADDOX, Justice (dissenting).
The majority opinion seems to reach the right result, and if traditional rules governing summary judgments applied, I would concur in that result, but this is a medical malpractice case, and the legislature, right or wrong, has set out the requirements that a plaintiff must meet before a trial can occur. See the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-480 et seq., as supplemented by the Alabama Medical Liability Act of 1987, Ala.Code 1975, § 6-5-540 et seq. (Supp.1987).
Section 6-5-548(a) provides, in pertinent part, that "the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill and diligence as other *1287 similarly situated health care providers in the same general line of practice, ordinarily have and exercise in a like case." For purposes of the Act, "[s]ubstantial evidence is that character of admissible evidence which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed." § 6-5-542(5).
I think that the trial judge in this case correctly interpreted Alabama law when he wrote:
In Pruitt, this Court held that a lack of essential proof results when an expert fails to establish the standard of care in a medical malpractice case, and that in order to establish the standard of care, the plaintiff's expert must "enumerate the prevailing medical procedures in the national medical community that reasonably competent physicians would ordinarily utilize when acting in the same or similar circumstances." 590 So. 2d at 238. Mrs. Rudolph distinguishes Pruitt on the ground that Pruitt involved an appeal from a dismissal when the plaintiffs declined to go forward with their case after the trial court struck the deposition testimony of the plaintiffs' sole expert. She argues that, in reviewing the expert testimony in Pruitt, the Court was not required to consider the evidence in a light most favorable to the nonmoving party, as it is required to do when reviewing a summary judgment. Leonard v. Providence Hospital, 590 So. 2d 906, 907 (Ala. 1991).
I do not agree with that argument. The statutes, as I read them, are quite specific about what a plaintiff must plead, the qualifications of experts that can testify, and the quantum of proof required. I think that the legislature intended that a plaintiff called upon to oppose a motion for summary judgment must present substantial evidence by an expert that the defendant doctor violated the standard of care in treating the plaintiff, as the plaintiff specifically alleged.
I would affirm the judgment of the learned trial judge. The legislature, by an act of state-wide application, requires a plaintiff in a medical malpractice to establish his or her entitlement to maintain a malpractice action. The legislature has this power under Amendment 328, § 6.11, of the Constitution.
I believe that the legislature, in adopting § 6-5-548, setting forth the burden of proof required in actions against medical care providers, has modified Rule 56 of our Rules of Civil Procedure regarding the burden of proof at the summary judgment stage. I believe that Pruitt correctly recognizes the burden on the plaintiff in a case against a health care provider. If this was a case other than one against a health care provider, I would agree with the majority that the burden is on the movant to show no genuine issue of material fact, but the legislature changed the rules with regard to health care providers, and I believe it specifically had a constitutional right to do so. Consequently, I must respectfully dissent.
STEAGALL, J., concurs.
[1] In McMickens, the plaintiffs' expert testified in deposition that "he would not give [the medicine at issue] on an as needed basis without checking the patient frequently, or every 3 to 6 months; however, he never testified as to the required frequency of such monitoring in the general medical community." 533 So. 2d at 580 (emphasis in original).
[2] I am not sure whether an expert's testimony as to proper care is part of the predicate for his testimony as to his opinion on the question of breach or is part of his testimony as to his opinion. In either case, I would not expect that a failure to give such testimony is grounds for a directed verdict for the defendant because of a failure of proof. Rather, I would think that any objection to its absence is waivable by a failure to object during the expert's testimony. If an expert's qualifications are established or unquestioned, if a question hypothecated on the evidence is asked of the expert, and if he answers with an opinion that the defendant has breached the standard of care and thereby caused the injuries complained of, the plaintiff would seem to have given all of the evidence required by statute or case law. | July 30, 1993 |
30b31f66-80ed-46f7-abd8-42c8a10c3ec6 | Gray v. Liberty Nat. Life Ins. Co. | 623 So. 2d 1156 | 1911246 | Alabama | Alabama Supreme Court | 623 So. 2d 1156 (1993)
Ganus GRAY
v.
LIBERTY NATIONAL LIFE INSURANCE COMPANY.
1911246.
Supreme Court of Alabama.
July 30, 1993.
*1158 Edward F. Morgan, Tuscaloosa, for appellant.
Scott Donaldson of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellee.
Jack Drake of Drake & Pierce, Tuscaloosa, for amicus curiae Alabama Trial Lawyers Ass'n.
STEAGALL, Justice.
This Court's opinion of December 18, 1992, is hereby withdrawn and the following is substituted therefor.
Ganus Gray sued Liberty National Life Insurance Company ("Liberty National"), alleging that the company had fraudulently withdrawn money from his bank account to pay the premiums on a life insurance policy he had not purchased.[1] Gray also alleged claims for conversion, trespass to a bank account, and the tort of outrage. Liberty National filed a motion for summary judgment. After a hearing on the motion, the trial court determined that the fraud claim was barred by the statute of limitations and that Gray had failed to support his conversion and outrage claims with substantial evidence. The court entered a summary judgment for Liberty National on those three claims. The court did not resolve the issue of trespass, but made the summary judgment final pursuant to Rule 54(b), Ala.R.Civ.P. Gray appeals.
A summary judgment is proper and must be affirmed on appeal if there is no genuine issue of material fact and that moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P; Lee v. City of Gadsden, 592 So. 2d 1036 (Ala.1992). If the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden shifts to the nonmovant to present substantial evidence in support of his position. Lee.
We begin by noting these facts from the record: Gray began buying various insurance policies from Liberty National in 1944. In 1963, Gray authorized Liberty National to draft his bank account in order to pay itself for premiums due on the policies. Gray executed an "Authorization to Honor Checks Drawn By Liberty National Life Insurance Company, Birmingham, Alabama," as well as a "Request for Bank Budget Premium Check Plan." Liberty National thereafter sent a letter to Gray and his bank, notifying them that the company would begin drafting the account for the amount of the premiums. Gray bought additional policies at different times and re-executed the automatic bank draft forms. Liberty National then sent him notice letters to inform him that the authorized drafts would begin. Liberty National thereafter withdrew the amount of the premiums from his account each month by executing a draft instrument for the proper amount. The bank recorded the withdrawal on Gray's bank statement and sent him the separate draft instrument along with his other canceled checks each month.
In 1977, Gray's son Jeffery graduated from high school and began college. During a Christmas vacation, a Liberty National agent talked to Jeffery about life insurance. Jeffery *1159 signed an application for a policy and paid the initial premium to the agent. The agent's report, which he filed along with Jeffery's application, stated that a "Bank Budget Card will be forwarded later."
Neither Jeffery nor his father ever received any documents from Liberty National concerning the policy. In January 1978, however, Liberty National began to withdraw $10.86 from Ganus Gray's bank account each month to pay for Jeffery's policy. Jeffery did not authorize this action, and his father did not know the policy existed. Liberty National did not send a letter of notice to Gray, but continued to withdraw $10.86 per month from his account for the next 12 years, adding this amount to Gray's existing monthly premium of $18.75. Liberty National did not issue a separate draft instrument for the new policy; rather, it merely increased the amount on the single draft instrument by $10.86.
In March 1990, Gray retired from work and stopped all automatic drafts on his bank account. Thereafter, Liberty National sent a letter of notice addressed to Jeffery, informing him that his policy was about to lapse for delinquent premiums and that Liberty National itself had been paying the premiums each month since March under an "automatic loan receipt" provision contained in the policy. In July 1990, Jeffery sent a letter to Liberty National, stating that he had never received the policy he applied for and that he had not authorized payment for the policy through his father's bank account. In response, Liberty National returned his initial premium of $10.86 that he had paid with his application in 1977. The company sent a check to Ganus Gray in the amount of $1,681.35, which represented $1,585.56 in premiums and $95.79 in interest (6%). Gray requested another 6% interest, and Liberty National complied. He thereafter filed this action.
Gray first argues that the trial court erred in determining that his claim for fraudulent misrepresentation was barred by the statute of limitations. At the time the alleged misrepresentation began in 1978, a claim for fraud was subject to a one-year statute of limitations. Ala.Code 1975, former § 6-2-39. Effective January 9, 1985, the Alabama legislature amended § 6-2-3 and repealed § 6-2-39. Lader v. Lowder Realty Better Homes & Gardens, 512 So. 2d 1331 (Ala.1987). This change placed fraud actions within § 6-2-38, which provides for a two-year period of limitations; actions that had been barred as of January 9, 1985, by the one-year statute of limitations were not revived by the transfer of fraud actions to the two-year statute or by the corresponding amendment to § 6-2-3. Lader.
Under § 6-2-3, a fraud claim accrues at the time of the discovery by the aggrieved party of the fact constituting the fraud. Lader. The time of discovery of a fraud claim is the time when the party actually discovered the fraud or had facts that, upon closer examination, would have led to the discovery of the fraud. Lader. "[F]raud is discovered as a matter of law ... 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).
It is undisputed that Gray received bank statements as early as January 1978 that clearly showed that Liberty National was withdrawing an additional $10.86 per month. He also received copies of the actual draft instrument, showing the increase in the amount of premiums and the number of policies. In March 1978, the increased Liberty National withdrawal actually caused an overdraft of Gray's account, for which he paid a fee to the bank. For the next 12 years, Gray continued to receive detailed bank statements that, upon a cursory examination, would have revealed that Liberty National was withdrawing premiums for an additional policy. He also continued to receive canceled drafts for this amount. The record shows that Gray is literate and that he was capable of managing his affairs throughout this 12-year period. Based on these facts, we must conclude that a reasonable person of ordinary prudence would have discovered the alleged fraud in 1978 or within one year thereafter. Accordingly, we find no error in the trial court's entry of the summary judgment as to this claim, based upon the statute of limitations.
*1160 The next issue raised is whether the trial court erred in entering the summary judgment as to Gray's claim of conversion. To constitute conversion, there must be a wrongful taking, an illegal assumption of ownership, or an illegal use or misuse of another's property. Gillis v. Benefit Trust Life Ins. Co., 601 So. 2d 951 (Ala.1992). An action alleging conversion of cash lies only where the money involved is "earmarked" or is specific money capable of identification, e.g., money in a bag, coins or notes that have been entrusted to the defendant's care, or funds that have otherwise been sequestered, and where there is an obligation to keep intact and deliver this specific money rather than to merely deliver a certain sum. Gillis. In Gillis, this Court determined that money received by use of pre-authorized checks drawn monthly by an insurer against the insured's checking account to cover premiums for a specific insurance policy is "identifiable" for purposes of maintaining a claim for conversion. In view of Gillis, we hold that the money paid on the pre-authorized checks Liberty National drew monthly against Gray's bank account was "identifiable" money; thus, Gray may maintain an action for conversion here. The record reveals substantial evidence to establish the elements of the claim; accordingly, the summary judgment is reversed as to the conversion claim and the cause is remanded for further proceedings on that claim.
Gray next argues that the trial court erred in entering the summary judgment for Liberty National on his claim alleging the tort of outrage. In order to sustain this claim, Gray must establish by substantial evidence that Liberty National, by extreme and outrageous conduct, intentionally or recklessly caused him severe emotional distress. American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980). "Extreme conduct" is defined as "conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Inmon, 394 So. 2d at 365. The extreme conduct must result in emotional distress "so severe that no reasonable person could be expected to endure it." Id. Mere annoyances or indignities are not enough to make a defendant liable for extreme and outrageous conduct. Barrett v. Farmers & Merchants Bank, 451 So. 2d 257 (Ala.1984).
In deposition testimony, representatives of Liberty National testified that the company's withdrawals for Jeffery's policy were made because of an inadvertent mistake and that the company repaid the amount with interest as soon as it discovered the error. Gray produced no substantial evidence to rebut this testimony and to establish that Liberty National's conduct went beyond the bounds of decency. Moreover, Gray did not present substantial evidence to establish that Liberty National's error caused him any extreme emotional distress. In view of this, the trial court properly concluded that Liberty National was entitled to a judgment as a matter of law on the outrage claim.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
HORNSBY, C.J., and ALMON, J., concur in part and dissent in part.
SHORES, J., recused.
HORNSBY, Chief Justice (concurring in part; dissenting in part).
I concur with the majority's holding that the summary judgment is due to be affirmed as to Gray's outrage claim and reversed as to his conversion claim. However, for two reasons, I must respectfully dissent from the majority's holding affirming the summary judgment as to Gray's fraud claim.
The majority holds that, as a matter of law, Gray's fraud claim is barred by the statute of limitations because "a reasonable person of ordinary prudence would have discovered" Liberty National's allegedly fraudulent acts "in 1978 or within one year thereafter." 623 So. 2d at 1159. My initial concern with the majority's analysis is that it ignores *1161 the fact that Liberty National made a separate and distinct unauthorized draft against Gray's checking account each month from February 1978 until March 1990; each of those unauthorized drafts would have given rise to a separate fraud claim. Cf. King Homes, Inc. v. Roberts, 46 Ala.App. 257, 240 So. 2d 679, cert. denied, 286 Ala. 736, 240 So. 2d 689 (1970) (court held that each act of repair gave rise to a separate negligence cause of action). Thus, even if a reasonable person in Gray's position would have discovered the first unauthorized draft, Gray's failure to bring an action within one year of that draft has no effect on his right to commence a fraud action to recover based on unauthorized drafts after February 1978. Section 6-2-38 grants Gray two years from the date of each unauthorized draft made after January 9, 1985, to commence a fraud action thereon. Section 6-2-3, upon which the majority's analysis focuses, is only a "saving clause," serving no purpose when the claimant has commenced his action within two years from the date of the fraud. See Williams v. Mertz, 549 So. 2d 87 (Ala.1989). Therefore, regardless of when Gray discovered, or should have discovered, each unauthorized draft, he is entitled, at the least, to have a jury consider his fraud claim as to those unauthorized drafts that Liberty National made within the two-year period before Gray filed this action on November 14, 1990. See Garrett v. Raytheon Co., 368 So. 2d 516, 521 (Ala.1979) (limiting recovery to the those acts that occurred within the limitations period); see also American Mutual Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677 (1938); Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937).
Also, in light of the fact that Gray alleges, and supports by evidence, that he had no actual knowledge until August 1990 that a portion of Liberty National's monthly drafts over a 12-year period were unauthorized, I disagree with the majority's determination that, as a matter of law, a reasonable person in Gray's position would have discovered the first unauthorized draft. I believe this determination is a question of fact for the jury.
Section 6-2-3 operates when a fraud action would otherwise be barred under § 6-2-38 and grants that party two years from the time of the discovery of the fact constituting fraud to commence an action. The issue of when a fraud is discovered, for the purpose of the running of the limitations period under § 6-2-3 was discussed at length in the context of a review of a summary judgment in Hicks v. Globe Life & Accident Ins. Co., 584 So. 2d 458 (Ala.1991). Essentially, "the law in Alabama has long been that `[t]he question of when a party discovered or should have discovered fraud which would toll the statute of limitations is for the jury.'" Thompson v. National Health Ins. Co., 549 So. 2d 12, 14 (Ala.1989) (quoting Vandegrift v. Lagrone, 477 So. 2d 292, 295 (Ala.1985)); see Hickox v. Stover, 551 So. 2d 259 (Ala.1989); Deupree v. Butner, 522 So. 2d 242 (Ala.1988); Davis v. Brown, 513 So. 2d 1001 (Ala.1987); Myers v. Geneva Life Ins. Co., 495 So. 2d 532 (Ala. 1986); Elrod v. Ford, 489 So. 2d 534 (Ala. 1986); American Pioneer Life Ins. Co. v. Sandlin, 470 So. 2d 657 (Ala.1985); Thomaston v. Thomaston, 468 So. 2d 116 (Ala.1985); Osborn v. Johns, 468 So. 2d 103 (Ala.1985); Ratledge v. H & W, Inc., 435 So. 2d 7 (Ala. 1983); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981); Sims v. Lewis, 374 So. 2d 298 (Ala.1979); Cities Service Oil Co. v. Griffin, 357 So. 2d 333 (Ala.1978); Mitchell Homes, Inc. v. Tew, 294 Ala. 515, 319 So. 2d 258 (1975); Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So. 2d 745 (1973); State Security Life Ins. Co. v. Henson, 288 Ala. 497, 262 So. 2d 745 (1972); and Central of Georgia Ry. v. Ramsey, 275 Ala. 7, 151 So. 2d 725 (1962). See, also, Independent Life & Acc. Ins. Co. v. Parker, 470 So. 2d 1289 (Ala.Civ.App.1985); Wilson v. Draper, 406 So. 2d 429 (Ala.Civ.App.1981); Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So. 2d 591 (1975). Further, "[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 put a reasonable person on notice of fraud." Hicks, 584 So. 2d at 462. These legal principles support Gray's contention that, under the facts of this case, a jury should determine whether an ordinary person of reasonable prudence in Gray's position should have discovered that Liberty National *1162 was making unauthorized drafts from his checking account.
Gray had 12 policies of insurance with Liberty National over the period 1944 to 1978. In 1963, he executed the first of five agreements with Liberty National authorizing it to automatically draft, by pre-authorized check, money from Gray's checking account to pay itself insurance premiums. Gray had three checking accounts at the same bank, and he alleges that over the years Liberty National's automatic draft power had been transferred from one account to another. On August 29, 1972, Gray executed the last agreement authorizing Liberty National to draft premiums for three different policies of up to $30.00 per month.
For some time before February 1978, Liberty National had drafted $18.75 from Gray's checking account, and Gray had received in his monthly bank statement a canceled pre-authorized check payable to Liberty National for that amount. In February 1978, when Liberty National began drafting $10.86 per month from Gray's account to pay premiums for his son Jeffery Gray's insurance, it did not use a separate pre-authorized check. It merely increased the amount of the draft it was already drawing against Gray's account. Although the majority emphasizes the significance of that $10.86 increase, a jury could find that a reasonably prudent person in Gray's position would have concluded that the increase was authorized.
Liberty National contends that its unauthorized drafts from Gray's account were the result of an inadvertent mistake that it failed to discover for 12 years. I do not understand how the majority can, as a matter of law, charge Gray with discovery of a fact that Liberty National, an insurance company in the business of record keeping, overlooked for 12 years.
For the foregoing reasons, Gray's fraud claim should be submitted to a jury.
ALMON, Justice (concurring in part and dissenting in part).
I agree that the summary judgment is due to be affirmed as to the outrage claim and reversed as to the conversion claim. I dissent from the affirmance of the summary judgment as to the fraud claim. The complaint alleged that Liberty National had fraudulently misrepresented that it was authorized to withdraw funds from Gray's account in March 1990 and in every preceding month for approximately 12 years. This action was filed on November 14, 1990, long before the two-year period of limitations had expired on the last fraudulent acts alleged to have been committed by Liberty National. If for no other reason, the summary judgment on the fraud count should be reversed because of the allegation, supported by the plaintiff's evidence, that Liberty National committed fraudulent acts within the period of limitations.
[1] Gray did not sue the bank. | July 30, 1993 |
3c5d8bdb-9b7e-4c18-b00d-abca48212718 | Ex Parte Greathouse | 624 So. 2d 208 | 1920361 | Alabama | Alabama Supreme Court | 624 So. 2d 208 (1993)
Ex parte Grady Lee GREATHOUSE.
(Re Grady Lee Greathouse v. State).
1920361.
Supreme Court of Alabama.
July 16, 1993.
Donald R. Harrison, Dadeville, for petitioner.
James H. Evans, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted Grady Lee Greathouse's petition for the writ of certiorari to review the affirmance by the Court of Criminal Appeals of his conviction of unlawful distribution of a controlled substance, to address two issues: (1) whether a comment by a codefendant's counsel regarding Greathouse's election not to testify violated Greathouse's constitutional privilege against self-incrimination, and (2) if so, whether that comment requires reversal. We hold that the comment was improper but that it was harmless; therefore, we affirm.
The relevant facts are stated in the opinion of the Court of Criminal Appeals, which should be read in conjunction with this opinion. Greathouse v. State, 624 So. 2d 202 (Ala. Cr.App.1992). We recite only those facts necessary for a discussion of the issues raised in Greathouse's petition.
In a consolidated trial, Grady Lee Greathouse was tried for unlawful distribution of a controlled substance (crack cocaine), and his sister-in-law, Dorothy Faye Greathouse, was tried for unlawful possession of a controlled substance (crack cocaine). Dorothy Faye Greathouse's defense was that Grady Lee Greathouse had placed the crack cocaine in her purse when the police arrived at her house to execute a search warrant. Grady Lee Greathouse did not testify. During closing argument, counsel for Dorothy Faye Greathouse stated:
R. 257.
Counsel for Grady Lee Greathouse objected to this comment, and the trial court instructed the jury not to draw any inferences from what had not been proven at trial. Counsel for Greathouse then moved for a mistrial. The trial court denied the motion *209 on the ground that the comment was made by counsel for a codefendant, not by the prosecutor.
Dorothy Faye Greathouse was acquitted, but Grady Lee Greathouse was convicted and was sentenced to five years in prison. On appeal, the Court of Criminal Appeals held, in a question of first impression, "that where two or more defendants are joined for trial it is improper for a codefendant's attorney to comment upon a defendant's exercise of his constitutional privilege of self-incrimination by failing to testify at trial." 624 So. 2d at 207. Nevertheless, that court affirmed the conviction and sentence, holding that the error was harmless because "the evidence of [Greathouse's] guilt was `virtually ironclad.'" 624 So. 2d at 207 (quoting in part Buchannon v. State, 554 So. 2d 477, 482 (Ala.Cr.App.), cert. denied, 554 So. 2d 494 (Ala.1989), overruled on other grounds, Pardue v. State, 571 So. 2d 333 (Ala.1990)).
Although the United States Supreme Court has not specifically addressed the prejudicial effects of such comments made by counsel for a codefendant, our research shows that almost all courts that have addressed the issue have held that such comments are improper and prejudicial. See D.R. Frank, Annotation, Comment on Accused's Failure to Testify, By Counsel for Codefendant, 1 A.L.R.3d 989 (1965 & Supp. 1992). The leading case is De Luna v. United States, 308 F.2d 140 (5th Cir.1962), reh'g denied, 324 F.2d 375 (5th Cir.1963), in which the United States Court of Appeals for the Fifth Circuit noted that "[i]f comment on an accused's silence is improper for judge and prosecutor, it is because of the effect on the jury, not just because the comment comes from representatives of the State," 308 F.2d at 152 (footnote omitted), and held that "[t]he trial judge's approval of an improper comment or refusal to disapprove the comment and do whatever is necessary to protect a defendant from being penalized by relying on his constitutional right" is sufficient state action to implicate the Fifth Amendment. Id. at 154.
In subsequent cases, the potential scope of De Luna has been limited somewhat. For example, the United States Court of Appeals for the Eleventh Circuit has noted a distinction between a comment by a prosecutor, which "is in all likelihood calculated to encourage the jury to equate silence with guilt," and a comment "from an actor (such as counsel for a codefendant) without an institutional interest in the defendant's guilt," and has held that, in the latter case, "it would be inappropriate to find reversible error as a matter of course." United States v. Mena, 863 F.2d 1522, 1534 (11th Cir.), cert. denied sub nom. Tellez-Molina v. United States, 493 U.S. 834, 110 S. Ct. 109, 107 L. Ed. 2d 72 (1989). In Mena, the Eleventh Circuit held that there was no violation of the Fifth Amendment, because "[t]he lawyer's comments did not invite or require the jury to choose between the truth of [the codefendant's] story and the innocence of the non-testifying defendants." 863 F.2d at 1534. See also People v. Hardy, 2 Cal. 4th 86, 825 P.2d 781, 5 Cal. Rptr. 2d 796 (1992), cert. denied, ___ U.S. ___, 113 S. Ct. 498, 121 L. Ed. 2d 435 (1992). Generally, comment by counsel for a codefendant upon an accused's election not to testify "does not constitute reversible error where the reference is indirect and the defendants' positions are not antagonistic, or where there is substantial incriminating evidence against all defendants." 75A Am.Jur.2d Trial § 586, at 180 (1991) (footnotes omitted).
We are persuaded by the decided weight of authority to agree with the Court of Criminal Appeals that a comment by counsel for a codefendant upon a defendant's failure to testify is improper. In this case, if the comment had been made by a prosecutor, who would be seeking a conviction, the error would be reversible, because counsel for Dorothy Faye Greathouse directly commented on Grady Lee Greathouse's failure to testify, and, upon objection, the trial court did not adequately instruct the jury that the remark was improper and that Grady Lee Greathouse's exercise of his right not to testify "shall not create any presumption against him," Ala.Code 1975, § 12-21-220; see, e.g., Ex parte Purser, 607 So. 2d 301, 304-06 (Ala. 1992); Ex parte Wilson, 571 So. 2d 1251, 1265 (Ala.1990); and cases digested at 7 Ala. Digest Criminal Law Key No. 1171.5 (1979 & *210 Supp.1992). However, we are also persuaded by the Eleventh Circuit's reasoning in Mena that when such comments are made by counsel for a codefendant, "it would be inappropriate to find reversible error as a matter of course." 863 F.2d at 1534.
Having concluded, as the Court of Criminal Appeals did, that the comment was improper, we turn to the only other question presentedwhether that comment was harmless. The Court of Criminal Appeals, in determining that the comment was harmless, applied what Greathouse contends is a rule of law in conflict with Ex parte Purser, 607 So. 2d 301 (Ala.1992), and Ex parte Wilson, 571 So. 2d 1251 (Ala.1990), cases in which this Court reversed convictions because the trial court did not promptly cure a prosecutor's comments on the defendant's failure to testify.
Greathouse contends that the violation of a constitutional right can never be harmless. The United States Supreme Court has squarely rejected such a broad contention and has held instead "that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705 (1967). Chapman involved comments on the failure of defendants to testify at trial, as this case does.
In United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983), the Court cited "the interest in the prompt administration of justice and the interests of the victims" in reversing the judgment of a lower federal appellate court for not applying the harmless error doctrine to a prosecutor's comment on a defendant's failure to proffer evidence to rebut testimony presented by the prosecution, when the defendant had elected not to testify. 461 U.S. at 509, 103 S. Ct. at 1980. In so holding, the Court observed that "[s]ince Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations," id. (citations omitted), and stated that the proper question for a reviewing court to ask is: "[A]bsent the prosecutor's allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?" Id. at 510-11, 103 S. Ct. at 1981.
Our harmless error rule provides in pertinent part:
Rule 45, Ala.R.App.P.
This rule provides for "an examination of the entire cause" and, like both the California constitutional provision and the federal statute compared in Chapman, it emphasizes errors "that `affect substantial rights' of a party." Chapman, 386 U.S. at 23, 87 S. Ct. at 828. Furthermore, Rule 45, like all the rules of appellate procedure, "shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits." Rule 1, Ala.R.App.P. Also, Rule 1.2 of the Alabama Rules of Criminal Procedure provides that the rules of criminal procedure "are intended to provide for the just and speedy determination of every criminal proceeding," and "shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare." The statements of the purpose of the Rules of Criminal Procedure and the Rules of Appellate Procedure, and how each set of rules should be construed, are consistent with the statement of law made by the United States Supreme Court in Hasting, that "the interest in the prompt administration of justice and the interests of the victims" can be considered in determining whether an error in a criminal case is "harmless."
*211 As the Court of Criminal Appeals recognized, this Court has held that "`[o]verwhelming evidence of guilt does not render prejudicial error harmless under Rule 45, Ala.R.App.P.'" Ex parte Malone, 575 So. 2d 106, 107 (Ala.1990) (quoting Ex parte Lowe, 514 So. 2d 1049, 1050 (Ala.1987)); see also Ex parte Johnson, 507 So. 2d 1351, 1356 (Ala. 1986). In Malone, this Court held that the admission of evidence of scientific test results without the laying of a proper predicate was not harmless. In that case, this Court discussed why the jury's consideration of the test results could have affected its determination on the issue of guilt. This Court specifically held that the improper admission of the evidence of the test results might have adversely affected the defendant's right to a fair trial and, therefore, that the admission of that evidence required a reversal of his conviction. In this case, the Court of Criminal Appeals determined, based upon its review of the record, that the comment by the codefendant's counsel did not have such an adverse effect and that "the evidence of [the defendant's] guilt was `virtually ironclad.'" 624 So. 2d at 207.
In Wilson, this Court, quoting Chapman, 386 U.S. at 24, 87 S. Ct. at 828, stated that "`before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'" 571 So. 2d at 1264. Applying that rule of law to the facts of this case, we conclude, as did the Court of Criminal Appeals, that the record shows that the evidence of guilt is "virtually ironclad"; therefore, we agree with the Court of Criminal Appeals that the comment did not affect the outcome of the trial or otherwise prejudice Greathouse's right to a fair trial.
We answer in the affirmative the question posed in Wilson: Whether it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty had counsel for the codefendant not commented on the defendant's failure to testify. Therefore, we conclude, as did the Court of Criminal Appeals, that the comment was harmless. That court's judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | July 16, 1993 |
76fd78fb-10d3-4f36-b7bb-65d929b3c9b8 | Fitch v. Voit | 624 So. 2d 542 | 1920711 | Alabama | Alabama Supreme Court | 624 So. 2d 542 (1993)
Cynthia FITCH, et al.
v.
Stan VOIT, et al.
1920711.
Supreme Court of Alabama.
July 23, 1993.
*543 Ernestine S. Sapp and Stanley F. Gray of Gray, Langford, Sapp, McGowan & Gray, Tuskegee, for appellants.
James C. Barton, Gilbert E. Johnston, Jr. and Hollinger F. Barnard of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for Stan Voit, The Lee County Eagle and The Auburn Bulletin, Inc.
John V. Denson of Samford, Denson, Horsley, Pettey & Martin, Opelika, for East Alabama Medical Center and Nancy Penaskovic.
SHORES, Justice.
A photograph was published on the front page of the March 6, 1991, issue of The Lee County Eagle newspaper depicting Mary Fitch lying in a bed at the East Alabama Medical Center and describing her as dying of cancer. When the photograph was published, Mary Fitch had been dead for two years. In February 1992, several members of Mary Fitch's family[1] sued the newspaper and other named defendants,[2] claiming damages for invasion of privacy, libel, and intentional infliction of emotional distress (the tort of outrage). On August 19, 1992, the defendants filed motions for summary judgment, which were granted by the trial judge. The plaintiffs appeal. We affirm.
We must consider whether the trial court erred in entering a summary judgment for the defendants on the three counts of the complaint: (1) invasion of privacy, (2) libel, and (3) the tort of outrage. Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must 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. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Ala. Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "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).
We have carefully examined the record in this case. As to the issue of privacy, the trial judge concluded correctly that the right of privacy is a personal right, and that this Court has not recognized a "relational right of privacy," under which the plaintiffs make their claim. Smith v. Doss, 251 Ala. 250, 37 So. 2d 118, 121 (1948); Abernathy v. Thornton, 263 Ala. 496, 83 So. 2d 235 (1955).
As to the libel claim, the trial judge held correctly that a libel claim is also a *544 personal claim, based upon publication of matter concerning the plaintiff, and, therefore, that the claim cannot be brought after the death of the alleged victim. Atkins Ford Sales, Inc. v. Royster, 560 So. 2d 197, 200 (Ala.1990); New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25, 37-39 (1962), 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); §§ 6-5-182 and 6-5-462, Ala. Code 1975.
Finally, as to the issue of intentional infliction of emotional distress, or the tort of outrage, the trial judge correctly entered the summary judgment for the defendants.[3] In order to prove intentional infliction of emotional distress, the plaintiff must present substantial evidence of "conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (1980); see Peddycoart v. City of Birmingham, 392 So. 2d 536, 540 (Ala. 1980); Therrell v. Fonde, 495 So. 2d 1046 (Ala.1986). The plaintiffs failed to meet this burden.
For the reasons stated above, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Cynthia Fitch, Mark Fitch, Connie Fitch, and Lena McCray. W.T. Fitch, Mary Fitch's divorced husband, also sued, but he later dismissed his claim.
[2] The other defendants were the newspaper's editor, Stan Voit; the East Alabama Healthcare Authority d/b/a East Alabama Medical Center ("EAMC"); and nurse Nancy Penaskovic. The Auburn Bulletin, Inc., the publisher of the Eagle, was later added as a party defendant by amendment.
[3] There is no cause of action for the negligent infliction of emotional distress in Alabama. Allen v. Walker, 569 So. 2d 350, 352 (Ala.1990). | July 23, 1993 |
3d448cb2-3b6c-4d20-82ab-f78bf235bb65 | Ledbetter v. United American Ins. Co. | 624 So. 2d 1371 | 1920770 | Alabama | Alabama Supreme Court | 624 So. 2d 1371 (1993)
Ruby D. LEDBETTER
v.
UNITED AMERICAN INSURANCE COMPANY and Standard Life and Accident Insurance Company.
1920770.
Supreme Court of Alabama.
August 6, 1993.
John I. Cottle III of Bowles & Cottle, Tallassee, for appellant.
Philip H. Butler of Ribison & Belser, P.A., Montgomery, for United American Ins. Co.
Ollie L. Blan, Jr. and W. Gregory Smith of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for Standard Life and Acc. Ins. Co.
SHORES, Justice.
The plaintiff, Ruby Ledbetter, appeals from summary judgments entered in favor of the defendants, United American Insurance *1372 Company ("United American") and Standard Life and Accident Insurance Company ("Standard Life"), on claims of negligent supervision and failure of a duty to warn. We affirm.
Viewed most favorably to the plaintiff, the evidence submitted on the motions for summary judgment tended to show the following:
Ruby Ledbetter is a 76-year-old woman with a seventh-grade education. Frederick Fannin, an insurance agent, began calling on her in her home in 1985 to sell insurance to her and her husband, Clifton Ledbetter. As a representative of several insurance companies, Fannin sold insurance policies to the Ledbetters between 1986 and 1991. During some of his visits, Fannin spoke to Mrs. Ledbetter about investing in his companies, Paffco, Inc., and Opelika Auto Auction.[1] Patricia Ann Adams, a/k/a Pat Fannin, an associate of Frederick Fannin, accompanied him to Mrs. Ledbetter's home in July 1987 and on that occasion told her that Paffco was a good company to invest in. Between July 1987 and March 1991, Ruby Ledbetter invested over $110,000 or lent it to Mr. Fannin or his companies.[2] (Affidavit of Ruby Ledbetter, C.R. 442-43).
United American and Standard Life each licensed Fannin and Adams to sell insurance in February 1986. Standard Life terminated both Fannin and Adams in July 1989 for low production. United American terminated Fannin in November 1989. Fannin's insurance license was revoked by the Alabama Department of Insurance on August 7, 1990.
Fannin sold Standard Life policies to the Ledbetters; they were issued in April 1986 and lapsed in April 1990. On March 29, 1991, Fannin sold the Ledbetters United American policies, which were issued in April 1991; although these policies were solicited by Fannin, Adams is shown as the selling agent on the insurance applications.[3]
Mrs. Ledbetter began investing with Fannin on July 16, 1987. Her last investment with Fannin occurred on November 21, 1991. Initially, Fannin made periodic interest payments to Mrs. Ledbetter on her investments with him. Fannin began to fall behind in his payments to her by early 1991, and stopped paying altogether after December 1991.
On May 21, 1992, Ruby Ledbetter sued Fannin, Adams, Opelika Auto Auction, Paffco, Standard Life, United American, and Atlantic and Pacific Life Insurance Company of America ("Atlantic and Pacific"). The complaint alleged that Adams and Fannin committed fraud while they were agents of the other defendants; it also alleged negligent hiring, negligent employment, negligent supervision, and failure on the part of the defendant insurance companies of a duty to warn policyholders that Fannin's insurance license had been revoked for dishonest practices. United American and Standard Life each moved for a summary judgment.
Ledbetter opposed the summary judgment motions with, among other things, her affidavit stating that Fannin had gained her trust because he was an insurance agent. United American and Standard Life moved to strike her affidavit because it contradicted her deposition testimony that her trust in Fannin had nothing to do with the fact that he was licensed with any insurance companies. The trial court stated, in its order granting the summary judgment motions, that it had not considered the portions of Ledbetter's affidavit that directly contradicted, without explanation, *1373 her sworn deposition testimony. Doe v. Swift, 570 So. 2d 1209, 1214 (Ala.1990), citing Robinson v. Hank Roberts, Inc., 514 So. 2d 958, 961 (Ala.1987). The court made the judgments final under Rule 54(b), Ala. R.Civ.P.[4] Ledbetter appeals from the summary judgments.
Whether there is a duty is the threshold inquiry in a negligence case. "It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty." Morton v. Prescott, 564 So. 2d 913, 915 (Ala.1990). "The trial court must determine whether a duty existed and, if so, the extent of that duty." Perkins v. Dean, 570 So. 2d 1217, 1220 (Ala.1990). Thus, whether the appellant insurance companies are liable to Ledbetter depends on whether they owed a legal duty of due care to her at the time of Fannin's wrongful actions. "The ultimate test of the existence of a duty to use due care is found in the foreseeability that harm may result if care is not exercised." Buchanan v. Merger Enterprises, Inc., 463 So. 2d 121, 126 (Ala.1984). Because we conclude that the insurance companies owed no duty to Ruby Ledbetter at the time of the alleged fraud, we affirm the summary judgments.
Ledbetter admits that the actions of Fannin and Adams in convincing her to invest over $110,000 with Fannin were outside the scope of their employment with the defendant insurance companies. Thus, she does not rely on the theory of respondeat superior to hold the insurance companies liable for Fannin's alleged intentional tort of fraud. See Joyner v. AAA Cooper Transportation, 477 So. 2d 364, 365 (Ala.1985) (agent's wrongful acts must be within line and scope of employment to hold employer liable under respondeat superior). Instead, Ledbetter seeks to hold the appellants liable under a theory of negligent supervision, based on case law and Restatement (Second) of Agency § 213 (1957).[5]
Ledbetter also argues that insurance companies certifying the good character of their agents under § 27-8-5(b), Ala.Code 1975, should be held to some minimal standards of supervision under Chapter 8 of Title 27 of the Code. Section 27-8-5(b) requires that an insurer investigate the background and character of its prospective agents and certify in the application for the agent's license that he or she is trustworthy and qualified to sell insurance to the public. Chapter 8 provides administrative remedies to the Commissioner of the Alabama Department of Insurance ("ADI") to enforce the goals of the certification provision. § 27-8-16(a). It is not intended to impose an additional burden of supervision on insurers, inuring to the benefit of policyholders, beyond that existing under the common law.
This Court recently considered a negligent supervision claim in Perkins v. Dean, 570 So. 2d 1217, 1219-20 (Ala.1990), where we affirmed a summary judgment for the employer. There, we held that the plaintiffs, to avoid a summary judgment on their negligent supervision claim against an employer for harm done to them by its former employee, "must show or demonstrate that [the employer] had notice or knowledge (actual or presumed) of [the employee]'s alleged incompetency for [the employer] to be held responsible; demonstrating liability on [the employer]'s part requires affirmative proof that [the employee]'s alleged incompetence was actually known to [the employer] or was discoverable by [the employer] if it had exercised care and proper diligence." Id. We did not *1374 address whether such notice existed, however, because the undisputed facts of the case established that the employer owed no duty to the plaintiffs, because the alleged harm occurred after the employee had resigned his employment. Id. at 1218-20.
We likewise need not address whether such notice existed in this case, because there is no evidence in the record that the insurance companies knew or should have known that Fannin or Adams intended to defraud Ledbetter before Fannin stopped paying her back on her investments in 1991, and the undisputed facts establish that neither insurance company owed Ledbetter a legal duty that would make it liable to her for the allegedly fraudulent actions of Fannin.
Fannin's alleged fraud occurred when he convinced Mrs. Ledbetter to invest in his enterprises between 1987 and 1991 by persuading her that these would be wise investments. The alleged harm occurred when, in 1991, he stopped paying Mrs. Ledbetter the return on her investments and the interest on the loans she had made to him; this occurred after both insurance companies had terminated his employment. The undisputed facts establish that Standard Life terminated Fannin and Adams from employment in July 1989, and that Ledbetter's policy with Standard Life lapsed in April 1990, at which time Fannin was still repaying Mrs. Ledbetter on her loans and investments. Thus, because Fannin and Adams were no longer its agents, there was no duty owed by Standard Life to Ruby Ledbetter at the time of the alleged harm. Therefore, we affirm the summary judgment in favor of Standard Life.
United American fired Fannin in November 1989, but retained Adams as its agent. Although Ledbetter had an insurance policy in effect with United American at the time of Fannin's allegedly fraudulent act, the legal duty owed by United American to Ledbetter under that policy was limited to the insurance provisions of that policy, and Fannin's failure to repay Ledbetter's investments was completely unrelated to, and far outside the scope of, the insurance policy.
Fannin was not an agent of United American at the time of his default; there is no evidence in the record that Adams, although still a United American agent at the time, was responsible for or was involved in Fannin's default. Therefore, United American owed no duty of care to Ledbetter that would make it liable for the alleged torts of Fannin, when those torts were unrelated to the business of insurance, and we affirm the summary judgment in favor of United American.
AFFIRMED.
MADDOX, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] No evidence indicates that Standard Life or United American was involved in, or was aware of, these investments. Mrs. Ledbetter testified in her deposition that Fannin never told her that the investments had anything to do with the insurance companies and that she understood that the investments and loans to Fannin had nothing to do with any insurance company. Fannin told Mrs. Ledbetter before she invested any money with him that Paffco was a loan company, and he later told her that he wanted to purchase Opelika Auto Auction. Clifton Ledbetter was never present during discussions about investing money with Fannin or his companies.
[2] Adams allegedly indorsed a $5000 check made out to "Pat Fannin" that Ruby Ledbetter gave to Frederick Fannin on November 21, 1991.
[3] Ruby Ledbetter indicated in her deposition that Fannin sold them these policies and that she never spoke with Adams about them. The premiums for the United American policies were apparently deducted from $8650 that Mrs. Ledbetter invested with Fannin on March 29, 1991.
[4] Atlantic and Pacific was dismissed as a defendant from this action. Ledbetter's claims against Fannin, Adams, Paffco, and Opelika Auto Auction are still pending in the trial court.
[5] Ledbetter relies in her brief on the following subsections of § 213:
"Principal Negligent or Reckless
"A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:
"(a) In giving improper or ambiguous orders or in failing to make proper regulations; or
"(b) In the employment of improper persons or instrumentalities in work involving risk of harm to others;
"(c) In the supervision of the activity; or
"(d) In permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control." | August 6, 1993 |
387f98bf-4ad7-4242-9f52-490012adab9e | Ex Parte City of Birmingham | 624 So. 2d 1018 | 1920213 | Alabama | Alabama Supreme Court | 624 So. 2d 1018 (1993)
Ex parte CITY OF BIRMINGHAM, et al.
(Re Mary P. CHAMBERS, et al. v. CITY OF BIRMINGHAM, et al.)
1920213.
Supreme Court of Alabama.
July 16, 1993.
Rehearing Denied August 20, 1993.
Demetrius C. Newton, City Atty., Joe R. Whatley, Jr., Michael K.K. Choy and Samuel *1019 H. Heldman of Cooper, Mitch, Crawford, Kuykendall & Whatley and John C. Falkenberry, Birmingham, for petitioners.
C. Jackson Perkins, Birmingham, for respondents.
PER CURIAM.
The defendants (the City of Birmingham and others) filed a notice of appeal from the trial court's order denying the defendants' motion to dismiss and compelling discovery. This Court has elected to treat that purported appeal as a petition for a writ of mandamus. We now grant the petition and issue a writ directing the trial court to dismiss the complaint.
On April 21, 1992, Mary P. Chambers and Samuel Bowdon, filed a complaint against the City of Birmingham; its mayor, Richard Arrington; the members of the Birmingham City Council (individually and as members of the council); Donald V. Watkins, an attorney; and fictitiously named defendants A, B, and C (other attorneys whose names and identities were then unknown, and who have not since been named, who had received what the plaintiffs considered unlawful and unreasonable attorney fees from the City of Birmingham). The action challenged the payment of attorney fees to Watkins, sought to enjoin the municipal defendants from paying private counsel, and sought to recover funds from counsel "unlawfully or unreasonably paid." It also sought repayment by Watkins of attorney fees paid to him. There was no allegation of fraud in connection with Watkins's retention or his compensation. Along with the complaint, the plaintiffs filed interrogatories and requested the City of Birmingham, the mayor, and the council members to produce documents. They also requested a description of each case and/or matter in which Watkins had been retained and the amount of money paid to him. The plaintiffs also filed a separate request for Watkins to produce documents.
On May 29, 1992, the municipal defendants filed a motion to dismiss; Watkins filed a motion to dismiss, and, in the alternative, moved for a more definite statement of the claims against him. The motions were based upon the defenses of absolute and qualified immunity of the municipal defendants and failure to state a claim against Watkins upon which relief can be granted. Attached to Watkins's motion was his 57-page affidavit describing his legal service to the city and listing 73 cases in which he was counsel of record. On June 9, 1992, all defendants filed objections to the plaintiffs' request for discovery on the grounds that the documents requested contained confidential information protected by the attorney-client privilege and the work-product doctrine.
The motions to dismiss were set for a hearing June 25, 1992. On the day before the hearing, the plaintiffs filed a motion to compel discovery. The trial judge held oral argument on the motions as scheduled. At the hearing, the parties agreed that the motion to compel was not before the court.
On October 22, 1992, the trial judge overruled the motions to dismiss, and, finding that the documents requested contained no privileged information, ordered the production of documents. On November 2, 1992, the defendants filed a motion seeking a reconsideration of the court's order compelling production, or, in the alternative, a protective order. A hearing was held the next day, at which all counsel agreed to a resolution of the discovery dispute. However, the trial judge refused to adopt the agreed resolution and ordered an in camera review of all documents. The defendants filed this petition for a writ of mandamus.
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 Edgar, 543 So. 2d 682 (Ala.1989); Ex parte Alfab, Inc., 586 So. 2d 889 (Ala. 1991).
The defendants argue that mandamus is appropriate in this case because, they contend (1) the City's elected officials are generally immune from suits and the plaintiffs have not pleaded facts that would remove their cloak of immunity; (2) this Court's decisions establish that immunity is properly *1020 raised by motion to dismiss, yet the trial judge has refused to grant the defendants' motions to dismiss; (3) mandamus is necessary because an appeal is not an adequate remedy to prevent undue hardship on the defendants; and (4) this Court's jurisdiction is properly invoked. We agree.
The standard of review applicable to motions to dismiss is set forth in Seals v. City of Columbia, 575 So. 2d 1061, 1063 (Ala. 1991), quoting Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985):
(Emphasis in Fontenot.)
We have carefully examined the applicable law and the record in this case, and we conclude that the trial judge erred in denying the defendants' motions to dismiss. The plaintiffs have failed to allege, on the part of the named defendants, any violation of a municipal ordinance or a state statute or any violation under the common law, and they have not alleged fraud. The plaintiffs made a general complaint that in-house counsel should be handling the suits that private counsel have handled and that Watkins is being paid more than these plaintiffs believe to be appropriate. They have alleged that the municipal expenditures have been outside the realm of "good faith." However, for the following reasons, they have failed to state a claim upon which relief can be granted.
The only legal authority specified in the plaintiffs' complaint is Article IV, § 94, of the Constitution of Alabama of 1901, which the plaintiffs contend "prohibits the expenditure of municipal funds for individual or private purposes. Any expenditure by the City must be within the proper corporate interest, for the benefit of the City and this identified with a public purpose." They are correct that § 94 prohibits the grant of public funds for any individual purpose. Greenough v. Huffstutler, 443 So. 2d 886 (Ala.1983). Section 94 provides:
However, the plaintiffs have not alleged that the defendants have granted public funds for any individual purpose. Cities have the authority to retain attorneys when to do so is deemed advisable to protect the city or its officers. City of Birmingham v. Wilkinson, 239 Ala. 199, 194 So. 548 (1940); City of Montgomery v. Collins, 355 So. 2d 1111 (Ala. 1978).
This Court has held that § 94 is not violated where compensation is exchanged for services and benefits rendered. Taxpayers & Citizens of the City of Foley v. City of Foley, 527 So. 2d 1261, 1264-65 (Ala.1988). We adopted the trial court's finding in City of Foley that making compensation for services rendered did not constitute the lending of credit or the granting of public money or a thing of value in violation of § 94, since *1021 services and benefits were rendered in exchange for such compensation. Id. at 1264. This Court has also said that § 94 does not give a court the authority to determine whether a municipality received adequate consideration in a contract. The courts must "leave that determination to the judgment of the City's duly elected officials." Dothan Area Chamber of Commerce v. Shealy, 561 So. 2d 515, 517 (Ala.1990).
City officials are absolutely immune from suits attacking their legislative judgment. Tutwiler Drug Co. v. City of Birmingham, 418 So. 2d 102 (Ala.1982). The appropriation of funds by the city council is an exercise of legislative power. Morgan County Commission v. Powell, 292 Ala. 300, 305, 293 So. 2d 830 (1974). City officials acting within the general scope of their authority have a qualified or discretionary immunity and are not subject to tort liability for an administrative act or omission. Taylor v. Shoemaker, 605 So. 2d 828 (Ala.1992), adopting Restatement (Second) of Torts § 895D (1979). The Restatement provides that "A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if ... he is immune because engaged in the exercise of a discretionary function." Thus, as a general rule, city officials are immune from suit unless they violate clearly established law. The plaintiffs do not allege any violation of law in this case.
Finally, it is a well-established principle of law that a court cannot substitute its judgment for that of a municipality, absent proof of unfair dealing, fraud, or bad faith. City of Birmingham v. Wilkinson, 516 So. 2d 585 (Ala.1987); Bentley v. County Comm'n for Russell County, 264 Ala. 106, 84 So. 2d 490, 493 (1955); Van Antwerp v. Board of Comm'rs of City of Mobile, 217 Ala. 201, 115 So. 239, 243 (1928); City of Foley, supra. The plaintiffs in this case have stated that the payment of certain legal fees has been unlawful. However, the plaintiffs must do more than allege their opinion that the municipal officials acted incorrectly. The complaint in this case does not allege that the duly elected municipal officials have exceeded the authority extended to them as the mayor and city council. Ala. Acts 1955, Act No. 452, amended by Ala. Acts 1965, Act No. 131, § 1.
For the reasons stated above, the complaint against the municipal defendants is due to be dismissed. The complaint against Donald Watkins is also due to be dismissed, because the plaintiffs have failed to state against him a claim upon which relief can be granted. There is no allegation that Watkins did not do the work for which he was paid and no allegation that he defrauded the City or colluded with anyone. The City of Birmingham has the authority to retain and to compensate attorneys to further the City's interests. City of Birmingham v. Wilkinson, supra, 239 Ala. at 203, 194 So. at 554. The mayor and city council retained Watkins, and he fully performed the services he was retained for. The plaintiffs allege no fraud, nor do they make any allegation that Watkins has been retained to represent any city official in any matter unrelated to his or her office.
The defendants also contend that they are entitled to a writ of mandamus on the grounds that the trial court abused its discretion in compelling discovery of documents the defendants say are protected by the attorney-client privilege and by the work product doctrine. They complain that counsel had worked out an agreement regarding discovery procedures, but that the trial judge refused to implement their agreement. In cases involving the exercise of discretion by an inferior court, the writ of mandamus may issue to compel the exercise of that discretion. Ex parte Smith, 533 So. 2d 533 (Ala. 1988); Ex parte Edgar, supra. Although it is unnecessary to consider this issue, because we issue the writ on other grounds, we would note that recent amendments to the Alabama Rules of Civil Procedure encourage counsel to resolve discovery disputes. Rule 37(a)(2), A.R.Civ.P., as amended effective August 1, 1992, provides:
A similar provision was added the same date to Rule 26(c), A.R.Civ.P., pertaining to protective orders.
Based on the foregoing, we grant the petition and issue a writ of mandamus requiring the trial judge to dismiss the complaint.
WRIT GRANTED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur. | July 16, 1993 |
b6f95467-9462-49fd-bc67-6975df3527b4 | Jayroe v. Hall | 624 So. 2d 522 | 1920082 | Alabama | Alabama Supreme Court | 624 So. 2d 522 (1993)
Morris JAYROE
v.
Willie Pearl HALL and Tolbert Jayroe.
1920082.
Supreme Court of Alabama.
July 9, 1993.
*523 Michael E. Jones, Luverne, for appellant.
W.J. Williamson, Sr. and J. McGowin Williamson of Williamson & Williamson, Greenville, for appellees.
HORNSBY, Chief Justice.
This case involves a dispute between the three children of J.W. and Laura I. Jayroe. Morris Jayroe sued his sister, Willie Pearl Hall, and his brother, Tolbert Jayroe,[1] seeking title to two parcels of land in Crenshaw County, Alabama, that were previously owned by their parents. In 1974 J.W. and Laura I. Jayroe executed deeds conveying portions of their property to each of their children. The evidence reveals that the none of the deeds described the 23 acres of land on which the Jayroes lived and worked. Morris Jayroe seeks reformation of his deed to include that 23 acres, which, he argues, was omitted by mistake from his deed. In addition, Morris and his sister, Willie Pearl Hall, both claim title to 4.79 acres of land that was described in both of their deeds.
The trial court, after hearing ore tenus evidence, held that Morris Jayroe had not presented sufficient evidence to overcome the presumption of law as to the correctness of the deed; therefore, the court held that Morris Jayroe was not entitled to a reformation of his deed to include the 23-acre parcel. The court held that all three children had inherited and now own the 23 acres as tenants in common. The court found that the 23 acres could not be equitably partitioned and that a sale was "necessary to effect a division among the several tenants in common." The court also ordered a survey of the land to determine the location of several improvements. The court also found that Willie Pearl Hall's deed described the 4.79 acres in such a way as to establish her claim that she owns the 4.79 acres of land.
The standard applicable to cases in which the trial court has heard ore tenus evidence in a nonjury case has been stated as follows:
Arzonico v. Wells, 589 So. 2d 152, 153 (Ala. 1991). This presumption of correctness applies to the court's findings of fact. See also Gaston v. Ames, 514 So. 2d 877 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala. *524 1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra; Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala. 1985); League v. McDonald, 355 So. 2d 695 (Ala.1978).
Morris Jayroe argues that the trial court should have reformed his deed to conform to what he says was the intention of the parties, as authorized by Ala.Code 1975, § 35-4-153. Regarding that intention, he alleges that his parents attempted to equally divide their property among their children when they executed deeds to each of them in 1974. Morris argues that if his deed was reformed to include the 23-acre parcel, the land would be divided approximately evenly among the children, as he argues his parents intended.
Morris testified that his father told him that he wanted Morris to have the 23 acres of land and told him that that land was included in the deed to Morris.[2] Morris also presented the testimony of his brother, Tolbert, who testified that their father had told him that Morris was to receive 20 of the 23 acres in dispute. In addition, Morris presented 1975 tax assessments paid by J.W. Jayroe on the 23 acres; those assessments were in the name of Morris Jayroe. Morris Jayroe argues that this evidence shows a mutual mistake that entitles him to a reformation.
Hall argues that the 23 acres should be divided among the children through intestacy laws.[3] Hall presented the testimony of her son, Willard Hall, who testified that, before the deeds to each of the Jayroes' children were delivered, he informed J.W. Jayroe that the 23-acre parcel was not included in any of the deeds but that he did not change any of the deeds to include those 23 acres. Willard Hall testified that he also told J.W. Jayroe that J.W. and Laura could not sell timber on the land, given the way the deeds were written, and that J.W. Jayroe later modified all the deeds to add a timber reservation.
A presumption exists that the instrument itself is the true agreement between the parties. Jim Walter Homes, Inc. v. Phifer, 432 So. 2d 1241, 1243 (Ala.1983); 66 Am. Jur.2d Reformation of Instruments § 117 at 643 (1973). The party seeking reformation must show by clear, convincing, exact, and satisfactory evidence that the instrument does not express the true intentions of the parties. Clemons v. Mallett, 445 So. 2d 276, 279 (Ala.1984); Great Atlantic & Pacific Tea Co. v. Engel Realty Co., 241 Ala. 236, 239, 2 So. 2d 425 (1941).
Reformation of an instrument is allowed upon proof of a mutual mistake or proof that "there has been a mistake of one party, accompanied by fraud or other inequitable conduct of the remaining parties"; upon such proof, "the instrument may be made to conform to the agreement or transaction entered into, according to the intention of the parties." Daniels v. Johnson, 539 So. 2d 259, 260 (Ala.1989). Morris Jayroe made no allegation and offered no proof of either fraud or inequitable conduct, so his deed can be reformed only upon proof of a mutual mistake.
After reviewing the evidence presented, we conclude that the trial court's finding that Morris Jayroe had not established a mutual mistake by clear, exact, satisfactory, and convincing evidence was supported by the record; it was not plainly and palpably wrong.
The deed to Morris Jayroe and the deed to Willie Pearl Hall both describe a 4.79-acre parcel, to which both claim title. Morris contends that he is entitled to this property based on evidence that his father told him that this land was included in his *525 deed and based on a 1975 tax assessment that indicated taxes on this property were assessed to Morris Jayroe. In contrast, Hall argues that the clear and definite description in her deed should prevail over the description in Morris's deed, which she says was vague. See Jordan v. Tinnin, 342 So. 2d 748, 753 (Ala.1977); Spires v. Nix, 256 Ala. 642, 645, 57 So. 2d 89 (1952); 26 C.J.S.2d Deeds § 100j (1943).
The 4.79 acres in dispute lies east of County Road No. 39 and north of Mt. Olive-Dry Creek Bridge Road. The deed to Morris Jayroe describes an entire 40-acre quarter-quarter section, including the 4.79 acres. It is undisputed that the Jayroes did not own the entire 40 acres, and Morris does not seek title to the entire 40 acres. The deed by which J.W. and Laura I. Jayroe held the land describes this land as "SE¼ of the SE ¼ less 12-½ acres on the east side of Springhill and [County Road No. 39]."
By comparison, Hall's deed described the property as "all of that part of the following real property owned by myself and lying north of the Mt. Olive-Dry Creek Bridge Public Road, to wit, the SE ¼ of the SE ¼ of Section Thirty-six, Township Eight, Range Seventeen." The deed by which J.W. and Laura I. Jayroe held the land describes the property as "all the property now owned by us" (i.e., the predecessors of J.W. and Laura I. Jayroe) in the Southeast Quarter of the Southeast Quarter of Section THIRTY-SIX "lying north of the Mt. Olive-Dry Creek Bridge Public Road and lying east of the Brantley-Mt. Ida Public Road [now known as County Road No. 39]." (Emphasis supplied.) The deed by which J.W. and Laura I. Jayroe held the land later conveyed to Hall reiterates the location of the land intended to be conveyed: "It is our intention to convey all the property now owned by us which lies north of the above mentioned Mt. Olive-Dry Creek Public Road and east of the Brantley-Mt. Ida Public Road." It is undisputed that the Bodifords, who made this deed to J.W. and Laura I. Jayroe, owned the 4.79 acres in dispute.
Tolbert Jayroe testified that he understood his father to have intended that Hall receive the 4.79 acres. This testimony, taken with the definiteness with which the land was described in Hall's deed and in her parents' deed, supports the trial court's finding. After carefully reviewing the record, we cannot conclude that the trial court's judgment is plainly and palpably wrong or manifestly unjust.
Morris Jayroe claims that the trial court erred in ordering a survey of the 23 acres to the extent necessary to locate the improvements on the property. First, he claims that there was no need for a survey and that the trial court improperly ordered it sua sponte.
The trial court has authority pursuant to Ala.Code 1975, § 35-6-20, to sell this property for a division of the proceeds among the joint owners. "In carrying out its authority to order a sale of property, the court should do so `with a view to fairness, prudence, and just regard for the rights of all concerned.'" Copeland v. Giles, 271 Ala. 302, 304, 123 So. 2d 147, 149 (1960).
The trial court found, and we agree, that there was a dispute among the parties as to the location of the residence of the parents, the store they had operated, and other buildings. The location of these improvements is likely to affect the value of the acreage when sold for division. Therefore, the trial court had the authority to order a survey to determine whether the improvements were located on the 23 acres, in order to conduct a fair sale.
Morris next challenges the correctness of the survey itself. He submitted his objections to the survey to the trial court, but presented no evidence that the survey was incorrect. Accordingly, the trial court's judgment is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Tolbert Jayroe is aligned as a defendant but took no legal position at trial or on appeal.
[2] The trial court held that Morris's testimony about what his father told him was admissible for the limited purpose of establishing the father's intent regarding the 4.79 acres. The court held that this testimony was admissible because it would not diminish the estate, but excluded Morris's testimony as to the 23 acres as violating of the Dead Man's Statute, § 12-21-163, Ala. Code 1975. The parties make no argument in regard to this ruling.
[3] J.W. Jayroe died intestate on November 9, 1985; Laura I. Jayroe died intestate on December 30, 1990. | July 9, 1993 |
51305c6f-8958-4b2d-918f-70e343842919 | Schifano v. Greene Cty. Greyhound Park | 624 So. 2d 178 | 1920759 | Alabama | Alabama Supreme Court | 624 So. 2d 178 (1993)
Sam SCHIFANO and Joseph Schifano
v.
GREENE COUNTY GREYHOUND PARK, INC.
1920759.
Supreme Court of Alabama.
July 16, 1993.
*179 Mitch Damsky, Birmingham, for appellants.
Michael S. Burroughs and Sandra C. Guin of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
RICHARD L. JONES, Retired Justice.
The plaintiffs, Sam and Joseph Schifano, appeal from a summary judgment entered in favor of the defendant, Greene County Greyhound Park, Inc. ("the Park"), on the plaintiffs' claims of invasion of privacy. We affirm.
Sam Schifano and Joseph Schifano visited the Greene County Greyhound Park several times in the early 1980's and participated in the Park's activities. During one of their visits, the plaintiffs were photographed as they sat in the "Winner's Circle," a section of the Park that can be reserved by interested groups. The Park printed the photograph on a page in an advertising brochure; the page described the Winner's Circle, the special services offered in that area, and how to reserve it. The text of the brochure did not refer to the persons in the photograph, either by name or by implication, and the photograph in which the plaintiffs were pictured was one of several photographs in the brochure illustrating various Park services and activities.
The plaintiffs learned of the use of the photograph and sued the Park for damages, alleging invasion of privacy. On December 30, 1991, the Park filed a motion for summary judgment, and it submitted its brief, exhibits, and affidavits in support of the motion on January 24, 1992. The court set a hearing date of March 2, 1992; however, on February 18, 1992, the plaintiffs' lawyer filed a motion to continue the hearing, stating that he would be unavailable on March 2. On February 26, the court reset the hearing for March 5 at 1:00 p.m. The record reflects that the plaintiffs filed affidavits in opposition *180 to summary judgment, in open court, on March 5 at 1:00 p.m.
On March 24, 1992, the trial court entered a summary judgment for the Park, holding that the plaintiffs were not entitled to pursue their invasion of privacy claims against the Park. Alternatively, the court held that the evidence supported the Park's defense that the plaintiffs had consented to the Park's taking and using the photograph, and that the plaintiffs' affidavits denying consent were untimely filed and could not be considered.
On appeal, the plaintiffs argue 1) that the trial court erred in holding that the plaintiffs were not entitled to pursue their invasion of privacy claims; and 2) that the trial court abused its discretion in refusing to consider the plaintiffs' affidavits in opposition to the Park's motion for summary judgment (the substance of which, claim the plaintiffs, created the "genuine issue of material fact" necessary to defeat the motion).
With regard to the plaintiffs' first argument, we note that the claims set out in the complaint were based on alternative theories of the tort of invasion of privacy. The plaintiffs claimed 1) that the Park, through its brochure with the photograph of the plaintiffs, portrayed the plaintiffs in a "false light," amounting to a "wrongful intrusion" into the plaintiffs' privacy; and 2) that the Park made a "commercial appropriation" of the plaintiffs' likenesses for gain to the Park.
This Court, in Phillips v. Smalley Maintenance Services, Inc., 435 So. 2d 705 (Ala.1988), adopted Restatement (Second) of Torts, § 652B (1977), and the comment thereto, as a "clear and concise definition" of the tort of "wrongful intrusion." The Phillips Court stated that § 652B, "when read in light of our own case law, affords meaningful guidelines for the adjudication of [wrongful intrusion] actions."
Section 652B provides that "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." (Emphasis added.) Comment a to this section states that an actionable "invasion" is an "intentional interference with [a person's] interest in solitude or seclusion." Comment c states that while normally there is no liability for photographing a person in a public place, there "may still be invasion of privacy when there is intrusion upon" certain matters that a person intends not to be "exhibit[ed] to the public gaze" (e.g., "his underwear or lack of it").
Restatement (Second) of Torts, § 652E, and the comments to that section are equally meaningful with regard to the definition of, and liability for, placing a person in a false light. Section 652E states:
There is nothing in the record to support the plaintiffs' claims that the Park intruded on the plaintiffs' privacy or portrayed the plaintiffs in a false light. The plaintiffs' attending Park activities and sitting in public seating at the Park negated any claim of "solitude or seclusion" on the part of the plaintiffs or intrusion into their "affairs or concerns." Similarly, the photograph of the plaintiffs in the public seating they chose to occupy can not be interpreted as being "highly offensive" to a reasonable person.
As to the plaintiffs' claim that the Park's photograph depicted the plaintiffs in a "false light," not only do we find the photograph to be unoffensive, but we note that it simply depicts a scene of normal activity at the Park. Because the photograph does not reflect false information that would be offensive or intrusive to the plaintiffs, we hold that the Park did not act with knowledge of, or reckless disregard for, the "falsity of the publicized matter or the false light in which *181 [the plaintiffs] would be placed" by reproducing the photograph in the brochure.
The plaintiffs contend that Daily Times Democrat v. Graham, 276 Ala. 380, 162 So. 2d 474 (1964), in which the Court allowed recovery to a plaintiff photographed in a public place, supports their claims. In Graham, however, the Court stated that it was not the depiction of the plaintiff in a public place that allowed her to recover. Rather, it was that the photograph of the plaintiff was not only embarassing to a person of "normal sensibilities," but also could be classified as "obscene." 276 Ala. at 383, 162 So. 2d at 477. See, also, Grimsley v. Guccione, 703 F. Supp. 903 (M.D.Ala.1988).
Similarly, there is no evidence to support the plaintiffs' claim of "commercial misappropriation" of their likenesses. Restatement (Second) of Torts, § 652C, states that liability for this wrong arises when one's name or likeness is "appropriated" by another to the other's "use or benefit." Comment d to this section states, in part:
In support of their argument, the plaintiffs rely on this Court's holding for the plaintiff in Bell v. Birmingham Broadcasting Co., 266 Ala. 266, 96 So. 2d 263 (1957). In Bell, however, the plaintiff was a former college football star and an experienced radio announcer whose recognizable name had been used by the defendant company in soliciting stations to carry its program and in soliciting sponsors for the program. There is no unique quality or value in the Schifanos' likenesses that would result in commercial profit to the Park simply from using a photograph that included themunidentified and seated in a group.
The plaintiffs' second argument challenges the trial court's refusal to consider their affidavits in opposition to the motion for summary judgment. The affidavits set out the plaintiffs' contention that they had not consented to having their photograph taken and that, if they had been informed of the Park's intent to take the photograph, they would have objected.
In Bell v. Birmingham Broadcasting Co., supra, the Court addressed the issue of consent in an "invasion of privacy" context:
The Park submitted the affidavits of two Park employees who stated that before the photograph was taken the Park made an announcement indicating that the photograph would be taken; that the plaintiffs had the opportunity to object or to move; and that they did neither. These affidavits also established that the photographs were taken by a camera mounted on a tripod in full view of, and only a few feet away from, the persons being photographed. In light of the evidence of record, we affirm the trial court's judgment based on its holding that the plaintiffs, neither by objecting nor moving when those options were made available by the Park employees, consented to having their photograph taken at the Park. Even if the trial court had admitted and considered the plaintiffs' affidavits, the plaintiffs' denial that they were told of the picture-taking would not have created a genuine issue of material fact. See Rule 56, Ala.R.Civ.P.
*182 The judgment is affirmed.
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.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | July 16, 1993 |
45d8a0b2-5a1b-457a-9b59-670f845b1f7a | Soniat v. Johnson-Rast & Hays | 626 So. 2d 1256 | 1920479 | Alabama | Alabama Supreme Court | 626 So. 2d 1256 (1993)
Christopher E. SONIAT and Deborah F. Soniat
v.
JOHNSON-RAST & HAYS; and Dr. Heide Rice.
1920479.
Supreme Court of Alabama.
June 30, 1993.
Rehearing Denied August 27, 1993.
*1257 S. Greg Burge of Heninger, Burge & Vargo, Birmingham, for appellant.
W. Lewis Garrison, Jr., of Corley, Moncus & Ward, P.C., Birmingham, for Johnson-Rast & Hays and Peggy Miller.
Thomas S. Spires of Smith, Spires and Peddy, Birmingham, for Dr. Heide Rice.
INGRAM, Justice.
Christopher E. Soniat and Deborah F. Soniat appeal from a summary judgment entered in favor of Johnson-Rast & Hays; its employee, Peggy Miller; and Dr. Heide Rice (hereinafter "the defendants"). The Soniats had purchased a used residence from Rice; Johnson-Rast & Hays's employee, Peggy Miller, was the listing agent for the sale. Shortly after moving into the house, the Soniats discovered that the house was infested with termites and that the house had substantial termite damage. The Soniats sued, alleging fraud, fraudulent concealment, and suppression of material facts. The trial court granted the defendants' motion for summary judgment, and the Soniats appealed.[1]
*1258 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 the nonmovant's 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).
Viewing the record before this Court, we find the following facts: The Soniats contracted to purchase a used residence from Rice. Miller represented the property as the exclusive listing agent. Before the closing of the sale, the Soniats viewed the property, but did not ask Miller or Rice about termites or prior termite damage. The Soniats had an independent inspector look over the property before the closing, and he did not report any termite damage.
Also, before the closing, Miller contacted American Termite & Pest Control Company (hereinafter "American Termite"), the company that had provided termite protection to the property since 1980. When Rice purchased the house in 1980, American Termite provided her, at the closing, with a graph that showed termite damage to the house. Thereafter, when American Termite inspected the house, Rice acknowledged that the house contained "old termite damage."
Charles Sutton, the president of American Termite, testified that he had been contacted before the Soniat closing and asked to prepare a termite bond for the closing. Sutton testified that he put the following three items into an envelope: (1) a "termite letter" stating that American Termite had observed no live termites when it last inspected the property; (2) the termite bond; and (3) a graph showing where the house had old termite damage. According to Sutton, the envelope was left in American Termite's front office to be picked up. Sutton did not see who picked up the envelope.
At closing, Rice handed the Soniats the termite letter and the termite bond; the graph was not attached, and the letter and the bond were not in the envelope from American Termite. Rice testified in her deposition that Miller had agreed to pick up the envelope from American Termite. Miller testified that she did not pick up the envelope and that she had no idea how the termite letter and the bond got to the closing.
The Soniats argue on appeal that the summary judgment on their claims was improper because, they say, according to the facts presented either Rice or Miller had removed the graph showing old termite damage from the envelope so that the graph was not shown to the Soniats at closing. The Soniats allege that had they seen the graph they would not have bought the house, and that, but for the alleged "active" fraudulent concealment of the defendants, they would have seen the graph.
In order to establish fraudulent concealment, a plaintiff must show (1) that the defendant had a duty to disclose a material fact; (2) that the defendant either failed to disclose or concealed that material fact; (3) that the defendant's failure to disclose or his concealment of that material fact induced the plaintiff to act or to refrain from acting; and (4) that the plaintiff suffered damage as a result of his action, or inaction, induced by the defendant's failure to disclose or his concealment *1259 of the material fact. See Cornelius v. Austin, 542 So. 2d 1220, 1223 (Ala.1989).
The defendants contend that they had no duty to disclose any facts relating to old termite damage because the Soniats never inquired about prior termite damage. See Cornelius, 542 So. 2d at 1223 (the doctrine of caveat emptor applies in the resale of used residential real estate; there is no duty to disclose facts when information is not requested) (citing Ray v. Montgomery, 399 So. 2d 230, 232-33 (Ala.1980)). However, "proof of knowing concealment with intent to deceive may establish the obligation to disclose in an action claiming fraudulent concealment." Cornelius, 542 So. 2d at 1224 (citing Harrell v. Dodson, 398 So. 2d 272, 276 (Ala.1981)). In other words, a defendant who has no duty to disclose arising from his relationship with the plaintiff or the special circumstances of the transaction may nevertheless be liable for fraudulent concealment if he knowingly takes action to conceal a material fact with the intent to deceive or mislead the plaintiff. See § 6-5-103, Ala.Code 1975 ("Mere concealment of ... a fact, unless done in such a manner as to deceive and mislead, will not support an action [for deceit]." (emphasis added)); § 6-5-104(b), Ala.Code 1975 ("A deceit within the meaning of this section [includes] (3) The suppression of a fact by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact...."). Therefore, proof that the defendants knowingly concealed the graph with the intent to deceive the Soniats will establish the first element, a duty to disclose.
This Court has held:
Marshall v. Crocker, 387 So. 2d 176, 179 (Ala. 1980) (quoting Jordan & Sons v. Pickett, 78 Ala. 331, 339 (1884)). "[A] `material fact' [is] any fact which is likely to induce reliance on the part of the injured party," and the materiality of a particular fact is a jury question. Harlan v. Smith, 507 So. 2d 943, 946 (Ala.Civ. App.1986).
As a condition to closing, the Soniats required a termite bond, which was prepared by American Termite. Sutton testified that he had included the graph with the termite letter and the termite bond so that the buyer would have the full picture of the existing termite damage. The Soniats testified that they would not have gone through with the closing if they had seen the graph. Therefore, we hold that the jury could find that the graph was a material fact.
Also, assuming that the jury could find that one of the defendants removed the graph, the jury could infer that the graph was removed for the purpose of concealing the graph from the Soniats and that the defendant removing the graph knew of the graph's materiality to the transaction. The defendants, however, contend that the record fails to show that they had knowledge of the "material fact" because they say they did not know that the property had either old termite damage or live termite infestation. Regardless of whether the defendants knew about a prior or an existing termite problem, the "material fact" suppressed was that American Termite had provided a graph to be given the Soniats at the closing that showed old termite damage. This fact was necessarily "known" to whoever removed the graph from the envelope. Therefore, reviewing the evidence before the trial court on the summary judgment motion, we hold that the Soniats presented substantial evidence from which the jury could infer that the defendants knowingly concealed a material fact.
This Court has held that, to be actionable as fraudulent concealment, the knowing concealment must be made with the intent to deceive or mislead the plaintiff. "Though the intention is a question for the jury, where the *1260 fact and its materiality are known to the seller, and the suppression is willful or intentional, it may be regarded as done with an intention to deceive or mislead...." Marshall, 387 So. 2d at 179 (quoting Jordan & Sons, 78 Ala. at 339) (emphasis added). In this case, the record shows substantial evidence from which a jury could infer that the suppression of the graph was intentional. The record shows that American Termite produced the graph, along with the termite letter and the termite bond, for the benefit of the Soniats. The three documents were placed in an envelope and that envelope was picked up from the offices of American Termite. However, the Soniats, at the closing, received only the termite letter and the termite bond and did not receive the graph. From this evidence a jury could infer that the graph, which we have already found to be a material fact known to the defendants, was intentionally removed from the envelope with the intent to "deceive or mislead." See Marshall, 387 So. 2d at 179.
As discussed above, the "material fact" alleged to have been suppressed is the graph from American Termite. The record contains substantial evidence that the fact was material. See discussion supra.
Although the evidence is clearly disputed as to who actually picked up the envelope from American Termite, there is substantial evidence that either Rice or Miller picked up the package. Rice testified that she and Miller had discussed who would pick up the envelope and that Miller had agreed to get it. Sutton also testified that usually the real estate agent picked up the envelope. Miller, on the other hand, testified that she did not pick up the envelope and does not know how the termite letter and the termite bond got to the closing. The Soniats testified that Rice gave them the termite letter and the termite bond at closing.
However, it is undisputed that the Soniats received only the termite bond and the termite letter. These two documents had been removed from the American Termite envelope, and the only item missing was the graph showing old termite damage. A jury could infer from Rice's subsequent presentation of two of the three items at the closing that one of the two defendants had picked up the envelope from American Termite and had removed the graph from the envelope before giving the remaining items to the Soniats at closing. Therefore, the record reveals substantial evidence that Miller and/or Rice concealed the graph from the Soniats.
The Soniats testified that they would not have bought the house had they seen the graph at the closing. Their testimony, if believed, would be sufficient to support a jury finding that they were induced to act because they had not been provided all the facts. We note that the defendants argue that the Soniats did not rely on the absent graph because the Soniats had had the property independently inspected. Nevertheless, this Court has stated:
Marshall, 387 So. 2d at 178 (quoting Jordan & Sons, 78 Ala. at 338) (emphasis added).
We note that the inspection produced no information regarding the old termite damage. We also note that the Soniats stated that they would not have bought the house if they had seen the graph. Therefore, we hold that there is sufficient evidence from which a jury could find that the suppression of the graph "materially contribute[d] and [was] of such character that the [Soniats] would not have consummated the contract, had [they] known ... the fact suppressed." See id.
The Soniats presented substantial evidence that they have suffered damage. They testified that, as a result of the concealment of the graph, they purchased a house that needs extensive repair work because of prior termite damage.
The summary judgment in favor of Rice and Johnson-Rast & Hays is due to be reversed and this cause remanded for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES and HOUSTON, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
I do not find substantial evidence creating a genuine issue of material fact to overcome the defendants' prima facie showing that they were entitled to a summary judgment based on their having no duty to disclose the graph and on the fact that the buyers bought the house "as is." I would affirm the judgment of the trial court.
[1] The Soniats also sued Carol Fiedler and her employer, CKM Realty Company, which was the selling agency; Robert Toler d/b/a Home Inspection Consultants, who had inspected the house for the Soniats; and American Termite & Pest Control, Inc., which had given a termite bond. The plaintiffs voluntarily dismissed Fiedler and CKM. The trial court denied Toler and American Termite's motions for summary judgment. The trial court certified the summary judgment in favor of Rice, Johnson-Rast & Hays, and Miller as final, pursuant to Ala.R.Civ.P. 54(b). Miller was not named as an appellee. | June 30, 1993 |
288b2158-4b2b-4ed4-bc3f-e05748381b08 | Kahn v. Terry | 628 So. 2d 390 | 1911753 | Alabama | Alabama Supreme Court | 628 So. 2d 390 (1993)
Donald R. KAHN and Kahn Properties, Inc.
v.
Evan M. TERRY.
1911753.
Supreme Court of Alabama.
August 27, 1993.
*391 William J. Baxley and Joel E. Dillard of Baxley, Dillard & Dauphin, Birmingham, for appellants.
John M. Laney, Jr., and Peggy C. Hooker of Rives & Peterson, Birmingham, for appellee.
ADAMS, Justice.
Donald R. Kahn and Kahn Properties, Inc. (both hereinafter sometimes referred to as "Kahn"), appeal from a judgment based on a jury verdict awarding damages to Evan M. Terry on a breach of contract claim. We affirm.
On May 8, 1984, Terry and Kahn Properties, Inc., entered into a design contract. Under the terms of the contract, Terry was to prepare designs for the development of a shopping center located in the Southside area of Birmingham; that development included the renovation of existing stores and shops in the area and the design and construction of a parking deck. The contract called for an architect's fee of six percent of the construction cost. According to the testimony of Donald R. Kahn, the overall budget for the project was $2,000,000, which included $900,000 for the parking deck. Under the contract, Terry was to provide architectural services during the following phases: the schematic design phase; the design development phase; the construction document development phase; the bidding and negotiation phase; and the construction phase.
Terry and Donald Kahn orally agreed that the design and development of the parking deck would be included in the first phase of the project. They also orally agreed that the parking deck was to consist of 150 parking spaces, at a cost of $6,000 each. On July 13, 1984, Terry mailed design plans and specifications for the parking deck to four general contractors, previously selected by Kahn and Terry, to allow them to bid on the contract. Among the items included in the plans was a "pan and joist" system used to form concrete slabs on the floor of the parking deck. After the bid packages were mailed, several of the contractors contacted Terry and suggested that perhaps a "post-tension" system of concrete slab formation, as opposed to the "pan and joist" system, would be better suited for use in the construction of the parking deck. Terry then issued an addendum to the documents requesting that the contractors submit bids using both systems of concrete formation.
On August 7, 1984, bids were received from the four general contractors, with Cooper and Sayers Construction Company being the lowest bidder, at $1,394,000. Terry negotiated with Cooper and Sayers to lower its bid to conform with the overall budget of $1.2 million for the first phase of the project. Cooper and Sayers lowered its bid to $1,230,000. On August 28, 1984, Terry prepared a construction contract between Kahn and Cooper and Sayers for $1,230,074, but Kahn refused to sign the contract. Kahn terminated Terry's employment on September 14, 1984.
Terry filed a breach of contract action against Donald R. Kahn and Kahn Properties, Inc., seeking compensation for services rendered under the contract. Kahn filed a motion to dismiss, which was denied in August 1985. In October 1985, Kahn filed an answer and counterclaim, alleging, inter alia, that Terry had not performed any services *392 for which compensation was owed, and that the plans and specifications submitted by Terry did not meet the standards specified in the contract. Terry filed a motion for a summary judgment, which was denied, and the case was tried. The jury awarded Terry $95,693.31 and found against Kahn on the counterclaim. Kahn's post-judgment motions were denied on June 26, 1992, and Kahn appealed on August 4, 1992.
On appeal, Donald Kahn and Kahn Properties argue that the trial court erred in denying their motion for a directed verdict and for a judgment notwithstanding the verdict, or in the alternative, a new trial, on the grounds that, as a matter of law, Terry was not entitled to compensation because, the appellants claim, he had breached the contract by (a) failing to furnish plans for the parking deck within the agreed fixed construction cost limitations, and (b) delegating design responsibility under the contract to a subcontractor. We disagree.
If the parties have a written agreement, their rights and duties are governed by that agreement. More specifically, "if there is an express contract for architectural services, an architect's duties are determined by the contract for the architect's employment." Getzschman v. Miller Chemical Co., 232 Neb. 885, 443 N.W.2d 260, 270 (1989).
Article 1 of the contract between Kahn and Terry states that Terry was to provide architectural services during the following phases: the schematic design phase; the design development phase; the construction document development phase; the bidding and negotiation phase; and the construction phase. It also states that the architect's basic services will include "normal structural, mechanical and electrical services and any other services included in Article 15 as part of Basic Services."
Article 3 of the contract governs the construction cost; it provides, in pertinent part:
Although the written contract does not specifically provide for a fixed construction cost, the parties presented conflicting testimony as to whether they had agreed upon a fixed construction cost. Donald Kahn testified that when he met with Terry concerning the contract, he discussed the overall budget of $2 million for the project, as well as the $6,000 cost per parking space. Kahn also testified that he and Terry orally agreed that the construction costs for the first phase of the project were not to exceed $1.2 million. While Kahn argues that they had an oral agreement concerning a fixed limit on construction costs, the written contract provides that such agreements would be in writing and would be signed by the parties. Kahn produced no written evidence of such an agreement.
Terry testified that he and Donald Kahn talked over the general terms and conditions of the contract, rate fees, and other considerations. Terry testified that Kahn told him that the budget for the project was tight and that Kahn mentioned the $1.2 million figure. Terry seems to argue, however, that the figure was mentioned only in terms of the budget and not as a limitation on construction costs for the project.
This Court stated in Smothers v. Henderson, 531 So. 2d 657, 659 (Ala.1988):
Because there was a dispute as to the existence of a fixed limit on construction costs, this matter was correctly submitted to the jury. We conclude that, based on the evidence presented to the jury, it could correctly determine that there was no fixed construction cost limit set in the contract and that Terry was therefore entitled to compensation for his services.
Kahn further argues that Terry delegated his design responsibility under the contract and therefore was not entitled to compensation. Terry argues that no such delegation occurred because he retained the right to assign the responsibility under the contract. The pertinent provision of the contract authorizes Terry to, in fact, do that. Having examined the contract, we are unable to conclude that the jury erroneously found in favor of Terry on this issue.
Based on the foregoing, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | August 27, 1993 |
a1745197-c240-430d-9621-ca22418d2390 | Fabre v. State Farm Mut. Auto. Ins. Co. | 624 So. 2d 167 | 1920340 | Alabama | Alabama Supreme Court | 624 So. 2d 167 (1993)
Russell Brad FABRÉ and Carol Denise Fabré
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Lamar Westbury.
1920340.
Supreme Court of Alabama.
July 16, 1993.
*168 Robert W. Shores of Roden & Hayes, P.C., Birmingham, for appellants.
Michael B. Maddox and Jeff W. Parmer of Woodall & Maddox, P.C., Birmingham, for appellees.
STEAGALL, Justice.
Russell Brad Fabré and Carol Denise Fabré sued State Farm Automobile Insurance Company (hereinafter "State Farm") and its agent, Lamar Westbury, alleging a fraudulent misrepresentation. This fraud action is the second action these plaintiffs have filed related to an August 1987 motor vehicle accident. The allegation of misrepresentation followed State Farm's refusal to pay certain chiropractic bills incurred because of injuries the Fabrés sustained in the accident; the accident was caused by a State Farm policyholder. The trial court determined that the claim was barred by the applicable statute of limitations and entered a summary judgment for State Farm. The Fabrés appeal.
The Fabrés argue that there is a genuine issue of material fact as to whether their claim is barred by the statute of limitations and that the trial court thus erred in entering the summary judgment for State Farm.
A summary judgment is proper and must be affirmed where there exists no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. If the moving party makes 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 such an issue of fact requiring resolution by a jury. West v. Founders life Assurance Co. of Florida, 547 So. 2d 870 (Ala.1989). "[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 to be proved." West, 547 So. 2d at 871.
Following the automobile accident, the Fabrés sued the State Farm policyholder, alleging negligence. The Fabrés allege in their present fraud action that, following the accident, State Farm agent Lamar Westbury contacted Vinemont Chiro Care (hereinafter "Chiro Care") and stated that State Farm would pay for the chiropractic treatment the Fabrés sought. The Fabrés thereafter received chiropractic treatments at Chiro Care and incurred charges totaling $1,200. On May 23, 1988, Chiro Care sent the Fabrés a bill for these treatments; the Fabrés did not pay or otherwise respond to the bill. The Fabrés did not respond to the additional bills Chiro Care sent in August 1988, October 1988, November 1988, May 1989, and June 1989. In December 1989, Chiro Care sent the Fabrés a certified letter requesting payment of their debt; the Fabrés received this letter but did not respond. In May 1990, Chiro Care sued the Fabrés in the small claims court, seeking payment of the debt; the court entered a default judgment for Chiro Care in the amount of $1,256.
In May 1992, the Fabrés settled their negligence action against the State Farm policyholder responsible for causing the accident. On May 19, 1992, the Fabrés filed this fraud action against State Farm, alleging that State Farm, through its agent Lamar Westbury, had misrepresented that the Chiro Care bill would be paid by State Farm and alleging that the Fabrés had relied on this misrepresentation in failing to pay the bills that Chiro Care had repeatedly sent to them. The Fabrés thus sued almost four years after they had received the first bill from Chiro Care.
An action for fraudulent misrepresentation is subject to a two-year statute of limitations. Ala.Code 1975, § 6-2-38. A fraud claim accrues when the plaintiff discovers the fraud or when the plaintiff should have discovered the fraud in the exercise of reasonable care. Hickox v. Stover, 551 So. 2d 259 (Ala.1989). A fraud is deemed to have been discovered when it ought to have been discovered; that is, at the time of the discovery of facts that, on the part of a person of ordinary prudence, would provoke inquiry that, if followed up, would lead to the discovery of the fraud. Hickox. The question of when a plaintiff discovered an alleged fraud *169 is usually a question of fact for the jury to determine; however, fraud is discovered as a matter of law when one receives documents that would put one on notice of the fraud. Hickox.
The record shows that before May 19, 1990, the Fabrés received repeated notices of the unpaid Chiro Care bill, received a certified letter demanding payment of the bill, and were the defendants in an action to collect the bill. In order to come within the "saving clause" of § 6-2-3, Ala.Code 1975, the Fabrés were required to show what prevented them from discovering the alleged fraud and to acquit themselves of all knowledge of facts that would have put them on notice that State Farm had intentionally failed to pay the bills that it allegedly represented it would pay. The Fabrés did not present such evidence; in opposition to the summary judgment motion, the Fabrés merely presented the affidavit of their own attorney, who averred that, in his opinion, the Fabrés did not discover the fraud until a time within less than two years before they sued. This affidavit was not substantial evidence to rebut State Farm's prima facie showing that the Fabrés received notice of the unpaid bills before May 19, 1990.
Accordingly, the summary judgment is affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur. | July 16, 1993 |
751586c1-09a5-4bc9-a886-ea676b06ffdb | Truck Rentals v. Mo Carroll-Newton | 623 So. 2d 1106 | for | Alabama | Alabama Supreme Court | 623 So. 2d 1106 (1993)
TRUCK RENTALS OF ALABAMA, INC., and Rollins Leasing Corporation
v.
M.O. CARROLL-NEWTON COMPANY, INC.
1910924, 1910925.
Supreme Court of Alabama.
June 30, 1993.
J. Franklin Ozment and Robert D. Hunter of Lange, Simpson, Robinson & Somerville, Birmingham, for appellants.
James J. Robinson and Carol H. Stewart of Burr & Forman, Birmingham, for appellee.
PER CURIAM.
Truck Rentals of Alabama, Inc. ("TRA"), and Rollins Leasing Corporation appeal from judgments on jury verdicts in favor of M.O. *1107 Carroll-Newton Company, Inc. ("M.O. Carroll"). The jury returned a verdict against TRA in the amount of $196,840.50 on M.O. Carroll's claims of fraud and breach of contract, and against Rollins in the amount of $196,840.50 on M.O. Carroll's claims of breach of contract and conversion. In addition, the jury awarded Rollins and TRA $24,708.50 each on their counterclaims against M.O. Carroll for the rental value of certain vehicles provided by TRA to M.O. Carroll. The trial judge denied motions by TRA and Rollins for a judgment notwithstanding the verdict or, in the alternative, for a new trial, and TRA and Rollins appealed. We affirm.
M.O. Carroll, a wholesale grocer, uses tractor trailer rigs to deliver groceries to small grocery stores in Alabama and surrounding states. In early 1987, Sam Carroll, III, vice president in charge of operations at M.O. Carroll, began negotiating with Bo Harrison, a representative of Truck Rentals of Alabama, regarding the possibility of leasing TRA trucks to meet the business obligations of M.O. Carroll. Initial discussions were not fruitful; however, in December 1987, Sam Carroll began negotiating with Richard Nicholas of TRA regarding the possibility of a business relationship. Nicholas presented Sam Carroll with a proposal to lease 10 trucks for a period of 5 years. Those trucks were to be serviced by TRA, and M.O. Carroll was to have parking privileges on TRA lots. In addition, TRA was to purchase 10 used trucks from M.O. Carroll. Negotiations continued between the parties, and changes were made to the original proposal. Ultimately, M.O. Carroll decided to lease 5 vehicles for 6-½ years, with the option to rent additional vehicles at a specified rate. Under the new proposal, TRA was to purchase 16 used trucks from M.O. Carroll and M.O. Carroll would be allowed to set up office trailers at various TRA locations. In addition, TRA would provide fuel for the trucks at cost and perform routine maintenance on the trucks.
The changes to the agreement were to be submitted to the Birmingham office of TRA for approval and, according to Sam Carroll, he was informed that all approval had been received. A draft of the agreement was then drawn up by TRA in January 1988 and signed by Sam Carroll. The document was then sent to the Birmingham office. Almost immediately, TRA began to abide by the terms of the agreement with regard to the delivery of the trucks and M.O. Carroll obtained the insurance required on the leased vehicles pursuant to the contract. TRA also held an orientation meeting with all M.O. Carroll drivers and explained TRA policies and procedures to them. In addition, TRA provided fuel at cost, in compliance with the contract, and performed routine maintenance on the vehicles pursuant thereto. According to the trial testimony, however, Sam Carroll became concerned when M.O. Carroll did not receive a check in payment for the trucks that TRA was to purchase. Sam Carroll testified at trial that he made numerous telephone calls to TRA and was assured, at least on one occasion, that the "check was in the mail." According to Sam Carroll, telephone calls to Buddy Jackson, vice president and general manager of TRA in Birmingham, regarding the status of the check in payment of the used vehicles, went unreturned.
Almost simultaneously with the negotiations between TRA and M.O. Carroll, TRA was negotiating with Rollins Leasing Corporation with regard to the sale of certain TRA assets to Rollins. The sale was to include equipment and leases and, although the agreement between Rollins and TRA provided that all potential leases would not be signed until authorized by Rollins, there was evidence that TRA's home office never informed its district managers and account representatives of this fact and did not discourage them from obtaining new leases during the negotiations. Although TRA appeared to abide by the M.O. Carroll lease to the letter from January to the end of March, with the exception of paying for the used vehicles it was to purchase from M.O. Carroll, no one ever informed M.O. Carroll that TRA or Rollins had not in fact approved the lease or that they had no intention of doing so. Then, on March 29, 1988, Rollins, having refused to accept the lease agreement, had Buddy Jackson of TRA write Sam Carroll and inform him that all trucks should be returned to TRA and that the lease was being rejected.
*1108 Following Jackson's letter to Sam Carroll, Rollins's agreement to purchase TRA's assets became effective and Rollins sent M.O. Carroll a letter that stated:
Rollins continued to bill M.O. Carroll for leased vehicles, according to the agreement between M.O. Carroll and TRA; however, following the above-quoted letter, Rollins notified M.O. Carroll of a rate increase that would become effective around the middle of April. When M.O. Carroll notified Rollins that it considered the lease agreement to be binding on Rollins, Rollins proceeded to require M.O. Carroll to return the leased vehicles and refused to service for M.O. Carroll the vehicles that had not yet been returned.
M.O. Carroll filed a complaint against TRA and Rollins on July 7, 1988. Rollins, in turn, filed a complaint against M.O. Carroll on July 8, 1988. The two cases were consolidated on September 22, 1988. TRA and Rollins thereafter filed a counterclaim in which TRA sought rental payments and Rollins incorporated the allegations of its separate complaint.
M.O. Carroll amended its original complaint in November 1988; that complaint is set out in pertinent part as follows:
TRA contends that the trial judge erred in submitting the issue of affirmative misrepresentation to the jury. In particular, TRA argues that neither the complaint, the amended complaint, nor the trial brief contained any allegation of an affirmative misrepresentation and that, therefore, TRA lacked sufficient notice to defend against that theory. Instead, it claims to have had notice only of the theory of suppression of material facts. TRA states as follows in its brief on appeal:
Contrary to its argument, TRA, by acknowledging theory number (2) as a pre-trial theory of M.O. Carroll's complaint, admits the knowledge of an affirmative misrepresentation theory.
The trial judge's instructions to the jury with regard to misrepresentation include the following:
"An action for deceit, under § 6-5-103 and § 6-5-104, results from either a willful or reckless misrepresentation or a suppression of material facts with an intent to mislead." Whitlow v. Bruno's Inc., 567 So. 2d 1235, 1241 (Ala.1990). In the amended complaint as quoted above, M.O. Carroll charged that TRA was guilty of violating § 6-5-103 and § 6-5-104. The amended complaint also charges that TRA agreed to purchase 16 trucks and knew that Rollins had no intention of abiding by that agreement.
Furthermore, we have reviewed the record and we agree with M.O. Carroll that, even if the complaint did not state a claim for an affirmative misrepresentation, such a claim was tried by implied consent. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 15(b), Ala.R.Civ.P. There is evidence in the record that TRA had sufficient notice of the affirmative misrepresentation theory to defend against it, particularly in the depositions taken by the parties during discovery. In *1110 particular, the deposition of Sam Carroll indicated that he had been told by a TRA representative that the check for the vehicles allegedly purchased pursuant to the agreement between the parties should reach him within a few days. Also, he stated that he had been told that TRA had approved the lease agreement in question.
Based on the pleadings, discovery, and the evidence given at trial, the trial judge did not err in charging the jury with regard to affirmative misrepresentation.
TRA and Rollins next argue that the alleged contract was void under the Statute of Frauds because, they say, it was an agreement not to be performed within a year, but was not expressed in a writing signed by TRA or Rollins. See § 8-9-2(1), Ala.Code 1975. They argue that, because the original proposal submitted to M.O. Carroll in December was significantly changed, it cannot constitute the contract. In addition, they contend that the proposal ultimately signed by Sam Carroll in January specifically stated that it would not be binding on TRA until approved and signed by a TRA officer; they contend this despite the fact that the document was drawn up by an agent of TRA and despite the fact that Sam Carroll was advised before the document was drawn up that all approval had been received.
TRA, by entering into performance in accordance with the agreement, may well be estopped to deny that the contract was in force. As previously stated, according to Sam Carroll, a TRA representative had told him that the agreement had been approved and that he should expect the check for the used vehicles within a few days. In addition, testimony at trial revealed that TRA had entered the agreement into its computer and that it usually did not make such entries until after a contract had been approved.
Dean v. Myers, 466 So. 2d 952, 955 (Ala.1985).
Moreover, M.O. Carroll argues that there were numerous papers that, if considered together, are sufficient to meet the requirement imposed by the Statute of Frauds that the contract be evidenced by a writing signed by the party to be charged. In particular, M.O. Carroll points out that the December *1112 proposal was accompanied by a transmittal letter signed by a TRA officer and that both parties negotiated changes, which were reported to Sam Carroll as having been approved by TRA. Thereafter, the January agreement itself was prepared by TRA on a TRA letterhead. In addition, M.O. Carroll points out that it received weekly invoices with TRA endorsements consistent with the terms of the agreement.
We agree that the documents taken together suffice to meet the requirement of the Statute of Frauds. The negotiated contract constitutes an "agreement or some note or memorandum thereof expressing the consideration... in writing," and the invoices submitted by TRA to M.O. Carroll, as well as TRA's endorsements of checks submitted by M.O. Carroll, are sufficient under these circumstances to meet the requirement of the Statute of Frauds that the writing be "subscribed by the party to be charged therewith." In addition, the letter from Rollins to M.O. Carroll indicates that Rollins had assumed "the agreement" between TRA and M.O. Carroll. Thus, the arguments based on the Statute of Frauds have no merit.
In regard to the conversion claim against Rollins, Rollins contends that the trial judge erred in allowing the testimony of Bruce Sexton, because his name was not submitted on the list of all proposed witnesses in compliance with the pre-trial order. Whether to allow witness to testify is a matter within the sound discretion of the trial judge. Mitchell v. Moore, 406 So. 2d 347, 350 (Ala.1981). See also Alford v. State Farm Fire & Casualty Co., 496 So. 2d 19, 21 (Ala. 1986). We find no abuse of discretion here.
We have considered the remaining arguments of TRA and Rollins, and we find them to be without merit. Therefore, the judgment of the trial court is hereby affirmed as to appeal number 1910924, which is the appeal by TRA and Rollins from the judgment for M.O. Carroll in its action against TRA and Rollins.
The notice of appeal filed by TRA and Rollins included on its face the circuit court docket number for the case that Rollins had filed against M.O. Carroll, so the notice of appeal was treated as raising an appeal in that case, and the number 1910925 was assigned to that purported appeal. No appeal has in fact been taken from the judgment for Rollins in its action that was treated as a counterclaim, so case number 1910925 is due to be dismissed.
1910924AFFIRMED.
1910925DISMISSED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur. | June 30, 1993 |
ae1bfc37-32ed-49cf-9264-c65d3303f1e0 | Ex Parte Woodward Const. & Design, Inc. | 627 So. 2d 393 | 1920452 | Alabama | Alabama Supreme Court | 627 So. 2d 393 (1993)
Ex parte WOODWARD CONSTRUCTION & DESIGN, INC.
(Re MIREE PAINTING COMPANY, INC., an Alabama corporation
v.
WOODWARD CONSTRUCTION & DESIGN, INC., an Alabama corporation).
1920452.
Supreme Court of Alabama.
July 16, 1993.
*394 Larry W. Madison of Groover, Thompson, Madison and Gray, P.C., Hartselle, for petitioner.
David H. Culver, Huntsville, for respondent.
ALMON, Justice.
This Court granted the petition of Woodward Construction & Design, Inc. ("Woodward"), for a writ of certiorari to the Court of Civil Appeals to review that court's reversal of a judgment holding that Woodward had not wrongfully terminated its contract with Miree Painting Company ("Miree"), and awarding Woodward $4,611 for its cost of completing the work contemplated in the contract, 627 So. 2d 389. The specific issue for our review is whether the Court of Civil Appeals erred in awarding Miree $10,000 in damages for Woodward's breach of the contract.
In its opinion, the Court of Civil Appeals held that Woodward breached the contract between it and Miree by failing to provide Miree with proper notice of its intent to terminate the contract. The court then held, in the final sentence of the opinion: "[F]urther, because Woodward's actions prevented Miree from completing the work as called for by the contract, we remand the cause with instructions that the trial court enter a judgment for Miree on its claim for $10,000."
Although this Court agrees with the Court of Civil Appeals that Woodward breached the contract by failing to give proper notice, we also conclude that the damages awardwhich is the difference between the contract price and the amount that was paid to Miree before the contract was terminatedis erroneous. In Braswell v. Malone, 262 Ala. 323, 78 So. 2d 631 (1955), this Court stated the rule for calculating damages in situations where the defendant has prevented the plaintiff from performing:
We are concerned with only the first alternative enunciated in Braswell, because Miree brought the action solely on the contract and did not include a quantum meruit count in its complaint. The method for determining the proper measure of damages on the contract was clarified by the Court of Appeals in Whiting v. Dodd, 39 Ala.App. 80, 83, 94 So. 2d 411, 414 (1957), where that court held:
Therefore, the judgment is due to be reversed and the case remanded for an order directing the trial court to allow Miree to present evidence of what its cost of completion would have been had Woodward not wrongfully terminated the contract. Of course, Woodward's cost of completing the painting work$14,661is relevant to the inquiry and may be offered in rebuttal to any evidence presented by Miree.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Many jurisdictions adhere to the rule that the measure of damages in a situation where one party has prevented the other from performing is the contract price less the cost of completion. See, e.g., Sweeney Co. of Maryland v. Engineers-Constructors, Inc., 823 F.2d 805 (4th Cir.1987) (applying Virginia law); Ark Constr. Co. v. City of Florissant, 558 S.W.2d 418 (Mo.App.1977). | July 16, 1993 |
a1cf0ce2-f619-4616-8a44-fc72d76bfb70 | Lollar v. Poe | 622 So. 2d 902 | 1911962 | Alabama | Alabama Supreme Court | 622 So. 2d 902 (1993)
Gwendola Winters LOLLAR and Jon Lollar
v.
Eddie E. POE and Sheila Poe.
1911962.
Supreme Court of Alabama.
June 18, 1993.
*903 George A. Nassaney, Jr., Tuscaloosa, for appellants.
Clark Summerford and Beverly A. Smith of Zeanah, Hust, Summerford & Davis, Tuscaloosa, for appellees.
HORNSBY, Chief Justice.
Gwendola Winters Lollar was injured when her motor vehicle collided with a horse on a state highway in Tuscaloosa County, at 9:45 p.m. on June 13, 1990. Lollar and her son, Jon Lollar, the owner of the vehicle, sued the owners of the horse, Eddie E. Poe and Sheila Poe, alleging that the Poes had negligently, willfully, and wantonly allowed the animal to run at large upon the highway and had thereby caused the collision that resulted in Ms. Lollar's injuries. The trial court initially entered a summary judgment for the Poes, but later set aside that judgment. After a second hearing on the defendant's summary judgment motion, the court again entered a summary judgment for the Poes. The Lollars appeal.
The Lollars argue that they presented substantial evidence creating a genuine issue of material fact as to whether the Poes negligently permitted their horse to run at large on the state highway. In response to the Poes' motion for summary judgment, the Lollars presented an affidavit by a neighbor of the Poes, who stated that she had seen some of the Poes' horses out of the pasture on two prior occasions when the horses had wandered over to neighboring yards, including her own. On one of the occasions, the neighbor said she telephoned the Poes' daughter to have her retrieve a horse that had wandered into her yard and then watched her lead the animal back to the Poes' pasture. The Lollars argue that this evidence is sufficient to withstand a summary judgment motion.
"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).
Generally speaking, the owner of an animal would not be liable for damages caused by a collision with a motor vehicle, unless the owner "knowingly or willfully put or placed" the animal on the public highway, road, or street where the injury occurred. Ala.Code 1975, § 3-5-3(a). In light of the manifest danger to travelers of permitting domestic animals to roam at will on the highways, many jurisdictions have adopted *904 statutes or ordinances prohibiting their owners from allowing such animals to roam unattended. Annot., Liability of Owner of Animal for Damage to Motor Vehicle or Injury to Persons Riding Therein Resulting from Collision with Domestic Animal at Large in Street or Highway, 29 A.L.R.4th 431 (1984 & Supp. 1992). See also Kenney v. Antonetti, 211 Cal. 336, 295 P. 341 (1931) (acknowledging the policy reasons for such legislation, holding that "in these days of rapid automobile transportation, the extreme hazard to drivers and passengers of animals straying unattended on roads, particularly at night, cannot be overestimated," and stating, "In such situations, the driver is placed in a nearly helpless position because an animal springs out of the darkness in front of a car when blinded or hypnotized by its headlights.").
Ala.Code 1975, § 3-5-14(a), allows municipalities to regulate livestock. The City of Tuscaloosa has enacted an ordinance providing as follows:
Code of the City of Tuscaloosa, Alabama 1983, § 4-20(a). This Court has held that a municipality may regulate livestock to the limit of its police jurisdiction. Wilkins v. Johnson, 595 So. 2d 466 (Ala.1992). The parties admit that the accident occurred within the police jurisdiction of the City of Tuscaloosa and that § 4-20(a) applies to this case.
The Tuscaloosa ordinance imposes a duty, the breach of which is punishable by a criminal penalty, on those "having charge, custody or control" of livestock within the police jurisdiction of the City of Tuscaloosa to prevent their livestock from running at large. It authorizes the City of Tuscaloosa to charge those "having charge, custody or control" of livestock who permit or fail to prevent their livestock from running at large with violating § 4-20(a), and to impound the livestock and impose a monetary fine. Although the City of Tuscaloosa has not brought criminal charges against the Poes, this is not a bar to the Lollars' claim against the Poes for civil liability. This Court recently reaffirmed the general rule that for every criminal violation that injures the person or property of another, there is a concomitant civil remedy. See Smitherman v. McCafferty, 622 So. 2d 322 (Ala.1993). In Smitherman, this Court reiterated the basis for such a civil remedy:
"`Even though an act may constitute a crime, if it also results in injury to the person or property of another, the act may still be the basis of a civil action for damages. However, civil liability will ensue only if the acts complained of violate a legal right of the plaintiff, constitute a breach of duty owed to the plaintiff, or constitute some cause of action for which relief may be granted.'"
622 So. 2d at 325 (quoting Martinson v. Cagle, 454 So. 2d 1383, 1385 (Ala.1984)).
Applying this rule, we note that § 4-20(a) imposes a duty on those "having charge, custody or control of any livestock, rabbit or fowl" to take reasonable steps to prevent their animal from running at large within the police jurisdiction of the City of Tuscaloosa. The Lollars sought to impose civil liability against the Poes, alleging that they had negligently failed to prevent their horse from running at large, in violation of § 4-20(a), and that their negligence had caused the Lollars' injuries or loss. Accordingly, under the rule set out in Martinson and Smitherman, the Lollars may proceed against the Poes on a theory of negligence.
This Court has previously held, in an action against the owner of a bull, that the owner "must have been shown to be negligent in transporting his bull, or negligent in permitting him to escape" for the party injured by the bull to recover. Clark v. Moore, 341 So. 2d 116, 118 (Ala.1976) (construing a statute making it unlawful for an owner of livestock "to knowingly, voluntarily, *905 negligently, or wilfully permit ... livestock ... to go at large ... either upon the premises of another or upon ... streets in ... Alabama"). A majority of other courts have also construed legislation making it unlawful to "permit," "allow," or knowingly or willfully put or place the animals at large on the highway, to require proof that, at a minimum, the owner was negligent with respect to the care and custody of his domestic animal in an action against the owner for damage to a motor vehicle or an injury to a person riding therein resulting from a collision between the animal at large in the street or highway and the vehicle. Bilderback v. United States, 558 F. Supp. 903 (D.Or.1982) (applying federal and Oregon law, recognizing rule requiring proof of negligence); Cosby v. Oliver, 265 Ark. 156, 577 S.W.2d 399 (1979); Carrow Co. v. Lusby, 167 Ariz. 18, 804 P.2d 747 (1990); Hammerlund v. Troiano, 146 Conn. 470, 152 A.2d 314 (1959); Selby v. Bullock, 287 So. 2d 18 (Fla.1973) (recognizing rule); Porier v. Spivey, 97 Ga.App. 209, 102 S.E.2d 706 (1958); Abadie v. Royer, 215 Ill.App.3d 444, 158 Ill.Dec. 913, 574 N.E.2d 1306 (1991); Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973); Sparks v. Doe, 379 S.W.2d 252 (Ky.1964); Liner v. McEnery, 176 So. 2d 786 (La.App. 1965); Peterson v. Pawelk, 263 N.W.2d 634 (Minn.1978); Hughes v. W & S Constr. Co., 196 So. 2d 339 (Miss.1967) (recognizing rule); Beshore v. Gretzinger, 641 S.W.2d 858 (Mo.App.1982); Ambrogini v. Todd, 197 Mont. 111, 642 P.2d 1013 (1982); Jensen v. Nielson, 91 Nev. 412, 537 P.2d 321 (1975); Mitchell v. Ridgway, 77 N.M. 249, 421 P.2d 778 (1966); Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711 (1953); Burnett v. Rice, 39 Ohio St.3d 44, 529 N.E.2d 203 (1988); Kathren v. Olenik, 46 Or.App. 713, 613 P.2d 69, 75 (1980); Watzig v. Tobin, 292 Or. 645, 642 P.2d 651 (1982); Reed v. Clark, 277 S.C. 310, 286 S.E.2d 384 (1982); Higgins v. Vinson, 549 S.W.2d 161 (Tenn. App.1976); Beck v. Sheppard, 566 S.W.2d 569 (Tex. 1978); Rhiness v. Dansie, 24 Utah 2d 375, 472 P.2d 428 (1970); Rice v. Turner, 191 Va. 601, 62 S.E.2d 24 (1950); Dawson v. Woodson, 180 W.Va. 307, 376 S.E.2d 321 (1988); Hinkle v. Siltamaki, 361 P.2d 37 (Wyo.1961).
The rules regarding negligence in such situations are the same as in ordinary negligence cases. See Gardner v. Black, 217 N.C. 573, 9 S.E.2d 10, 11 (1940). To recover on the basis of negligence, the Lollars must establish that the defendants owed a duty of care to them, that the defendants breached that duty, that the Lollars suffered loss or injury, and that the defendants' negligence was the actual and proximate cause of that loss or injury. John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375 (Ala. 1990).
The prohibitions of § 4-20(a) impose a duty on persons "having charge, custody or control of any livestock, rabbit or fowl" to take reasonable steps to prevent their animals from running at large. The degree of care required of an animal owner should be commensurate with the propensities of the particular animal and with the place where the animals are kept, including its proximity to high-speed highways. Wilkins v. Johnson, 595 So. 2d 466, 468 (Ala.1992) (holding that those "who own livestock within populous areas near municipalities should be held to a higher standard of care in preventing that livestock from endangering other citizens"); Byram v. Main, 523 A.2d 1387 (Me.1987). The Poes recognize that they owe a duty to take reasonable steps to prevent their animals from running at large; however, they argue that they did not breach this duty. The Poes do not dispute that the Lollars sustained loss or injury as a result of Ms. Lollar's collision with their horse on the state highway.
The Lollars' evidence that the Poes knew that one of their horses had gotten out of the pasture on prior occasions creates a genuine issue of material fact as to whether the Poes had negligently failed to take reasonable steps to prevent the horse from escaping and running at large. A review of cases from other jurisdictions supports this holding. See Oliver v. Jones, 239 Ark. 572, 393 S.W.2d 248 (1965) (holding that the plaintiff, who sustained damages when his automobile collided with a calf owned by the defendant, presented *906 sufficient evidence that the owner was negligent in allowing a calf to be on highway to take the case to the jury on the issue of negligence, where the plaintiff presented evidence that others, on earlier occasions, had seen the owner's cattle on the highway at or near the place of the mishap); Woolstrum v. Mailloux, 141 Cal. App. 3d Supp. 1, 190 Cal. Rptr. 729 (App.Dep't Super.Ct.1983) (holding that the plaintiffs' evidence that the rancher's cows had escaped several times over the past 10 years constituted sufficient evidence for jury to properly find simple negligence and to award compensatory damages where the plaintiffs sustained damages when their car collided with a cow owned by the defendant); Jackson v. Hardy, 70 Cal. App. 2d 6, 160 P.2d 161 (1945) (evidence that defendants' cattle had been driven to a point near highway and left there unattended for two days, although defendants had been warned that they might stray, was sufficient to sustain a finding of negligence, on appeal from a judgment in favor of a motorist who collided with bull belonging to the defendants); Prevatt v. Carter, 315 So. 2d 503 (Fla.Dist.Ct.App.1975) (reversing a judgment based on a directed verdict in favor of cow owner and holding that the motorist presented sufficient evidence of the cow owner's prior knowledge that his cows were getting out of his pasture for the jury to infer his negligence, thus placing on him the burden of coming forward with an appropriate explanation for how the cows escaped despite his alleged use of ordinary care); Quarles v. Tolar, 312 So. 2d 350 (La.App. 1975) (evidence that cows had escaped from the owner's pasture on a few prior occasions and evidence that the gate had been left open and fences damaged by trespassers on previous occasions, but no evidence that such had occurred on the date of the accident, was sufficient to reverse a summary judgment in favor of the owner); Garrett v. Overman, 103 N.C.App. 259, 404 S.E.2d 882, review denied, 329 N.C. 787, 408 S.E.2d 519 (1991) (appellate court reversed a judgment based on a directed verdict for animal owners in an action by a motorist based on injuries sustained when the owners' horse escaped and collided with her car, holding that there was a jury question as to whether the defendants should have reasonably foreseen that the horse would escape from the pasture and likely cause harm to a traveler where the plaintiff presented evidence that the defendants knew that their horses had run through their fences in the past); Eixenberger v. Belle Fourche Livestock Exchange, 75 S.D. 1, 58 N.W.2d 235 (1953) (reversing a j.n.o.v. in favor of the owner of horses and directing the entry of a judgment for a motorist in his action to recover damages for injuries received as a result of a collision between his automobile and two horses belonging to the defendant where the motorist presented evidence that the owners' horses had been at large on the highway on numerous occasions previous to the collision); Higgins v. Vinson, 549 S.W.2d 161 (Tenn.App.1976) (where the plaintiff presented evidence that the defendants' horse had been seen out on the road prior to the night it collided with the plaintiff's motor vehicle, the court set aside a directed verdict for the animal owner, holding that there was evidence from which a jury might reasonably conclude that the defendants' horses, and particularly the horse involved in the accident in question, had been out of the defendants' pasture and onto the highway on a number of occasions prior to this accident, that the defendants knew or should have known this fact, and, therefore, that the defendants could have been found negligent in not preventing this horse from going out onto the highway and, thereby, becoming a hazard to motorists, particularly at night).
Accordingly, we reverse the judgment of the trial court and remand this case.
REVERSED AND REMANDED.
SHORES, KENNEDY and INGRAM, JJ., concur.
ADAMS, J., concurs in the result.
MADDOX and STEAGALL, JJ., dissent.
STEAGALL, Justice (dissenting).
I would hold that the Lollars did not present substantial evidence of negligence.
*907 Eddie Poe presented his own affidavit, wherein he stated that he kept the horse in a pasture enclosed by a fence that he kept in good repair and that he had no idea how the horse had escaped the pasture on the day of the accident. He further stated that, immediately following the accident, he inspected the fence and found that both gates were closed and secured and that there were no breaks in the fence.
The Lollars presented no substantial evidence to rebut the Poes' prima facie showing that on the day of the accident the pasture fences and gates were locked and in good repair and that the Poes had taken all reasonable precautions to prevent their animals from breaking out of the pasture. In view of this, I would affirm the summary judgment for the Poes.
MADDOX, J., concurs. | June 18, 1993 |
1be57dfb-997f-4882-9176-4acd98b0b679 | Smith v. First Family Financial Services | 626 So. 2d 1266 | 1911535 | Alabama | Alabama Supreme Court | 626 So. 2d 1266 (1993)
Billie Jo SMITH and Thomas L. White
v.
FIRST FAMILY FINANCIAL SERVICES, INC., and Thomas H. Buce, Jr.
No. 1911535.
Supreme Court of Alabama.
July 16, 1993.
Rehearing Denied August 27, 1993.
*1268 John A. Taber and Earl L. Dansby of Taber, Dansby, Fazekas & Martin, Montgomery, for appellants.
Champ Lyons, Jr., James B. Newman, and Joseph D. Steadman of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for First Family Financial Services of Alabama, Inc.
Mark A. Newell and Susan L. Gunnells of Barker & Janecky, P.C., Mobile, for Thomas Buce.
SHORES, Justice.
The plaintiffs, Billie Jo Smith and Thomas L. White, appeal from summary judgments entered in favor of the defendants, First Family Financial Services, Inc. ("First Family"); EquiSouth Financial Services, Inc. ("EquiSouth"),[1] Thomas Buce, Jr. (an employee of EquiSouth); and Cambridge Title Agency, Inc.,[2] in an action charging them with legal fraud and conspiracy to commit legal fraud in a loan transaction.
Alabama Code 1975, § 6-5-102, codifies the common law and recognizes an action for fraud where one with a duty to disclose conceals or withholds a material fact. The Alabama Consumer Credit Act, § 5-19-1 et seq., makes material all finance charges payable directly or indirectly by the borrower as an incident to credit. Section 5-19-4(g) permits a creditor, by contract in a consumer loan transaction secured by an interest in real property, to charge and collect points, in addition to all finance charges, in an amount not to exceed five percent of the original principal balance. The plaintiffs contend that, under the facts in this case, the defendants had a duty to disclose all finance charges imposed in the loan transaction between the plaintiffs and the defendants, and that the defendants breached that duty by concealing the total amount of finance charges incurred by the plaintiffs in the transaction. They also charge that the defendants violated § 5-19-4(g) by charging them more than the amount permitted by that statute, and that the defendants entered into a scheme to conceal from them that they were doing so. They also contend that the defendants' failure to disclose all finance charges violates the Alabama Deceptive Trade Practices Act, § 8-19-1 et seq.
First Family is a residential mortgage lender. Traditionally, residential mortgage lenders made loans to borrowers directly from offices maintained with employees of the lender that originated, processed, and underwrote such loans. In recent years, a number of wholesale mortgage lending programs have evolved whereby mortgage lenders purchase loans from other lenders or from mortgage brokers who have completed all of the origination work. Mortgage lenders regularly purchase wholesale closed loans made by other mortgage lenders.
*1269 In addition to buying closed loans at wholesale, mortgage lenders also acquire loans through mortgage brokers. Mortgage brokers originate and process loans that the mortgage lender then purchases from the mortgage broker. The arrangement between the mortgage lender and the mortgage broker varies, but generally the closing of the loan is arranged by the mortgage broker in the name of the mortgage lender.
Another method reflects the arrangement between EquiSouth and First Family in this case. Under this arrangement, the mortgage broker or correspondent lender performs all of the originating functions and closes the loan in the name of the mortgage broker with funds supplied by the mortgage lender. The mortgage broker depends upon "table funding," the simultaneous advance of the loan funds from the mortgage lender to the mortgage broker. Once the loan is closed, the mortgage broker immediately assigns the mortgage to the mortgage lender. The essence of the table funding relationship is that the mortgage broker identifies itself as the creditor on the loan documents even though the mortgage broker is not the source of the funds.
Beginning in September 1988, First Family began a correspondent lending program utilizing mortgage brokers or correspondent lenders to originate its loans in Alabama. Under this arrangement, the brokers or correspondent lenders do all of the origination work on loans and submit the applications to First Family. First Family, the mortgage lender, does not bear the cost of maintaining offices and employees to originate its loans under this arrangement. If approved by First Family, the loans are closed in the name of the mortgage broker with funds supplied by First Family.
The plaintiffs in this case assert that First Family's correspondent lending program, while facially legitimate, was a scheme to avoid the letter and spirit of the 5% cap on mortgage origination fees under § 5-19-4(g). The plaintiffs argue that, under Alabama law, the defendants were required to disclose all material facts; that all finance charges are material facts; that all mortgage origination fees are a material fact; that the failure to disclose those facts amount to fraud under Alabama law under the facts of this case; and that the scheme set up by First Family and EquiSouth violates the Alabama Deceptive Trade Practices Act. The plaintiffs also contend that First Family's correspondent lending program was a combination between First Family and EquiSouth to conceal from borrowers such as the plaintiffs the wrongs alleged, which combination the plaintiffs allege constitutes a civil conspiracy under Alabama law.
EquiSouth was designated a correspondent lender by First Family in August 1989. Sometime thereafter, EquiSouth's employee Thomas Buce and the plaintiff, Billie Jo Smith had discussions regarding a mortgage loan. Smith's house was destroyed by fire on January 4, 1989, and, with proceeds from fire insurance, she had purchased a shell house which was moved onto the lot where her house had previously stood. She needed a loan to enable her to complete the shell house. Buce submitted her loan application to First Family, which initially turned it down. Buce suggested that she get a cosigner on the note. Her brother, the plaintiff Thomas L. White, agreed to cosign the note and loan application. When the loan application was resubmitted to First Family with White's participation, First Family issued a conditional loan commitment. The commitment provided that First Family would lend the money to Smith and White at an interest rate of 16% per annum. Under First Family's arrangement with EquiSouth, EquiSouth was permitted to add an additional 2% as a mortgage broker origination fee. The loan was to be closed with funds furnished by First Family and in the name of EquiSouth, which was to immediately assign the note and mortgage to First Family. This compensation to the mortgage broker of yield spread premiums is a cost of the loan to the borrower, and it was not disclosed to the plaintiffs. An origination fee of 5% of the original principal was disclosed. It is the plaintiff's contention that Alabama law required the disclosure of all finance charges; that the yield spread premium was a part of such charges; and that because it was also an origination fee paid to EquiSouth, EquiSouth *1270 collected more than the 5% origination fee permitted by Alabama law.
As agreed, EquiSouth assigned the mortgage to First Family simultaneously with the execution and recording of the mortgage. First Family notified Smith and White to make their payments directly to First Family. Smith and White made very few payments before they defaulted. First Family initiated foreclosure proceedings. Smith and White subsequently filed this action, seeking money damages for alleged fraud, breach of a fiduciary duty, conspiracy, and harassment.[3]
The case came on to be tried. Just before the trial began, the trial court entered a summary judgment in favor of EquiSouth's employee, Thomas Buce. Trial commenced on June 8, 1992, and the next day, before the close of the plaintiffs' evidence, the trial court granted First Family's motion for a summary judgment on all remaining claims against First Family. The plaintiffs appealed the summary judgments for the defendants.
The plaintiffs maintain: (1) that the defendants committed legal fraud and conspired to commit legal fraud against them in regard to undisclosed mortgage broker fees and charges incurred by them in the loan transaction; (2) that First Family's correspondent lender program was a scheme to avoid the letter and spirit of the 5% cap on mortgage origination fees under Alabama Code 1975, § 5-19-4(g); (3) that First Family was required to disclose the material facts in that it violates the Alabama Deceptive Trade Practices Act and that, further, First Family was under a duty to disclose because of the particular circumstances of this case; (4) that First Family's correspondent lender program was a combination between First Family and its broker to do the wrongs alleged, which combination constituted a civil conspiracy under Alabama Law; and (5) that the defendants breached their fiduciary duty by seeking a loan for the plaintiffs that contained terms and conditions that would benefit themselves to the detriment of the plaintiffs.
On March 11, 1989, Act No. 88-87 was approved, with an effective date of June 30, 1988. Act No. 88-87 amended § 5-19-4, part of the Alabama Consumer Credit Act ("Mini-Code"), to provide for a five percent limitation on mortgage loan origination fees. The provision is codified at Alabama Code 1975, § 5-19-4(g), as amended. The plaintiffs claim that, a few months after the effective date of § 5-19-4(g), First Family implemented its correspondent lender program with the aim of permitting a mortgage broker participating in the correspondent lender program to receive fees for originating a consumer loan substantially in excess of the five percent limitation. The plaintiffs argue that this was done through means of the yield spread premium, which resulted in the mortgage broker's receiving more than a five per cent origination fee. The yield spread premium in this case amounted to $2,880.11 and was paid to EquiSouth out of the loan proceeds that were supplied by First Family. Indisputedly, the yield spread premium was a part of the cost of the loan borne by the borrowers. First Family allows a broker participating in the correspondent program to increase the interest rate that the borrower will be charged for origination of the loan through means of spread of up to two percent of the gross amount of the loan. In this instance, it allowed EquiSouth to increase the rate quoted to the borrower from 16% to 18%. The spread stems from the two percentage-point difference between First Family's 16% "buy rate" and the 18% rate on the note. Under the correspondent lender program, First Family pays 75% of the present value calculation of the spread to the correspondent lender (EquiSouth) at the time the loan is purchased. The other 25% of the spread is retained by First Family. The borrower pays 100% of the 2% spread over the life of the loan.
First Family and EquiSouth do not dispute the fact that an origination fee of 5% of the loan plus $2,880.22 (75% of the spread paid to EquiSouth) was charged and paid for by the borrowers at the loan closing. They do not *1271 dispute that the transaction is a consumer loan transaction governed by the Mini-Code. The Mini-Code (§ 5-19-1(1)) defines "finance charge" as including all charges "imposed directly or indirectly," including points or other charges, "however denominated."
The Alabama Mini-Code has been described as Alabama's consumer protection legislation in the area of consumer finance. It is expressly applicable to real estate transactions. Fletcher v. Tuscaloosa Fed. Sav. & Loan Ass'n, 294 Ala. 173, 314 So. 2d 51 (1975). This legislation requires full disclosure of all finance charges, whether direct or indirect, and by whatever designation. Alabama Code 1975, § 5-19-1; Berryhill v. Rich Plan of Pensacola, 578 F.2d 1092 (5th Cir.1978).
Alabama Code 1975, § 5-19-4(g), provides:
The defendants, understandably, do not challenge the plaintiffs' assertion that the five percent origination fee and the two percent yield spread premium were finance charges as defined in the Mini-Code, being, as they are, charges imposed directly on the borrower, including points and all other charges, "however denominated." They contend, however, that the key language in the statute is the phase "fully earned." They argue, implausibly, that because the statute states that points are fully earned (from the standpoint of the mortgage broker) and may be excluded from the finance charge for the purpose of computing the finance charge refund, the spread yield premium should not be considered points or finance charges since it would not be included in computing a finance charge refund in the event the loan was paid off prematurely.
The statutory definition of points, in § 5-19-4(g), does not require that they be "fully earned on the date of the loan" as this argument contends. To the contrary, § 5-19-1(1) defines "finance charge" as including every charge imposed on the consumer whether "directly or indirectly," by whatever designation. Section 5-19-4(g) merely states that, for purposes of computing a finance charge refund, points, being fully earned on the date of the loan, may be excluded.
That this is so does not change the nature of the spread yield premium. It is a part of the origination loan fee paid to the mortgage broker on the front end of the loan. It is a cost of borrowing money, defined as a "finance charge" under the Mini-Code. It is a material fact that the borrower is entitled to know before completing the loan closing. It is a material fact that a mortgage broker has an obligation to disclose to a borrower.
The Mini-Code is not merely a rate-regulating statute. It, like most consumer legislation, largely permits market forces to operate with regard to rates, but requires full disclosure to the consumer of the total cost of the loan.
First Family argues that it was free to charge the plaintiffs any rate of interest that did not violate the usury laws, and that there is no allegation of a usury law violation in this case. We agree with this contention. However, the fact that this is so did not relieve First Family or EquiSouth from disclosing to the borrowers the actual finance charges they were undertaking. The Mini-Code was subject to several amendments in the 1988 session of the legislature. "Finance charge" was broadly defined to include all charges, "however denominated." Section 5-19-4(g) permitted a creditor, by contract, in a consumer loan secured by an interest in real property, to charge and collect points in an amount not to exceed five percent of the original principal balance. *1272 The new legislation provided that such fees were fully earned on the date of the loan, that is, were nonrefundable, and were not to be included in computing finance charge refunds. This settled the debate with regard to whether origination fees were legal under the Mini-Code and settled the question with respect to whether prepaid origination fees could legally be made nonrefundable. The amendment did not, however, relieve the lender of the obligation to disclose all finance charges, including points, to the borrower.
First Family's escrow/closing agent, at its direction, prepared a Federal Truth-in-Lending "Finance Itemization." It disclosed that a "prepaid finance charge" amounting to five percent of the amount financed had been paid to the mortgage broker as a broker's fee. It did not list as an additional mortgage broker's fee the 75% of the spread that was also paid to the broker. There is no question that such payments are part of the total finance charges borne by the borrower under the Mini-Code and, as such, are required to be disclosed to the borrower under Alabama law. Centennial Associates, Ltd. v. Clark, 384 So. 2d 616 (Ala.1980).
Congress passed the Real Estate Settlement Procedures Act of 1974 (RESPA) 12 U.S.C. § 2601 et seq. This act admittedly does not apply to the transaction that is the basis of this litigation (because this loan was made not to purchase a home, but to complete a shell home). Nevertheless, RESPA and the regulations promulgated under RESPA are instructive with regard to material disclosures required of mortgage lenders and mortgage brokers or correspondent lenders under similar or identical facts. Regulation X,[4] promulgated by the Department of Housing and Urban Development, expressly requires that loan correspondents and loan brokers disclose their fees to borrowers. Disclosure requirements, referred to by HUD as "mortgage broker disclosures," apply to any transaction in which the loan either is closed in the wholesale lender's name or is originated under a "table funding" arrangement in which the wholesale lender provides the funds for the loan closing. If the loan closes in the broker's name, the disclosure must be made, whether the broker's fees are in the form of a yield spread premium (sometimes referred to as a "market gain") or a servicing release premium or other fee. RESPA Regulation X requires disclosure of all broker's fees, by whatever name, just as the Mini-Code requires disclosure of all finance charges, by whatever name.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must 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. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "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 summary judgments were improper because questions of fact exist with respect to the relationships between EquiSouth and borrowers, EquiSouth and First Family, and First Family and borrowers. The factfinder could 1) conclude that First Family and EquiSouth had a duty to disclose overcharge on points; 2) conclude that the relationship between First Family and EquiSouth was a sham; 3) conclude that in reality EquiSouth was merely acting on behalf of First Family; 4) conclude that the relationship was entered into to deceive such borrowers as these plaintiffs; and 5) conclude *1273 that the relationship was entered for legitimate purposes as well.
The plaintiffs do not contend that the correspondent lending program embarked upon by First Family and EquiSouth is in any way illegal. The plaintiffs do contend, however, that Alabama law requires both EquiSouth and First Family to disclose to borrowers all material facts relating to the transaction. They contend that the defendants deliberately concealed from them the true nature of the relationship between EquiSouth and First Family for the purpose of concealing from them the true cost of the loan, and that they conspired to withhold from the plaintiffs the material fact that the origination fees charged to the plaintiffs exceeded the amount permitted by the newly amended Mini-Code. Therefore, the plaintiffs contend that the trial court erred in entering the summary judgments for the defendants. The plaintiffs insist that there is sufficient evidence from which a jury could conclude that, notwithstanding its arrangement with EquiSouth, First Family was in fact the primary lender in this transaction, and that the arrangement with EquiSouth, while on its face not illicit, became so when entered into for the purpose of charging borrowers, such as the plaintiffs, origination fees in excess of the five percent allowed by the controlling statute. The plaintiffs produced substantial evidence to support these contentions and thereby created a genuine issue of material fact requiring resolution by a jury.
We note, however, that there is nothing wrong with mortgage lenders' doing business through mortgage brokers or correspondent lenders. In fact, that practice has become commonplace and should be encouraged. It makes credit available to more Americans from more sources, and it is a more economical way for mortgage lenders to do business. It not only allows them to operate with less overhead, but also allows them to lend with greater geographical diversity. But if these borrowers can prove to the satisfaction of the jury, as they have alleged, that this arrangement between First Family and EquiSouth was entered into for the purpose of collecting from borrowers more money in the form of origination fees (points) by concealing from them the full amount of finance charges incurred, they are entitled to recover.
Because there are genuine issues of material fact from the resolution of which a jury could conclude that the plaintiffs' contentions are true, the summary judgments are reversed and the cause is remanded for a trial on the merits.
REVERSED AND REMANDED.
ALMON, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] On November 7, 1991, EquiSouth filed a "suggestion of bankruptcy" and was severed from the case on February 10, 1992.
[2] On May 8, 1992, Cambridge Title was dismissed pursuant to a joint stipulation with the plaintiffs, and it is not a party to this appeal.
[3] First Family did not seek a summary judgment as to the plaintiffs' claims based on alleged harassment stemming from First Family's attempt to have the plaintiffs make payment, because the harassment claim was settled.
[4] 24 C.F.R. Part 3500. | July 16, 1993 |
a6c0c539-dcea-4c98-870a-2344ff5ef2ee | Strength v. Alabama Dept. of Finance | 622 So. 2d 1283 | 1910299 | Alabama | Alabama Supreme Court | 622 So. 2d 1283 (1993)
William L. STRENGTH, Jr., et al.
v.
ALABAMA DEPARTMENT OF FINANCE, DIVISION OF RISK MANAGEMENT.
1910299.
Supreme Court of Alabama.
June 18, 1993.
*1284 Griffin Sikes, Jr., Montgomery, for William L. Strength, Jr. and Martha S. Strength.
Wayne P. Turner, Montgomery, for Charles L. Carroll.
Frank M. Wilson and Blaine C. Stevens of Beasley, Wilson, Allen, Mendelsohn, Jemison & James, P.C., Montgomery, for Alabama Dept. of Finance, Div. of Risk Management.
Mark J. Williams, Montgomery, for amicus curiae Alabama State Employees Ass'n.
ADAMS, Justice.
William L. Strength, Jr., Martha S. Strength, and Charles L. Carroll appeal from a summary judgment entered in favor of the Division of Risk Management, a division of the Alabama Department of Finance ("the DRM"), in an action filed by the DRM seeking a declaration of the extent of its liability to indemnify Carroll from the State Employees' Liability Insurance Fund. We affirm in part; reverse in part; and remand.
In 1983, the legislature enacted Act No. 83-521, 1983 Ala. Acts 809, which established the State Employees' Liability Insurance Fund ("the Fund"), in order to "provide for the protection of state employees... for certain wrongful acts or omissions committed while in the performance of their official duties in the line and scope of their employment through the purchase of liability insurance or through the self-insurance of the several state departments, agencies, boards or commissions." (Codified at Ala.Code 1975, § 36-1-6.1.) This section provides in pertinent part:
On September 27, 1984, the state finance director issued to "all department heads" a memorandum regarding "employee liability insurance." The memorandum stated in part:
"Effective October 1, 1984, the State will insure all State employees according to the terms and conditions of a policy to *1285 be furnished in the near future. Coverage will be as follows:
Four days later, the Fund[1] issued the following instrument, which, in pertinent part, provided:
"The limits of liability of the Fund under this policy shall be as stated in the declarations attached hereto and made a part hereto. The limit of liability for each type of coverage stated per occurrence shall constitute the limit which the Fund shall be legally liable to pay to any person or persons, regardless of (1) the *1286 number of insured persons and entities under this policy or (2) the number of persons or organizations who sustain injury or damage, or (3) the number of claims made or suits brought on account of such injury, for each occurrence covered by this policy. The limits of liability indicated as the annual aggregate of the Fund for each type of coverage as set forth in the declarations attached hereto and made a part of this policy shall constitute the total extent of the Fund's liability for all occurrences of the type covered during each twelve month period during which this policy is in effect, irrespective of (1) the number of insured persons and entities under this policy (2) the number of persons or organizations who sustain injury or damage resulting for [sic] the acts of an insured or (3) the number of claims made or suits brought on account of injury or damages occasioned by an occurrence caused by an insured under this policy. For the purpose of determining the limit of the Fund's liability under this policy, all bodily injury, property damage, or personal injury arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one act or occurrence.
On August 28, 1986, the Strengths sued Carroll, an investigator employed by the Alabama Attorney General's office; they sued pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of Alabama. The complaint alleged that Carroll had conspired with others to initiate a meritless forgery prosecution against the Strengths. The Strengths sought damages for violations of rights guaranteed by U.S. Const. amends. IV, VI, and XIV. The DRM notified Carroll that it would defend him against these claims under a reservation of "all rights and privileges afforded by applicable statutes and the guidelines of the Fund."
On June 16, 1991, the DRM filed an action in the Montgomery County Circuit Court (subsequently transferred to Autauga County) against Carroll and the Strengths, requesting a judgment declaring that its liability, if any, to the Strengths for the conduct of Carroll was limited to an aggregate of $500,000, that is, "one benefit for all claims asserted by the Strengths." In his answer to the complaint, Carroll alleged that the Fund had breached the "enhanced obligation of good faith" imposed by the rule set forth in L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298 (Ala.1987), upon an insurer that defends under a reservation of rights. Carroll also sought a judgment that he was "entitled to separate liability benefit limits for the claims asserted by William Strength and Martha Strength," that is, $1,000,000. The Strengths moved to compel production of the bulk of the DRM's claim file. All parties moved for partial summary judgments on the issue of the amount of benefits available from the Fund. The trial court entered a summary judgment in favor of the DRM, holding that its liability for Carroll's alleged misconduct was limited to $500,000. The trial court also denied the Strengths' motion to compel production of the claim file.[3]
Carroll and the Strengths raise three issues on appeal: (1) whether the relationship between Carroll and the Fund, created by the instrument pursuant to § 36-1-6.1, represents that of insurer and insured; (2) whether the "limits of liability" clause in the instrument is to be interpreted as limiting the Fund's liability to $500,000 per employee, or to $500,000 per injured claimant; and (3) whether the DRM is subject to (a) the rule set forth in L & S Roofing, and (b) the "general body of insurance law" developed by the decisions of this Court.
The DRM contends that the State is merely functioning as a self-insurer under the instrument, which, it contends, is not to be interpreted as an insurance policy, but, rather, as a set of administrative guidelines promulgated by a state agency. It argues that the limitation of liability clause in the instrument is ambiguous; insists that construction of the clause must, therefore, include a consideration of the state finance director's memorandum; and, moreover, contends that its construction of the instrument is entitled to "substantial deference" as an interpretation of agency regulations by the promulgating agency. See Personnel Bd. of Jefferson County v. *1288 Bailey, 475 So. 2d 863 (Ala.Civ.App.1985); see also Glen McClendon Trucking Co. v. Hall Motor Express, Inc., 285 Ala. 98, 229 So. 2d 488 (1969).
The resolution of this issue requires a discussion of the distinction between insurance and self-insurancethey are not synonymous concepts. United States v. Newton Livestock Auction Market, Inc., 336 F.2d 673, 676 (10th Cir.1964). Indeed, self-insurance is "the antithesis of insurance as that term is commonly used." Universal Underwriters Ins. Co. v. Marriott Homes, Inc., 286 Ala. 231, 232, 238 So. 2d 730, 732 (1970).
"Insurance exists when a contractual relationship between the insurer and the insured shifts to the insurer the risk of loss of the insured. Self-insurance is the assumption of risk of his own loss by one having an insurable interest." 336 F.2d 673, 676 (emphasis added). The concept of self-insurance commonly appears in the workers' compensation context "with employers who have elected to carry their own risks and not to insure them with regular carriers," J. Appleman, Insurance Law and Practice § 4601 (1979) (emphasis added); see also Ala.Code 1975, § 32-7-34 (authorizing the self-insurance of persons "in whose name more than 25 motor vehicles are registered" upon proof that those persons are "possessed and will continue to be possessed of ability to pay judgments obtained against such person[s]").
Self-insurance thus typically involves a single-party, noncontractual situation whereas insurance involves a multi-party, contractual relationship. See Ala.Code 1975, § 27-1-2 (insurance is "[a] contract whereby one undertakes to indemnify another or pay or provide a specified amount or benefit upon determinable contingencies"). Additionally, self-insurance differs materially from insurance in that the former involves no shift in the risk of loss whereas the latter clearly involves such a shift.
Section § 36-1-6.1 was enacted to protect the employees of the State of Alabama from liability "for certain wrongful acts or omissions committed while in the performance of their official duties," Act No. 83-521, 1983 Ala. Acts 809, not to protect the State. Such provisions are calculated, inter alia, to "create a secure working environment wherein employees do not feel paralyzed in the performance of their duties for fear of being sued." P. Harper, Statutory Waiver of Municipal Immunity Upon Purchase of Liability Insurance in North Carolina and the Municipal Liability Crisis, 4 Campbell L.Rev. 41, 72 (1981). Indemnification arrangements are also enacted to create "an incentive for ... government employees and officers to continue their employment and for new employees and officers to be attracted to government positions," thus enabling government entities to "enlist and maintain a stable and functional workforce." Comment, Waiving Local Government Immunity in North Carolina: Risk Management Programs Are Insurance, 27 Wake Forest L.Rev. 709, 715 (1992). This is particularly significant in view of the fact that "the State and its agencies have absolute immunity from suit in any court."[4]Phillips v. Thomas, 555 So. 2d 81 (Ala.1989); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (a state is not a "person" for purposes of actions in state court pursuant to § 1983).
Under the arrangement evidenced by the instrument in this case, the State incurs a risk of loss in providing for employee indemnity where, because of its sovereign immunity, no risk previously existed. The arrangement thus involves a shift in risk from the State's employees to the State itself, up to the Fund's limit of liabilitya characteristic that is notably absent in the self-insurance context. Additionally, the instrument clearly contemplates and defines the rights and duties of more than one party. The relationship thus bears all *1289 the notable characteristics of insurance and none of those typically identified with self-insurance.[5]
Moreover, as indicated by the instrument's terminology, the pertinent portions of which are emphasized above, the instrument clearly purports to be a contract of insurance. Its drafters chose to define the rights and duties of the parties in language referable to insurance, rather than to administrative "guidelines." "If it looks like a duck, walks like a duck, and quacks like a duck, it must be a duck. And so it is with this `duck'; it must be insurance." Comment, Waiving Local Government Immunity in North Carolina: Risk Management Programs Are Insurance, 27 Wake Forest L.Rev. 709, 715 (1992) (quoting City of Laramie v. Facer, 814 P.2d 268, 273 (Wyo.1991)). It remains to be determined, however, whether the instrument issued on October 1, 1984, standing alone, constitutes a contract.
The requisite elements of an insurance policy, as in contracts, generally, include: an offer and an acceptance, consideration, and mutual assent to terms essential to the formation of a contract. Mercer v. Davis & Berryman International, Inc., 834 F.2d 922 (11th Cir.1987); Gillilan v. Federated Guaranty Life Ins. Co., 447 So. 2d 668 (Ala.1984). The essential terms are set forth in Ala.Code 1975, § 27-14-11:
Conspicuously absent from the instrument involved in this case is definite information regarding the premium. "The premium is of the very essence of a contract of insurance, and although the times and amount of payments made are not controlling on the question whether a contract is one of insurance, in order to have a valid contract of insurance, the rate of the premium must be agreed upon, expressly or impliedly." George Couch, Cyclopedia of Insurance Law § 2:5 (1984). An instrument that fails to state the amount of, and duties of the parties with regard to, the premium fails in an essential element, and, therefore, cannot constitute an enforceable contract.
The instrument contains only the following general statements regarding premiums: "Premiums are subject to annual adjustments, and premium notices will be directed to each participating entity prior to the expiration date ..."; and "[i]n consideration of the payment of the appropriate premium, and subject to all of the limitations as set forth in this policy or any addendum hereto, the Fund hereby agrees that it will provide the following coverage." These cursory statements leave entirely to speculation the amount of the premium.
Missing information regarding a term essential to the formation of a contract may, however, "be established by the circumstances of the case, such as correspondence between the parties." Cyclopedia of Insurance Law § 2:14. In such a case, each communication or document represents "a link in the chain which constitutes the comprehensive contract. Every such communication is a part of the contract, and is not extraneous to it nor in *1290 pais." Air Conditioning Engineers v. Small, 259 Ala. 171, 176, 65 So. 2d 698, 703 (1953); see also Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala.1986). This is such a case.
The essential terms regarding the premium are supplied in the memorandum from the finance director promulgated on September 27. That memorandum states: "The cost will be $45 per employee this year, which includes a pro rata share of the first $1,000,000 self-retention, plus cost of reinsurance, and a small administrative charge." The contract thus necessarily consists of both the instrument, which is insufficient as a free-standing policy, and the finance director's memorandum. Consequently, the memorandum is not parol evidence, as Carroll and the Strengths contendit is part of the contract.
When viewed in this context, the policy contains no ambiguity as to the scope of its coverageliability is limited to $500,000 per employee, not, as the Strengths and Carroll contend, $500,000 per claimant. Therefore, the judgment of the trial court as to the extent of the coverage is affirmed.
Carroll and the Strengths contend that the DRM's claim file is discoverable on the ground that it will demonstrate whether the DRM has breached the duty imposed by L & S Roofing Supply Co., Inc. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298 (Ala.1987), upon an insurer defending an action against an insured under a reservation of rights. L & S Roofing arose out of an action filed by Beaver Construction Company ("Beaver") against L & S Roofing Supply Company, Inc. ("L & S"), in which Beaver alleged that L & S had "breached certain express and implied warranties and [had been] guilty of fraudulent concealment in regard to the sale of ... roofing materials." Id. at 1299. L & S was insured by St. Paul Fire & Marine Insurance Company ("St. Paul"). The policy provided: "`We'll defend any suit brought against you for damages covered under this agreement, even if the suit is groundless or fraudulent. We have the right to investigate, negotiate and settle any suit or claim if that seems proper and wise.'" Id.
L & S employed its own counsel, who began a defense in the action. St. Paul subsequently notified L & S that it would defend it in the suit, but "that it was reserving its rights to disclaim coverage with respect to certain of the claims in the ... action." Thereafter, the defense was conducted concurrently by counsel employed by St. Paul and by independent counsel employed by L & S.
L & S sued St. Paul in a state court, seeking a judgment declaring the scope of its right to control the litigation. The action was removed to the United States District Court for the Northern District of Alabama, which subsequently certified to this Court the following question:
In this Court, L & S contended that "in all cases where there is a reservation of rights, regardless of the actual circumstances of the defense provided by the insurer, the insured is entitled to defense counsel of its choice who shall control the defense, and whose reasonable fees the insurer is required to pay." Id. at 1304 (emphasis in original). L & S argued that such a result was necessitated by the conflict of interests between the insured and *1291 counsel employed by the insurer for the insured's defense that, it insisted, inheres in all such cases.
We rejected this "absolute" approach, adopting, instead, the rule set forth in Tank v. State Farm Fire & Casualty Co., 105 Wash. 2d 381, 715 P.2d 1133 (1986), which imposes on an insurer defending under a reservation of rights "an enhanced obligation of good faith toward its insured in conducting such a defense." 521 So. 2d at 1303 (emphasis in L & S Roofing). Thus, we conditioned the right of an insured to control the litigation through its own counsel at the insurer's expense upon a showing that the insurer had breached certain specific conditions enumerated in Tank, including, but not limited to, the duty "`of full and ongoing disclosure to the insured'" of information regarding (1) the progress of the action, (2) the chances of success of the defense, and (3) settlement offers. 521 So. 2d at 1303 (emphasis in L & S).
Having concluded that the relationship involved in this case is that of insurer and insured, we have no difficulty in holding that the relationship should be subject to the rule of L & S Roofing, as explained above. The policy in this case vests control of the litigation, including the power to settle, in the attorney general. More specifically, it provides:
The Fund's insureds thus possess under the policy no more control of the litigation than did the insured in L & S Roofing, and the dangers of conflict of interests are no less substantial under the Fund's policy than under the one involved in that case. To hold that the State, in defending an insured under a reservation of rights, need not comply with the rule of L & S Roofing, which seeks "to put in place a procedure by which the insured can be confident that his interests will not be compromised nor in any way subordinated to those of the insurer as a result of the defense he is required to accept under the contract of insurance," 521 So. 2d at 1304, hardly comports with the purpose of § 36-1-6.1 and similar statutes, that is, to provide a sense of security for employees. See Note, Pulling the Nails Out of the Avallone Coffin: Should Excess Liability Coverage on a Self-Insurance Fund Constitute a Waiver of Sovereign Immunity?, 20 Stetson L.Rev. 971, 985 (1991).
This conclusion is not inconsistent with Doe v. Swift, 570 So. 2d 1209 (Ala.1990), in which we declined the appellant's invitation to "expand the protection authorized by [§ 36-1-6.1] so as to cover all acts by state employees, regardless of whether such acts were done `while in the performance of their official duties in the line and scope of their employment.'" 570 So. 2d at 1210 (emphasis added.) Holding that the State must comply with the obligation of good faith explained in L & S Roofing does not "expand" the coverage authorized by § 36-1-6.1, but merely implements the statute's stated purpose.
B. Applicability of the "General Body" of Insurance Law
In their briefs, Carroll and the Strengths contended that if the instrument is an insurance policy, then the DRM "is bound by *1292 the body of insurance law as expounded in the decisions of this Court that govern and define the relationship and respective duties and rights of an insurer and its insureds." Brief of Appellants, at 19 (emphasis added). This proposition is far too broad and ambiguous to apply to the relatively unique relationship created by the policy in this case. Indeed, little imagination is required to conceive of a number of principles contained in that body of law that could not apply to the State because of its sovereign immunity.
Carroll and the Strengths have not cited supporting authority for the application of any specifically identified principles. See Ala.R.App.P. 28(a)(5); Lewis v. State, 518 So. 2d 214, 220 (Ala.Crim.App.1987). Thus, although we are aware of numerous potentialities contingent upon the success of the Strengths' § 1983 claims, we prefer to restrict our holdings to the issues that were thoroughly argued and briefed in this case.
Because we hold that the motion to compel production of the claim file cannot be denied on the ground of the inapplicability of L & S Roofing, the judgment of the trial court is, to the extent that it denies the motion to compel, reversed, and the cause is remanded for proceedings consistent with this opinion. However, the judgment is, to the extent that it declared the coverage to be $500,000 per employee, affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, SHORES, HOUSTON, and KENNEDY, JJ., concur.
STEAGALL, J., recused.
[1] The DRM was subsequently created specifically to "carry out the provisions of section 36-1-6.1." Act No. 90-672, 1990 Ala. Acts 1300 (codified at Ala.Code 1975, §§ 41-4-300 to -306). Before the formation of the DRM, the Fund was administered by a board composed of the state finance director, the insurance commissioner, and the attorney general.
[2] The "premiums" were paid by the several departments according to the number of employees in the departments.
[3] The court held that the DRM was not subject to the rule set forth in L & S Roofing and that its claim file was, therefore, not discoverable.
[4] Ala. Const. 1901, § 14, provides: "[T]he State of Alabama shall never be made a defendant in any court of law or equity."
[5] When considered in the context of the purpose of § 36-1-6.1, the legislature, in authorizing the administrators of the Fund to "provide for self-insurance," § 36-1-6.1(b), obviously used the term "self-insurance" as empowering the State itself to insure its employees, rather than to insure itself, as the technical definition of the term requires. | June 18, 1993 |
921209ae-dff6-46d5-b1e8-50e132409fba | Lennon v. Petersen | 624 So. 2d 171 | 1920545 | Alabama | Alabama Supreme Court | 624 So. 2d 171 (1993)
Patrick LENNON
v.
Carlos PETERSEN and Debbie Lee.
1920545.
Supreme Court of Alabama.
July 16, 1993.
*172 David H. Meginniss of Hornsby, Watson & Meginniss, Huntsville, for appellant.
Michael I. Spearing, Office of Counsel of the University of Alabama System, University of Alabama in Huntsville, for appellees.
SHORES, Justice.
The plaintiff, Patrick Lennon, appeals from a summary judgment for the defendants in a negligence action. Lennon sued his soccer coach, Carlos Petersen, and his athletic trainer, Debbie Lee, both on the staff of the University of Alabama at Huntsville (UAH), alleging that they had acted negligently and that because of their negligence he was injured and damaged. The defendants moved for a summary judgment, which was entered in their favor based on the defense of discretionary function immunity. The plaintiff appeals. We affirm.
A summary judgment may be entered when there is no genuine issue of material fact and the defendant is entitled to a judgment as a matter of law. Rule 56, Ala. R.Civ.P. This Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986); Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990). Because this action was filed after June 11, 1987, the nonmovant must present "substantial evidence" in order to defeat a properly supported motion for summary judgment. Alabama Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Lennon argues that the trial court should not have entered the summary judgment because the defendants failed to file a narrative summary of what they claimed was "the undisputed material facts," as required by Rule 56(c)(1), Ala.R.Civ.P. However, Lennon filed his complaint on April 6, 1992, almost four months before Rule 56(c) was amended to require a narrative summary; the amendment adding that requirement became effective August 1, 1992. Because this action was commenced before the effective date of that amended portion that requires a narrative summary of the purportedly undisputed material facts (Rule 56(c)(1)), that portion of the rule does not apply in this case. See Rule 86, Ala.R.Civ.P.
Lennon also contends that the summary judgment should not have been entered because, he says, the affidavits supporting the defendants' motion for summary judgment do not comply with Rule 56(e). In Perry v. Mobile County, 533 So. 2d 602, 604-05 (Ala.1988), the Court held:
(Adopting language from C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983).)
In this case, the objection to the defendants' affidavits comes on appeal and, therefore, is too late to be considered by the Court.
The main issue in this appeal is whether Petersen and Lee are entitled to immunity, as a matter of law, under the facts as presented. Lennon argues that the defendants should not be entitled to qualified immunity for their alleged negligence because, he says, they acted beyond their legal authority.
Patrick Lennon received a scholarship to play soccer for UAH. While practicing soccer at the beginning of his first season, Lennon began to experience sharp pain in his hip and groin area. Lennon reported this pain to Debbie Lee, the athletic trainer, who attributed it to "groin strain" and applied ice and electricity to the affected area. Lennon's pain persisted and Lee continued the same treatment throughout the soccer season until mid-November.
Lennon returned to his home at that time and consulted with a physician about the pain he continued to experience. The physician ran a series of tests on Lennon and determined that he suffered not from groin strain but from avascular necrosis, which manifested itself in both of his hip joints. The physician performed surgery on Lennon twice to correct the problem. In order to prevent the disease from progressing, Lennon must avoid any activities that could cause a jarring of his hip bones, but he still may develop premature arthritis and may require a hip joint replacement in the future.
Lennon asserts that neither Petersen nor Lee is entitled to discretionary immunity for their alleged negligence because, he says, they exceeded the authority given them by UAH and by the laws of this State. He argues that Petersen exceeded his authority because, he says, Petersen discouraged players from seeking treatment for their injuries, and that Lee exceeded her authority because, he says, she did not have a license to practice medicine when she treated him for his injury.
Article I, § 14, of the Alabama Constitution of 1901 prevents lawsuits against the State and "against its officers and agents in their official capacity when a result favorable to the plaintiff would directly affect a contract or property right of the State." Milton v. Espey, 356 So. 2d 1201, 1202 (Ala.1978). The Court further defined the scope of this immunity by adopting the "tort liability rule" of Restatement (Second) of Torts, § 395D(3)(a) (1965), which states:
DeStafney v. University of Alabama, 413 So. 2d 391, 393 (Ala.1982).
Although "discretionary function" is not expressly defined, comment f to Restatement § 395D sets out a number of factors that may help determine whether a function is discretionary. This Court has also spoken to this issue. Nance v. Matthews, 622 So. 2d 297 (Ala.1993); Taylor v. Shoemaker, 605 So. 2d 828, 832 (Ala.1992). A discretionary function does not include ministerial tasks like the mere filling out of a form, nor does it include acts made "fraudulently, in bad faith, beyond [the actor's] authority, or ... under a mistaken interpretation of the law." Nance v. Matthews, 622 So. 2d 297 (Ala.1993); DeStafney at 395; Pack v. Blankenship, 612 So. 2d 399, 402, 403 (Ala.1992). Lennon asserts that the acts of Petersen and Lee were not discretionary because, he says, they acted "beyond their authority."
Petersen's actions did not extend beyond his authority. The University hired Petersen specifically for the job of coaching and, thus, gave him authority over the decisions *174 inherent in that position. Lennon argues that Petersen violated the "Training Rules" of the UAH Student Handbook and rules of the National Collegiate Athletic Association (NCAA). The Training Rules, however, mention only students' responsibility and do not refer to responsibility of the coach. Furthermore, Lennon does not cite the NCAA rules, but, instead, refers to the Code of Ethics of the National Soccer Coaches Association of America. The record does not indicate whether Petersen was a member of this association, nor does the record show that such an association would serve to limit the authority given to Petersen by UAH if Petersen were a member. Lennon has not presented substantial evidence to indicate that Petersen exceeded his authority.
Lennon contends that Lee is not entitled to discretionary function immunity because, he says, she exceeded her authority by practicing medicine without a license. However, when Lennon filed this action, athletic trainers were not required to be certified. The Alabama Athletic Trainers Licensure Act did not go into effect until May 13, 1993. Acts of Alabama 1993, Act 93-617. Even with the application of the Act, Lee is fully qualified to receive a license without more training. Section 7 states:
Lee clearly meets the three-year criterion, because she was employed by UAH in August 1986 as an athletic trainer and has continued in that position for over six years.
Lennon's contention that, according to Alabama Code 1975, § 34-24-50 (defining "practice of medicine"), Lee practiced medicine, and because she did not have a license to do so she exceeded her authority, is without merit. Section 34-24-51 restricts the application of the licensing procedure. It states:
Athletic trainers are part of the "other branch[es] of the healing arts" that now must be licensed, and Lee was practicing within the scope of an athletic trainer's license.
Furthermore, if the legislature had intended § 34-24-50 to mean that athletic trainers had to be licensed in order to practice, it would not have been necessary to enact Act 93-617, which specifically requires athletic trainers to be licensed. This argument also answers Lennon's contention that Lee practiced "physical therapy," as defined in § 34-24-191(a)(1), without a license. If § 34-24-191(a)(1) was referring to athletic trainers, then there would be no need for Act 93-617. Lennon did not produce substantial evidence to indicate that Lee went beyond her authority in treating Lennon's injury.
Although discretionary functions do not include unauthorized acts, they do include acts that require "personal deliberation, decision and judgment." White v. Birchfield, 582 So. 2d 1085, 1087 (Ala.1991) citing Davis v. Little, 362 So. 2d 642, 643 (Miss.1978) (quoting Prosser, Law of Torts § 132 (4th ed. 1971)): see Taylor v. Shoemaker, 605 So. 2d 828, 831-33 (Ala.1992). Discretionary functions include "difficult decision making" and "the ability of public officers to `engage in making a decision by weighing the policies for and against it.'" Nance v. Matthews, 622 So. 2d 297 (Ala.1993); Shoemaker, 605 So. 2d at 832; Grant v. Davis, 537 So. 2d 7, 8 (Ala. 1988), Phillips v. Thomas, 555 So. 2d 81, 85 (Ala.1989); McMillian v. Wallis, 567 So. 2d 1199, 1202 (Ala.1990) (citing Bell v. Chisom, 421 So. 2d 1239 (Ala.1982)).
Petersen's actions clearly fall into the category of discretionary acts. Petersen had to rely on his own judgment and discretion in making difficult decisions while performing his job. He had to determine what drills his players needed and how long the drills should last. He also had to evaluate his *175 players to determine if they were playing to the best of their ability. He had to make difficult decisions in determining whether a player was injured and should report to the trainer or whether the player was merely faking an injury to avoid practice. He also had to be aware that some players would hide their injuries so that they would be allowed to practice or to play in a game. He was responsible for motivating the players and evaluating their performance. Petersen was acting within his authority in using his discretion in such matters, and he is entitled to discretionary function immunity. See Phillips v. Thomas, 555 So. 2d at 85 (such training and supervisory functions are "for the most part discretionary in nature"). See, also, Nance v. Matthews, 622 So. 2d at 301.
Similarly, Lee's job required that she use her discretion and judgment. As an athletic trainer, she had the responsibility to determine whether an athlete was faking or hiding an injury. She had to ascertain the source of the injury, the extent of the injury, and the treatment for the injury. She had to calculate whether the injury was adequately responding to treatment. She had the further responsibility of determining when an athlete should be restricted from play, referred to a doctor, or allowed to return to the field. Because all of these functions required the use of her judgment and discretion, she is entitled to discretionary function immunity. See Phillips at 85 (duties required "constant decision making and judgment on the part of the supervisor or trainer"). See also Nance v. Matthews, 622 So. 2d at 301.
We have carefully reviewed this case, and we conclude that the judgment of the trial court is due to be affirmed. Because Lennon failed to provide substantial evidence that Petersen and Lee acted beyond their authority, and because Petersen and Lee are employed by a state agency and the positions they hold clearly necessitate reliance on their own judgment in the making of difficult decisions, Petersen and Lee are entitled to discretionary function immunity. The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result).
If it were not for the majority opinion in Taylor v. Shoemaker, 605 So. 2d 828 (Ala. 1992), I would dissent, because I believe that this case is DeStafney v. University of Alabama, 413 So. 2d 391 (Ala.1982). However, between DeStafney and this case stands Taylor v. Shoemaker, in which the concept of "discretionary function" immunity was extended to factual situations in which there was no discernible discretion involved. I dissented in Taylor, asking "Where is the discretion?" 605 So. 2d at 835. I still do not know, but I am bound by stare decisis. I do know that if there was a "discretionary function" in Taylor, then there was a "discretionary function" in this case. | July 16, 1993 |
7bb93577-6cab-4564-9f03-f760c5716fdf | Lloyd v. State | 629 So. 2d 660 | 1920181 | Alabama | Alabama Supreme Court | 629 So. 2d 660 (1993)
Ex parte State of Alabama.
Re Johnny M. LLOYD
v.
STATE.
1920181.
Supreme Court of Alabama.
July 23, 1993.
James H. Evans, Atty. Gen., and Gregory O. Griffin, Asst. Atty. Gen., for petitioner.
Diana D. Mock, Andalusia, for respondent.
KENNEDY, Justice.
We have granted the State's petition for certiorari review of the judgment of the Court of Criminal Appeals reversing the defendant's conviction and remanding for the entry of a judgment of acquittal.
Johnny M. Lloyd was found guilty of "unlawful possession of marijuana in the first degree," § 13A-12-213, on a finding that he had possessed marijuana for personal use only after having been previously convicted of unlawful possession of marijuana for personal use only. The Court of Criminal Appeals reversed the conviction, holding that the State had failed to prove that Lloyd possessed the marijuana for personal use.
The Court of Criminal Appeals set out the facts in Lloyd v. State, 629 So. 2d 658 (Ala. Crim.App.1992). However, we feel it necessary to recite the facts as found by that court in order to better present the issues in this case.
629 So. 2d at 658-59.
We note that the Court of Criminal Appeals pretermitted discussion of Lloyd's allegations of an illegal search and seizure, stating, "If the case turned on those allegations, we would affirm." We agree with the Court of Criminal Appeals on the search and seizure issue. However, we disagree with that court's holding that the State failed to prove that the possession of marijuana was for personal use.
Section 13A-12-213 provides:
In a prosecution for first degree possession of marijuana, the accused has no burden to convince the jury, as under prior law, that his possession was for personal use only. The State must plead and prove the specific offense committed under § 13A-12-213. Watley v. State, 568 So. 2d 852 (Ala.Cr. App.1989), writ quashed as improvidently granted, 568 So. 2d 857 (Ala.1990).
The trial court admitted, without objection, evidence of Lloyd's prior conviction for possession of marijuana for personal use. (R.T. 12). Certainly, the jury could infer from the evidence presented that the marijuana was for Lloyd's personal use. The police had information from an informant that Lloyd would be in a particular car and that there would be marijuana in the car. The minuscule amount of marijuana was found on a cigarette paper inside Lloyd's wallet-type pocketbook, which was found lying on Lloyd's lap. Had a large quantity of marijuana *662 been found, that would support the inference that the possession was not for personal use. See, Sawyer v. State, 50 Ala. App. 490, 280 So. 2d 196 (1973).
Based on the foregoing, we reverse and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur. | July 23, 1993 |
396752d2-d7e1-4b74-ab24-2553a0a3fc3a | Cox v. State | 629 So. 2d 670 | 1920650 | Alabama | Alabama Supreme Court | 629 So. 2d 670 (1993)
Ex parte State of Alabama.
In re Tony Andre COX
v.
STATE.
1920650.
Supreme Court of Alabama.
August 13, 1993.
James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for petitioner.
William J. Brower, Birmingham, for respondent.
*671 STEAGALL, Justice.
Tony Andre Cox was convicted of robbery in the first degree. The Court of Criminal Appeals reversed his conviction and remanded his case to the circuit court for a new trial. Cox v. State, 629 So. 2d 664 (Ala.Cr.App. 1992). The Court of Criminal Appeals based its reversal on its holding that a clear violation of the principles of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), had occurred during the selection of the jury, arising from the State's removal of two blacks from the jury venire through the use of its peremptory challenges. We granted the State's petition for the writ of certiorari to review that holding. We conclude that the State's strikes did not violate the principles set forth in Batson, and we reverse.
Before the jury was sworn in at the trial, Cox requested a Batson hearing, moving to quash the jury, and he requested a mistrial, grounding his motions on the following contentions:
Upon being requested by the trial court to show a prima facie case that the prosecution exercised its peremptory challenges in a discriminatory manner, Cox argued that a number of the prospective black jurors had been excluded and that the racial make-up of the community was not reflected (in the jury). The record reveals that the 27-member venire contained 9 black veniremembers. While the State exercised three of its seven peremptory strikes to exclude black veniremembers, Cox himself used two of his strikes to exclude blacks. As a result of these five strikes, the petit jury contained a total of four blacks. The black/white ratio of the petit jury was the same as that of the venire.
Once the defense sets forth a prima facie case of discrimination, the State has the burden of coming forward with a race-neutral explanation for challenging the black jurors. Batson. Although the record indicates that the trial court did not rule on whether Cox had established a prima facie case, the State gave its explanations for the strikes at the trial court's request. The State, however, explained its exercise of peremptory challenges only as to veniremembers number 43 and number 46, because the trial court found the strike of veniremember number 79 to be proper because of the responses given by that veniremember on voir dire examination. As for its reasons for striking veniremember 43, the State explained that this individual was single and was familiar with the area of the alleged crime (because of visiting friends, teaching, and attending meetings). The State's explanation for striking veniremember 46 was that he was single, close in age to the defendant, and a blue-collar worker. After the State explained its reasons for striking these veniremembers, Cox offered no evidence that the State's reasons or explanations were a sham or a pretext. See Ex parte Branch, 526 So. 2d 609 (Ala.1992). The trial court allowed the State's challenges to stand. The Court of Criminal Appeals, while holding that the State's exclusion of veniremember 79 was for a race-neutral reason, held that the State had failed to articulate clear, specific, and legitimate reasons for challenging veniremembers 43 and 46.
The Court of Criminal Appeals released its opinion in this case on the same date this Court released its opinion in Bui v. State, 627 So. 2d 855 (Ala.1988). The prosecution in Bui could not recall the State's reasons for its 11th strike, which was a strike of one of the 9 blacks it removed from a venire containing a total of 13 blacks (under the circumstances existing in Bui, the prosecution did not explain the State's reasons for its strikes until five years after the trial of that case). Applying the rationale of United States v. Forbes, 816 F.2d 1006, 1011 n. 7 (5th Cir.1987), and United States v. David, 803 F.2d 1567 (11th Cir.1986), this Court in Bui disagreed with the Court of Criminal Appeals' conclusion that the State's failure to recall its reasons required a reversal of Bui's conviction. The Fifth Circuit Court of Appeals, *672 in Forbes, found that the confluence of certain facts led to the conclusion that intentional discrimination was not present in that case:
816 F.2d at 1011, n. 7. In Bui, considering all the facts of that case, this Court decided that the trial court's finding that there was no racial discrimination with respect to the State's 11th strike was not "clearly erroneous"; it is by a "clearly erroneous" standard that this Court reviews the trial court's factual findings in Batson proceedings. Additionally, applying that standard in Bui, this Court upheld the trial court's finding that the reasons given by the State (age and employment, among others) were not offered with a discriminatory purpose in mind.
Applying the "clearly erroneous" standard to the reasons given by the State in the present case, we cannot hold that the trial court clearly erred in finding the State's reasons to be "race-neutral." The record shows that the black/white ratio on the petit jury mirrored that of the venire, that the State offered detailed explanations for its strikes of the black jurors in question, that four blacks served on the petit jury, that the state had the opportunity to strike additional blacks from the petit jury but did not do so, and that Cox himself struck two blacks from the venire. Further, the trial court determined that the State's peremptory strikes were race-neutral. As Justice Adams stated in his concurring opinion in Bui, "[t]he trial judge's determination in each case that peremptory challenges were not racially motivated is, ordinarily, entitled to considerable deference." 627 So. 2d at 860.
As in Bui, the State's peremptory strikes in this case are not necessarily legitimized by any of these aforementioned factors standing alone; rather, it is the cumulative weight and confluence of these factors that support the trial court's finding that the strikes were race-neutral. After reviewing these factors in light of the standard set out in Bui, we conclude that the trial court's determination was not clearly erroneous.
The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded for the reinstatement of Cox's conviction and sentence.
REVERSED AND REMANDED.
MADDOX, SHORES, HOUSTON and INGRAM, JJ., concur. | August 13, 1993 |
41691c51-3daa-49a8-8171-df4da293fea1 | Keel v. Banach | 624 So. 2d 1022 | 1920471 | Alabama | Alabama Supreme Court | 624 So. 2d 1022 (1993)
Karen KEEL and Danny Keel
v.
Warren BANACH, M.D., and Warren Banach, M.D., P.C.
1920471.
Supreme Court of Alabama.
July 16, 1993.
Rehearing Denied August 20, 1993.
*1023 Edward L. Hardin, Jr. and Belinda L. Kimble of Hardin & Tucker, Birmingham, for appellants.
W. Stancil Starnes, Randal H. Sellers and M. Christopher Eagan of Starnes & Atchison, Birmingham, for appellees.
SHORES, Justice.
The plaintiffs are Karen and Danny Keel, parents of Justin Keel, who was born on January 18, 1985, with severe multiple congenital abnormalities. Justin died in February 1991, at the age of six. The defendants are Warren Banach, M.D., who was Karen's doctor and who performed the sonographic examinations of the fetus, and his professional corporation. The Keels charged the defendants with medical malpractice in failing to discover several severe, life-threatening fetal abnormalities that, the Keels say, had they been known to them, would have caused them to terminate the pregnancy. Actions such as that filed by the Keels have come to be called actions for "wrongful birth."
The trial judge entered a summary judgment for the defendants, holding, as a matter of law, that no cause of action for wrongful birth, or damages for wrongful birth, are recognized in the State of Alabama. The plaintiffs appealed. We reverse and remand.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must 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 sole issue on appeal is whether this State recognizes a cause of action for wrongful birth. At the outset, we must emphasize the posture in which this case is now before this Court: The question presented for review is not whether the plaintiffs should ultimately prevail in this litigation, but whether their complaint states a claim upon which relief can be granted.
On October 22, 1984, Karen Keel had her first prenatal visit with Dr. Banach, an obstetrician practicing in Ozark, Alabama. There is conflicting testimony as to the content of the conversations between the physician and his patient pertaining to the couple's medical history. The Keels say that they relayed their concerns regarding this pregnancy because Danny had earlier fathered a stillborn infant with anencephaly, the congenital absence of brain and spinal cord, which is the most severe of spinal cord abnormalities. Spinal cord defects are known to be hereditary, and the Keels contend that they told Dr. Banach that they did not want their child to suffer such a fate.
Dr. Banach did a sonogram on October 26, 1984. He derived a biparietal diameter consistent with 19 weeks' gestation, and a femur length consistent with 22 weeks' gestation. Under "obvious anomalies" he wrote: "none seen." The Keels say that, to alleviate their fears, Dr. Banach moved the transducer around to show them what appeared to be a healthy fetus's head, body, arms, and legs. The sonogram machine produced several photographs of the sonographic images. Two were given to Karen.
Another sonogram was performed on January 4, 1985. Again Dr. Banach marked under "obvious anomalies" "none seen." During this sonogram, Dr. Banach determined that the fetus was a male. As during the first sonogram, the machine produced photographs, and all were retained in the medical records.
Justin was born on January 18, 1985, with severe multiple congenital abnormalities. He had only a two-vessel umbilical cord (as opposed to the normal three-vessel cord), a short cord, ventriculomegaly, absent right leg, imperforate anus, one testicle, one kidney, a vertebrae anomaly in the lumbar sacral region, hydrocephaly,[1] a large fluid-filled sac extending off the right aspect of the sacrum consistent with meningocele (spina bifida). Justin underwent numerous surgeries during his life. A shunt from his brain to his heart channeled fluids, which, for the most part, prevented any brain damage due to the hydrocephaly. Blood clots from the heart, impregnating the lungs, a known but *1024 unpreventable risk of the shunt, were the direct cause of Justin's death.
According to Dr. Banach, the fact that Danny had fathered a stillborn with anencephaly was not revealed to him until after Justin was born.
The Keels sued Dr. Banach, alleging that he had failed to meet the standard of prenatal care and that, had he done so, he would have further investigated questionable sonogram findings. The plaintiffs contend that there were discrepancies in the fetus measurements that should have prompted further investigation. They contend that there were images on the sonogram that showed an oblong head with open frontal bones visible (known as a "lemon sign," frequently noted in spina bifida). They contend that the sonogram findings should have prompted an amniocentesis, which, had it been performed, would in all likelihood have diagnosed this fetus's neurotube defect.
As described by the considerable literature and litigation in this area, a "wrongful birth action" refers to a claim for relief by parents who allege they would have avoided conception or would have terminated the pregnancy but for the negligence of those charged with prenatal testing, genetic prognosticating, or counseling parents as to the likelihood of giving birth to a physically or mentally impaired child. The underlying premise is that prudent medical care would have detected the risk of a congenital or hereditary genetic disorder either before conception or during pregnancy. In such an action, the parents allege that as a proximate result of this negligently performed or omitted genetic counseling or prenatal testing they were foreclosed from making an informed decision whether to conceive a potentially handicapped child or, in the event of a pregnancy, to terminate it. See, Trotzig, The Defective Child and the Actions for Wrongful Life and Wrongful Birth, 14 Fam.L.Q. 15, 16-17 (1980).
The history of wrongful birth actions and the judicial reasoning behind the development of this area of law is traced in a 1992 law review article:
Lori B. Andrews, Torts and the Double Helix: Malpractice Liability for Failure to Warn of Genetic Risks, 29 Hous.L.Rev. 149, 152-55 (1992). (Footnotes omitted.) The author of this article reviews court decisions and notes the concern that the issue of damages has caused those courts that have recognized the cause of action. She notes that some courts feel that the benefit of having the child should offset any damages award. However, some disagree with this approach. A justice of the Georgia Supreme Court stated his disagreement in this compelling language:
Atlanta Obstetrics & Gynecology Group v. Abelson, 260 Ga. 711, 398 S.E.2d 557, 565 (1990) (Smith, J., dissenting).
An action for wrongful birth was first considered in Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). In Gleitman, the parents of a rubella syndrome child brought an action against a physician who allegedly had advised them that the mother's contraction of rubella during pregnancy would not affect the fetus. The court rejected the parents' wrongful birth claim for two reasons. The first had to do with the difficulty of measuring damages. In the court's view, in order to determine the amount of the parents' recovery, it would be necessary to evaluate the denial to them of the "intangible, unmeasurable, and complex human benefits of motherhood and fatherhood and weigh these against the alleged emotional and money injuries." The court concluded that this would be impossible. As the second reason, the court said that public policy reflected in the then-existing prohibition against abortion precluded the recovery of damages for denial of an opportunity to abort a fetus.
Since 1967, most courts have rejected the Gleitman court's reasoning, and a majority of the jurisdictions in which the issue has been considered have recognized the cause of action.[2] This Court has never considered the *1026 issue, but a United States Circuit Court of Appeals, applying Alabama law, has concluded that, if the Alabama courts were confronted with the issue, Alabama law would compel recognition of the cause of action.
Courts recognizing the cause of action have addressed most of the arguments advanced by the defendants here. They have rejected the argument that it is impossible to measure damages. Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975). It has been said that damages sought in wrongful birth actions are ascertainable and require nothing extraordinary in terms of measurement. Becker, supra; Jacobs, supra. Courts have rejected public policy arguments for refusing to recognize an action for wrongful birth as no longer valid, following the United States Supreme Court's decision holding that the Constitution of the United States guarantees a right to decide whether to terminate a pregnancy in the first two trimesters. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Referring to the Roe decision, courts have said that failure to recognize a cause of action for wrongful birth would impermissibly infringe on constitutional rights involved in conception, procreation, and other familial decisions. Phillips, supra. Some courts have said that public policy now supports, rather than militates against, the proposition that parents should not be denied the opportunity to terminate a pregnancy. Gildiner v. Thomas Jefferson University Hospital, 451 F. Supp. 692 (E.D.Pa.1978), and Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), overruled Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967). Some courts have held that refusal to recognize wrongful birth actions would immunize from liability those persons who fail to provide proper guidance to persons who would otherwise choose to exercise their constitutional right to abort a fetus that, if born, would be seriously unhealthy. Robak v. United States, 658 F.2d 471 (7th Cir.1981). Recognition of wrongful birth actions is seen by some as encouraging the accurate performance of medical procedures. Gildiner, supra.
The New Jersey Supreme Court in Berman stated:
80 N.J. at 432, 404 A.2d at 14.
At least one court has taken the position that wrongful birth actions are not new actions, but actually fall within the traditional boundaries of negligence actions. Robak, supra. A cause of action for wrongful birth is, in essence, an action for professional malpractice by a health care provider. Robak, supra. We agree.
"The elements for recovery under a negligence theory are: (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury." Jones v. Newton, 454 So. 2d 1345, 1348 (Ala. 1984), citing Mascot Coal Co. v. Garrett, 156 Ala. 290, 47 So. 149 (1908). See also, Rutley v. Country Skillet Poultry Co., 549 So. 2d 82, 85 (Ala.1989).
To establish a prima facie case in an action for wrongful birth, it is necessary *1027 for the plaintiff to plead and prove actual injury. It has been recognized that the birth of a seriously deformed child results in injury to the child's parents. Blake, supra; Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982), and Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (1983). This conclusion is inevitable if it is also recognized that parents have a right to terminate a pregnancy. Roe v. Wade holds not only that parents do have such a right, but that it is one guaranteed to them against most state action by the Constitution of the United States. Harbeson, supra.
The plaintiff must also prove a causal connection between the defendant's negligence and the child's birth. In order to establish causation, it is necessary for the plaintiff to show that, had the defendant not been negligent, the plaintiff would have been aware of the possibility that the child would be seriously defective, and either the child would not have been conceived or the pregnancy would have been terminated. Blake, supra; Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981); Jacobs, supra; and Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975).
A claim for medical negligence is recognized in Alabama, but a claim for wrongful birth has not been specifically addressed by this Court. The plaintiffs correctly point out that we have referred to the wrongful birth cause of action on three occasions. First, in Elliott v. Brown, 361 So. 2d 546 (Ala.1978), we were faced with a wrongful life claim by a child born with serious deformities; the child's father had remained fertile after a negligently performed vasectomy. We held that a child does not have an action for wrongful life. We said that "there is no legal right not to be born," 361 So. 2d at 548, and, therefore, that no cause of action exists for wrongful life:
361 So. 2d at 548. In Elliott, we noted that "[o]nly the [child's] suit was dismissed [by the trial court]. The suits by Therman Elliott and his wife [for wrongful birth] are in no way involved [in] this appeal." In Elliott, we relied on the reasoning of Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967), which has been partially reversed to permit a wrongful birth claim.
Second, in Boone v. Mullendore, 416 So. 2d 718 (Ala.1982), the plaintiff alleged that her doctor had negligently failed to remove her fallopian tubes or had negligently represented that her fallopian tubes had been removed and that she was sterile. The plaintiff subsequently conceived and gave birth to a healthy child. We stated that this claim for wrongful pregnancy, unlike a claim for wrongful life, is more suited to a traditional medical malpractice action. We applied a traditional tort analysis of duty, breach of duty, proximate cause, and damage. We recognized a case of action for wrongful pregnancy in Boone. Third, in Colburn v. Wilson, 570 So. 2d 652 (Ala.1990), the parents made a wrongful birth claim against a physician for failing to detect gross abnormalities by ultrasound. The facts of Colburn are similar to those of this case. However, we did not address the merits of the wrongful birth claim because, "assum[ing] that there was a cause of action," the claim was barred by the statute of limitations. 570 So. 2d at 654.
Dr. Banach urges us to follow the reasoning in Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528 (1985). The North Carolina court held: "claims for relief for wrongful birth of defective children shall not be recognized in this jurisdiction absent a clear mandate from the legislature." 315 N.C. at 110, 337 S.E.2d at 533. The North Carolina court concluded that a claim for wrongful birth did not fit within the framework of a traditional tort analysis and reasoned that a breakdown occurs when the analysis reaches the issues of proximate cause and injury:
315 N.C. at 111, 337 S.E.2d at 533-34. According to the court in Azzolino, the heart of the problem in wrongful birth cases is that the "physician cannot be said to have caused the defect. This disorder is genetic and not the result of any injury negligently inflicted by the doctor." 315 N.C. at 115, 337 S.E.2d at 536, quoting Becker v. Schwartz, 46 N.Y.2d 401 at 417-22, 413 N.Y.S.2d 895 at 904-07, 386 N.E.2d 807 at 816-19 (1978) (Wachtler, J., dissenting in part).
In Robak, where the action was brought under the Federal Tort Claims Act, the Government advanced a similar argument: that no proximate cause existed because irrevocable injury to the fetus had already occurred before the negligent acts were committed. The Seventh Circuit Court of Appeals, applying Alabama law, responded:
658 F.2d at 477. We agree that the analysis set out in Robak comports with Alabama law. See, e.g., Wolfe v. Isbell, 291 Ala. 327, 280 So. 2d 758, 761 (1973). We also agree with the Robak court that a so-called wrongful birth case is in reality a medical negligence malpractice case. That court said: "A case like this one is little different from an ordinary medical malpractice action. It involves a failure by a physician to meet a required standard of care, which resulted in specific damages to the plaintiffs." Robak at 476. This case involves an alleged failure by Dr. Banach to properly perform prenatal tests that would have revealed severe multiple congenital abnormalities in the fetus, which, if known to the parents, would have weighed in their decision whether to exercise their constitutional right to terminate the pregnancy.
The defendants make compelling policy arguments for rejecting the plaintiffs' cause of action. These include:
These same arguments were advanced in Siemieniec v. Lutheran Gen. Hosp., 117 Ill. 2d 230, 111 Ill.Dec. 302, 512 N.E.2d 691 (1987). The Supreme Court of Illinois rejected those arguments and stated:
117 Ill. 2d at 254, 111 Ill.Dec. at 314, 512 N.E.2d at 703-04.
Although the arguments of the defendants set out above are compelling, the great weight of authority to the contrary forces us to agree with the majority of the courts and the legal commentators and to hold that an action for the wrongful birth of a genetically or congenitally defective child may be maintained by the parents of such a child.
The nature of the tort of wrongful birth has nothing to do with whether a defendant caused the injury or harm to the child, but, rather, with whether the defendant's negligence was the proximate cause of the parents' being deprived of the option of avoiding a conception or, in the case of pregnancy, making an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child. Like most of the other courts that have considered this cause of action, we hold that the parents of a genetically or congenitally defective child may maintain an action for its wrongful birth if the birth was the result of the negligent failure of the attending prenatal physician to discover and inform them of the existence of fetal defects.
We next consider the issue of damages. The Keels urge us to allow them to pursue damages for (1) Justin's medical expenses, (2) the cost of Justin's medical equipment (such as his wheelchair), (3) the value of Karen's services in nursing and caring for Justin to the exclusion of her work or career, (4) Danny's loss of consortium of Karen attendant with the cesarean section birth, (5) Karen's physical pain and suffering associated with the cesarean section delivery of Justin due to the hydrocephalus, (6) and the tremendous emotional suffering and mental anguish associated with day-to-day life with Justin which, they claim, are natural and foreseeable consequences of the injury they sustained.
Damage or harm incurred by the Keels for which they do not make a claim are: (1) the ordinary expenses of raising and providing for Justin, such as food, clothing, shelter, books, and toys, (2) costs associated with taking Justin to a public school in a nearby town, and (3) the expenses relating to Justin's funeral.
Damages not incurred by the Keels, but which they urge us to adopt as recoverable damages in a cause of action for wrongful birth are: (1) missed work and salary cuts, (2) future medical expenses, and (3) special educational costs.
Among the jurisdictions that recognize the cause of action for wrongful birth, there is little agreement on the issue of damages, and a majority does not allow recovery for emotional distress. In Robak v. United States, 658 F.2d 471 (7th Cir.1981), the Seventh Circuit Court of Appeals allowed recovery for all damage related to the doctor's negligence, including the costs associated with rearing a normal child. In Lloyd v. North Broward Hospital District, 570 So. 2d 984 (Fla.Dist.Ct. App.1990), opinion partly quashed by Kush v. Lloyd, 616 So. 2d 415 (Fla.1992), the court held that, in a wrongful birth action, emotional distress is a natural consequence of the tort and is properly seen as an additional element of damage incident to the wrongful birth claim.
The basic rule of tort compensation is that the plaintiff should be put in the position that he would have been in absent the defendant's negligence. Robak concluded "that the case [was] governed by ordinary tort principles. It is a fundamental tenet of tort law that a negligent tortfeasor is liable for all *1030 damages that are the proximate result of his negligence." 658 F.2d at 478 (emphasis original). Alabama has followed this rule in other medical negligence malpractice actions. Snow v. Allen, 227 Ala. 615, 151 So. 468 (1933).
We follow the holding of other courts that have considered this issue. "[T]he current trend with respect to damages is to allow the recovery of only the additional costs of treatment and special resources for the child, not the entire cost of rearing the child." Andrews, The Double Helix, supra, at 156-57. This article notes that one state has codified this rule of damages. Maine has adopted a statute that provides: "Damages for the birth of an unhealthy child born as the result of professional negligence shall be limited to damages associated with the disease, defect or handicap suffered by the child." The primary element of damages that may be recovered in an action for wrongful birth is the pecuniary loss to the plaintiffs, the child's parents, resulting from the care and treatment of the child. The plaintiffs are entitled to recover for the extraordinary expenses they incur because of the child's unhealthy condition, including: (1) hospital and medical costs, (2) costs of medication, and (3) costs of education and therapy for the child.
It is generally recognized that, in a wrongful birth action, parents may recover the extraordinary costs necessary to treat the birth defect and any additional medical or educational costs attributable to the birth defect during the child's minority. See Turpin v. Sortini, 31 Cal. 3d 220, 182 Cal. Rptr. 337, 643 P.2d 954 (1982); Ramey v. Fassoulas, 414 So. 2d 198 (Fla.Dist.Ct.App.1982); Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984); Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981); Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975); Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982); Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (1983), later proceeding, 746 F.2d 517 (9th Cir.1984); Dumer v. St. Michael's Hosp., 69 Wis.2d 766, 233 N.W.2d 372 (1975).
Emotional distress suffered by the parents of an unhealthy child is compensable in a wrongful birth action. See, Phillips v. United States, 508 F. Supp. 544 (D.S.C.1981); Blake, supra; Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981); Naccash, supra; and Harbeson, supra. A jury could conclude that the defendants, in failing to inform Mrs. Keel of the possibility of giving birth to a child with severe multiple congenital abnormalities, directly deprived her and, derivatively, her husband, of the option to accept or reject a parental relationship with the child and thus caused them to experience mental and emotional anguish upon their realization that they had given birth to a child afflicted with severe multiple congenital abnormalities.
We conclude that the following items are compensable, if proven: (1) any medical and hospital expenses incurred as a result of a physician's negligence; (2) the physical pain suffered by the wife; (3) loss of consortium; and (4) mental and emotional anguish the parents have suffered.
We agree with the Supreme Court of Illinois in Siemieniec v. Lutheran Gen. Hosp., supra, that the issue presented by litigation like this is one properly to be resolved by the courts. That court said:
117 Ill. 2d at 257-58, 111 Ill.Dec. at 316, 512 N.E.2d at 705.
The Alabama legislature passed a new Medical Liability Act in 1987, regarding medical negligence causes of action. Nowhere in that Act are wrongful birth cases excluded, as they are in laws passed in Missouri and Minnesota. We can only assume that the Alabama legislature did not intend to exclude this class of negligence cases from resolution by the courts.
For the foregoing reasons, the judgment of the trial court holding that the Keels have no cause of action for wrongful birth is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] Hydrocephaly is a condition commonly seen in children with neural tube defects or spina bifida.
[2] Courts that have considered the issue are listed:
ALABAMA
Robak v. United States, 658 F.2d 471 (7th Cir. 1981) (Alabama law).
FLORIDA
Moores v. Lucas, 405 So. 2d 1022 (Fla.Dist.Ct. App.1981).
IDAHO
Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984).
ILLINOIS
Goldberg v. Ruskin, 128 Ill.App.3d 1029, 84 Ill.Dec. 1, 471 N.E.2d 530 (1984).
KANSAS
Arche v. United States Dep't of the Army, 247 Kan. 276, 798 P.2d 477 (1990).
LOUISIANA
Pitre v. Opelousas General Hospital, 530 So. 2d 1151 (La.1988).
MICHIGAN
Eisbrenner v. Stanley, 106 Mich.App. 357, 308 N.W.2d 209 (1981).
MASSACHUSETTS
Viccaro v. Milunsky, 406 Mass. 777, 551 N.E.2d 8 (1990).
MISSOURI
Shelton v. Saint Anthony's Medical Center, 781 S.W.2d 48 (Mo.1989).
NEW HAMPSHIRE
Smith v. Cote, 128 N.H. 231, 513 A.2d 341 (1986).
NEW JERSEY
Schroeder v. Perkel, 87 N.J. 53, 432 A.2d 834 (1981); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), overruling Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967).
NEW YORK
Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978).
PENNSYLVANIA
Gildiner v. Thomas Jefferson University Hospital, 451 F. Supp. 692 (E.D.Pa.1978).
Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981).
SOUTH CAROLINA
Phillips v. United States, 508 F. Supp. 544 (D.S.C.1981), later proceeding, 566 F. Supp. 1 (D.S.C.1981), later proceeding, 575 F. Supp. 1309 (D.S.C.1983).
TEXAS
Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984); Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975).
VIRGINIA
Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982).
WASHINGTON
Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (1983).
WEST VIRGINIA
James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872 (1985).
WISCONSIN
Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). | July 16, 1993 |
8813e2e8-68d3-42cb-9431-4032a429ddaa | Lewis v. Roberts | 630 So. 2d 355 | 1920031 | Alabama | Alabama Supreme Court | 630 So. 2d 355 (1993)
Lorraine S. LEWIS, et al.
v.
Donald G. ROBERTS and State Farm Mutual Automobile Insurance Company.
1920031.
Supreme Court of Alabama.
July 16, 1993.
Rehearing Denied December 10, 1993.
Ronald O. Gaiser, Jr. of Gaiser & O'Neal, Birmingham, for appellants.
Thomas A. Woodall of Woodall & Maddox, P.C., Birmingham, for Donald G. Roberts.
John F. De Buys, Jr. and F.A. Flowers III of Burr & Forman, Birmingham, for State Farm Mut. Auto. Ins. Co.
*356 STEAGALL, Justice.
Deirdre M. Lewis, a minor, and Lorraine S. Lewis, individually and as Deirdre's mother, sued Donald G. Roberts, doing business as Don Roberts Insurance Agency, alleging negligence, fraudulent deceit, and suppression. The Lewises later added State Farm Mutual Automobile Insurance Company (hereinafter "State Farm") as a defendant, alleging the same causes of action and further alleging that State Farm was liable for Roberts's wrongful acts under the doctrines of respondeat superior and agency. The trial court entered a summary judgment for State Farm as to the fraudulent deceit and suppression claims and made that judgment final pursuant to Rule 54(b), Ala.R.Civ.P.; the Lewises did not appeal. The trial court also entered a summary judgment for Roberts as to these two claims, but did not make that judgment final under Rule 54(b). The case proceeded to trial only upon the issue of negligence; the trial court directed a verdict for the defendants. The Lewises appeal from the judgment based on the directed verdicts and from the summary judgment entered for Roberts.
The record reveals these facts: The Lewises became State Farm policyholders in 1969, and Roberts became their agent in 1971. In 1987, Lorraine Lewis and her husband, William Lewis, owned three automobiles and had an individual insurance policy for each, which provided uninsured motorist coverage of $20,000 per person, not to exceed $40,000 per accident, or "20/40" coverage. Under the principle of "stacking," the Lewises had coverage of up to $120,000 per person.
In November 11, 1987, William Lewis contacted Roberts to obtain a policy for a fourth vehicle he had just bought for his daughter. The substance of their conversation is in dispute. According to William Lewis, Roberts informed him that "20/40" coverage was inadequate and that he should get coverage of $100,000 per person, not to exceed $300,000 per accident, or "100/300" coverage. William Lewis said that Roberts advised him to purchase this level of uninsured coverage on all four automobiles, and that Lewis stated, "Fine, do it." Roberts completed an application for a policy on the Lewises' new vehicle, providing "100/300" uninsured motorist coverage on November 11; however, he did not increase the uninsured motorist coverage on the other three policies.
The Lewises thereafter received a policy for the new automobile, with a declarations page clearly showing that the policy contained "100/300" benefits. Between November 11, 1987, and September 28, 1988, State Farm sent the Lewises separate premium notices for each policy, and the notices for the previous three policies showed that the coverage level of those policies remained at 20/40. The Lewises did not review those premium notices and thus did not note the fact that the coverage had not been increased on three of the four vehicles.
On September 28, 1988, Lorraine and Deirdre Lewis were involved in a car accident and suffered serious injuries. The automobile they were traveling in had 20/40 coverage. The party at fault had liability insurance with the Government Employees Insurance Company, under which Lorraine Lewis received $199,000 and Deirdre Lewis received $20,000. State Farm paid the Lewises $160,000 in uninsured motorist benefits.
In November 1988, William Lewis met with Roberts to review the family's insurance coverage. Roberts told him that the family's deductible was too high and that their level of uninsured motorist coverage should be increased to the "100/300" level on all policies. There was no mention of the parties' prior discussion of increasing the uninsured benefits. William Lewis brought along his personal insurance file to the meeting and, at the end of the discussion, asked Roberts if he still needed the papers in the file. When Roberts said that he did not, William Lewis threw them all away.
After this meeting, William Lewis remembered that Roberts had recommended increasing the uninsured motorist coverage on all cars in September, when William bought insurance for the fourth car. He wrote a letter on June 1, 1989, reminding Roberts of the November 11, 1987, telephone conversation and asking him to "take such steps as may be necessary to have State Farm admit" that the family should receive "100/300" benefits *357 rather than "20/40" benefits, based on his November 1987 conversation with Roberts. Roberts did not reply to this letter or to the two follow-up letters that William Lewis subsequently wrote.
William Lewis thereafter went to Roberts's office to obtain a copy of the family's insurance file and found that much of the file had been "purged." He sought to obtain the missing records directly from State Farm and was informed that Roberts had requested the file clerk not to release the records. He eventually received the records from State Farm and subsequently sued.
It is not within the trial court's discretion to direct a verdict; therefore, a directed verdict is not afforded any presumption of correctness on appeal. McCord v. McCord, 575 So. 2d 1056 (Ala.1991). Our function is to review the entire evidence in a light most favorable to the nonmovant and to allow all reasonable inferences a jury could draw, not just those inferences this Court might think are more probable. Anderton v. Gentry, 577 So. 2d 1261 (Ala.1991).
The first issue raised is whether the trial court erred in directing a verdict for the defendants as to the issue of negligence. The Lewises argue that Roberts negligently failed to increase the uninsured motorist coverage on the three other insured vehicles, following the conversation William Lewis says he had with Roberts in November 1987. When an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client and unjustifiably or negligently fails to do so, he becomes liable for any damage resulting therefrom. Montz v. Mead & Charles, Inc., 557 So. 2d 1 (Ala. 1987). Once the parties have come to an agreement on the procurement of insurance, the agent or broker must exercise reasonable skill, care, and diligence in effecting coverage. Montz.
There is evidence to indicate that Roberts undertook to procure 100/300 uninsured motorist coverage on all of the Lewises' insured vehicles when he provided coverage on the new, fourth vehicle. There was also testimony from State Farm employees indicating that it is customary for State Farm to issue the same level of uninsured motorist coverage as to all vehicles within one family and that an agent in the ordinary course of his duties does not write policies for varying levels of such coverage on cars within one family.
Roberts denies that he ever discussed what level of uninsured motorist coverage to issue on the fourth vehicle or ever agreed to increase the amount of coverage on the other three vehicles; rather, he claims that he voluntarily placed 100/300 coverage on the fourth vehicle without ever consulting the Lewises. In viewing the evidence in a light most favorable to the Lewises, however, we find evidence from which a jury could infer that Roberts undertook to procure higher levels of uninsured motorist coverage for all of the Lewises' insured vehicles, and then unjustifiably or negligently failed to do so. That portion of the judgment based on the directed verdict for Roberts is hereby reversed and the cause is remanded for further proceedings.
The Lewises make no argument in support of their claim of negligence against State Farm; therefore, the judgment for State Farm as to negligence is affirmed. See Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987).
The Lewises next argue that the trial court erred in entering the summary judgment for Roberts on the issue of fraudulent deceit. They base their claim on Ala.Code 1975, §§ 6-5-103 and -104, under which an action for deceit arises from either a willful or reckless misrepresentation or a suppression of material facts with an intent to mislead. Whitlow v. Bruno's, Inc., 567 So. 2d 1235 (Ala.1990). To be liable for fraudulent concealment, one must either be under an obligation to communicate arising either from a confidential relationship or from the particular circumstances of the case or knowingly conceal a material fact with intent to deceive. Cornelius v. Austin, 542 So. 2d 1220 (Ala.1989).
There is no evidence that Roberts concealed the fact that he did not procure the same level of uninsured motorist coverage on all the Lewises' vehicles. On the contrary, the record shows that after November 1987, *358 when Roberts allegedly agreed to procure 100/300 coverage on all the vehicles, he twice sent out individual premium notices for each of the vehicle policies which clearly showed that the fourth vehicle had the 100/300 coverage and that the other three vehicles were still carrying only 20/40 coverage. After the accident, Roberts met with William Lewis and stated outright that three of the four vehicles were without the higher level of coverage. While there is evidence that Roberts purged the Lewises' file and discarded papers, there is no indication that he did so in an attempt to conceal the fact that he failed to procure the same level of uninsured motorist coverage on all four of the Lewises' automobiles. There is no evidence that Roberts willfully or deceitfully failed to procure the increased coverage. Because the Lewises presented no evidence to establish the elements of suppression and deceit, the trial court properly entered the summary judgment for Roberts on these issues.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur. | July 16, 1993 |
703887d3-355c-47c9-9bb3-32fd4c07862b | Pruett v. Williams | 623 So. 2d 1115 | 1911935 | Alabama | Alabama Supreme Court | 623 So. 2d 1115 (1993)
Thad H. PRUETT, et al.
v.
Pat WILLIAMS.
1911935.
Supreme Court of Alabama.
July 16, 1993.
*1116 Marvin H. Campbell, Montgomery, for appellants.
D. Coleman Yarbrough, Montgomery, for appellee.
KENNEDY, Justice.
Pat Williams sued Thad Pruett, James Sharpe, and Noel Wadsworth as the partners of Pruett-Sharpe Construction Company, a partnership, alleging that the partnership had breached a contract to pay Williams an architect's fee of $100,500. The dispute arose over the planning of an apartment complex in Auburn.
In the contract, both parties had agreed to arbitration of the claim with the American Arbitration Association (hereinafter "AAA").[1] The AAA provided the parties with a list of names and biographical information on potential arbitrators. The parties chose John W. Adams, Jr., as the arbitrator. On August 24, 1992, the arbitrator awarded Williams $100,500 in architect's fees and found that there had been no novation.
On August 27, 1992, Williams filed a motion for summary judgment based on the arbitrator's award, rather than waiting to see if the partnership would appeal the arbitrator's award. The partnership filed a cross-motion, requesting that the court vacate the arbitration award. On September 2, 1992, the partnership filed an appeal of the arbitration award with this Court pursuant to § 6-6-15, Ala.Code 1975. The circuit clerk then entered the arbitrator's award as the judgment of the circuit court as is required by § 6-6-15. The circuit court did not set aside the judgment within 10 days as is provided in § 6-6-15; thus, the judgment became final and the arbitration award appealable.
The partnership argues that the arbitration award should be set aside because, it says, the arbitrator committed fraud by misstating certain biographical information. The partnership also argues that the arbitrator failed to address every defense presented by it.
First, the partnership specifically claims that the arbitrator failed to notify the AAA that he was no longer associated with the law firm of Inge, McMillan, Adams, Coley & Ledyard, P.C., and that the arbitrator possibly misstated his expertise in the area of construction law.[2] We see no evidence to support the partnership's claims of fraud, partiality or corruption on the part of the arbitrator.
Second, the partnership argues that the arbitrator failed to address all the defenses presented by the partnership. We find no requirement in § 6-6-1 et seq. that the arbitrator address in the award all the defenses raised.
Based on the foregoing, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] No party disputes the validity or enforceability of the agreement.
[2] In the Mobile Bar Directory, the arbitrator did not list construction law as a specialty. | July 16, 1993 |
f17022f5-b418-49e8-b05f-9305b4f01dc3 | Ex Parte Leigeber | 623 So. 2d 1068 | 1911942 | Alabama | Alabama Supreme Court | 623 So. 2d 1068 (1993)
Ex parte Donna M. LEIGEBER and Melvin D. Leigeber.
(Re Donna M. LEIGEBER and Melvin D. Leigeber v. ZONING BOARD OF ADJUSTMENT OF the CITY OF CULLMAN, Alabama.)
1911942.
Supreme Court of Alabama.
June 25, 1993.
*1069 Douglas Corretti and Mary Douglas Hawkins of Corretti & Newsom, Birmingham, for petitioners.
Stephen K. Griffith and Sister Lynn Marie McKenzie of Knight & Griffith, Cullman, for respondent.
MADDOX, Justice.
Donna and Melvin Leigeber petition this Court for a writ of mandamus directing Judge Fred Folsom of the Cullman County Circuit Court to vacate his May 8, 1992, order striking their demand for a jury trial. This mandamus petition presents two issues: (1) whether the 10-day time limitation in Rule 38(b), Ala.R.Civ.P., or the 30-day time limitation in that rule, applies to a jury demand made in an appeal from a final decision of a board of zoning adjustment, and (2) whether the trial court's dismissal of the Leigebers' appeal tolled the running of the applicable time limitation. We hold that the 10-day time limitation in Rule 38(b) applies to appeals from final decisions of boards of zoning adjustment. Furthermore, we conclude that Judge Folsom's dismissal of the Leigebers' appeal tolled the running of the 10-day limitation until their appeal was reinstated. Accordingly, we grant the petition for the writ of mandamus.
Brad and Charlie Eidson sought a variance from the City of Cullman board of zoning adjustment for lot 400 on the corner of First Avenue and Sixth Street in Cullman, Alabama. The Leigebers and other surrounding landowners opposed the variance. Ultimately, however, the board approved the variance.
On March 30, 1992, the Leigebers appealed the board's decision to the Cullman County Circuit Court, pursuant to § 11-52-81, Ala.Code 1975,[1] and § 106.0 of the Cullman City Zoning Ordinance.[2] On the same day, the Eidsons moved the court to dismiss the appeal, and then they moved to intervene. On April 3, 1992, Judge Folsom dismissed the appeal, but then, on April 24, 1992, he reinstated the case and granted the Eidsons' motion to intervene.
On April 28, 1992, the Leigebers amended their notice of appeal to demand a jury trial. This amendment, which included the jury demand, was filed within 30 days of the initial notice of appeal. Also, the Leigebers filed a separate written demand for a jury trial on the same day they amended their notice of appeal.
On May 5, 1992, the Eidsons filed a motion in opposition to the Leigebers' demand for jury trial. The Eidsons asserted that the jury demand was not timely filed under Rule 38(b), Ala.R.Civ.P. On May 8, 1992, Judge Folsom entered an order striking the Leigebers' demand for a jury trial. In this order, Judge Folsom found that the Cullman board of zoning adjustment was an "inferior court" within the meaning of the second paragraph of Rule 38(b). Therefore, he held that the Leigebers had to file their demand for jury trial within 10 days of their notice of appeal, rather than within 30 days.
The Leigebers then petitioned the Court of Civil Appeals for a writ of mandamus. That court denied the writ, with an opinion. Ex parte Leigeber, 608 So. 2d 404 (Ala.Civ.App. 1992). The Leigebers now petition this Court for the writ of mandamus.
Rule 38(b), Ala.R.Civ.P., reads:
(Emphasis and paragraph numbers supplied.)
The Leigebers argue that a board of zoning adjustment is not a "court" and, therefore, is not "an inferior court" contemplated by paragraph 2 of Rule 38(b). Therefore, the Leigebers argue, a jury demand in an appeal from a final decision of a board of zoning adjustment is governed by paragraph 1 of Rule 38(b) and, thus, they argue, Judge Folsom clearly erred in striking their jury demand filed within the 30-day limitation of paragraph 1.[3]
In opposition, the Eidsons urge a holistic reading of Rule 38(b). According to the Eidsons, paragraph 1 of Rule 38(b) deals with actions commenced in the circuit court and that paragraph gives a party 30 days to demand a jury trial, while paragraph 2, they say, deals with actions appealed to the circuit court or brought there by petition for certiorari review and that paragraph gives a party only 10 days to demand a jury trial. This case, according to the Eidsons, was appealed to the circuit court, and, they argue, the 10-day limitation applies.
We find the Eidsons' argument regarding Rule 38(b) persuasive. Clearly, paragraph 1 deals with cases originally filed in the circuit court and paragraph 2 deals with cases brought there by appeal or petition for writ of certiorari. To focus merely on whether a board of zoning adjustment is "an inferior court" is to ignore the obvious tenor of Rule 38(b).
Furthermore, the statutory predecessors of Rule 38(b) clearly contemplated this same distinction between cases originally filed in circuit court and cases coming there by appeal or petition for certiorari review. Title 7, § 260, Ala.Code 1940 (Recomp.1958), is the functional equivalent of paragraph 1 of present Rule 38(b), and Title 7, § 264, Ala.Code 1940 (Recomp.1958), is the functional equivalent of paragraph 2 of Rule 38(b).
In pertinent part, Title 7, § 260, Ala.Code 1940 (Recomp.1958), states:
(Emphasis supplied.)
Title 7, § 264, Ala.Code 1940 (Recomp.1958), states:
(Emphasis supplied.)[4]
Additionally, Moore v. City of Mobile, 248 Ala. 436, 28 So. 2d 203 (1946), and City of Florala v. McLeod, 216 Ala. 351, 113 So. 312 (1927), are persuasive. Moore concerned an appeal from a probate court's ruling in a condemnation proceeding. City of Florala concerned an appeal from a city council ruling assessing the cost of city improvements to neighboring landowners. Both cases applied a 10-day limitation (Title 7, § 264, Ala. Code 1940, in Moore; and § 8596, Ala.Code 1923, in City of Florala) to a jury demand in an appeal from a judgment entered by a body closely analogous to a board of zoning adjustment.
At the oral argument in this case, and for the first time, the Leigebers argued that even if this Court held that the 10-day requirement of Rule 38(b) applied in this case, they, nonetheless, had met that 10-day requirement. The Leigebers argue that Judge Folsom's dismissal of their appeal tolled the running of the 10-day limitation until the appeal was reinstated, because they could not have made a jury demand while the appeal was not pending. This argument has merit.
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 Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991). Although the Leigebers did not raise this tolling argument before Judge Folsom, they did "seek an order" to which they had a clear legal right.
WRIT GRANTED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Section 11-52-81 states:
"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 by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo."
[2] Section 106.0 of the Cullman City Zoning Ordinance states:
"Any party aggrieved by any final judgment or decision of such Board of Zoning Adjustment, may within fifteen (15) days thereafter appeal therefrom to the circuit court or court of Cullman County, filing with such board a written notice of appeal specifying the judgment or decision from which appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the cause to be certified to the court to which the appeal is taken and the cause in such court to be tried de novo."
[3] Stressing the "vested exclusively" language in § 12-1-2, Ala.Code 1975, the Leigebers also argue that the only "courts" allowed in Alabama are appellate, circuit, district, probate, and municipal courts.
Additionally, the Leigebers cite Lambert v. Board of Appeals, 295 Mass. 224, 3 N.E.2d 784 (1936), as persuasive authority. In Lambert, the Massachusetts Supreme Court held that boards of appeal, the functional equivalent of zoning boards of adjustment, are quasi-judicial administrative boards, but not courts.
[4] An examination of the pertinent provisions of the 1923 Code further strengthens our reading of Rule 38(b). Sections 8593, 8594, and 8595, Ala. Code 1923, state:
"[§ 8593] In all civil cases at law in the circuit court, the issue and question of fact shall be tried by the judge of the court without the intervention of a jury, unless a jury trial be demanded in writing by the plaintiff at the commencement of the suit, or by the defendant or any other party occupying the position of defendant or claimant within thirty days after the perfection of service on him."
"[§ 8594] If the plaintiff desires a trial by jury he shall indorse in writing his demand therefor on the summons and complaint, the attachment or other process or paper filed by him for the purpose of instituting the suit, or by filing a separate written demand with the clerk of the court at the commencement of the suit."
"[§ 8595] If the defendant or other person occupying the position of defendant or claimant desires a trial by jury, he shall file a written demand therefor with the clerk of the court within thirty days after the perfection of service on him, by indorsing such demand upon his initial pleading or by a separate instrument."
It is significant, too, that § 8596, Ala.Code 1923, states:
"In all causes in the circuit court brought by appeal or certiorari from judgments of justices of the peace or other inferior courts, the issue and question of fact shall be tried by the judge of the court without the intervention of the jury unless a demand for a trial by jury be made in writing and filed in the cause by the party suing out the appeal or certiorari within ten days after suing out the same, or filed in the cause by the opposite party within ten days after he has been served with notice of the appeal or certiorari." | June 25, 1993 |
782e6217-7e88-4aee-ac56-cc3af1b3aad6 | Steel Processors v. Sue's Pumps, Inc. | 622 So. 2d 910 | 1920235 | Alabama | Alabama Supreme Court | 622 So. 2d 910 (1993)
STEEL PROCESSORS, INC.
v.
SUE'S PUMPS, INC. RENTALS, a corporation.
1920235.
Supreme Court of Alabama.
June 18, 1993.
J. Donald Banks of Loveless, Banks & Lyons, Mobile, for appellant.
Paul W. Brock and Archibald T. Reeves IV of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
Steel Processors, Inc., appeals from the judgment of the Mobile Circuit Court dismissing its complaint alleging breach of contract against Sue's Pumps, Inc. Rentals ("Sue's Pumps"), for lack of personal jurisdiction. We affirm.
*911 Steel Processors is an Alabama corporation based in Mobile County. It received a request in January 1991 for bid quotations on labor and materials for repairs to be made on a barge in Green Cove Springs, Florida, owned by Great Lakes Dredge & Dock ("Great Lakes"). Steel Processors sent a bid dated February 4, 1991, to Great Lakes in Oak Brook, Illinois, and was told to send a written quotation to Sue's Pumps. Steel Processors then sent a duplicate quotation dated February 15, 1991, to Sue's Pumps in Pompano Beach, Florida. Dennis Scales, a Sue's Pumps employee, telephoned Steel Processors and informed William Prine, Jr., the president of Steel Processors, that its quotation for repair of the dredge had been accepted, and he advised Steel Processors to go forward with the work as outlined. Prine mailed to Sue's Pumps a copy of Steel Processors' shop order, dated February 25, 1991, indicating a total price of $146,801.13 for the repairs.
Steel Processors fabricated materials in Mobile County for the job, shipped the materials to the job site in Florida, and provided labor and equipment at the job site during the repair work on the barge. While repairs were being made, representatives of Sue's Pumps made several telephone calls to Prine at Steel Processors in Mobile County to discuss the project. After the job was completed, Prine sent an invoice dated March 28, 1991, from Steel Processors to Sue's Pumps, c/o Great Lakes Dredge & Dock in Green Cove Springs, Florida, requesting payment of $146,801.13 for the repair job. Sue's Pumps sent three checks, totalling $105,721.10, to Steel Processors by a privately owned interstate courier service.[1]
Steel Processors filed a complaint and an amended complaint against Sue's Pumps, alleging that Sue's Pumps still owed it $46,801.13 under their work agreement. Sue's Pumps responded with a motion to dismiss, or, in the alternative, to quash service, alleging that it was a Florida corporation that did not do business in Alabama and was not subject to service of process in Alabama. The trial court granted the motion to dismiss.
The sole issue in this case is whether the Mobile Circuit Court has personal jurisdiction over this nonresident defendant. Jurisdiction of the Alabama courts extends to the permissible limits of due process under our long-arm rule, Rule 4.2, Ala.R.Civ.P.; Dillon Equities v. Palmer & Cay, Inc., 501 So. 2d 459, 461 (Ala.1986). Rule 4.2(a)(2) provides in relevant part:
Whether a court has personal jurisdiction over a nonresident defendant must be determined on a case by case basis. "[T]he relevant facts and attendant circumstances must be examined and the relationship among the defendant, the forum, and the litigation analyzed to determine if the defendant has sufficient `minimum contacts' so that `the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."'" Dillon Equities, supra, 501 So. 2d at 461, quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
The foreseeability of the consequences of the defendant's activities is crucial to this analysis. To establish the necessary contacts, there must be a firm nexus *912 between the acts of the defendant and the consequences complained of. Duke v. Young, 496 So. 2d 37, 39 (Ala.1986). "The fundamental question is, did the defendant act in such a manner that he reasonably ought to anticipate the direct consequences of his actions to be felt by another person residing in another state?" Id. Keelean v. Central Bank of the South, 544 So. 2d 153 (Ala.1989), set out a two-part analysis for determining whether an Alabama court can exercise personal jurisdiction over a nonresident defendant:
Id. at 156-57.
Steel Processors argues that it was foreseeable to Sue's Pumps that it would be sued in Alabama because, it contends, Sue's Pumps placed a request with, and entered a contract with, an Alabama business for materials and labor; its representatives made telephone calls to Steel Processors in Alabama while the repair job was being done; it received materials fabricated in, and sent from, Alabama; and it made partial payments into Alabama on its debt.
Steel Processors further argues that Sue's Pumps had sufficient contacts with Alabama because, it contends, Sue's Pumps was an integral part of the transaction giving rise to Steel Processors' claim; its representatives had telephone conversations with persons in Alabama; it sent correspondence to Alabama; and it received money sent from Alabama.
The facts of this case fall squarely between those of Ex parte Lord & Son Constr., Inc., 548 So. 2d 456 (Ala. 1989), in which we affirmed the trial court's holding that personal jurisdiction was proper over a nonresident defendant, and those of White-Spunner Constr., Inc. v. Cliff, 588 So. 2d 865 (Ala.1991), in which we affirmed the trial court's dismissal for lack of jurisdiction. Therefore, we will look to these and other cases to determine if the limits of due process warrant the exercise of personal jurisdiction over Sue's Pumps based on the facts in this case.
We found a lack of personal jurisdiction over the nonresident defendant in White-Spunner because his contacts with the state were so minimal that it was not foreseeable under the facts of that case that he would be sued in Alabama. White-Spunner, an Alabama corporation, was the general contractor for the construction of a shopping center in Georgia. It hired Cliff, a Georgia resident, to do the masonry work on the project. The contract hiring Cliff was negotiated and executed in Georgia; the construction project was in Georgia; Cliff was paid in Georgia and sent no goods, services, or payments out of Georgia; and the direct consequences on any default by Cliff would be felt in Georgia and not in Alabama. Cliff had no other contracts with Alabama corporations, and made only one telephone call into Alabama to speak with a White-Spunner representative. White-Spunner, supra, at 867. Because of the lack of contacts and the absence of foreseeability, personal jurisdiction did not extend to the nonresident defendant.
In Ex parte Lord & Son, jurisdiction was proper because the acts of the nonresident defendant indicated that it "reasonably ought to anticipate the direct consequences of [its] actions to be felt by" Alabama residents. 548 So. 2d 456 at 457 (quoting Duke v. Young, supra, at 39). There, Alabama Electric, an Alabama company, supplied materials to a Florida subcontractor that had contracted with a Florida general contractor to do electrical work on a construction project in Florida. Lord & Son, the general contractor, agreed to issue joint checks to the subcontractor and to Alabama Electric, and issued several checks that were jointly payable, before writing a check to the Florida subcontractor alone for the balance due. In response to an inquiry by the Alabama supplier about its past due balance, the president of Lord & Son wrote the Alabama supplier and assured it that Lord & Son would *913 resolve the matter, and thereby "voluntarily undertook responsibility for payment to Alabama Electric of the balance due." Ex parte Lord & Son, 548 So. 2d at 457. We upheld jurisdiction because, by its action guaranteeing payment of the debt, combined with its action in issuing jointly payable checks, the nonresident defendant "could reasonably have anticipated being sued in Alabama." Id.
In Millette v. O'Neal Steel, Inc., 613 So. 2d 1225 (Ala.1992), we upheld jurisdiction because the defendants' actions indicated that a suit in Alabama was foreseeable, and because the requisite degree of contact with the state was established. The Millettes, Mississippi residents, owned Fabricators, Inc., a Mississippi corporation located in Pascagoula, Mississippi. O'Neal Steel sold steel products from its principal place of business in Birmingham, Alabama, to Fabricators in Mississippi. O'Neal negotiated a line of credit with Fabricators, in exchange for which the Millettes guaranteed Fabricators' debt to O'Neal; the guaranty agreement was executed in Mississippi. One of the Millettes and two other representatives of Fabricators travelled to Birmingham to discuss modifications to the credit agreement with representatives of O'Neal. We found that it was foreseeable that the Millettes would be held accountable on the guaranty in the state of Alabama because one of the nonresident defendants attended negotiations in Alabama about matters that became central to the lawsuit, and because the Millettes knew they were guaranteeing debts for the purchase of steel from a corporation located in Alabama. Furthermore, we held that the Millettes' "conduct in negotiating the line of credit, executing the guaranty, and negotiating its modification" constituted sufficient contacts for the exercise of in personam jurisdiction within the limits of due process. Millette v. O'Neal Steel, supra.
Federal courts have held that, in the absence of other factors tending to support jurisdiction, "a mere one-time purchaser of goods from a seller in a forum state cannot be constitutionally subject to the exercise of personal jurisdiction by the courts of the forum state." Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055, 1059 (11th Cir.1986), citing Owen of Georgia, Inc. v. Blitman, 462 F.2d 603 (5th Cir.1972). "The use of interstate facilities (telephone, the mail), [and] the making of payments in the forum state ... are secondary or ancillary factors and cannot alone provide the `minimum contacts' required by due process." Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir.1982) (emphasis added).
The Supreme Court has held that the Due Process Clause did not preclude a California court from exercising jurisdiction over a Texas insurance company that had initiated contact with a California resident by mailing to him in California an offer of insurance. McGee v. International Life Ins. Co., 355 U.S. 220, 221, 78 S. Ct. 199, 200, 2 L. Ed. 2d 223 (1957). The Court determined that "[i]t is sufficient for purposes of due process that the suit was based on a contract which had substantial connections with that State." Id. at 223, 78 S. Ct. at 201.
There is no evidence that Sue's Pumps initiated contact with Steel Processors. To the contrary, the affidavit of Steel Processors' president, William Prine, indicates that after he sent his first bid for the repair job to Great Lakes, he "was informed that Sue's Pumps was the contractor on that job," and that thereafter he sent a quotation on behalf of Steel Processors to Sue's Pumps in Florida. C.R. 26, 29. The contract was for repair work to be performed in Florida, and for materials, services, and equipment to be delivered to Florida pursuant to the performance of that work. The purchase of goods fabricated in a forum state, and of services provided by a resident corporation of a forum state, does not alone provide the requisite "minimum contacts" for exercise of personal jurisdiction within the bounds *914 of due process. See Borg-Warner Acceptance Corp., supra, at 1059; and Scullin Steel, supra, at 313-14, and cases cited therein.[2]
There is no evidence that Sue's Pumps had contacts with Alabama other than those it had with Steel Processors during the repair work on the barge in Florida. These contacts were limited to a series of telephone calls concerning the repair job in Florida, and the sending of checks to Steel Processors in Alabama. We hold that it was not foreseeable under these facts that Sue's Pumps would be sued in Alabama, because we do not find sufficient contacts with Alabama to establish personal jurisdiction here. Nothing in the record indicates that Sue's Pumps initiated contact with Steel Processors; the repair project in Florida was developed by an Ohio business; the repairs were made in Florida; and no goods or services went out of Florida. Although Sue's Pumps did send payments for the repairs to Steel Processors in Alabama, and although its representatives made several telephone calls to Steel Processors in Alabama, this is insufficient to qualify as "conduct and connection with the forum State such that [Sue's Pumps] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 562, 62 L. Ed. 2d 490 (1980).
Moreover, we find that the requisite minimum contacts with Alabama are not established by the dealings Sue's Pumps had with Steel Processors. The Mobile Circuit Court correctly determined that it lacked in personam jurisdiction.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] The checks were made out for the amounts $100,000, $3000, and $2721.10.
[2] Scullin relies on Lakeside Bridge & Steel Co. v. Mountain State Constr. Co., 597 F.2d 596 (7th Cir.1979), for the proposition that performance by the plaintiff within the forum state of a contract for the manufacture of goods does not, by itself, establish jurisdiction when the contract does not require manufacture within the forum state, even when the nonresident defendant is aware that the manufacturing facility is within the forum state. Scullin Steel, supra, at 313 & n. 5; 597 F.2d at 601. Although this rule may seem harsh, due process concerns remind us that "[t]he critical relationship is that `among the defendant, the forum, and the litigation.'" Scullin Steel, supra, at 313, quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 2579, 53 L. Ed. 2d 683 (1977). The fabrication of materials in Alabama by Steel Processors represents "unilateral activity of those who claim some relationship with a nonresident defendant [and] cannot [alone] satisfy the requirement of contact with the forum State." Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40, 2 L. Ed. 2d 1283 (1958). | June 18, 1993 |
97f7681a-2296-48fa-ad32-8bcde5d37b64 | Gibson v. Southern Guar. Ins. Co. | 623 So. 2d 1065 | 1920095 | Alabama | Alabama Supreme Court | 623 So. 2d 1065 (1993)
Jalone GIBSON
v.
SOUTHERN GUARANTY INSURANCE COMPANY, et al.
1920095.
Supreme Court of Alabama.
June 25, 1993.
*1066 Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellant.
Reggie Copeland, Jr. and Michael C. Niemeyer of Lyons, Pipes & Cook, P.C., Mobile, for Southern Guar. Ins. Co., Inc.
Wade B. Perry, Jr. of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for Med-Manage, Inc. and Roberta Shaw.
SHORES, Justice.
Jalone Gibson appeals from a summary judgment entered for the defendants, Southern Guaranty Insurance Company, Inc. ("SGI"), Med-Manage, Inc., and Roberta Shaw. We affirm.
Mr. Gibson was injured on the job while working for American Sign Company on May 11, 1989, when a falling ladder struck his head. SGI, the workers' compensation carrier for American Sign, hired Med-Manage to manage the medical aspects of Gibson's workers' compensation claim. Med-Manage assigned Roberta Shaw as Gibson's medical case coordinator. Gibson visited a series of physicians during his evaluation, treatment, and rehabilitation following his injury.[1]
Gibson sued on July 30, 1991, alleging the tort of outrageous conduct, bad faith, fraud, conspiracy, and negligence and wantonness in the manner in which the defendants had handled his need for psychological testing and treatment that arose out of his workplace injury. The trial court granted SGI's Rule 12(b)(6), A.R.Civ.P., motion to dismiss as to the bad faith and conspiracy claims, on September 20, 1991. SGI, Med-Manage, and Shaw each moved for a summary judgment. The trial court entered a summary judgment in favor of all defendants as to all remaining claims on September 14, 1992. Gibson appeals from that judgment.
The exclusivity provisions of the Alabama Workers' Compensation Act limit the liability of the workers' compensation insurer to those claims prescribed under the statute for job-related injuries. Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90, 92 (Ala.1989). These exclusivity provisions, however, do not "shield an employer or its insurer from the entire field of tort law." Id. This Court has recognized that the intentional tort of outrageous conduct and the tort of intentional fraud are not barred by the exclusivity provisions of the Act and can exist in a workers' compensation setting. Id. at 95; Farley v. CNA Insurance Co., 576 So. 2d 158, 159 (Ala.1991); Tittle v. Custard Ins. Adjusters, 590 So. 2d 880, 881 (Ala.1991). Because Gibson's claims, other than those alleging intentional fraud and the tort of outrage, are barred by the exclusivity provisions of the Act, we affirm the summary judgment as to those claims.
Did the trial court err in entering the summary judgment on the outrageous conduct claim? The type of conduct that could give rise to liability for outrageous conduct is outlined in the seminal case of American Road Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala.1980). A person must "by extreme and outrageous conduct intentionally and recklessly cause[ ] severe emotional distress to another" to be liable for the tort of outrage. Id.
Id. (citations omitted).
Gibson contends that the defendants' course of conduct in handling his medical treatment constitutes outrageous conduct. *1067 We disagree. The trial court must determine, in the first instance, whether recovery for outrageous conduct is warranted. Continental Casualty Ins. Co. v. McDonald, 567 So. 2d 1208, 1221 (Ala.1990), citing Inmon, supra, at 365. After carefully reviewing the evidence, we conclude that it does not meet the standard for outrageous conduct.
The record reveals that, in the course of evaluation and treatment for his injury, Gibson was referred to a multitude of physicians. Dr. Charles E. Herlihy, a psychiatrist, examined Gibson and, in February 1990, recommended that SGI approve neuropsychological evaluation and support therapy to assist in the treatment of depression and anxiety apparently caused by Gibson's injury. Due to a series of misunderstandings, delays, and breakdowns in communication, Gibson did not receive the neuropsychological evaluation until October 1990.
Shaw informed SGI that Gibson had told her on April 2, 1990, that he was no longer depressed and did not need to return to see Dr. Herlihy. Gibson later denied having told Shaw that he did not desire psychotherapy. Gibson was examined by a psychiatrist, Dr. Claude L. Brown, in October 1990. After a neuropsychological evaluation, Dr. Brown diagnosed Gibson as having mild somatization disorder and recommended that he return to light work and undergo supportive psychotherapy.[2] SGI's claims adjuster, Virginia Farrior, informed Gibson's attorney in December 1990 that Gibson's future medical treatment would remain open, that psychotherapy was not pursued because Gibson had earlier stated he was not depressed and did not want to continue seeing Dr. Herlihy, and that SGI would provide psychotherapy treatment if Gibson so desired.
Gibson was not allowed to see the doctor of his choice, because SGI would pay only for his visits to those physicians approved by SGI. A workers' compensation insurer has a statutory right to select which physicians a claimant will receive coverage for, § 25-5-77; thus, in selecting Gibson's physicians, SGI was insisting upon its legal rights in a permissible way, and for doing so it is not liable in an action alleging outrageous conduct. Garvin v. Shewbart, 564 So. 2d 428, 429, 431 (Ala.1990). Because the evidence tends to show that Gibson's difficulties in obtaining the medical care he desired were the result of ordinary delays, misunderstandings, and breakdowns in communication at least as much as it tends to show that his difficulties were due to any deliberate attempt by the defendants to deny him further medical care, the summary judgment is due to be affirmed as to the claim of outrageous conduct. Garvin, supra, at 431.
Did the trial court err in entering the summary judgment on the claim of intentional fraud? In order to overcome the defendants' prima facie showing that there was no genuine issue of material fact in regard to this claim and thereby send this claim to the jury, Gibson must present not just "substantial evidence," § 12-21-12(d), but "clear and convincing" evidence that the defendants intended to defraud him in their handling of his claim. Tittle, supra, at 881. We are mindful that, "in carving out this exception [to the Workers' Compensation Act] for allowing intentional tort claims ..., we are constrained, in accommodation to the exclusivity provisions of the Act, to rule out all questionable claims." Lowman, supra, at 95. Although we must view the evidence in the light most favorable to Gibson, as the non-movant, we cannot say that Gibson presented clear and convincing evidence that the defendants committed intentional fraud against him that would allow the case to go before a jury.
We further note that the alleged fraud concerned future acts, i.e., the intent of SGI to refuse future psychological treatment, and, thus, that Gibson must prove the elements of promissory fraud to withstand a motion for summary judgment. We do not find sufficient evidence that, at the time it made any alleged misrepresentations, SGI intended not to do the acts promised, and that the misrepresentations were made with the intent to deceive Gibson. See Vance v. Huff, 568 So. 2d 745, 750 (Ala.1990). In fact, SGI offered *1068 to provide Gibson with psychotherapy if he so desired, although the offer occurred nearly a year after such treatment was first recommended by Dr. Herlihy.
We must conclude also, then, that the court properly entered the summary judgment as to the fraud claim. The summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.
KENNEDY, J., concurs in part and dissents in part.
KENNEDY, Justice (concurring in part; dissenting in part).
I agree with the majority that the plaintiff presented inadequate evidence of "outrageous conduct." Accordingly, I concur with the majority as to that claim. I respectfully dissent, however, as to the majority's handling of Gibson's claim of intentional fraud. It appears to me that the majority does not view the evidence here "in a light most favorable to the nonmovant," Gibson. Assessing the evidence in a light most favorable to Gibson, I believe he did produce evidence legally sufficient to create a genuine issue of material fact. I would hold that a jury must decide this claim.
[1] Gibson's primary treating physician, Dr. William S. Fleet, determined that Gibson had reached maximum medical improvement, with a 5% permanent partial impairment because of cervical strain, before Gibson filed this action. Gibson returned to full-time work in May 1991.
[2] Somatization disorder occurs when a person converts emotional symptoms into physical complaints. | June 25, 1993 |
5d9c4d30-9ee6-42b1-895b-64c47406fe03 | Ex Parte Howington | 622 So. 2d 896 | 1910946 | Alabama | Alabama Supreme Court | 622 So. 2d 896 (1993)
Ex parte William David HOWINGTON.
(Re William David Howington v. State).
1910946.
Supreme Court of Alabama.
June 18, 1993.
*897 Earnest Ray White, Brewton, for petitioner.
James H. Evans, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted certiorari review in this case to determine whether the Court of Criminal Appeals erred in affirming the petitioner's sentence as a habitual felony offender. The specific question presented is whether the petitioner received sufficient notice of prior felonies the State intended to use to enhance his sentence under Rule 26.6(b)(3)(ii), Ala.R.Crim.P., prior to the time of his initial sentencing, in view of the fact that the initial sentence was set aside on the State's motion. We find that the petitioner had sufficient notice that the State intended to use three prior felonies to enhance his sentence.
In his petition for the writ of certiorari, the petitioner contends that the opinion of the Court of Criminal Appeals conflicts with prior decisions of this Court because, he says, the Court of Criminal Appeals held "that the trial court properly allowed the introduction of three prior felony convictions against the Defendant for purposes of enhancing sentencing at a second sentencing hearing where no notice of the three convictions was given prior to the sentencing [of] the Defendant at an initial sentencing hearing which was set aside by the court."
The pertinent facts are straightforward. The defendant, William Howington, was indicted, tried, and convicted of theft of property in the first degree for stealing a tractor-trailer truck. On November 1, 1989, the trial court sentenced Howington to life imprisonment. The sentence was based on certified copies of three prior felony convictions from Florida.
On November 2, 1989, the State moved the trial court to set aside the sentence so that it could serve Howington with written notice of its intent to use the three convictions for enhancement. The trial court granted the State's motion to set aside the sentence and, on November 9, 1989, the trial court conducted a second sentencing hearing, and again sentenced Howington to life imprisonment based on the Habitual Felony Offender Act.
On appeal, the Court of Criminal Appeals approved the trial court's order setting aside the first sentence and affirmed the second sentence, holding as follows:
"Although the appellant cites Ex parte Williams, 510 So. 2d 135 (Ala. 1987), Ex parte Glover, 508 So. 2d 218 (Ala. 1987), and Pardue v. State, 571 So. 2d 320 (Ala. Cr.App.1989), reversed on other grounds, 571 So. 2d 333 (Ala.1990), this case is factually distinguishable. In the present case, the resentencing hearing was held pursuant to the State's motion one day following the original sentencing hearing.
Howington v. State, 574 So. 2d 1041, 1042 (Ala.Cr.App. 1990). After examining the applicable law[1] and the record, especially the transcript of the record of the first sentencing hearing,[2] we conclude that the State gave Howington "notice" of its intent to use three prior felonies to enhance his sentence.[3] Consequently, we affirm the judgment of the Court of Criminal Appeals. Having concluded that Howington received adequate notice, as required by Rule 26.6(b)(3), we need not address the question whether the Court of Criminal Appeals correctly held that the State, even if it has not given notice as required by Rule 26, can nevertheless request the trial court to set aside a sentence so that it can comply with the provisions of Rule 26, so long as the case has not been appealed.[4]
In Ex parte Williams, 510 So. 2d 135, 136 (Ala.1987), this Court stated:
"We hold that in order to sentence a criminal defendant under the Habitual Felony Offender Act, the Act must be *899 invoked prior to the defendant's original sentencing, as mandated by Rule 6 of the Temporary Rules of Criminal Procedure [now Rule 26.6(b)(3)(ii) of the new rules]. Furthermore, a sentence may not be subsequently set aside because of a failure to apply the Habitual Felony Offender Act."
Williams states the law regarding the timeliness of the notice of an intent to invoke the provisions of the Habitual Felony Offender Act, that is, that it must be given within a reasonable time before sentencing, but in Williams there was no showing that the defendant had admitted, before sentencing, the commission of the prior felonies used to enhance his sentence, such as is presented here. Cf. Wilson v. State, 428 So. 2d 197, 201 (Ala.Cr.App.1983), in which the Court of Criminal Appeals held that "[t]he notice required by [Temporary] Rule 6(b)(3)(ii) of the Alabama Rules of Criminal Procedure [now Rule 26.6(b)(3)(ii) ], is for the purpose of alerting the accused as to the prior convictions upon which the prosecution will rely to enhance the punishment." The court said: "Where the accused admits the prior felony conviction in his testimony, as is the case here, the necessity for the notice is obviated." (Emphasis supplied.) Since deciding Wilson, the Court of Criminal Appeals has consistently adhered to the "admission of prior convictions" rule. See Petite v. State, 520 So. 2d 207 (Ala.Cr.App.1987); Nesbitt v. State, 531 So. 2d 37 (Ala.Cr.App. 1987); Webb v. State, 539 So. 2d 343 (Ala. Cr.App.1987); Humber v. State, 481 So. 2d 452 (Ala.Cr.App. 1985); and Fisher v. State, 453 So. 2d 2 (Ala.Cr.App. 1984); but see Ex parte Glover, 508 So. 2d 218 (Ala. 1987), a case relied on by the petitioner, in which this Court implicitly recognized that if the defendant had admitted to prior convictions during his trial, then the notice requirement of Rule 26 would have been satisfied. In Glover, the Court noted that the purpose for the "notice" requirement is "to test the propriety of the enhancement of the sentence pursuant to the Act," and held that "[q]uestions of authenticity of the record of conviction; identity of the accused; and whether the accused was represented by counsel upon his prior felony convictions, are all proper inquiries leading to the appropriate application of the Act," and that in Glover, "[t]hese prescribed deficiencies [were] compounded by the trial court's denial of a pre-sentence report." 508 So. 2d at 220-21.
Here, the record shows that Howington admitted to the three prior felony convictions both during trial,[5] and at the initial sentencing hearing.[6]
The Court of Criminal Appeals has held that Rule 26.6(b)(3)(ii), Ala.R.Crim.P., does not require written notice and that a presentence report can satisfy the notice requirement. See Nesbitt v. State, 531 So. 2d 37, 42 (Ala.Cr.App. 1987). Also, that court has held that a determination of how much notice is "reasonable" is a matter left to the trial court's sound discretion. Humber v. State, 481 So. 2d 452 (Ala.Cr.App.1985).
On the question of the sufficiency of the notice here, the record reflects that the State gave Howington prior oral notice of its intent to use the three prior convictions for enhancement purposes. Implicitly, the record also shows that the trial court found that the amount of notice given was reasonable. Furthermore, the record reflects that a presentence report was ordered and *900 that the report listed the prior convictions. According to our understanding of the record on appeal, certified copies of three prior felonies were presented to the court at the initial sentencing hearing, and the petitioner and his counsel received notice of the State's intent to seek enhancement shortly after the jury found him guilty.[7]
Based on the foregoing, we conclude that the State gave Howington adequate notice *901 as required by Rule 26.6(b)(3)(ii). The judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, STEAGALL and KENNEDY, JJ., concur.
HOUSTON, J., dissents.
HOUSTON, Justice (dissenting).
I adopt Judge Bowen's dissent as my dissent.
[1] Section 13A-5-10(a), Ala.Code 1975, states, "The court may conduct a hearing upon the issue of whether a defendant is a repeat or habitual offender under § 13A-5-9, according to procedures established by rule of court." (Emphasis supplied.) Rule 26.6(b)(3)(i) and (ii), Ala.R.Crim.P., state:
"(i) In any case involving an alleged habitual felony offender as provided in Ala.Code 1975, § 13A-5-9, if a hearing is necessary in order to establish the alleged prior conviction or convictions in the record, the court, on its own motion or on a motion of the district attorney or on motion of the defendant, after a determination of guilt, shall hold a hearing at a date to be set by the court.
"(ii) At a reasonable time prior to the hearing, the defendant shall be given notice of the prior conviction or convictions upon which the state intends to proceed."
(Emphasis supplied.)
[2] The record shows that, at the initial sentencing hearing, the court stated: "Mr. Rice [prosecutor], I think you've made it known of the state's intention to have this defendant sentenced pursuant to the Habitual [Felony] Offender Act?" Mr. Rice answered: "That's correct, Your Honor, and we have in hand and I will submit to you certified certificates of judgment in reference to three prior felonies. And we submit those to the court at this time. The state's position being that because of these prior felonies that really there's only one sentence that can be entered in this case and that sentence is life under the Habitual [Felony] Offender Act. The terms of it would dictate a life sentence." The record indicates that the court reviewed these documents before it sentenced the petitioner, that a discussion ensued about marking the documents for introduction into evidence, and that the petitioner's counsel said, "I suggest introducing these as A, B, and C as to sentencing." After further colloquy, the following transpired:
"THE COURT: All right. Mr. Price [petitioner's counsel], have you had an opportunity to review these?"
"MR. PRICE: Yes, sir."
[3] We do not set out the entire colloquy between the trial court, the prosecutor, defense counsel, and the defendant himself, but it is obvious from a reading of the record that Howington knew he would be sentenced as a habitual felony offender and that he knew which felonies the State was going to use. The trial judge stated to him at his allocution that the only sentence the judge could impose, in view of his prior record, was life imprisonment, and that even though the judge would like to impose a less severe sentence the legislature required otherwise.
[4] The facts here show that the State did not admit that the notice of its intent was not adequate. At the beginning of the second sentencing hearing, the trial judge stated the following:
"THE COURT: The State, I believe, without admitting that there was a failure of prior notice, has requested that the defendant be resentenced just to make sure that the notice requirement has been complied with, and has filed a motion for resentencing.
"The court at this time grants that motion.... The court has granted the motion to resentence."
[5] In pertinent part, the record reads:
"Q: [on cross-examination by Mr. Godwin, a district attorney]: Is it your testimony that you didn't intend to steal that truck?
"A: Not to steal it, no, sir.
"Q: But you have served time for stealing before; haven't you?
"A: Yes, sir.
"Q: As a matter of fact, you have been convicted of grand theft in Pensacola, Florida; you've been convicted of unauthorized taking in Brunswick, Maine; and you've been convicted of theft in Sarasota, Florida; haven't you?
"A: Yes, sir.
"Q: You served time for all those offenses, haven't you?
"A: You know, no time just jail time in waiting to go to court and they give me time served.
"Q: You `re not denying you were arrested and you served time for all those offenses, are you?
"A: No, sir."
(R. at 107-08; emphasis supplied.)
[6] See footnote 4, supra.
[7] The following took place after the jury returned its verdict finding Howington guilty of stealing the tractor-trailer truck:
"MR. PRICE: [Howington's attorney]: Your Honor, we would request a presentence investigation and [that] the defendant be continued under the existing bond.
". . . .
"THE COURT: The only question I have, and I don't know what the answer is to it, and I've investigated it, what is the possible range of sentence that he can receive at this point if he has prior felonies?
"I know once I sentence him if it's less than 20, of course, he is entitled to bond as a matter of right pending appeal. But for more than 20 he's not entitled to bond as a matter of right. The gap between conviction and sentencing, I don't know what the law is on that as far as
"MR. PRICE: I don't think it's very clear. I mean, I would represent to the court that three or more that the minimum would be 15 years.
"MR. GODWIN: [district attorney]: No, three or more the minimum sentence is life, if it's three or more.
"THE COURT: Yeah, two or more it would be 15; three or more life.
"MR. PRICE: It's a B.
"THE COURT: Yeah. That's what it would be for two would be 15 to 99 or life, and for three it would [be] life.
"MR. GODWIN: Your Honor, the State does have notice of a number of convictions, however they are notthe State is not satisfied that they are properly authenticated, so we would not want to represent that we can meet the burden of showing sufficient convictions. We do have notice of these but not enough, as I said, to meet the requirements under the law to enhance with these today.
"MR. PRICE: Two other charges pending and there's bonds in both those charges, Your Honor.
". . . .
"MR. GODWIN: Your Honor, the State would want to be heard even though we may not have the evidence to sustain the enhancement. We feel [that we] are much more familiar with his background than we were at the time of his arrest since these were out of state and we would want to be heard on his extensive arrest record."
(R. at 138-40.)
At the first sentencing hearing on November 1, 1989, the following colloquy occurred:
"THE COURT: Let's go on the record in this case. This [is the case of] the State of Alabama versus William David Howington, CC-89-06. Mr. Howington was tried by a jury on June 16, 1989. The jury verdict of guilty as charged in the indictment was returned by the jury. Sentencing was deferred and pre-sentence report was ordered by this court.
"First of all, let me say that the court enters judgment in accordance with the jury verdict rendered in this case. And I have reviewed the pre-sentence report.
"Mr. Rice, I think you've made it known of the State's intention to have this defendant sentenced pursuant to the Habitual [Felony] Offender Act?
"MR. RICE: That's correct, Your Honor, and we have in hand and I will submit to you certified, properly certified certificates of judgment in reference to three prior felonies. And we submit those to the court at this time. The State's position being that because of these prior felonies that really there's only one sentence that can be entered in this case and that sentence is life under the Habitual [Felony] Offender Act. The terms of it would dictate a life sentence.
"It was a grand theft case that you're looking at, Judge. And then the one underneath it is from Pensacola and [there are] two felonies upon which he was convicted.
"The pre-sentence report mentions some others from, I believe, the state of Maine but the probation officer was unable to get all the proper authentication on those. But they, I believe, are mentioned in your pre-sentence report. But these are the ones the State takes the position we do have the appropriate paperwork. Each one shows he was represented by counsel. And we contend that they are properly certified under the requirements of the law for the enhancement and habitual offender purposes of the statute.
"THE COURT: All right. Let me look these over just a moment.
". . . .
"MR. RICE: Judge, then the State submits to you as State's Exhibit A, which is a certified and authenticated copy of judgment and sentence from Sarasota County, Florida, against Mr. Howington for grand theft in the second degree, the 28th day of August, 1979.
"And then Exhibit B, a certificate from Escambia County, Florida, and it shows conviction on the 5th day of July, 1978, for burglary; and then secondly, grand theft.
"THE COURT: Okay.
"MR. RICE: Each of such shows representation by counsel.
"THE COURT: All right. Mr. Price have you had an opportunity to review these?
"MR. PRICE: Yes, sir."
(R. at 143-46; emphasis supplied.) | June 18, 1993 |
481c715c-7cb3-4a7a-a12d-ad42b481e118 | Jones v. BRADFORD, THROUGH BRADFORD | 623 So. 2d 1112 | 1911704 | Alabama | Alabama Supreme Court | 623 So. 2d 1112 (1993)
Dr. L. Alan JONES
v.
Tabitha BRADFORD, a minor, suing Through Jackie BRADFORD as her father and next friend.
1911704.
Supreme Court of Alabama.
June 30, 1993.
*1113 W. Stanley Rodgers and M. Ann Wagner of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
J. Allen Brinkley of Brinkley Chestnut & Aldridge, Huntsville, for appellee.
ALMON, Justice.
Dr. Alan Jones appeals from a judgment based on a jury verdict in favor of the plaintiff, Tabitha Bradford, in her medical malpractice action. The issue for our review is whether the trial court erred in failing to grant Jones's motion for a j.n.o.v., or his alternative motion for a new trial, on the basis that Bradford had failed to establish, through expert testimony, a breach of the applicable standard of care by Dr. Jones.
Tabitha Bradford was referred to Dr. Jones, an orthodontist, by Dr. Ernest Flowers, her regular dentist, in the summer of 1989 after Flowers noticed the crowded condition of her teeth. Dr. Jones examined Tabitha and formulated a plan to correct her dental problems; this plan included the extraction of four of Tabitha's permanent teeth. Dr. Jones wrote a letter to Dr. Flowers outlining the entire treatment plan on October 16, 1989; this letter indicated that teeth numbered 5, 12, 21, and 28[1] were to be extracted. On that same day, Dr. Jones sent a memo to Dr. Flowers specifically instructing him to remove teeth 5 and 12; Dr. Flowers testified at trial that he never received this memo.
Dr. Flowers extracted teeth 5 and 12 on October 21, 1989. Tabitha returned to Dr. Flowers's office on November 27, 1989, and Dr. Flowers extracted tooth 21. Tabitha did not return to Dr. Flowers's office until March 29, 1990. At that time Dr. Flowers noticed additional crowding in Tabitha's mouth, and he sent Tabitha back to Dr. Jones for another checkup before extracting any more teeth. On April 4, 1990, Dr. Jones examined Tabitha and wrote a memo to Dr. Flowers instructing him to extract teeth 21 and 29[2]; in that memo Dr. Jones wrote out the proper names for the two teeth in addition to referring to them by number.
On April 16, 1990, Dr. Flowers extracted tooth 29 and a tooth that he testified was in the position of tooth 21; this tooth was in fact number 20. After discovering that tooth number 20 had been mistakenly extracted, thereby leaving a large space on the left side of her mouth, Tabitha, through her father as next friend, brought this action under the Alabama Medical Liability Act of 1987, codified *1114 at Ala.Code 1975, § 6-5-540 et seq., against both doctors.
At trial, Dr. Flowers testified that he does not extract permanent teeth in children without the express authorization of an orthodontist. Dr. Flowers also testified that teeth 20 and 21 look very similar, and that he was merely following Dr. Jones's instructions to extract the tooth in the position of tooth 21. Dr. Flowers stated that this practice was warranted because tooth number 20 had drifted into the position of tooth number 21 after he had removed tooth number 21 in November 1989. Dr. Flowers further stated that when a tooth drifts into the space normally occupied by another tooth, the drifting tooth takes on the number of the position that it eventually occupies. Dr. Flowers also stated that he was justified in completely relying on Dr. Jones's instructions, notwithstanding that he had already extracted tooth 21, because Dr. Jones had examined Tabitha himself on April 4, 1990, and therefore could have seen that tooth 21 was missing at that time.
Dr. Jones testified that when he examined Tabitha he was unaware that tooth 21 had been extracted. Dr. Jones stated that the reason he did not realize that the tooth he believed to be number 21 was in fact number 20 was that tooth 20 had been impacted beneath tooth 21 when he had examined Tabitha in October 1989: Dr. Jones stated that in April 1990 he believed that this condition had not changed. Dr. Jones stated that had he known that tooth 21 had been extracted, he would not have ordered the extraction of tooth 20. Dr. Jones also testified that there was no evidence that tooth 20 had drifted into the position of tooth 21.
Dr. Joe Charles Strickland testified as an expert witness for Dr. Jones. Dr. Strickland testified that the treatment rendered to Tabitha did not fall beneath the standard of care because, he said, Dr. Jones's opinion that tooth 20 was impacted beneath tooth 21 was reasonable under the circumstances. Dr. Strickland agreed with Dr. Jones that there was no evidence that tooth 20 had drifted into the position of tooth 21. Dr. Strickland also testified that Dr. Flowers's explanation that a drifting tooth assumed the number of the space that it occupies was inaccurate.
Dr. Jones moved for a directed verdict at the end of the plaintiff's evidence and again at the close of all the evidence: his contention was that the plaintiff's evidence was legally insufficient because she had failed to establish a breach of the applicable standard of care by expert testimony. The trial court denied both motions and submitted the case to the jury, which returned a verdict against both defendants. Thereafter, Dr. Jones moved for a j.n.o.v. or for a new trial, citing the same legal grounds relied upon in his motion for directed verdict. The trial court denied those motions, and Jones appeals.[3]
In reviewing a trial court's denial of a motion for j.n.o.v., this Court must determine if the nonmoving party produced legally sufficient evidence, or "substantial evidence," of each element of the cause of action, so as to justify submitting the case to the jury. Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala.1988); Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988). "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., 547 So. 2d 870, 871 (Ala.1989).
The standard for reviewing a ruling on a motion for a new trial based on insufficiency of the evidence is somewhat different. The reviewing court must determine if the verdict and the judgment entered thereon are so against the weight of the evidence as to be "plainly and palpably wrong." Richardson v. Joines, 574 So. 2d 787 (Ala.1991); Ex parte Oliver, 532 So. 2d 627 (Ala.1988).
A medical malpractice plaintiff must generally present expert testimony to establish the breach of the applicable standard of care by the defendant health care provider. Ala.Code 1975, § 6-5-548; Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969); Rosemont, Inc. v. Marshall, 481 So. 2d 1126 (Ala. 1985). An exception to this rule exists where *1115 the lack of care is so apparent as to be within the ken of the average layman. This Court has identified four specific situations that do not require that the breach of the applicable standard of care be established by the testimony of a medical expert:
Allred v. Shirley, 598 So. 2d 1347, 1350 (Ala. 1992) (quoting Holt v. Godsil, 447 So. 2d 191 (Ala.1984).
None of these specific exceptions is applicable to this case, and this Court concludes that the issues presented here are not so obvious as to be within the ken of the average layman. The defendant's expert, Dr. Strickland, testified that, given the fact that Dr. Jones had specifically instructed Dr. Flowers in October 1989 to remove only teeth 5 and 12, Dr. Jones's belief that tooth number 20 was still impacted beneath tooth number 21 was reasonable and that Dr. Jones's instruction to remove tooth 21 was not a deviation from the applicable standard of care. The plaintiff did not rebut this testimony with expert testimony to the contrary. This is fatal here, because this is simply not a case involving a blatant and obvious error on the part of the doctor: Dr. Jones's explanation for the error was not patently false, and expert testimony was required to establish that his conduct breached the standard of care, that is, that he did not do what a similarly situated orthodontist would have done in the same or similar circumstances. See Jordan v. Brantley, 589 So. 2d 680 (Ala.1991); Sprowl v. Ward, 441 So. 2d 898 (Ala.1983). Because the plaintiff failed to present substantial evidence on the question of breach of the appropriate standard of care, the trial court erred in failing to grant Dr. Jones's motion for j.n.o.v. Accordingly, the judgment based on the jury verdict against Dr. Jones is hereby reversed, and a judgment is rendered for Dr. Jones.
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Teeth are numbered according to a universal numbering system, beginning on the upper right side. The upper right wisdom tooth is designated as tooth 1. The upper teeth are numbered consecutively, ending with the upper left wisdom tooth as tooth 16. The lower teeth are numbered from left to right, with the lower left wisdom tooth designated as tooth 17 and the lower right wisdom tooth designated as tooth 32.
[2] Tooth 29 was substituted for tooth 28 at the request of Dr. Flowers because tooth 29 was more accessible.
[3] Dr. Flowers has not appealed from the judgment entered against him. | June 30, 1993 |
49ecd865-8e97-4b25-bda0-83a309cd446a | FIRST MERCURY SYNDICATE v. Franklin County | 623 So. 2d 1075 | 1911638 | Alabama | Alabama Supreme Court | 623 So. 2d 1075 (1993)
FIRST MERCURY SYNDICATE, INC.
v.
FRANKLIN COUNTY, et al.
1911638.
Supreme Court of Alabama.
June 25, 1993.
A. Stewart O'Bannon, Jr. of O'Bannon & O'Bannon, Florence, for appellant.
Eddie Beason of Fine & McDowell, Russellville, for Franklin County, Franklin County Com'n, and Larry Plott, sheriff of Franklin County, Ala.
Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, and Jeffrey R. Gaither and Anthony J. Roose of Klineman, Rose, Wolf and Wallack, P.C., Indianapolis, IN, for Star Pool.
ALMON, Justice.
First Mercury Syndicate, Inc. ("FMS"), appeals from a judgment declaring that FMS owed a duty to defend and/or indemnify its insuredsFranklin County, the Franklin County Commission, and Larry Plott, the sheriff of Franklin Countyagainst the wrongful death claim asserted by Willa Thomson, the administratrix of the estate of the deceased, Harold McCarley. The issue is whether the language in the insurance policy excluded Thomson's claim from coverage.
On October 8, 1986, Franklin County purchased professional liability insurance for its law enforcement officers from The Star Pool, a self-insurance membership pool. The County renewed its membership with The Star Pool in 1987, 1988, and 1989.
On or about March 28, 1989, Harold McCarley attempted suicide while incarcerated in the Franklin County jail; McCarley died on March 31 from the injuries he inflicted on himself. On September 25, 1989, Willa Thomson, the administratrix of McCarley's estate, filed a claim with the Franklin County Commission against the County pursuant to Ala.Code 1975, § 11-12-1 et seq.; this claim demanded $100,000 for various acts of misfeasance and nonfeasance on the part of the County. The County notified The Star Pool of this claim, and The Star Pool conducted some investigation with respect to the claim.
The County remained a member of The Star Pool until October 1990, when Probate Judge Larry Jackson, chairman of the County Commission, was contacted by Jim Cantwell. Cantwell informed Judge Jackson that The Star Pool was experiencing financial trouble, and Cantwell suggested that the County obtain a new insurance carrier. *1076 Judge Jackson testified that he was concerned about obtaining retroactive coverage for the McCarley incident and that Cantwell assured him that, as an agent of FMS,[1] he (Cantwell) could write a policy with retroactive coverage. The County then terminated its membership in The Star Pool and purchased similar insurance from FMS; in the application the County notified FMS of McCarley's attempted suicide.
On March 5, 1991, The Star Pool informed the County that it would not cover the claim, because of the County's failure to renew its membership. The County then contacted FMS about the claim. FMS, on March 20, denied the claim, stating:
A week later, Thomson filed a wrongful death action against the County. On April 26, the County filed a declaratory judgment action, seeking to have the court hold that either The Star Pool or FMS, or both, had a duty to defend it against Thomson's claim. Before the hearing on the action, The Star Pool agreed to defend and/or indemnify the County. Following the hearing, the trial court held that FMS did have a duty to defend and/or indemnify the County; FMS appeals.
This Court first notes that although the trial court heard the testimony of two witnesses, the ore tenus rule does not apply here, because the question of whether an insurance policy is ambiguous is a question of law for the trial court.[2]Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala. 1985). Therefore, no presumption of correctness attaches to the trial court's ruling, and this Court must review that ruling de novo.
FMS argues that it is not required to defend and/or indemnify the County because, it argues, the language in the policy unambiguously provides that claims filed against the County before October 9, 1990, are not covered under the policy. FMS relies on two provisions in the policy and related documents to support this argument. The first provision, which appears in bold type on the declarations page and on the first page of the policy, reads:
The other language relied upon by FMS reads:
The declarations provide that the "retroactive date" is October 9, 1986. The declarations also provide that the "policy period" is from October 9, 1990, to October 9, 1991.
FMS argues that because the initial claim was brought by Thomson against the County in September 1989, before the "policy period," the claim is excluded under the policy. FMS concludes that because courts are not free to rewrite insurance contracts that are unambiguous, but must enforce them as written, Langley v. Mutual Fire, Marine & Inland Ins. Co., 512 So. 2d 752 (Ala.1987), overruled on other grounds, Hickox v. Stover, 551 So. 2d 259 (Ala.1989), the trial court erred in holding for the County.
This Court does not find this policy unambiguous. The first passage quoted above states that FMS will be liable only for "those *1077 claims that are first made against the insured and reported to the company while the policy is in force." (Emphasis added.) FMS's argument apparently seeks to equate the term "while the policy is in force" in the first sentence with the term "policy period" in the second sentence. However, the phrase "while the policy is in force" is not defined anywhere in the policy or other documents, while the term "policy period" is defined as "the period of one (1) year following the effective date and hour of this policy or any anniversary thereof." (Emphasis added.) This definition is problematic, because the term "effective date" is not defined in the policy. Therefore, it is uncertain whether the "effective date" of the policy is October 9, 1990, or October 9, 1986the "retroactive date" specified in the declarations. In other words, the "effective date" of the policy may be reasonably interpreted to be either: 1) the date on which the policy was actually issuedOctober 9, 1990; or 2) the date on which the coverage theoretically beganOctober 9, 1986. This ambiguity is heightened by the fact that the critical term "retroactive date" is not defined or explained anywhere in the policy; it is merely set forth in the declarations. Thus, there is no explanation in the policy of how the term "retroactive date" relates to the term "effective date." The uncertain nature of this all-important relationship logically causes confusion over whether the policy came to be "in force" on October 9, 1990, or on October 9, 1986.
FMS contends that the judgment provides coverage for which no premium was paid and that the County's argument is overly technical. The first contention is not valid, however, because Judge Jackson testified at the hearing that the County paid an additional $4,000 premium for the retroactive coverage, and this testimony is uncontradicted. The County therefore did not receive the retroactive coverage at no cost.
FMS's contention that the County's argument is overly technical is not valid, because it is the drafter's inconsistent use of vague and undefined terms that caused the ambiguity here. It is well settled that any ambiguity in the policy is to be construed against the drafter and in favor of the insured. Amerisure Ins. Companies v. Allstate Ins. Co., 582 So. 2d 1100 (Ala.1991); Altiere v. Blue Cross & Blue Shield of Alabama, 551 So. 2d 290 (Ala.1989). Because we conclude that the policy was ambiguous as to when the policy came to be "in force," we hold that the trial court correctly determined that FMS had a duty to defend and/or indemnify the County.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Cantwell actually told Judge Jackson that he was representing Illinois Insurance Exchange ("IIE"), and the County bought the insurance from IIE. FMS was substituted as a defendant for IIE in Franklin County's declaratory judgment action.
[2] The trial court's order also held that FMS was bound by the representation of its agent, Cantwell, that the McCarley claim would be covered. Because we resolve the case on the wholly separate ground of the interpretation of the policy itself, we decline to address the agency issue. | June 25, 1993 |
79198fa3-e7e6-49bb-8bc6-18030508dfb1 | Blackburn v. Resolution Trust Corp. | 627 So. 2d 915 | 1920043 | Alabama | Alabama Supreme Court | 627 So. 2d 915 (1993)
John H. BLACKBURN and Mona L. Blackburn
v.
RESOLUTION TRUST CORPORATION, as receiver for Altus Bank, a federal savings bank.
1920043.
Supreme Court of Alabama.
June 25, 1993.
Peter V. Sintz, Thoma R. McAlpine and Steven L. Terry of Sintz, Campbell, Duke, Taylor & McAlpine, Mobile, for appellants.
Lester M. Bridgeman and Matthew C. McDonald of Miller, Hamilton, Snider & Odom, Mobile, for appellee.
ADAMS, Justice.
This Court has this day held that § 6-11-21, Ala.Code 1975, violates the right to a trial by jury as guaranteed by § 11 of the Constitution of Alabama. Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala.1993). Therefore, the Court declines to answer the question certified to it by the United States District Court for the Southern District of Alabama.
QUESTION DECLINED.
ALMON, SHORES, KENNEDY and INGRAM, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
HORNSBY, C.J., recused.
HOUSTON, Justice (dissenting).
I would answer the certified question in the negative. See my dissent in Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993), for my view that Ala.Code 1975, § 6-11-21, is not violative of § 11 of the Alabama Constitution.
Section 13 of the Alabama Constitution provides in pertinent part:
"Remedy" is defined as "[t]he means by which a right is enforced or the violation of a right is ... compensated." (Emphasis added.) Black's Law Dictionary 1294 (6th ed. 1990). As a noun, the word "right" denotes "a power, privilege, faculty, or demand, inherent in one person and incident upon another"; and, giving the word a juristic content, "a `right' is well defined as `a capacity residing in one [person] of controlling, with the assent and assistance of the state, the actions of others.'" Black's Law Dictionary, supra, at 1324. It is familiar law in this state that punitive damages are not recoverable as a matter of right, except as may be provided by statute. Alabama Power Co. v. Rembert, 282 Ala. 5, 208 So. 2d 205 (1968); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24 (1961); Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386 (1937). This Court has held that punitive damages may be forbidden or affirmatively withheld by legislative enactment. Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775 (1910); Comer v. Age-Herald Publishing Co., 151 Ala. 613, 44 So. 673 (1907). Because an individual has no right to recover any particular *916 amount of punitive damages or, for that matter, to recover any punitive damages at all, § 6-11-21 does not operate so as to deny any individual a "remedy" for an injury. Simply put, there must be a right before there can be a remedy. | June 25, 1993 |
23b857cc-2fe0-473e-9dc7-9ce9a27f096c | Ex Parte Bennett | 622 So. 2d 1307 | 1920612 | Alabama | Alabama Supreme Court | 622 So. 2d 1307 (1993)
Ex parte Elinor B. BENNETT, et al.
(In re AMSOUTH BANK, N.A., as trustee v. Elinor B. BENNETT, et al.)
1920612.
Supreme Court of Alabama.
June 18, 1993.
*1308 Wesley M. Lavender of Lavender and Lavender, P.C., Decatur, for petitioners.
Luther M. Dorr, Jr. and Warren B. Lightfoot, Jr. of Maynard, Cooper & Gale, P.C., Birmingham, for respondent.
HOUSTON, Justice.
The petitioners seek a writ of mandamus directing Judge Jack Carl of the Jefferson County Circuit Court to transfer an action from Jefferson County to Morgan County. The writ is denied.
AmSouth Bank filed an action in Jefferson County Circuit Court seeking a declaration of its right under a reorganization plan approved by the United States Bankruptcy Court for the Northern District of Alabama, Northeastern Division, to increase the rent of certain tenants of a retirement facility located in Morgan County. Construction of the retirement facility was financed through a bond issue by the Health Care Authority of the City of Decatur, Alabama, which executed a mortgage in favor of AmSouth securing the bond debt. AmSouth sued in its capacity as trustee for the bondholders, after the facility had undergone a reorganization under Chapter 11 of the Bankruptcy Code and then had failed to comply with the requirements of the reorganization plan. AmSouth basically sought a judicial declaration that it was entitled under the plan to increase the rent of certain tenants of the facility. It also sought damages for rent it alleged was past due.
According to AmSouth, venue is proper in Jefferson County because one of the defendants is a resident of Florida. Citing Rule 82(b)(2), Ala.R.Civ.P., AmSouth argues that actions against nonresidents may be filed in any county of this state "where the subject of the action or portion of the same was when the claim for relief arose or the act on which the action is founded occurred or was to be performed." Relying on Ex parte Lani Kai, Ltd., 505 So. 2d 312 (Ala.1987), AmSouth contends that the subject of its action, or the act on which its action is founded, was in, or was to be performed in, Jefferson County, because, it says, the tenants of the Morgan County facility pay their rent in Jefferson County. Because venue is proper in Jefferson County as to the nonresident defendant, Am-South says, venue as to the other defendants is also proper in Jefferson County. See Ex parte Cummings, Gazaway, & Scott, Inc., 386 So. 2d 732 (Ala.1980).
There was no evidence before the trial judge when he denied the motion to transfer. The record shows that during the hearing on the motion the attorneys discussed with Judge Carl the merits of the parties' positions; however, no testimony was presented. The petitioners' attorney did concede that it was his "understanding" that one of the defendants was not a resident of Alabama. However, he disputed AmSouth's claims that that defendant had been properly named in the action and that the tenants paid their rent in Jefferson County.
It is well settled that the burden of proving improper venue is on the party raising the issue, and that on review of an *1309 order transferring or refusing to transfer a case, a writ of mandamus will not be issued unless there is a clear showing of error on the part of the trial judge. Ex parte Jones, 582 So. 2d 456 (Ala.1991); Ex parte Ralston, 519 So. 2d 488 (Ala.1987). The record in this case, such as it is, indicates that the petitioners provided no evidentiary basis on which the trial judge could have granted their motion for a change of venue. To the contrary, the petitioners' attorney conceded that one of the defendants was not an Alabama resident. The common law rule of venue allows an action that is legal in nature to be filed against nonresident individuals in any county in the state. See Ex parte Cummings, Gazaway, & Scott, Inc., supra. An action seeking a declaration of rights under a contract and a judgment awarding damages for the breach of that contract, such as the one filed by AmSouth in this case, is essentially legal in nature. See Reid v. City of Birmingham, 274 Ala. 629, 150 So. 2d 735 (1963) (a declaratory judgment establishing a legal relationship or a legal status is a legal, not an equitable, judgment); Berman v. Wreck-A-Pair Building Co., 236 Ala. 301, 182 So. 54 (1938); Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234 (1936); 26 C.J.S. Declaratory Judgments, §§ 1, 105 (1956); W. Anderson, Actions For Declaratory Judgments, § 56 (1940). Therefore, we cannot hold, based on this record, that the petitioners made a clear showing of error on the trial judge's part.[1]
WRIT DENIED.
HORNSBY, C.J., and SHORES, J., concur.
MADDOX and KENNEDY, JJ., concur in the result.
[1] Because the common law rule of venue as to actions at law against nonresident defendants (who are not covered by the venue statute regarding actions at law against individuals, Ex parte Cummings, Gazaway, & Scott, Inc., supra) controls the present case, there is no need to resort to the provisions of Rule 82.
We note that our resolution of the issue presented in this case does not require that we determine whether Rule 82(b)(2), by "affecting" venue of equitable actions in circuit and district courts, violates § 6.11 of Amendment 328 of the Alabama Constitution, or Ala.Code 1975, § 12-2-7(4). | June 18, 1993 |
57f80fa9-ae6d-4a15-a709-fdd5d37e8f34 | Graves v. State | 632 So. 2d 33 | 1920648 | Alabama | Alabama Supreme Court | 632 So. 2d 33 (1993)
Ex parte State of Alabama.
Re Kevin Wayne GRAVES
v.
STATE.
1920648.
Supreme Court of Alabama.
June 25, 1993.
*34 James H. Evans, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for petitioner.
Paul M. Harden and Anthony J. Bishop, Evergreen, for respondent.
INGRAM, Justice.
Kevin Wayne Graves was indicted for murder and unlawful possession of a pistol by a person previously convicted of a crime of violence. A jury convicted Graves of manslaughter and unlawful possession. The Court of Criminal Appeals affirmed the conviction for unlawful possession, but it reversed the conviction for manslaughter and remanded for a new trial, holding that the consolidation of the two indictments for trial prejudiced Graves's trial on the murder indictment. That court stated that the consolidation had allowed the State to introduce Graves's prior conviction for manslaughter to prove the unlawful possession charge; the State would not have been allowed to produce evidence relating to the prior conviction in the trial on the murder indictment if the two indictments had been tried separately. The Court of Criminal Appeals set aside the sentence for unlawful possession and remanded for resentencing on the unlawful possession conviction in accordance with this Court's September 18, 1992, opinion in Ex parte Johnson, 1901573, holding that convictions for unlawful possession cannot be enhanced under the Habitual Felony Offender Act. See Graves v. State, 632 So. 2d 30 (Ala. Cr.App.1992).
The State petitioned this Court for certiorari review. The State argued that Graves had not preserved the issue of improper consolidation for appeal, because the record on appeal contained no specific objection to the motion to consolidate and no ruling on that issue. Also, the State argued that Graves had invited any error caused by the improper consolidation because he refused to ask for a mistrial, even when the trial court stated that it would grant such a motion in order to allow the unlawful possession indictment to be severed. Further, the State asked this Court to overrule Ex parte Johnson and to hold that the sentence on the unlawful possession conviction can be enhanced by application of the Habitual Felony Offender Act. We granted the State's petition for certiorari review; we now affirm in part and reverse in part.[1]
Although the Court of Criminal Appeals affirmed Graves's conviction for unlawful possession of a pistol by a person previously convicted of a crime of violence, that court held that "the Habitual Felony Offender Act, § 13A-5-9, cannot be applied for enhancement purposes to sentences for [unlawful possession] convictions under § 13A-11-72(a). For such convictions, sentencing must be in accordance with § 13A-11-84(a)." Graves v. State, 632 So. 2d at 32 (citing this Court's September 18, 1992, opinion in Ex parte Johnson). We note, however, that on April 16, 1993, on application for rehearing, this Court withdrew its September 18, 1992, opinion in Ex parte Johnson and substituted a new opinion; that substituted opinion omits any discussion of the application of the Habitual Felony Offender Act to convictions for unlawful possession. See Ex parte Johnson, 620 So. 2d 665 (Ala.1993) (opinion on rehearing).
Furthermore, this Court in Gholston v. State, 620 So. 2d 219 (Ala.1993), specifically held that the Habitual Felony Offender Act mandates that convictions for unlawful possession be enhanced if the prior conviction for a "crime of violence" was a felony conviction. We held:
Gholston, 620 So. 2d at 724.
Graves had a previous conviction for manslaughter, which is both a crime of violence, under § 13A-11-72(a), Ala.Code 1975, and a felony, under § 13A-6-3(b). Therefore, based upon our decision in Gholston and the substituted opinion in Johnson on rehearing, we reverse the Court of Criminal Appeals' judgment remanding for resentencing on the conviction for unlawful possession; that court erred in holding that that sentence had been improperly enhanced under the Habitual Felony Offender Act.
The State argues that the issues raised by Graves, on his appeal, concerning the improper consolidation of the two indictments for trial had not been preserved for review. The State argues that the record on appeal before the Court of Criminal Appeals showed no specific objection to the State's motion to consolidate the two indictments, one for murder and one for unlawful possession, for trial. We agree that the record on appeal did not contain a specific objection to consolidation; however, the Court of Criminal Appeals wrote:
632 So. 2d at 31.
The record before the Court of Criminal Appeals contained the following exchange between the trial court and Graves's attorney.
This Courton its own motion, pursuant to Rule 10(f), Ala.R.App.P.requested that the record be supplemented with the transcript of the pretrial-motions hearing referred to in the above-quoted exchange. The record was so supplemented, and as supplemented it contained the objection by Graves's attorney to the State's motion to consolidate the two indictments. However, Graves's attorney did not object to the motion to consolidate *36 on the grounds he asserted on appeal to the Court of Criminal Appeals. The supplemented record contains the following:
Before the Court of Criminal Appeals, Graves argued that he had objected to the motion to consolidate on the ground that the introduction of his prior conviction for manslaughterwhich the State was required to prove in order to establish the unlawful possession chargeprejudiced his right to a fair trial on the consolidated murder charge. From the above-quoted proceedings at the motion hearing, it is clear that this ground for his objection was not stated to the trial court; therefore, the issue of whether the motion to consolidate was improperly granted because of the possibility of prejudice engendered by the introduction of Graves's prior manslaughter conviction in his present trial for murder was not preserved for review by a specific objection.
Clearly, the consolidation of the two indictments for trial materially prejudiced Graves by allowing, indeed requiring, that his prior manslaughter conviction be introduced into evidence, and, clearly, the introduction of that prior conviction unfairly prejudiced Graves in his defense of the murder charge. See Graves v. State, 632 So. 2d 30 (Ala.Cr. App.1992). Evidence of the prior conviction would not have been admissible in Graves's trial on the murder charge, if it had been tried separately, because the prior conviction was separate and completely unrelated. See Ex parte Davis, 522 So. 2d 231, 233 (Ala. 1987), on remand, 522 So. 2d 233 (Ala.Cr.App. 1988).
We also note that at trial Graves's counsel made no motion to sever. Ala.R.Cr.P. 13.4(a) provides that if the consolidation of offenses for trial prejudices the defendant, the trial court can order separate trials. However, a defendant must make a motion to sever court-ordered consolidation "within seven (7) days of the court's order, [but,] in any event, prior to trial," and "[t]he right to move for severance is waived if a proper motion [to sever] is not timely made." Ala.R.Cr.P. 13.4(b). "No severance of offenses ... may be ordered after trial has commenced unless the defendant consents and a mistrial has properly been declared as to such offense...." Ala.R.Cr.P. 13.4(c) (emphasis added).
In this case, the trial court "suggested" that Graves move for a mistrial on the unlawful possession charge, before the State introduced evidence of the prior conviction. Graves's attorney refused to move for a mistrial, arguing that Graves had already been prejudiced by references to the prior conviction in the State's opening argument. We consider this to be a valid reason for failing to seek a mistrial on the unlawful possession charge, but it is not a valid reason for failing to seek a mistrial and severance as to the murder charge. Given the procedure established by our Rules of Criminal Procedure, Graves failed to preserve for review any error on which an appellate court could reverse his conviction for manslaughter on the murder indictment because of the prejudicial consolidation of the two indictments.
*37 Nevertheless, this Court "will not deliberately invite a petition for post-conviction relief," see Johnson v. State, 528 So. 2d 1167, 1168 (Ala.Cr.App.1987), by holding Graves's meritorious claimthat his conviction for manslaughter is due to be reversed because his counsel failed to properly object to the consolidationhas not been preserved for review.[2] Therefore, we affirm that portion of the judgment of the Court of Criminal Appeals reversing Graves's conviction for manslaughter and remanding for a new trial.
Based on the foregoing, we affirm the Court of Criminal Appeals' reversal of Graves's conviction for manslaughter; we reverse that court's judgment remanding for resentencing on the ground that his sentence on the conviction for unlawful possession was improperly enhanced; and we remand this case to that court for further proceedings in conformity with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS and HOUSTON, JJ., concur.
[1] This Court denied the defendant's petition for certiorari review on March 26, 1992.
[2] Apparently, the trial court and the attorneys assumed that such an objection had been made, even though the record clearly shows that it was not. This confusion appears to have arisen because the "prejudice" issue was raised in relationship to a motion for change of venue. Graves sought a change of venue because of alleged prejudice generated by articles in the local newspaper reporting the fact of Graves's prior conviction. | June 25, 1993 |
6bca19bf-53e6-4574-9a41-edc314b10664 | Ex Parte King | 643 So. 2d 1364 | 1910124 | Alabama | Alabama Supreme Court | 643 So. 2d 1364 (1993)
Ex parte Bernadine KING, et al.
(Re ALABAMA AGRICULTURAL AND MECHANICAL UNIVERSITY v. Bernadine KING, et al.)
1910124.
Supreme Court of Alabama.
June 4, 1993.
Patrick W. Richardson, Stuart E. Smith and J. Michael Broom of Bell Richardson, P.A. and John A. Wilmer of Wilmer & Shepard, P.A., Huntsville, for petitioners.
Roscoe O. Roberts, Jr., Huntsville, and Macbeth Wagnon, Jr. of Bradley, Arant, Rose & White, Birmingham, for respondent.
KENNEDY, Justice.
This case involves certain provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-19 (1988), and the Portal-to-Portal Act, 29 U.S.C. § 255(a) and § 260 (1988), as they apply to the position of dormitory counselor at Alabama Agricultural and Mechanical University ("Alabama A & M"). The trial court entered a judgment in favor of the plaintiffs. The Court of Civil Appeals reversed and remanded for a new trial. 643 So. 2d 1358. We granted certiorari review, and we now reverse the judgment of the Court of Civil Appeals and remand the cause.
*1365 The plaintiffs were employed as residence hall counselors at Alabama A & M. In that position, they performed a variety of duties to assist the resident students, such as distributing mail, discussing problems, and maintaining order in the dormitory. The counselors were salaried employees and received a monthly check based on a 40-hour workweek. It was undisputed, however, that the plaintiffs' actual work week was closer to 60 hours.
In 1986, two of the employees complained to university officials about being underpaid for the overtime hours they had worked, and requested overtime pay. Alabama A & M's in-house counsel responded, stating that the employees met the criteria of 29 C.F.R. § 541.2(e)(2) (1983), which provides that an employee making at least $250 per week comes under the administrative exemption[1] if (1) her "primary duties" consist of performing work "directly related to management policies or general business operations" of her employer, and (2) these tasks "include work requiring the exercise of discretion and independent judgment." Alabama A & M denied the request for overtime pay.
Nine present and former employees of Alabama A & M sued Alabama A & M, claiming that they were entitled to overtime pay under the FSLA for all time worked over 40 hours per week during their employment.
Before trial, two of the original plaintiffs withdrew from the action and an additional residence hall counselor moved to intervene, without opposition from Alabama A & M.
At the conclusion of the trial, the case was submitted to the jury, with three special interrogatories:
The jury returned a verdict against Alabama A & M on all three questions. The trial judge awarded attorney fees in the amount of $185,998.25 to the employees' counsel, and also granted the employees' motion for liquidated damages pursuant to the Portal-to-Portal Act, 29 U.S.C. § 260 (1988). The Court of Civil Appeals reversed, holding that the trial court erred in its instruction on the question of a willful violation of the FLSA.
We must first determine whether the Court of Civil Appeals lacked subject matter jurisdiction to hear the appeal in this case. Alabama A & M initially appealed the trial court's judgment to this Court, which transferred it to the Court of Civil Appeals, sua sponte. The petitioners argue that the transfer to the Court of Civil Appeals violated § 12-3-10, Ala.Code 1975, because, they contend, the appeal did not involve a decision, rule, or regulation of an administrative agency.
Nontort cases brought by non faculty employees against public schools have been considered "administrative" for purposes of appellate jurisdiction in the Court of Civil Appeals. See Breazeale v. Board of Trustees of the University of South Alabama, 575 So. 2d 1126 (Ala.Civ.App.1991). Therefore, the case was properly transferred and submitted to the Court of Civil Appeals.
The substantive issue here deals with the trial court's supplemental jury charge and whether the parties agreed to the supplemental charge defining the term "reckless disregard," and whether Alabama A & M was estopped from raising any error in this regard on the appeal.
The jury requested a supplemental charge on the definitions of "willfulness" and "reckless disregard." The trial court read a supplemental charge, the language of which was taken from Glenn v. General Motors Corp., 658 F. Supp. 918 (N.D.Ala.1986), aff'd in part, rev'd in part, 841 F.2d 1567, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988).
*1366 It is undisputed that before the court gave the supplemental charge, lead counsel for Alabama A & M agreed to the specific language to be used in the supplemental charge. (R. 762). Rule 47, A.R.App.P., provides that "agreements made in open court or at pretrial conferences are binding, whether such agreements are oral or written." Following the charge conference and after the judge charged the jury, associate counsel for Alabama A & M objected to the charge, arguing that it was improper under McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988).
The petitioners contend that it was only after the charge had been given that associate counsel for Alabama A & M found the statement in Richland Shoe that he claimed made the charge improper. When the attorneys agree on a certain jury charge, the parties are bound by that agreement. See Jones v. Gladney, 339 So. 2d 1019 (Ala. 1976); Brocato v. Brocato, 332 So. 2d 722 (Ala.1976).
The petitioners also contend that the doctrine of invited error would preclude an untimely objection to an instruction that was previously agreed to. That doctrine provides that a party may not complain of error into which he has led the court. Aetna Life Insurance Co. v. Beasley, 272 Ala. 153, 157, 130 So. 2d 178, 182 (1961).
In Phillips v. Anesthesia Services, P.C., 565 So. 2d 127, 129 (Ala.1990), the plaintiff argued that the trial court had erred in giving a supplemental charge, because, he said, the charge had improperly placed an issue of the negligence of one of the defendants before the jury. However, the plaintiff had requested the supplemental charge. This Court held that while ordinarily the charge complained of by the plaintiff might constitute error, in this case the plaintiff invited error by requesting the supplemental charge. We stated that a party cannot complain of error that he invited.
The Court of Civil Appeals based its reversal in this case on its conclusion that the trial court had erred to reversal in giving the supplemental charge. Based on the reasoning above, we conclude that Alabama A & M waived any objection to the alleged error.
Because the appeal was properly transferred to the Court of Civil Appeals in the first instance, and because Alabama A & M had waived any objection to the jury charge that the Court of Civil Appeals found to be erroneous, we reverse the judgment of the Court of Civil Appeals and remand.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and STEAGALL, JJ., concur.
[1] Employees who come under the administrative exemption are not entitled by the FLSA to overtime pay for hours worked in excess of 40 hours per week. | June 4, 1993 |
12a45f34-6b63-434b-a681-ea14917fdfb4 | Continental Grain Co., Inc. v. Beasley | 628 So. 2d 319 | 1920241 | Alabama | Alabama Supreme Court | 628 So. 2d 319 (1993)
CONTINENTAL GRAIN COMPANY, INC., et al.
v.
Bill BEASLEY, et al.
1920241.
Supreme Court of Alabama.
July 16, 1993.
Rehearing Denied October 29, 1993.
*320 Robert D. Segall and J. Fairley McDonald III of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellants.
Jere L. Beasley and Thomas J. Methvin of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for appellees.
PER CURIAM.
This appeal involves a disagreement over the enforceability of predispute arbitration agreements between chicken growers (plaintiffs) and Continental Grain Company, Inc., a poultry products retailer (defendant). The issue is whether the trial court erred in denying the retailer's motion to compel arbitration of the growers' fraud claims. We hold that the arbitration agreements meet *321 the requirements of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and are enforceable against all growers who agreed in writing to arbitrate, but not against the grower who did not agree in writing to arbitrate; therefore, we affirm in part and reverse in part and remand. In so holding, we follow the "contemplation" test set forth 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), and reaffirmed in Ex parte Jones, 628 So. 2d 316 (Ala.1993), as this Court's test for determining whether a particular contract involves interstate commerce for purposes of the Federal Arbitration Act.
Our statement of the facts is based on the pleadings, affidavits, and exhibits.[1] Continental Grain is an out-of-state corporation engaging in various agricultural enterprises. One of its divisions, Wayne Farms, has headquarters in Georgia. Wayne Farms produces retail poultry products at several growing complexes in different states, one of which is in Union Springs, Alabama, with ancillary facilities in Troy, Alabama. The complex is "totally integrated," meaning that it engages in each stage of production, including breeding, processing, packaging, and shipping.
The one stage of production in which Wayne Farms does not directly engage is growing the chickens during the period between hatching and processing. Instead, Wayne Farms contracts with growers, who raise the chickens until they are ready for processing. Basically, Wayne Farms provides the chickens and the growers provide the facilities and labor. Wayne Farms delivers the chickens to the growers from its Troy hatchery. When the chickens reach processing weight and age, Wayne Farms retrieves them, pays the growers based on the flock's weight, and delivers them to its Union Springs processing plant. After processing and packaging, the poultry products are sent to customers, with more than 90 percent being sent to locations outside Alabama.
Part of each grower's written agreement calls for the grower to "construct and maintain housing and equipment that conforms to the written standards established by Wayne [Farms]" and "to adopt new management practices and install new or additional equipment required by Wayne [Farms]." R. 226. Wayne Farms reserves the right to terminate the agreement "at the end of any flock on fifteen (15) days' notice for ... [f]ailure to provide adequate and requested facilities and equipment and failure to correct problems after notice from Wayne [Farms]." R. 229. Each agreement also includes the following provision:
R. 231.
The plaintiffs, Doris Arrington, Bill Beasley, Kay Goolsby, Whit Goolsby, Dwight Sasser, Doris Thompson, and John Frank Wilkerson, formerly grew broiler chickens for Wayne Farms in Alabama. Until 1992, each plaintiff except Beasley grew chickens under contract with Wayne Farms. Beasley had been a grower for Wayne Farms several years ago but was not a grower in 1992, although he worked with his son, Brent Beasley, who was a grower for Wayne Farms until 1992 but is not a party to this action.
In January 1992, Continental Grain notified all of its growers that it would begin requiring them to install tunnel ventilation systems in their chicken houses if they wanted to continue receiving chickens after May 18, 1992. The plaintiffs did not comply, and their contracts were terminated. The plaintiffs sued Continental Grain, "Wayne Poultry Company, Inc.,"[2] Shane Ford, Barbara Lester, *322 Billy Rayfield, Bruce Rutledge, Tony Woods, and certain fictitiously named defendants for damages based on fraud, alleging that the defendants had initially told them that tunnel ventilation would not be required. Ford, Lester, Rayfield, Rutledge, and Woods are current or former employees of Continental Grain who dealt with the plaintiffs.
The defendants moved to compel arbitration and to stay the proceedings pending arbitration. The trial court denied the motion, without stating its reasons, and refused to reconsider or vacate its ruling. The defendants appeal.[3]
The ultimate issue before this Court is whether the trial court properly denied the motion to compel arbitration. The defendants concede that predispute arbitration agreements are unenforceable under Alabama law, Ala.Code 1975, § 8-1-41(3), but they argue that the arbitration agreements in this case are specifically enforceable pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA").
The FAA provides that written agreements to arbitrate future controversies arising out of contracts involving interstate commerce are valid and enforceable. 9 U.S.C. § 2. If the FAA applies, it "serves to preempt any state law purporting to deny the enforcement of a predispute arbitration agreement, on public policy grounds, and provides for the enforcement of arbitration agreements." Ex parte Brice Building Co., 607 So. 2d 132, 133 (Ala.1992). The FAA applies if there is a "(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).
In their contracts, each plaintiff except Beasley signed a "written agreement calling for arbitration"; therefore, the first requirement has been met with respect to those plaintiffs. However, it is undisputed that Beasley is not a party to any contract with Continental Grain. "Arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute that he has not agreed to submit." A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 362 (Ala.1990). Because Beasley did not agree in writing to submit to arbitration any dispute he might have with the defendants, the trial court properly refused to compel arbitration of his fraud claim.
Regarding the other plaintiffs, the dispute is over the second requirementa transaction involving interstate commerce. In prior cases, this Court has applied one of two different tests for determining whether a particular transaction involves interstate commerceeither the "slightest nexus" test set forth in Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala.1986), or the "contemplation" test set forth 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). However, in Ex parte Jones, 628 So. 2d 316 (Ala.1993), this Court has adopted the "contemplation" test exclusively and has overruled cases stating any other standard. Accordingly, whether the transactions in this case involve interstate commerce for purposes of the FAA depends on whether, at the time the contract was made and the arbitration clause accepted, the parties "`contemplated substantial interstate activity'" in the performance of the contract. Warren, 548 So. 2d at 160 (quoting Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382, 387 (2d Cir.) (Lumbard, Chief Judge, concurring), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961) (emphasis original).
As evidence that its contracts with the plaintiffs relate to transactions involving interstate commerce, the defendants point out that federal laws premised on the Commerce Clause affect the relationships between the parties;[4] that Continental Grain is a foreign corporation, and that its Wayne *323 Farms division headquarters are in Georgia; and that Continental Grain's contracts with the plaintiffs are part of a production process that sends more than 90 percent of its products to other states and countries. Defendant Bruce Rutledge, a manager at the Wayne Farms production facility in Troy, Alabama, stated in his affidavit that "all of the Plaintiffs were knowledgeable growers for Wayne Farms and were familiar with this growing process and with the fact that they were engaged by Wayne Farms to grow chickens that would be immediately processed and shipped out of Alabama." R. 222.
Conversely, in their affidavits, the plaintiffs stated that when they entered into the contracts with Wayne Farms they did not contemplate substantial interstate activity, because all of the events concerning growing the chickens occurred in Alabama, including executing the contracts and hatching, transporting, and processing the chickens. Essentially, the plaintiffs argue that because their contracts were performed entirely within Alabama, those contracts do not involve interstate commerce.
We do not agree with the plaintiffs that the place of performance is the dispositive factor. In fact, this Court has very recently rejected "the contention that the locus actus, rather than the scope of the contract, determines the applicability of the FAA." Circle "S" Industries, Inc. v. Berryman, 613 So. 2d 329, 331 (Ala.1993). In performing their contractual obligations, the plaintiffs were directly engaging in the production of articles to be shipped in interstate commerce. We agree with the defendants that the parties did in fact contemplate "substantial interstate activity" at the time of their agreements, and, therefore, that the agreements between the parties relate to transactions involving interstate commerce for purposes of the FAA.
Because the transactions between the plaintiffs and the defendants involved interstate commerce, the trial court erred in not compelling all the plaintiffs except Beasley to submit their claims to arbitration. Thus, we affirm the trial court's denial of the motion with respect to Beasley's claims, but we reverse that denial with respect to the claims of all other plaintiffs, and we remand the cause for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ADAMS and INGRAM, JJ., concur in the result.
MADDOX, Justice (concurring in the result).
I disagree with the majority's use of the "contemplation" test of 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). Instead, I believe that the "slightest nexus" test of Ex parte Costa & Head (Atrium) Ltd., 486 So. 2d 1272 (Ala.1986), provides the proper analysis. See my dissenting opinion in Ex parte Jones, 628 So. 2d 316 (Ala.1993) (Maddox, J., dissenting). Applying that test, I believe that the arbitration agreements are specifically enforceable pursuant to the FAA, because the contracts have at least the slightest nexus with interstate commerce; therefore, I concur in the result reached by the majority.
INGRAM, J., concurs.
[1] The plaintiffs argue that we cannot consider the additional evidence submitted in support of Continental Grain's "motion to vacate or reconsider" the denial of the motion to compel. The plaintiffs waived any objection to the additional evidence by not objecting or moving to have it excluded at the time it was offered. Cf. McMillian v. Wallis, 567 So. 2d 1199, 1205 (Ala.1990).
[2] Continental Grain's Wayne Farms division was formerly known as Wayne Poultry but has never been incorporated.
[3] Orders refusing to stay proceedings pending arbitration and orders refusing to compel arbitration are appealable. See 9 U.S.C. § 16(a)(1)(A) and (B) and A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358, 360-61 (Ala.1990).
[4] The defendants cite the Packers and Stockyards Act, 7 U.S.C. § 181 et seq., the Poultry Products Inspection Act, 21 U.S.C. § 451 et seq., and the Agricultural Fair Practices Act, 7 U.S.C. § 2301 et seq. | July 16, 1993 |
e6e00958-4a23-42b2-9e41-0e58b812b236 | American Nat. Fire Ins. Co. v. Hughes | 624 So. 2d 1362 | 1920148 | Alabama | Alabama Supreme Court | 624 So. 2d 1362 (1993)
AMERICAN NATIONAL FIRE INSURANCE COMPANY, INC.
v.
Jim Frank HUGHES.
1920148.
Supreme Court of Alabama.
August 6, 1993.
*1363 Peter A. McInish of Lee & McInish, Dothan, for appellant.
Larry C. Jarrell, Troy, for appellee.
MADDOX, Justice.
An insurance company that insured a peanut farmer against crop loss filed an action to recover from the farmer what it claimed was an overpayment. A jury found the issues in favor of the farmer. The company appeals and raises three basic questions: (1) Did the trial court err in instructing the jury on the law of release and accord and satisfaction; (2) Did the trial court err in allowing the jury to determine the legal effect of the release language contained on the indorsement side of the payment draft that the company issued to Hughes; and (3) Did the trial court err in denying the company's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. We answer the questions in the negative and we affirm.
The record, viewed in a light most favorable to the plaintiff, presents the following facts:
For approximately 45 years before this action, Jim Frank Hughes had been a peanut farmer in Brundidge, Alabama, and in 1989 he grew peanuts on five separate farms. At all times relevant to the issues presented on this appeal, Hughes maintained crop insurance through American National Fire Insurance Company ("American"). In 1989, many *1364 farmers in the area of Brundidge suffered large-scale crop damage because of drought. When Hughes harvested and sold his 1989 peanut crop, he discovered he had a loss, and he contacted his insurance agent. Jim McLean, American's crop adjuster, computed Hughes's losses and found that Hughes had suffered losses on two of his five farms.
McLean informed Hughes of the amount he would receive from American, but before American paid Hughes for his losses, McLean claimed to have discovered that he had erroneously left off two loads of peanuts in making his calculations. According to McLean, this error entitled Hughes to about $2,000 less than he was previously told he would receive. McLean corrected his mistake, and American subsequently paid Hughes $46,943 for his 1989 crop losses.
Sometime later, during a routine audit of claims paid by American during 1989, Hughes's claims were randomly selected for audit. During this audit, American claims, it discovered that McLean had mistakenly omitted another 10 loads of peanuts in calculating Hughes's losses, and it claims that this mistake resulted in an overpayment to Hughes of $28,927. American asked Hughes to refund the amount of the overpayment; when he refused, American sued for the amount it claimed it had overpaid him.
A jury returned a verdict for American in the amount of $18,000. After considering American's motions for JNOV and Hughes's motion for a new trial, the trial court granted a new trial because of what it considered to be an inconsistent jury verdict. At the second trial, the jury returned a verdict for Hughes; American filed motions for JNOV or, in the alternative, for a new trial, both of which were denied by the trial court. American appeals.
We first address American's claim that the trial court erred in instructing the jury on the law of release and accord and satisfaction. American argues that the trial court erred when it gave instructions requested by Hughes on the law of release and accord and satisfaction, because, American contends, there was no evidence to support giving such instructions. It is true that parties are "entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial." Nunn v. Whitworth, 545 So. 2d 766, 767 (Ala.1989). However, the trial court found sufficient evidence to create a jury question as to the existence of an accord and satisfaction or a release, and such evidence would also support the trial judge's decision to give jury instructions on the law of accord and satisfaction and release. In addition, we note that Hughes's requested jury instructions on the law of release and accord and satisfaction are correct statements of Alabama law. In part, the trial court instructed the jury that:
*1365 Viewing the evidence that was before the court, we agree that there was sufficient evidence to create a jury question as to the existence of an accord and satisfaction or a release, and, therefore, we hold that the trial court did not err in giving the requested jury instructions.
Next, we examine American's assertion that the trial court erred in allowing the jury to determine the legal effect of the release language contained on the indorsement side of the payment draft issued to Hughes by American. The back of the payment draft from American to Hughes contained the following language:
American contends that the legal effect of the draft was a matter for the court to decide and that the court erred in allowing the jury to determine the issue. Hughes contends that the language on the back of the draft created a jury question as to the effect the language had on the dealings between the parties and that the court properly submitted the construction of the release to the jury. Hughes also contends that there was sufficient evidence to support the jury's finding that the language constituted a release or an accord and satisfaction and that there was sufficient evidence to support the jury's finding that American is bound thereby.
Section 12-21-109, Ala.Code 1975, states: "All ... releases and discharges in writing ... must [be given] effect according to their terms and the intentions of the parties thereto." In addition, if a document is unambiguous, its construction and legal effect are questions of law that may be decided, under appropriate circumstances, by summary judgment. Jehle-Slauson Construction Co. v. Hood-Rich Architects & Consulting Engineers, 435 So. 2d 716 (Ala. 1983). American contends that, in the event Hughes later discovered he was underpaid, the language on the back of the draft simply prevented Hughes from asking for more money, but that it did not prevent American from seeking a refund of an overpayment. However, in Conley v. Harry J. Whelchel Co., 410 So. 2d 14, 16 (Ala.1982), this Court construed a release and concluded, "The release cannot be construed as valid to [one party], yet void as to [another]. The entire release must be construed as either [valid] or invalid as to all parties." (Emphasis original.)
Because the trial court found sufficient evidence to present the question whether the language on the back of the draft constituted a release or an accord and satisfaction, the trial court could also have found that a jury question was presented as to whether the parties should be bound by the terms of the language contained on the back of the draft. In Smith v. State Farm Mutual Insurance Co., 494 So. 2d 7 (Ala.1986), William Smith was injured in an automobile accident with Debra Jennings; Jennings's insurer, State Farm, issued Smith a check for $277, which Smith indorsed and cashed. Smith later sued Jennings for damages, based on his personal injuries, and Jennings moved for a summary judgment on the ground that Smith had executed a release to State Farm by indorsing and cashing the check. Smith argued that he had been told by State Farm's agent that the check was in settlement of his property damage claim only, and not of his claim based on personal injuries. The trial court rejected Smith's contentions and entered a summary judgment for Jennings. Smith then sued State Farm and its agent, alleging fraud in the procurement of the release. The trial court entered a summary judgment for State Farm. This Court affirmed, stating the rule from Miles v. Barrett, 223 Ala. 293, 134 So. 661 (1931), and holding:
494 So. 2d at 8 (quoting Conley v. Harry J. Whelchel Co., 410 So. 2d 14, 15 (Ala.1982)). In Miles, the Court found that there was ample evidence to support a finding by the trial court that the language on the indorsement side of the settlement draft was unambiguous, and that the language was to be construed and given the legal effect of a mutual release. Similarly, we agree with the trial court's determination that the jury was presented with evidence sufficient to warrant a finding that the language on the back of the draft could be construed as a mutual release.
American, nevertheless, contends that even if the language on the settlement draft in this case could be construed as a release, the release should be avoided because of a mutual mistake. It is well settled that a release given under a mutual mistake of fact may be avoided. Miles v. Barrett, 223 Ala. 293, 134 So. 661 (1931). In Finley v. Liberty Mutual Insurance Co., 456 So. 2d 1065 (Ala. 1984), the appellant argued that a release between the parties should be avoided because, the appellant argued, the parties lacked mutual assent in signing the release, and the appellant argued that the evidence of the lack of assent established mutual mistake. In Finley, this Court quoted the definition of mutual mistake from Restatement (Second) of Contracts § 152 (1981), which calls for a "mutual misunderstanding concerning a basic assumption on which the contract was made."
Hughes does not contend that he made a mistake. Indeed, Hughes contends that he was completely unaware of the amount due him under his insurance policy and that he relied on American's adjusters to calculate the losses. American contends that McLean made a mistake in computing Hughes's losses and that Hughes was mistaken as to his belief about the production of peanuts on one of the farms. However, such mistake would not rise to the level of a "mutual misunderstanding concerning a basic assumption on which the contract was made," and, accordingly, we hold that the trial court did not err in allowing the jury to determine the legal effect of the release language.
Finally, we consider American's contention that the trial court erred in denying its motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. We note that "[t]he strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So. 2d 793 (Ala. 1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988). This presumption is strengthened by the trial court's denial of a motion for a new trial." King v. W.A. Brown & Sons, Inc., 585 So. 2d 10, 12 (Ala. 1991). There is a strong presumption as to the correctness of a jury verdict:
585 So. 2d at 13, quoting Campbell v. Burns, 512 So. 2d 1341 (Ala.1987).
The standard of review applicable to a ruling on a motion for JNOV is identical to the standard used by the trial court in granting or denying a motion for directed verdict. Turner v. Peoples Bank of Pell City, 378 So. 2d 706 (Ala.1979). Thus, in reviewing the trial court's ruling on the motion, we review the evidence in a light most favorable to the nonmovant, Ritch v. Waldrop, 428 So. 2d 1 (Ala.1982), and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination. Macon County Comm'n v. Sanders, 555 So. 2d 1054 (Ala.1990).
In Attalla Golf & Country Club, Inc. v. Harris, 601 So. 2d 965, 970 (Ala.1992), this Court set out its rule of review:
See, also, Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38 (Ala.1990), citing Hill v. Cherry, 379 So. 2d 590 (Ala.1980).
Civil actions brought after June 11, 1987, are governed by § 12-21-12, Ala.Code 1975, which abolished the "scintilla rule"; that statute now requires proof by substantial evidence in order to submit an issue of fact to the trier of the facts. In ruling on a motion for a JNOV, the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been "substantial evidence" before the jury to create a question of fact. See, § 12-21-12(a), Ala.Code 1975. "[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).
We have carefully reviewed the record in this case and the parties' briefs, and based on our review, we hold that fair-minded persons in the exercise of impartial judgment could reasonably have inferred that the language on the indorsement side of the draft was a mutual release, and that it was in full settlement of the claim. Applying our settled rules of review, we hold that American has not shown us that the verdict was "plainly and palpably wrong and unjust." Christiansen, 567 So. 2d at 1341. Accordingly, we affirm the judgment of the trial court.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | August 6, 1993 |
811bb153-1942-48e6-9bcb-33bc3f139d35 | Marshall v. Nelson | 622 So. 2d 889 | 1910577, 1910762 | Alabama | Alabama Supreme Court | 622 So. 2d 889 (1993)
Frederick A. MARSHALL, as executor of the Estate of James W. Davis, deceased,
v.
Mary E. NELSON.
Dorothy L. DAVIS,
v.
AMSOUTH BANK, N.A.
1910577, 1910762.
Supreme Court of Alabama.
June 18, 1993.
*890 Herndon Inge III, Mobile, for Frederick A. Marshall.
Lee L. Hale, Mobile, for Dorothy L. Davis.
Michael A. Figures of Figures, Jackson and Harris, Mobile, for Mary E. Nelson.
Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for AmSouth Bank, N.A.
HOUSTON, Justice.
The opinion of April 9, 1993, is withdrawn and the following is substituted therefor.
James W. Davis died on May 7, 1989. After his death, AmSouth Bank allowed Dorothy L. Davis, the widow, to withdraw $35,000 from an account. Mary E. Nelson, daughter of the deceased, sued AmSouth Bank, First National Bank of Mobile Division ("AmSouth"), seeking to recover the $35,000, alleging that AmSouth had improperly paid two checks totalling that amount to Dorothy L. Davis and alleging that the account from which the checks were paid was a demand deposit checking account that Nelson had owned with the deceased. Nelson maintained that that account was a joint account with right of survivorship with the deceased, and that the right of survivorship entitled her to all of the money in the account at the death of the deceased. In its answer, AmSouth, substantially admitting Nelson's allegations that it had improperly paid the money to Davis, maintained that it was unable to determine whether Nelson was the sole owner of the joint account through a right of survivorship. The trial court ordered AmSouth to pay $35,000 into the court. AmSouth, alleging breach of presentment warranties (Ala.Code 1975, § 7-3-417 and § 7-4-207) and claiming a right of subrogation (§ 7-4-407), cross-claimed against Davis to recover the $35,000 Davis had been improperly paid from the account. Frederick A. Marshall, executor of the estate of James W. Davis ("the Estate"), intervened in Nelson's suit against Am-South, claiming that the Estate was entitled to one-half of the joint account proceeds AmSouth had paid into court.
On motions for summary judgment, the trial court entered a summary judgment awarding Nelson the $35,000 AmSouth had paid into court pursuant to the trial court's order, but directing the clerk of the court not to release the money until "after all appeals for any claim or cross-claim [were] exhausted or the time [to file such] appeal ha[d] run." The Estate appeals from that judgment. (Case #1910577)
The trial court also entered a $35,000 summary judgment for AmSouth and against Davis on AmSouth's cross-claim. Davis appeals. (Case # 1910762)
These cases have been consolidated for appeal.
The question in this case (1910577, Marshall v. Nelson) concerns the ownership of the joint account at issue.
*891 Pursuant to Ala. Code 1975, § 35-4-7 ("Survivorship Between Joint Tenants"), ownership of the account is controlled by the intent of the parties:
The law is clear. If an instrument is unambiguous and complete on its face, then unless it is stated in the instrument that the joint tenancy is with right of survivorship or other words are used therein to show such an intention, the predeceasing joint tenant's interest does not survive to the other joint tenant but descends and vests as if that interest had been severed and ascertained. See Leonard v. Beverly, 563 So. 2d 1026 (Ala. 1990).
Viewing the record in the light most favorable to the Estate, the nonmoving party, as required under our applicable standard of review,[1] we must take the facts to be as follows:
On December 31, 1982, James W. Davis made an initial deposit of $44,047.33 to the account at issue. The only signature card for that account available from AmSouth was dated October 8, 1984, approximately 22 months after the initial deposit; it showed the account owner(s) as "Mr. James W. Davis or Mary E. Nelson." The signature card contained the following language: "Each Owner [as listed on this account] is subject to all of the written rules and regulations governing deposit accounts ... which are currently in force, and as [AmSouth] may amend them from time to time." (Emphasis added.) The reverse side of the signature card reflected 8 different classes of accounts and 12 different types of accounts. Election of the proper class or type of account was designated by placing an "x" in a space to the left of the name of the account requested. No specific designation was noted on the signature card at issue.
In September 1988, a customer copy of bank rules and regulations ("A Customer Agreement for Depository Accounts") was mailed to each AmSouth customer at the address reflected on the account to which the statements were sent each month, stating in part as follows:
(Emphasis added.) Although there is no evidence that James W. Davis read or otherwise had any knowledge of those rules and regulations, it is undisputed that the address to which the bank statements for this account were mailed was that of James W. Davis.
According to the Estate, it retained a one-half interest in the account because the *892 signature card creating the account was clear and unambiguous on its face and contained no specific designation that the account was with the right of survivorship.
According to Nelson, because the reverse side of the signature card, which offered numerous classes and types of accounts, contained no designation indicating that the account was with the right of survivorship, the signature card was incomplete and therefore ambiguous. Accordingly, says Nelson, parol evidence was admissible to prove the intent of the owners of the account and that evidencethe language on the signature card specifically stating that the account was "subject to all rules and regulations governing deposit accounts ... currently in force, and as [AmSouth] may amend them from time to time," taken with the 1988 revised "Customer Agreement for Depository Accounts"was sufficient to establish, as a matter of law, that the account was with survivorship rights.
In this case, the failure to designate the type or class of account created an ambiguity in the instrument. See Parr v. Godwin, 463 So. 2d 129 (Ala.1984), and Lansford v. Gorham, 591 So. 2d 63 (Ala. 1991). Because of that ambiguity, we look to the extrinsic evidence presented to determine the intent of the owners of the account.
The language on the signature card clearly apprised account owners that the account was subject to the rules and regulations promulgated by AmSouth at the time the account was opened and was subject to those rules and regulations "as amended." Although the language in the bank rules and regulations "as amended" governing the payment to Nelson as the surviving account owner was "not literally an express grant of a right of survivorship, [that] language [did] indicate an intention consistent with the creation of a joint tenancy with right of survivorship." See Lansford v. Gorham, 591 So. 2d at 65.
In this case, Nelson presented no corroborating evidence that James W. Davis intended to create a joint tenancy with right of survivorshipno evidence that the right of survivorship was explained to him when he opened the account; no evidence that he had told anyone that he intended to create a right of survivorship; no evidence of his love for Nelson; and no evidence that he wanted Nelson to have the money in the account. See Saxon v. Pickett, 601 So. 2d 955 (Ala.1992), in which this Court, affirming on the authority of Lansford, held that the terms on the reverse side of the certificate of deposit, which set "out the bank's policies [were] analogous to the signature card in Lansford," and also held that "there was corroborating evidence that [the deceased] had intended the certificate of deposit to provide for joint tenancy with the right of survivorship." See, also, Lansford v. Gorham, supra; Parr v. Godwin, 463 So. 2d 129 (Ala. 1984). Rather, the only evidence Nelson presented was that she was not present when the deceased made the initial deposit; that she never had any conversation or correspondence with the deceased about the account other than conversations and correspondence with him in 1974, 10 years before the date on the account signature card; and that she did not remember signing the signature card in 1984 or having any conversation with James W. Davis about the card.
Because there was no corroborating evidence that James W. Davis intended to create a joint tenancy with the right of survivorship, we hold that upon his death the Estate was entitled to one-half of the funds in the account. Therefore, we reverse the trial court's judgment awarding Nelson the entire proceeds of the joint account and remand for further proceedings consistent with this opinion.
In case 1910762 (Davis v. AmSouth Bank, N.A.), the trial court entered a summary judgment for AmSouth against Dorothy L. Davis on AmSouth's claims that Davis breached the presentment warranties (Ala.Code 1975, § 7-3-417(1) and § 7-4-207(1)), and that AmSouth was subrogated to the rights of Nelson and/or the Estate (Ala.Code 1975, § 7-4-407).
*893 The evidence pertinent to these claims, when viewed in the light most favorable to Davis, as the applicable standard of review requires us to review them, suggests the following:
James W. Davis had discussed with his wife Dorothy L. Davis plans to give her $35,000 to fix up the house they lived in, to buy his daughter Karyn an automobile, and to help with expenses for Karyn's schooling, including tuition. As he customarily did, he asked Dorothy Davis to write the checks, which had been stamped with his signature. After she wrote the checks, she handed them back to him for his approval. She then took the checks, but misplaced them until after her husband died. When she finally found the checks, she deposited them in her account at First Alabama Bank, without knowing that the Estate had notified AmSouth of James W. Davis's death. The checks cleared through normal banking channels and were electronically posted against James W. Davis's account at AmSouth. She used the money as her husband had requestedfor repairs to the house, for Karyn's car, and for Karyn's tuition.
Upon the death of James W. Davis, one-half of the money in the account ($17,500) belonged to the Estate and the other one-half ($17,500) belonged to Nelson. (See the resolution of case # 1910577 and the discussion pertinent thereto.) Because Am-South had mistakenly paid Dorothy Davis the money from the account after it had received notice of death, it paid the $35,000 into court pending the trial court's determination of the ownership of the funds in that account. By paying this money into court, AmSouth in essence restored the money to the account. It then sued Dorothy Davis to recover the money, under theories of breach of presentment warranties (§ 7-3-417 and § 7-4-207(1)) and subrogation (§ 7-4-407). AmSouth and Dorothy Davis moved for summary judgment. The trial court denied Davis's motion but granted AmSouth's motion.
Section 7-3-417 reads in pertinent part as follows:
Section 7-4-207 reads in pertinent part as follows:
These warranty provisions are inapplicable to the facts in this case, and we pretermit any discussion of those sections.
However, AmSouth claims to have been subrogated to certain rights of the drawer pursuant to § 7-4-407 and therefore claims that it was entitled to recoup the money it erroneously paid Davis so as to prevent any unjust enrichment to Ms. Davis and loss to AmSouth.
According to Ms. Davis, AmSouth did not establish that, as a matter of law, she had been unjustly enriched by the $35,000 payment, and therefore, she says, it was not entitled to a summary judgment awarding subrogation under § 7-4-407. Ms. Davis says her evidence created a genuine issue of material fact on the issue of unjust enrichment, because, she says, her evidence indicated that she "spent the money *894 exactly as her husband, the drawer of the check, told her to spend it: for house repairs, the daughter's tuition, and the daughter's car."
Section 7-4-407 reads, in pertinent part, as follows:
(Emphasis added.) As one commentator stated, "The ... idea behind [§ 7-4-407] is [that when] the bank has made an improper payment, e.g., paid over a missed stop order, someone is ahead of the game and the bank ought to be able to get the cash from someone to cover the check." 2 Thomas M. Quinn, Quinn's Uniform Commercial Code Commentary and Law Digest 4-215 (1991).
In this case, if AmSouth is entitled to be subrogated to the rights of another, then from the clear language of the statute it is entitled only to be subrogated "to the rights ... [o]f the drawer ... against the payee." Thus, in this case AmSouth could be subrogated only to the rights of the Estate against Ms. Davis.
From our review of the record, we conclude that AmSouth failed to establish that Dorothy Davis was, as a matter of law, unjustly enriched. Therefore, the trial court erroneously entered the summary judgment for AmSouth. We must reverse the summary judgment and remand the cause for the trial court to determine whether Ms. Davis was unjustly enriched.
Because AmSouth may be entitled to subrogation under § 7-4-407, Ms. Davis's argument under § 7-3-418 is not now relevant because § 7-3-418 is premised upon the words, "Except for recovery of bank payments as provided in [Article 4]."
1910577 OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
1910762 OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON and SHORES, JJ., concur.
[1] This action was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala. 1989). | June 18, 1993 |
f1872d68-b705-409f-bf79-0ee81740a0f7 | Ex Parte Thomas | 625 So. 2d 1156 | 1911445 | Alabama | Alabama Supreme Court | 625 So. 2d 1156 (1993)
Ex parte Nathan Dwayne THOMAS.
(Re Nathan Dwayne THOMAS.
v.
State).
1911445.
Supreme Court of Alabama.
June 11, 1993.
Darron C. Hendley, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and Yvonne A.H. Saxon, Asst. Atty. Gen., for respondent.
PER CURIAM.
Nathan Dwayne Thomas petitioned this Court to grant a writ of certiorari to review the Court of Criminal Appeals' affirmance of his conviction of murder in the Montgomery County Circuit Court. After deciding that the issue possessed probable merit, we granted the writ.
*1157 The State charged Thomas with murder for his alleged participation in a "drive-by" shooting; the shooting was carried out from a car that contained four young males. The issue for our reviewwhich is one of first impression in this stateis whether the trial court should have granted Thomas's motion for a mistrial after the prosecutor elicited testimony from another passenger of the car, Clarence Sweeney, that Thomas was a member of a "gang."
Thomas's argument is based upon the following events that occurred at his trial:
Later, Sweeney testified, without objection, that the driver of the car was a member of the "Bloods" gang and that Thomas and the driver were "not even in the same gang."
Thomas then moved for a mistrial, or, in the alternative, for a curative instruction. The trial court, after forbidding the parties from further mention of gangs, stated:
Thomas argues that the testimony concerning his membership in a gang was irrelevant and so highly prejudicial as to require the trial court to grant his motion for a mistrial. The Court of Criminal Appeals agreed that the testimony was prejudicial, stating:
Thomas v. State, 625 So. 2d 1149, at 1153 (Ala.Cr.App.1992).
The State, although implicitly agreeing that the testimony was irrelevant, nevertheless asserts that the testimony was not so prejudicial as to require a reversal. It asserts that the term "gang" does not necessarily indicate bad character or criminal activity on Thomas's part. We reject this argument, and agree with the reasoning of the Court of Criminal Appeals on this point. In light of the massive media coverage of gang violence in contemporary society, the assertion that a defendant's membership in a gang called the "Vice Lords" will not prejudice him in the eyes of a jury is simply untenable. See generally People v. Munoz, 157 Cal. App. 3d 999, 204 Cal. Rptr. 271 (1984); State v. Ballantyne, 128 Ariz. 68, 623 P.2d 857 (Ariz.App. 1981); People v. Perez, 114 Cal. App. 3d 470, 170 Cal. Rptr. 619 (1981); Susan L. Burrell, Gang Evidence: Issues for Criminal Defense, 30 Santa Clara L.Rev. 739 (1990). The State also argues that the testimony, although erroneously admitted, does not require a reversal because Thomas refused the trial court's offer to give a curative instruction. The Court of Criminal Appeals based its affirmance on this rationale.
Initially, we note that it is true that a mistrial is a drastic remedy, to be used only sparingly and only to prevent manifest injustice, Samuel v. State, 455 So. 2d 250 (Ala.Cr.App.1984), and that the decision of whether to grant a motion for a mistrial rests within the sound discretion of the trial court. Ala.Code 1975, § 12-16-233; Ex parte Jefferson, 473 So. 2d 1110 (Ala.1985), cert. denied, 479 U.S. 922, 107 S. Ct. 328, 93 L. Ed. 2d 300 (1986). It is also true that under certain circumstances prejudicial testimony may be eradicated by curative instructions by the trial court. Cole v. State, 548 So. 2d 1093 (Ala.Cr.App.1989); Jefferson, supra. Furthermore, *1158 defense counsel's refusal of the trial court's offer to give curative instructions prevents the defendant from receiving relief on appeal under certain circumstances. Campbell v. State, 570 So. 2d 1276 (Ala.Cr. App.1990); Carlisle v. State, 533 So. 2d 645 (Ala.Cr.App.1987); Renfroe v. State, 382 So. 2d 627 (Ala.Cr.App.1980), cert. denied, 382 So. 2d 632 (Ala.1980).
Here, however, the situation is very different from the situations presented in the cases cited above. First, the prejudice in those cases primarily resulted from inadvertent slips by witnesses. In contrast, here the prejudicial testimony was deliberately elicited by the prosecutor immediately after the defense had asked the trial court to poll the jurors to ascertain whether they had heard media references to gang-related activity in the case. Therefore, the jury had already heard references to gangs at least four times before it retired for deliberations. Although the trial court did offer to give curative instructions, it was unsure whether the instructions would ameliorate or exacerbate the situation. This is made clear by the trial court's statement to defense counsel:
(Emphasis added.) The trial court's reluctance to give the curative instruction stands in marked contrast to the trial court's actions in Carlisle, supra, where the court stated that it would give the curative instruction in "as strong a terms [sic]" as possible. 533 So. 2d at 650. Similarly, in Renfroe, supra, the trial court stated that it had not given the curative instructions because the risk of prejudice was slight and because the defendant refused the instructions.
It is also clear that Thomas was under no obligation to request the curative instruction, because the error was already preserved for appellate review. Stephens v. State, 250 Ala. 123, 33 So. 2d 245 (1947). Thomas merely requested the curative instruction after the prosecution continued to elicit testimony regarding gangs.
Moreover, curative instructions are used primarily when an objection to prejudicial testimony is sustained; the instruction serves to eradicate the harmful effects of the inadmissible testimony. In such situations, the consistent actions of the trial court serve to totally nullify the effect of the testimony. Here, the overruling of the objection had the effect of communicating to the jury that the evidence was relevant and probative; any later inconsistent action by the trial court had at least the possibility of confusing the jury or reinforcing the inadmissible evidence in their minds.
Because the testimony regarding Thomas's gang membership was irrelevant and highly prejudicial, and because Thomas was under no obligation to accept the trial court's offer to give a curative instruction under these circumstances, we hold that the Court of Criminal Appeals erred in affirming Thomas's conviction. Therefore, the judgment is reversed and the case is remanded for the Court of Criminal Appeals to order a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES and ADAMS, JJ., concur.
KENNEDY, J., concurs in the result. | June 11, 1993 |
b52974b1-45f5-4e13-97e4-198bc0d60fc2 | Applin v. Consumers Life Ins. Co. | 623 So. 2d 1094 | 1911478 | Alabama | Alabama Supreme Court | 623 So. 2d 1094 (1993)
Albert APPLIN
v.
CONSUMERS LIFE INSURANCE COMPANY OF NORTH CAROLINA, et al.
1911478.
Supreme Court of Alabama.
June 30, 1993.
*1095 C.S. Chiepalich, Mobile, for Albert Applin.
Michael K. Wright of Starnes & Atchison, Birmingham, for Consumers Life Ins. Co. of North Carolina.
J.F. Janecky and Susan L. Gunnells of Barker & Janecky, P.C., Mobile, for Sturdivant Life Ins. Co.
M. Lloyd Roebuck of Kilborn & Roebuck, Mobile, for Hamp Griffin Subaru, Inc.
ALMON, Justice.
Albert Applin appeals from the dismissal of his fraud complaint against Consumers Life Insurance Company of North Carolina, Sturdivant Life Insurance Company, and Hamp Griffin Subaru, Inc. The issue is whether the trial court erred in dismissing the complaint for failure to state a claim, Rule 12(b)(6), Ala.R.Civ.P.
*1096 Applin's complaint, filed on April 2, 1992, reads in its entirety:
All three defendants moved to dismiss Applin's complaint for failure to state a claim on which relief can be granted. See Rule 12(b)(6), Ala.R.Civ.P.
The standard of review of a Rule 12(b)(6) motion is as follows:
Grant v. Butler, 590 So. 2d 254, 255 (Ala.1991) (quoting Greene County Bd. of Educ. v. Bailey, 586 So. 2d 893 (Ala.1991)); see also Pearce v. Schrimsher, 583 So. 2d 253 (Ala. 1991); Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985).
This standard must be applied in the context of the requirement of fair notice to the defendant of the claim against him:
Simpson v. Jones, 460 So. 2d 1282, 1285 (Ala. 1984) (citations omitted); Archie v. Enterprise Hosp. & Nursing Home, 508 So. 2d 693 (Ala.1987); State Farm Fire & Cas. Co. v. Fincher, 454 So. 2d 936 (Ala.1984); Caron v. Teagle, 345 So. 2d 1331 (Ala.1977).
Rule 9(b), Ala.R.Civ.P., requires that, when alleging a claim of fraud, the plaintiff must state the circumstances constituting fraud with particularity. These circumstances include the time, the place, and the contents or substance of the misrepresentations, the facts misrepresented, and an identification of what has been obtained. Miller v. Mobile County Bd. of Health, 409 So. 2d 420, 422 (Ala.1982); Kabel v. Brady, 519 So. 2d 912 (Ala.1987); State Farm Fire & Cas. Ins. Co. v. Lynn, 516 So. 2d 1373 (Ala. 1987); Robinson v. Allstate Ins. Co., 399 So. 2d 288 (Ala.1981); see also Committee Comments to Rule 9(b), Ala.R.Civ.P. Thus, while Rule 9(b) does not require that every element be stated with particularity, the plaintiff must use more than generalized or conclusory statements in setting out the alleged fraud. Robinson, 399 So. 2d at 289-90. The primary purpose of this special pleading provision is to give fair notice of the alleged fraud to the opposing party. Kabel, 519 So. 2d at 916; Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899 (Ala.1979); Caron v. Teagle, 345 So. 2d 1331 (Ala.1977).
The elements of a claim of fraudulent misrepresentation are (1) a misrepresentation of a material fact (2) made either innocently, or willfully to deceive, or recklessly without knowledge, (3) which under the circumstances was justifiably relied upon by the plaintiff and (4) which caused injury *1098 as a proximate consequence. § 6-5-101, Alabama Code 1975; Harris v. M & S Toyota, Inc., 575 So. 2d 74 (Ala.1991); Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746 (Ala.1990). The elements of a claim of fraudulent suppression of material fact are: (1) the suppression of a material fact (2) that the defendant was under a duty to communicate (3) because of the confidential relationship between the parties or the circumstances of the case and (4) which caused injury as a proximate consequence. § 6-5-102, Alabama Code 1975; Crowder v. Memory Hills Gardens, Inc., 516 So. 2d 602, 604 (Ala.1987).
Reading the complaint in a light most favorable to Applin, it appears that he alleges that he paid for, but did not receive, an amount of coverage equal to the balance due on the note. However, it also appears that the alleged fraud occurred, if at all, more than six years before he filed his complaint. Applin alleges generally in his second paragraph "8" that he did not discover the fraud until February 1992 and could not have discovered the fraud sooner by the exercise of reasonable diligence. However, he does not allege that he did not receive a copy of the policy or of the financing documents; those documents would have disclosed on their face the amounts in question. Applin's failure to allege with more particularity any facts sufficient to toll the running of the statutory limitations period would be sufficient in itself to justify the dismissal. See Miller v. Mobile County Bd. of Health, 409 So. 2d 420, 422 (Ala.1981).
Additionally, Applin has not alleged fraud with sufficient particularity to withstand a motion to dismiss. It is not clear whether the figure "$24,313.80" represents the amount financed or the amount of the credit life insurance policy. If it represents the amount financed, then there is no allegation of the amount of the insurance policy, either as sold or as represented. If it represents the amount of the policy, then there is no allegation of the amount financed. There is only the most conclusory allegation that the policy would not pay the "balance owing on said vehicle." The complaint refers to "the financing of said vehicle." The "amount financed," however, ordinarily includes the total amount payable in principal and interest over the term of the loan. A payoff early in the term of the loan would be less than the amount financed, because it would include only the principal balance plus unpaid accrued interest. Similarly, a payoff late in the term of the loan would be less than the amount financed, because the principal would have been reduced and, absent a default, most of the interest would have been paid in the installment payments. For these reasons, the credit life policy would never need to pay the full amount financed. Even aside from these distinctions between the amount financed and the amount due on the note, the bare allegation in the complaint that the "credit life insurance policy would not pay the balance owing on said vehicle" does not allege a material misrepresentation or a suppression of material fact with sufficient particularity to give a defendant fair notice of a claim or to withstand a motion to dismiss.
Moreover, Applin's only allegation of injury is "that the value of the policy actually sold to him was less than the policy as represented to him." Hamp Griffin and Consumers Life argue generally that Applin failed to make a sufficient allegation of actual damage because he did not aver that Consumers Life denied a claim filed for benefits or that there was any reason for him to believe that Consumers Life would do so. Applin argues, however, that it was not necessary for him to file a claim under the policy to incur actual damage, citing Guinn v. American Integrity Ins. Co., 568 So. 2d 760 (Ala.1990); Myers v. Geneva Life Ins. Co., 495 So. 2d 532 (Ala. 1986); and National States Ins. Co. v. Jones, 393 So. 2d 1361 (Ala.1980). Although actual damage is an essential element in an action alleging misrepresentation or suppression of a material fact, Jordan v. General Motors Corp., 581 So. 2d 835 (Ala.1991), the fact that a claim on the policy was not filed or denied does not alone determine whether the plaintiff has suffered actual damage, Guinn, supra; National States v. Jones, supra.
The allegations in Applin's complaint, however, do not give fair notice of any *1099 conceivable set of facts that would support a finding of injury or an award of damages. The ordinary term of a loan on an automobile is four, or perhaps five, years. More than six years elapsed before Applin filed his complaint. On the face of the complaint, therefore, it appears that the loan would have been paid in full, and Applin does not allege that there is an outstanding balance. There appears to be no possibility of Applin's dying during the term of the loan. Therefore, the alleged failure to provide coverage for an amount sufficient to "pay the balance owing" does not sufficiently allege that Applin has been injured, because there is no allegation that the purpose of the coverage still exists.
The allegation that he was injured by the failure to provide enough coverage to pay the loan balance is not sufficient to support an action under the theory that he paid premiums for coverage he did not receive or that he was injured by the payment of higher premiums than he would have paid if he had received coverage as allegedly represented. He does not allege that he paid a higher premium than would ordinarily be paid for a sufficient amount of coverage or for the coverage he received; he does not allege that he had no intention to buy credit life insurance but was fraudulently induced to buy such insurance; and he does not allege that he received no coverage at all. In short, Applin's allegations support only the conclusion that he actually benefited from the alleged fraud in that he was sold a less expensive policy than would have been necessary to pay the note during its term. Because he has alleged nothing that would support an award of damages, Guinn, Myers, and National States v. Jones, supra, are distinguishable.
For any or all of the foregoing reasons, the dismissal is due to be affirmed as to the claims against Hamp Griffin Subaru and Consumers Life.
Applin's complaint also fails to state a claim against Sturdivant. The only parts of Applin's complaint making any allegations against Sturdivant are the second paragraph "8" and paragraph 9. In that paragraph 8, Applin alleges that he did not discover the alleged fraud for six years because of the acts of Consumers Life, Sturdivant, and Hamp Griffin. In paragraph 9, Applin alleges that Sturdivant, while acting as the agent of Consumers Life, "further reduced the benefits pursuant to the above said policy without informing the Plaintiff." Applin makes no allegation of fraud or breach of contract with regard to Sturdivant. The allegations against Sturdivant are insufficient, as a matter of law, because they completely fail to state either a legal claim or a factual circumstance from which one could be sufficiently inferred. Applin failed to fairly apprise Sturdivant of a claim against which it must appear and defend. Therefore, the dismissal is also due to be affirmed as to the claims against Sturdivant.
AFFIRMED.
MADDOX, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur. | June 30, 1993 |
182f8bc5-9b28-4100-b9d1-5afb0dfb5c82 | Wiley v. General Motors Acceptance Corp. | 624 So. 2d 518 | 1910942 | Alabama | Alabama Supreme Court | 624 So. 2d 518 (1993)
Daisy M. WILEY
v.
GENERAL MOTORS ACCEPTANCE CORPORATION.
1910942.
Supreme Court of Alabama.
July 9, 1993.
*519 T. Jefferson Deen III and W. Lloyd Copeland of Clark, Deen & Copeland, P.C., Mobile, for appellant.
George W. Finkbohner III and Royce A. Ray III of Finkbohner & Lawler, Mobile, for appellee.
MADDOX, Justice.
The opinion of December 11, 1992, is withdrawn and the following is substituted therefor.
In applying for rehearing, General Motors Acceptance Corporation ("GMAC") argues that this Court's opinion of December 11, 1992, "represents a substantial retreat from, if not an outright reversal of, many prior decisions of this Court, including the substantial body of Alabama case law set forth in GMAC's Application for Rehearing on `agency,' `non-modification,' `a creditor's right to self-help repossession on default,' and `estoppel.' " In response, Daisy Wiley states:
Our purpose in substituting this opinion is to answer some of the charges that GMAC has made in its application for rehearing and to make it clear that we have not changed the law regarding peaceable self-help repossession by a creditor except in those very limited fact situations, such as the one presented in this case, in which (1) the creditor knows that the debtor has purchased credit disability insurance to pay the debt if the debtor becomes disabled; (2) the debtor becomes disabled and the creditor knows that fact; (3) the debtor desires to activate the disability insurance; and (4) the creditor nevertheless proceeds to repossess the collateral, even though peaceably.
The plaintiff, Daisy M. Wiley, appeals from a summary judgment in favor of the defendant, GMAC, on her claims alleging conversion and commercially unreasonable sale after repossession of an automobile. We affirm the judgment as to the claim of a commercially unreasonable sale and reverse and remand as to the conversion claim.
On March 4, 1989, Wiley bought a 1987 Nissan Pulsar automobile from Trail Pontiac-GMC *520 Truck, Inc., in Mobile. Wiley signed an installment sale contract, with "GMAC" written at the top, that obligated her to pay $320.63 per month for 42 months, with the first payment due on April 18, 1989. The contract created a security interest in GMAC with a right of repossession upon default; GMAC perfected that security interest by placing a lien on the certificate of title.
The contract allowed Wiley to choose whether she would buy insurance to pay her installments if she became disabled. The pertinent provision states:
Wiley chose to buy the insurance, and the contract listed Georgia International Life Insurance Company as the insurer and Atlanta, Georgia, as the insurer's location. Wiley paid a premium of $727.19, which was included in her monthly payments. The contract provided further that "[t]his policy will pay your debt on this contract up to $13,466.46." The policy required that notice of disability be given within 90 days.
Wiley suffered a disabling stroke on August 10, 1990. That same day, the Mobile Police Department seized her car as part of a suspected illegal drug transaction.[1] The police discovered the lien on the title and notified GMAC that it could obtain a release.
Essie Henley, Wiley's daughter, went to the police department to see about having her mother's car returned. The police department directed her to GMAC. Henley claims in her affidavit that she spoke to a man named Johnson at GMAC on August 13, 1990,[2] that she told him of Wiley's disability, and that he directed her to Trail Pontiac. James Johnson testified for GMAC in a deposition, denying that Henley told him that Wiley was disabled but acknowledging that the existence of Wiley's disability insurance was noted in GMAC's file. Henley obtained a disability claim form from Trail Pontiac, which was completed by Wiley's attending physician on September 20, 1990. Georgia International received the claim form on October 10, 1990, and sent GMAC a check dated October 18, 1990, for $374.07.
Wiley did not pay her August and September 1990 installments. GMAC notified her by letter on September 26, 1990, that it had repossessed her car and was going to sell it at a private sale sometime after October 9, 1990, unless she paid the accelerated balance and expenses. GMAC sold the car on October 25, 1990, for $5,200 and then informed Wiley that she owed a deficiency of $2,941.59. This amount did not reflect the $374.07 check from Georgia International. GMAC received a check for $438.19 sometime after November 20, 1990, but returned it to Georgia International.
On January 7, 1991, Wiley sued GMAC and two police officers involved in the seizure of her car. She alleged conversion against all defendants and a commercially unreasonable sale and a violation of the Federal Truth-in-Lending Act against GMAC. Wiley later voluntarily dismissed her claim under the Truth-in-Lending Act. GMAC asserted a counterclaim for $2,941.59 but later amended its counterclaim to $2,514.08. GMAC also moved for a summary judgment on both of Wiley's remaining claims. The trial court dismissed the claims against the police officers without prejudice, struck GMAC's counterclaim, and granted GMAC's motion for summary judgment. Wiley appeals from the summary judgment.
The trial court correctly granted GMAC's motion for summary judgment only *521 if there was no genuine issue of material fact and GMAC was entitled to a judgment as a matter of law. Rule 56(c)(3), Ala.R.Civ.P. On review, we must consider the evidence in a light most favorable to Wiley. Harris v. Macon County, 579 So. 2d 1295, 1297 (Ala. 1991). If GMAC makes a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law, then the burden would shift to Wiley to present substantial evidence to the contrary. See Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 798 (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).
It is undisputed that Wiley missed her August and September 1990 payments; therefore, the contract plainly gave GMAC the right to repossess and resell the car. However, the contract, which a factfinder could reasonably conclude was prepared by GMAC, also reflects that Wiley chose insurance through Georgia International that would cover her payments during her disability and states that the insurance policy "will pay your debt on this contract up to $13,466.46." The crux of this case is the effect of the disability insurance, and the ultimate issue is whether GMAC had a right to repossess and resell the car upon Wiley's default without regard to the fact that she had elected to obtain the disability insurance policy mentioned in the contract.
After hearing oral argument and carefully examining the record and the cases that GMAC cites in its application for rehearing, we conclude that Wiley was given the opportunity to buy credit disability insurance as part of an installment sale and that she chose to buy the insurance to protect her against the very act that GMAC caused to occurrepossession and resale of her automobile. Considering these facts, could Wiley reasonably expect that her car would not be repossessed if she was in fact disabled? Stated differently, when Wiley elected to purchase the credit disability insurance, did GMAC impliedly promise that it would not declare a nonpayment default if Wiley became disabled and gave GMAC notice, so long as she complied with the terms of the disability insurance agreement? We answer both questions in the affirmative.
We find substantial evidence that GMAC made at least an implied promise to Wiley that it would not repossess her car if it knew that she had purchased credit disability insurance and that she had, in fact, complied with the terms of the policy to have the debt paid during the period of her disability.[3] We find it significant that the contract unequivocally stated that the insurance made available "will pay your debt on this contract up to $13,466.46."
Some of the material facts are disputed. For example, regarding whether GMAC had knowledge, it is disputed whether Henley told Johnson or someone else at GMAC on August 13, 1990, that Wiley had become disabled, but there was evidence of the disability in GMAC's file. In considering the evidence in a light most favorable to Wiley as the nonmoving party, we find a question of fact as to whether GMAC knew on August 13, 1990, of Wiley's disability and of her intent to activate the disability insurance. It is apparently undisputed that Wiley notified Georgia International within 90 days, and it is undisputed that Georgia International sent the first check within 90 days.
There is substantial evidence that the installment sales contract was on a form provided by GMAC and that the debtor was given an option to purchase credit disability insurance to pay the debt evidenced by the contract. When considered along with what we find to be substantial evidence of a genuine issue of material factHenley's sworn statement that she told Johnson about Wiley's disability and Wiley's intent to activate *522 the insurancewe hold that this evidence, if believed by the factfinder, would be sufficient for the factfinder to conclude that GMAC breached an implied promise arising out of the relationship of the partiesa promise that it would not repossess Wiley's automobile if she became disabled and complied with the terms of the credit disability policy. Thus, we hold that the summary judgment in GMAC's favor on the conversion claim was improper.
We agree with the trial court, however, that the summary judgment was proper as to the claim of a commercially unreasonable sale. The doctrine of commercial unreasonableness applies to the disposition of the collateral after default and repossession. See Ala.Code 1975, § 7-9-504. Wiley does not dispute that GMAC properly notified her that the automobile would be sold unless she paid the accelerated balance and expenses. Furthermore, the record does not contain the evidence necessary to prove a claim of commercial unreasonableness:
Terrell v. John Deere Co., 491 So. 2d 918, 920 (Ala.1986).
Based on the foregoing, we reverse the summary judgment as to the conversion claim, but we affirm it in all other respects.
OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Apparently, an acquaintance of Wiley's granddaughter was using the car at the time, and Wiley was not involved.
[2] Henley's affidavit lists the date as "Monday, August 13, 1991." GMAC argues that the listing of the date as 1991 demonstrates that GMAC did not receive notice of Wiley's disability within 90 days, as required by the contract. This argument is meritless. The affidavit refers to the events it addresses as happening within a few days; moreover, it is undisputed that GMAC received a check from Georgia International on Wiley's behalf dated October 18, 1990.
[3] GMAC does not dispute that Wiley was disabled. Its sole argument is premised upon its understanding of the law that it can repossess peaceably at any time there is a default, even though it knows that the debtor has elected to purchase credit disability insurance, which it has financed, and that the debtor is, in fact, disabled. | July 9, 1993 |
7cb0aa2b-cf61-447c-a5d3-97fdc2dd116e | Ex Parte Reuter | 623 So. 2d 737 | 1911111 | Alabama | Alabama Supreme Court | 623 So. 2d 737 (1993)
Ex parte Frederick W.P. REUTER, Jr.
(Re Frederick W.P. REUTER, Jr. v. Gloria Gay REUTER.)
1911111.
Supreme Court of Alabama.
June 25, 1993.
J. Brice Callaway, Huntsville, for petitioner.
Bruce E. Williams of Stephens, Millirons, Harrison & Williams, P.C., Huntsville, for respondent.
ADAMS, Justice.
We granted the petition of Frederick W.P. Reuter, Jr., for certiorari review of the judgment of the Court of Civil Appeals in Reuter v. Reuter, 623 So. 2d 735 (Ala.Civ.App.1992). We affirm.
Frederick Reuter, Jr., and Gloria G. Reuter were married on September 6, 1969, and they divorced on May 6, 1991. On May 1, 1991, the parties stipulated as to the disposition of the marital home and as to the division of personal property and marital debts. After a hearing, the trial court, on May 6, 1991, entered a judgment in accordance with the stipulations. Mr. Reuter was ordered to pay child support in the amount of $416 per month and to pay $12,000 alimony in gross for Mrs. Reuter's support and maintenance.
The Court of Civil Appeals affirmed; we granted certiorari review to consider what appears to be an inconsistency, with respect to the treatment of alimony in gross, between two decisions of the Court of Civil Appeals: Hartsfield v. Hartsfield, 384 So. 2d 1097 (Ala. Civ.App.), cert. denied, 384 So. 2d 1100 (Ala. 1980), and Rogers v. Rogers, 473 So. 2d 537 (Ala.Civ.App.1985).
In Hartsfield, the Court of Appeals stated, with respect to alimony in gross:
384 So. 2d at 1098-99.
473 So. 2d at 538. See also Sketo v. Sketo, 608 So. 2d 759, 760 (Ala.Civ.App.1992).
This Court stated in Hager v. Hager, 293 Ala. 47, 52, 299 So. 2d 743, 747 (1974), with respect to alimony in gross:
(Quoting Smith v. Rogers, 215 Ala. 581, 112 So. 190 (1927)). See also Shirley v. Shirley, 600 So. 2d 284 (Ala.Civ.App.1992).
To the extent that Hartsfield v. Hartsfield, supra, is inconsistent with this Court's ruling on alimony in gross in Smith and Hager, supra, it is overruled.
Arzonico v. Wells, 589 So. 2d 152 (Ala.1991). We have considered the record in this case and we have determined that there was no error in the trial court's judgment and award of alimony in gross.
For the foregoing reasons, we affirm the judgment of the Court of Civil Appeals. We also award Mrs. Reuter an attorney fee in the amount of $500 in this certiorari proceeding.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | June 25, 1993 |
787a8bed-4668-41ea-9a32-bd5dd83c3cf4 | Ex Parte WJ | 622 So. 2d 358 | 1911973 | Alabama | Alabama Supreme Court | 622 So. 2d 358 (1993)
Ex parte W.J.
(Re STATE ex rel. G.J. v. W.J.)
1911973.
Supreme Court of Alabama.
June 11, 1993.
*359 Michael J. Bellamy, Phenix City, for petitioner.
William Prendergast and Mary E. Pons, Asst. Attys. Gen., for respondent.
HORNSBY, Chief Justice.
We granted W.J.'s petition for a writ of certiorari to the Court of Civil Appeals to review the propriety of granting Rule 60(b), Ala.R.Civ.P., relief from a prior paternity adjudication. The trial court granted the relief in 1991, after an advisory jury found that W.J. was not the father of a child born out of wedlock to G.J.; the trial court set aside a 1981 paternity adjudication. The Court of Civil Appeals reversed the trial court's order, holding that the doctrine of res judicata bars the relitigation of paternity in this case. 622 So. 2d 353.
The record shows that in 1978 G.J. gave birth to the child whose paternity is disputed in this case. In 1981, the State, on the relation of G.J., brought a paternity action against W.J., who G.J. alleged was the father. Pursuant to an agreement with *360 G.J., W.J. admitted that he was the father of a child born out of wedlock to G.J. Based on that admission, the Juvenile Division of the Circuit Court of Russell County adjudged him to be the father of the child and, on July 8, 1981, it ordered him to make child support payments of $20 per week. He did not appeal the adjudication. On May 24, 1989, the court modified the order, increasing the child support payments to $40 per week.
It is undisputed that W.J. complied with both orders until May 1990, after he received the results of a DNA probe analysis. In December 1989, W.J. told the child that he (the child) was ill and took him to a doctor's office, where they both received DNA tests to determine paternity. The results of the tests conclusively excluded him as the biological father of the minor child.
In March 1990, W.J. petitioned the juvenile court to modify or set aside the 1981 order adjudging him to be the father of the minor child.[1] Based on the DNA test results, the court set aside the 1981 order. On appeal to the Circuit Court of Russell County for a trial de novo, the court excluded the DNA test results, based on the lack of an evidentiary foundation, and ordered the mother, the child, and W.J. to undergo human leukocyte antigen ("HLA") blood tests. Those results establish that W.J. lacks the leukocyte antigens A29 and B44, both of which are present in the child and are absent in the mother; accordingly, W.J. cannot be the biological father of the child.
The trial court empaneled an advisory jury pursuant to Rule 39, A.R.Civ.P., and held a hearing to determine whether W.J. was the biological father of the minor child. The jury found that W.J. was not the father. The trial court entered a judgment granting Rule 60(b) relief, setting aside the 1981 adjudication and the child support order.
The Court of Civil Appeals, with an opinion by Judge Thigpen, reversed, holding that the doctrine of res judicata barred relitigation of the issue of paternity, because the 1981 order had established that W.J. is the legal father of the child. Presiding Judge Robertson filed a dissenting opinion, stating that he would consider these facts to justify an exception to the general rule that the doctrine of res judicata applies to paternity orders.
The trial court's ruling on a Rule 60(b) motion is entitled to a presumption of correctness, and it will not be reversed on appeal absent an abuse of discretion. Buchanan v. Collier, 571 So. 2d 1068 (Ala. 1990); Ex parte Dowling, 477 So. 2d 400, 402 (Ala.1985). Rule 60(b) relief is an extraordinary remedy permitted only in exceptional circumstances where sufficient equitable grounds exist for granting relief. Textron, Inc. v. Whitfield, 380 So. 2d 259, 260 (Ala. 1979).
The doctrine of res judicata prevents the same parties from relitigating issues determined by a court of competent jurisdiction. Although this doctrine could preclude a party from showing what is or could be the truth, the interest of putting an end to controversies after a fair and thorough hearing generally outweighs the factfinding interest after the time for appeal has lapsed, except in rare circumstances. In those rare circumstances, Rule 60(b) makes available relief from a prior judgment. See, e.g., Jones v. Jones, 525 So. 2d 1380 (Ala.1988). Rule 60(b) sets forth six grounds for which relief from a judgment may be granted. The State argues that W.J.'s motion does not fit within any of those six categories.
W.J. argues that the recently obtained blood tests constitute "newly discovered evidence" within the meaning of Rule 60(b)(2). The State argues that, with due diligence, W.J. could have obtained the blood tests in 1981; therefore, the State *361 argues that W.J.'s motion was not timely filed and should have been dismissed.
HLA blood tests were widely available in 1981. See Balfour v. Balfour, 413 So. 2d 1167, 1168 (Ala.Civ.App. 1982). Further, W.J. had a statutory right to request a blood test when, despite his doubts, he admitted paternity in 1981. See Ala.Acts 1961, Act No. 295, p. 2353, § 5 (effective September 15, 1961), repealed by Ala.Acts 1984, Act No. 84-244, p. 375, § 22 (adopting Uniform Parentage Act, which expressly permits use of HLA. blood test) (effective May 7, 1984). Therefore, we hold that, by due diligence, W.J. could have discovered this evidence in time to move for a new trial under Rule 59(b), A.R.Civ.P.
W.J. also contends that G.J.'s testimony to the court that W.J. was the father of this child, when, he says, she knew that he was not, constitutes fraud justifying relief from the 1981 judgment, pursuant to Rule 60(b)(3). Motions for relief brought under Rule 60(b)(2) or (b)(3) are subject to a time limitation. Rule 60(b) reads: "The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four months after the judgment, order, or proceeding was entered or taken." W.J.'s motion for relief on the grounds of "newly discovered evidence," pursuant to Rule 60(b)(2), or fraud, pursuant to 60(b)(3), was filed long beyond the four-month time limit.
W.J. also argues that he is entitled to relief under Rule 60(b)(6), which provides that the court may grant relief from a judgment for "any other reason justifying relief from the operation of the judgment." The State contends that W.J.'s motion was untimely filed, coming, as it did, more than 10 years after the initial order, and, the State says, without a valid reason for the delay.
A motion under Rule 60(b)(6) must be brought "within a reasonable time" after the entry of the judgment. What constitutes a "reasonable time" depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to other parties. Adams v. Farlow, 516 So. 2d 528 (Ala.1987), cert denied, 485 U.S. 1010, 108 S. Ct. 1477, 99 L. Ed. 2d 705 (1988). In addition, the doctrine of laches, which denies equitable relief to one guilty of unconscionable delay in asserting a claim, applies to Rule 60(b) motions. Waldrop v. Waldrop, 395 So. 2d 62 (Ala.1981). We note further that the broad power granted by Rule 60(b)(6) is not granted for the purpose of relieving a party from free, calculated, and deliberate choices. Tichansky v. Tichansky, 54 Ala. App. 209, 307 So. 2d 20 (Ala.Civ.App.1974), cert. denied, 293 Ala. 775, 307 So. 2d 24 (1975).
The trial testimony by W.J. and the social worker who handled G.J.'s case support a finding that W.J. had no valid reason for his delay in challenging the 1981 order. W.J. testified as follows:
The social worker with the Department of Human Resources ("DHR") who in 1991 was handling G.J.'s case, testified that notations in the case file indicate that W.J. had visited on May 8, 1981, with the social worker who was then handling G.J.'s case, and on that visit expressed doubt that he was the father of the child. The 1991-social worker testified that the social worker who handled the case in 1981 entered in the case file the following comments:
The social worker testified that W.J. later spoke with G.J. and agreed to support the child and to stipulate to paternity.
W.J. himself testified that as early as May 1981, even before the paternity order was entered, he had reason to doubt that he was the father. These facts differ substantially from the cases of K.W. v. State ex rel. S.G., 581 So. 2d 855 (Ala.Civ.App. 1991), and Ex parte State ex rel. McKinney, 567 So. 2d 366 (Ala.Civ.App. 1990), in which there was no evidence that at an earlier date the alleged father had doubted or had had reason to doubt that he was the father.
Because W.J. failed to appeal the 1981 judgment, and because he failed to seek relief from that judgment pursuant to Rule 60(b)(6) within a reasonable time, we hold that W.J.'s motion was untimely filed and should not have been considered by the trial court. Our review of other states' opinions regarding the finality of paternity adjudications supports this holding. People in Interest of S.L.H., 736 P.2d 1226 (Colo.App.1986) (holding that a five-year statute of limitations strictly applies to a challenge of paternity of a child born during marriage); State Dep't of Health & Rehabilitative Services v. Sadiki, 561 So. 2d 304 (Fla.Dist.Ct.App.1990) (child support obligor who admitted paternity was not entitled to HLA blood tests to challenge paternity 12 years later); Gearing v. Gearing, 261 Ga. 250, 403 S.E.2d 809 (1991) (holding that once there has been a final determination of paternity, a party may not relitigate that issue without first showing, inter alia, that his failure to contest paternity earlier was not the result of lack of due diligence); In re Marriage of Beckett, 195 Ill.App.3d 424, 142 Ill.Dec. 25, 552 N.E.2d 375, appeal denied, 133 Ill. 2d 552, 149 Ill.Dec. 316, 561 N.E.2d 686 (1990) (husband in marriage dissolution proceeding was barred by a two-year statute of limitations from seeking a determination that he was not the father of two minor children born during marriage, where the applicable statute provided that "An action to declare the non-existence of the parent and child relationship shall be barred if brought later than two years after the petitioner obtains knowledge of the relevant facts"); State ex rel. Iowa Dep't of Human Services v. Mundie, 436 N.W.2d 60 (Iowa 1989) (holding that a five-year statute of limitations strictly applies to bar subsequent paternity challenges); Farrell v. Farrell, 555 So. 2d 39 (La.App.1989) (holding that the time limitation imposed by statute applies to filing suit for disavowal of paternity); Hackley v. Hackley, 426 Mich. 582, 395 N.W.2d 906 (1986) (holding that, under the doctrine of res judicata, a party cannot withhold a defense to be used in retrial of paternity dispute when that defense could have been raised in prior suit); Reynolds v. Reynolds, 454 N.W.2d 271 (Minn.App. 1990), review granted, aff'd in part, rev'd in part, 458 N.W.2d 103 (Minn. 1990) (putative father's attempt to challenge paternity more than three years after children were born is barred by the applicable statute of limitations); Atwood v. Hicks, 538 So. 2d 404 (Miss. 1989) (court-approved settlement of paternity and support actions could be re-opened, long after the fact, only upon proof of fraud, sham, pretense, or collusion in the procurement); Watts v. Watts, 115 N.H. 186, 337 A.2d 350 (1975) (rules permitting rebuttal of presumption of legitimacy of children by blood tests did not apply to permit husband to escape liability for support of two children where he had acknowledged paternity of the children for over 15 years); Sandy M. v. Timothy J., 138 Misc.2d 338, 524 N.Y.S.2d 639 (N.Y.Fam. Ct.1988) (paternity order could not be vacated on grounds that recently administered blood tests constituted newly discovered evidence, because alleged father had not availed himself of the opportunity to request blood tests before the birth of the *363 child); Cole v. Cole, 90 N.C.App. 724, 370 S.E.2d 272, review denied, 323 N.C. 475, 373 S.E.2d 862 (1988) (alleged father's admission of paternity is res judicata as to subsequent challenge even though he had had a vasectomy before the time of conception); State ex rel. Alvarez v. Jiminez, 779 P.2d 175, 98 Or.App. 253 (1989) (man was not entitled to have judgment of paternity set aside because he was aware at the original hearings that there were two or three other men who might have had sexual relations with the mother, and he did not present evidence on the paternity issue but voluntarily, knowingly, and intelligently chose not to do so and then waited seven years before seeking to have judgment set aside); Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988) (absent an appeal taken directly from support order or a showing of fraud, alleged father was foreclosed from later challenging a prior paternity determination made in child support hearing); Gardner v. Gardner, 371 Pa.Super. 256, 538 A.2d 4 (1988), appeal denied, 521 Pa. 605, 555 A.2d 115 (1988) (generally, once order for child support is entered and no appeal is taken, man cannot assert lack of paternity as basis for terminating support payments, notwithstanding that blood test shows that he was not the natural father); Hupp v. Hupp, 239 Va. 494, 391 S.E.2d 329 (1990) (accord); In re Paternity of K., 51 Wash. App. 131, 752 P.2d 393 (1988) (in determining whether an action to challenge paternity was brought within a reasonable time after obtaining knowledge of relevant facts, as required by statute, before the presumed father is required to bring action to disestablish paternity, facts must exist that cause presumed father to believe he is not the biological father).
While we acknowledge that in other cases facts may present exceptional circumstances for which Rule 60(b)(6) relief might be available, W.J.'s unreasonable delay bars his relief in this case. Accordingly, we affirm the judgment of the Court of Civil Appeals reversing the trial court's order granting Rule 60(b) relief.
AFFIRMED.
SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ALMON and HOUSTON, JJ., dissent.
MADDOX, Justice (dissenting).
The conclusion reached by the majority of the Court of Civil Appeals, and by a majority of this Courtthat the petitioner cannot reopen the paternity question seems to be legally correct, because the doctrine of res judicata does apply to paternity cases. I think, however, that it fails to recognize that, as Presiding Judge Robertson points out in his dissenting opinion, there can be exceptional circumstances, such as exist here, when the res judicata principle should not apply.
Here, neither the State nor the mother sought relief from the trial court's order for the parties to submit to HLA blood tests. Furthermore, this case involves a Rule 60(b), Ala.R.Civ.P., motion, the granting of which is within the sound discretion of the trial court. I agree with Judge Robertson that exceptional circumstances exist in this casethe petitioner should not have to support a child that scientific tests conclusively show, and which an advisory jury has found, is not his biological child.
In interpreting the provisions of Rule 60(b) as they apply to this particular case, in which the trial court retained jurisdiction to make such orders as might be necessary, I would read into the Rule the provisions of Rule 1, Ala.R.Civ.P., which requires that the Rules be construed to ensure justice. The trial judge did what was "just." I would uphold his determination; therefore, I must disagree with the majority opinion.
HOUSTON, Justice (dissenting).
As a preface to my dissent, I note that the real parties in interest are the State of Alabama, which is the entity paying aid to a dependent child, and W.J., who is the person reimbursing the State the amount specified by court order. The trial court retained jurisdiction of this paternity action to determine the amount W.J. was to pay to the state; and, in 1989, it doubled the *364 weekly amount that W.J. was required to pay.
The trial court granted W.J.'s Rule 60(b)(6), A.R.Civ.P., motion after it was scientifically determined that W.J. could not be the biological father of G.J.'s minor child; therefore, there was nothing that the trial court could do to preserve a father-child relationship between W.J. and G.J.'s minor child. Did the trial court abuse its discretion? The majority of the Court of Civil Appeals and the majority of this Court held that it did. I cannot agree.
The "truth," as we now know it, is that W.J. is not the biological father of G.J.'s minor child. This has been recognized by all. There are no disputed facts from which the trier of the facts must ascertain truth. In this case, truth is a given; and the truth is that W.J. is not the biological father of G.J.'s minor child. Should we hold that the trial court abused its discretion in determining that truth should not be time-barred and ruling that W.J. was not legally responsible to continue to reimburse the state? I think not.
The policy of repose was designed to protect defendants. Burnett v. New York Central R.R., 380 U.S. 424, 85 S. Ct. 1050, 13 L. Ed. 2d 941 (1965). It is a practical and pragmatic policy that spares the courts from the litigation of stale claims after memories have faded, witnesses have disappeared or died, and evidence has been lost. The policy of repose represents expedience rather than principle. In this case, when no memories have faded, no witnesses have disappeared or died, and no evidence has been lost, I cannot hold that the trial court abused its discretion when it refused to sacrifice "truth" on the altar of expediency.
In William Faulkner's Sartoris, Horace Benbow observes:
In dissent, I draw from the other discipline of the disadvantaged. In James Russell Lowell's "The Present Crisis," these lines begin the concluding stanza:
[1] The State defended the petition and opposed the modification. The trial court denied W.J.'s motion to appoint a guardian ad litem for the minor child, on the ground that the child's interests were substantially similar to the mother's and that the child's interests were adequately protected. The parties do not challenge the ruling denying a guardian. | June 11, 1993 |
d648e617-3973-4d3a-820a-fd5337df96d6 | Kitchens v. Maye | 623 So. 2d 1082 | 1911255 | Alabama | Alabama Supreme Court | 623 So. 2d 1082 (1993)
Frank M. KITCHENS
v.
Bobby Jack MAYE.
1911255.
Supreme Court of Alabama.
June 25, 1993.
*1084 William H. Broome, Anniston, for appellant.
Joseph M. Maloney, Jacksonville, for appellee.
ALMON, Justice.
The defendant, Frank M. Kitchens, appeals from a judgment for $350,000 in favor of the plaintiff, Bobby J. Maye, in an assault and battery action brought for damages for personal injuries suffered when Kitchens allegedly shot Maye in the chest and groin. The principal issues are whether the trial judge erred in declining to recuse himself; in refusing to grant a continuance; in admitting evidence of a criminal prosecution of Kitchens for the shooting; and in denying a request for a remittitur without holding a hearing.
On the evening of the shooting, Maye and his family were helping his foster brother, Robert Turley, Sr., move Turley's belongings from a trailer that had caught fire earlier that day. Turley's trailer was located on Kitchens's property. Turley testified that late that afternoon, after the firefighters had left, he saw Kitchens walking over his property and firing weapons into the air. Later that evening, as Maye, his wife, and their two children were leaving in their pickup truck, several shots hit the truck. After telling his wife to get the police, Maye got out of the truck and began walking toward Turley's trailer to see if Turley and his wife had been hurt. Kitchens shot him in the chest. As Maye continued toward the trailer, Kitchens shot him again, in the groin. When Maye reached the trailer, he took Turley's shotgun and fired two rounds into the air. After Maye's shots, Kitchens fired once more and then stopped. Maye ultimately reached a hospital, where he underwent surgery. The gunshot wound to Maye's chest resulted in the loss of his spleen. The evidence indicated that Maye suffered great pain and was hospitalized for 18 days.
In July 1990, Maye filed a complaint alleging assault and battery, demanding $100,000 in compensatory damages and $250,000 in punitive damages. After denying Kitchens's motion to dismiss, the trial judge entered an order setting the case for trial on June 28, 1991. On June 27, 1991, Kitchens filed a motion to continue, claiming as grounds the unavailability of a rebuttal witness. Granting the motion, the trial judge set the case again for trial on December 20, 1991.
At the beginning of the nonjury trial, Kitchens's attorney[1] filed in open court a second motion for continuance. In support of this motion, Kitchens's counsel asserted that both Kitchens and Mrs. Ezell Breedwell, a witness to the incident who lived with and took care of Kitchens, were ill and consequently unable to appear in court. Although Kitchens's attorney could not verify the illness with any statement from a physician or hospital, he did call Dan Davis, a neighbor, who testified that both had appeared sick when he visited them the day before the trial.
The trial judge denied the motion to continue, on the ground that there was no verification of the illnesses. During oral argument on the motion, the trial judge informed Kitchens's attorney that earlier that morning, before the proceeding and in the presence of Maye's attorney, he had spoken to an officer of the Heflin Police Department. The judge said that the officer said he had been to Kitchens's residence the previous day with a rescue squad and that, although Mrs. Breedwell appeared ill, "he could not tell that the defendant was sick or not [sic]." The trial judge also stated:
The court denied the motion for a continuance, and the plaintiff began presenting his case.
When the court convened again after a morning recess, Mrs. Breedwell appeared, *1085 but not Kitchens. Kitchens's attorney renewed his motion for a continuance. He produced Kitchens's niece, Annie Lipscomb, who testified that she had taken both Kitchens and Mrs. Breedwell to a local hospital earlier that morning. Lipscomb stated further that the two had appeared weak and sick; that at the hospital Kitchens had received a shot of penicillin; and that Mrs. Breedwell had received prescriptions for cough medicine and an anti-diarrheal medication. Lipscomb also remarked that Kitchens did not appear to have been drinking that morning.
At the request of Maye's attorney and with the agreement of Kitchens's attorney, the court recessed to telephone Dr. Charles Williams, the physician who had examined and treated Kitchens and Mrs. Breedwell. After Kitchens's attorney placed the call, Dr. Williams confirmed to the trial judge that Kitchens had health problems, but told the trial judge, "Frankly, I think he was too drunk to appear in court."
The trial judge denied Kitchens's renewed motion for continuance. The trial judge stated that he was aware of defense counsel's reputation for dilatory tactics and that he would not continue the trial because Kitchens was too drunk to appear. Kitchens's attorney then suggested the trial judge should recuse himself, asserting that the judge had shown bias against the defendant's counsel. The trial judge replied:
Kitchens's counsel again moved to continue, arguing that no tests had been undertaken to confirm that Kitchens was indeed drunk. In response to this motion, the trial judge called another recess, telephoned the sheriff, and then stated in open court: "[The sheriff] is going to find Mr. Kitchens and bring him up here. I will then determine whether or not he can proceed with the trial of this case." Later that day, after testimony from other witnesses for the plaintiff had been heard, Kitchens was brought before the court. After a brief colloquy between the trial judge and Kitchens, the trial judge concluded that Kitchens was drunk, observing for the record that Kitchens had staggered into the courtroom with bloodshot eyes, smelling of alcohol, Listerine, and chewing gum, and had behaved belligerently toward the court. The trial judge again denied Kitchens's motion to continue. With Kitchens's consent, a test was administered to determine his blood-alcohol content; it revealed that at 2:34 p.m. that day, his blood-alcohol measured .255%, more than two and a half times the amount at which the State of Alabama statutorily presumes a defendant to be under the influence of alcohol in civil or criminal actions involving the use of a motor vehicle. § 32-5A-194(b), Ala.Code 1975 (0.10%).[2]
Before resting his case, Maye offered into evidence a certified copy of the case action summary from the criminal prosecution of Kitchens for the shooting that is the subject of this civil action, State v. Kitchens, CC-90-89 (Cleburne County), for the purpose of determining how much, if any, punitive damages should be awarded. The case action summary included bench notes describing a settlement agreement between Kitchens and the State. Under its terms, in exchange for Kitchens's plea of guilty to assault in the third degree, the State agreed to impose no jail sentence. The bench notes also stated that under the agreement the plea would not be entered until disposition of this civil case. The trial court admitted the summary, over Kitchens's objection.
*1086 After considering all the testimony and Kitchens's deposition, the trial judge entered a $350,000 judgment in favor of Maye. Although Maye had asked for $100,000 in compensatory damages and $250,000 in punitive damages, the trial judge did not specify which part of the judgment constituted compensatory damages and which part punitive damages:
(Emphasis added.)
On February 7, 1992, Kitchens filed a "Motion for new trial or to alter and amend the judgment and request for oral argument." Among the grounds cited in his motion were the denials of the motion to continue, an alleged failure to prove certain items of damages, excessiveness of the "verdict," and an alleged failure to prove any "vindicative damage" or any malice or intent to injure on which to base an award of punitive damages. In support of his motion for new trial, Kitchens submitted two hospital reports on Kitchens and Mrs. Breedwell prepared during their visit the morning of the trial and an affidavit by Kitchens in which he generally denied shooting Maye, claimed that the damages were excessive, and asserted that the trial judge had erred in not continuing the trial when, he says, both he and Mrs. Breedwell were too ill to appear. In March 1992, Kitchens filed another motion to permit oral argument on his motion for new trial. Without holding a hearing, the trial judge entered an order in March 1992 denying Kitchens's motion for new trial.
The first issue is whether the trial judge committed reversible error in denying Kitchens's suggestion of recusal. Kitchens argues that the trial judge's extrajudicial communication with members of the Heflin Police Department prior to the trial concerning Kitchens's physical condition, his remarks concerning defense counsel's reputation for dilatory tactics, and his repeated refusals to grant Kitchens's motions to continue the trial compelled his recusal. Kitchens contends further that the trial judge's actions and his attitude toward the defendant, in the aggregate, establish a pattern of conduct evincing personal bias or prejudice that required his recusal.
Canon 3C, Alabama Canons of Judicial Ethics, provides in part:
In United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778, 793 (1966), the United States Supreme Court stated:
(Emphasis added.) See also Medical Arts Clinic, P.C. v. Henry, 484 So. 2d 385, 387-88 (Ala.1986) (quoting Grinnell); Ex parte Large, 501 So. 2d 1208, 1210 (Ala.1986) (quoting Grinnell). Bias and prejudice are not presumed, Wells v. Wells, 346 So. 2d 442 (Ala. Civ.App.), cert. denied, 346 So. 2d 444 (Ala. 1977); the movant has the burden of proving that the judge was biased or prejudiced, Reach v. Reach, 378 So. 2d 1115 (Ala.Civ.App. 1979), cert. denied, 378 So. 2d 1118 (Ala.1980).
The first argument, that the trial judge's inquiry into Kitchens's condition prior to trial gave him personal knowledge of disputed facts, is misplaced, because the information did not concern the merits of the case, but related to the trial court's management of the case. Moreover, the court's subsequent efforts during the proceedings to determine Kitchens's physical condition superseded the earlier information and formed a sufficient basis for the denial of a continuance. Thus, there was no basis for recusal on the ground of extrajudicial knowledge of the facts. The trial judge's remarks about *1087 defense counsel's reputation for dilatory tactics do not require reversal either. The trial court stated:
The record clearly shows that the trial judge's decisions to deny Kitchens's repeated motions for continuance were either based on the initial absence of any medical verification of Kitchens's illness or based on what he later learned during the trial about the defendant's drunken condition, not on any ground that would have required the judge to recuse. The record reveals nothing in this proceeding that might reasonably call into question the trial judge's impartiality. Therefore, the court did not err in denying the suggestion of recusal.
Kitchens's second issue is whether the trial court erred in denying his motion to continue the trial because of his illness and because of the illness and consequent unavailability of Mrs. Breedwell, a material witness. A decision to deny a motion for continuance is within the sound discretion of the trial court and will not be reversed unless there has been an abuse of discretion. Scullin v. Cameron, 518 So. 2d 695, 698 (Ala. 1987); Eady v. Stewart Dredging & Constr. Co., 463 So. 2d 156 (Ala.1985); Madison v. Weldon, 446 So. 2d 21 (Ala.1984). In the circumstances of this case, the trial court did not abuse its discretion in denying Kitchens's motions for continuance.
Kitchens's attorney contended throughout the trial that Kitchens was sick and unable to appear in court. The trial court's repeated efforts to determine Kitchens's true condition, however, showed that although he had health problems, the main reason for his failure to appear was that he was drunk. The trial judge's personal observations of Kitchens's condition, preserved in the record, sufficiently establish that Kitchens was drunk early in the afternoon of the day of the trial. Although the trial judge specifically stated that he was basing his decision only on his own observations of Kitchens, the blood-alcohol test administered later confirmed his finding that Kitchens was drunk. Moreover, Dr. Williams's comment to the judge about Kitchens's condition when he was examined at the hospital supports the judge's finding that Kitchens was drunk earlier that morning as well. On the question of Mrs. Breedwell's inability to attend the trial because of illness, we note that she was in the courtroom after the morning recess. Thus, she was present well before Maye finished presenting his case, and there is nothing to show that she could not have given testimony for Kitchens; she could have been called out of order if necessary. Therefore, Kitchens's arguments based on her asserted inability to appear are meritless.
The third issue is whether the trial court committed reversible error by admitting into evidence over Kitchens's objection a certified copy of the case action summary containing the terms of the settlement agreement in the criminal prosecution.
A prior criminal conviction can be used in a subsequent civil action arising out of the same transaction or occurrence, as substantive, although not conclusive, evidence of the acts underlying the crime committed; however, such a conviction is inadmissible as substantive evidence if an appeal of the conviction is pending. Cups Coal Co. v. Tennessee River Pulp & Paper Co., 519 So. 2d 932 (Ala.1988); C. Gamble, McElroy's Alabama Evidence § 269.05(5), at 606 (3d ed. 1977).
At the close of his case in chief, Maye offered the case action summary for the limited purpose of showing a basis for an award of punitive damages. Citing § 6-11-23, Ala. Code 1975, Maye argues that any relevant evidence is admissible on the issue of punitive damages. Kitchens responds with the argument that although the case action summary was admitted for the limited purpose of determining punitive damages, it was prejudicial *1088 error to admit it prior to a post-judgment motion to determine whether the punitive damages award was excessive.
Because the State agreed to seek no jail sentence, the plea to which Kitchens agreed in the criminal prosecution was pertinent to the issue of the amount of punitive damages. See Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-24 (Ala.1989). The evidence was offered not to prove that Kitchens shot Maye, but only on the question of the amount of punitive damages. In a jury trial, a court may admit evidence that is admissible for one purpose but not for another, so long as the court gives a limiting instruction that the evidence is to be considered only for the purpose for which it is admitted. See, e.g., Rice v. Blackmon, 559 So. 2d 1070 (Ala.1990); Leeth v. Roberts, 295 Ala. 27, 322 So. 2d 679 (1975); Barnes v. State ex rel. Ferguson, 274 Ala. 705, 151 So. 2d 619 (1963). In a nonjury trial, such as this, the trial court may be presumed to apply this rule in its rendition of judgment. In some contexts, a nonfinal conviction might not be admissible on the issue of punitive damages, but because the summary was not offered as substantive evidence, because the plea was not final only because it was suspended until this action is concluded, and because the trial court may be deemed to have considered it only for its proper probative effect, we will not hold the trial court in error for admitting the criminal case action summary.
The fourth issue is whether the trial court erred to reversal in failing to itemize the damages as provided in § 6-11-1, Ala. Code 1975. Because Kitchens did not raise this issue in his motion for new trial, he has not properly preserved it for our review. This Court will not reverse a trial court's judgment on a ground raised for the first time on appeal. West Town Plaza Assocs. v. Wal-Mart Stores, Inc., 619 So. 2d 1290 (Ala. 1993); Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala.1988); Costarides v. Miller, 374 So. 2d 1335 (Ala.1979).
The fifth issue is whether the trial court erred to reversal by denying Kitchens's motion for a remittitur without granting Kitchens's request for a hearing on the excessiveness of the damages. Although the trial court did not itemize damages, Maye's complaint sought $100,000 compensatory and $250,000 punitive damages, so, absent any indication to the contrary, we will assume for purposes of this issue that the trial court's award is attributable to those demands.
Rule 59(g), Ala.R.Civ.P., provides that a post-trial motion "shall not be ruled upon until the parties have had opportunity to be heard thereon." This Court has held that when a hearing on a motion for new trial is requested pursuant to Rule 59(g), the trial court errs in not granting it. Walls v. Bank of Prattville, 554 So. 2d 381 (Ala.1989); Greene v. Thompson, 554 So. 2d 376 (Ala. 1989); see also Frederick v. Strickland, 386 So. 2d 1150 (Ala.Civ.App.1980). The record shows that Kitchens made two requests for a hearing to conduct oral argument, one with his motion for new trial and another a month after the filing of his first motion. We hold that the trial judge erred in not affording Kitchens an opportunity to be heard on his motion for remittitur or new trial.
This error, however, is not necessarily reversible error. Under Rule 45, Ala. R.App.P.,[3] the failure to grant a hearing on a motion for new trial pursuant to Rule 59(g) is reversible error only if it "probably injuriously affected substantial rights of the parties." See Greene, 554 So.2d at 380-81; Walls, 554 So. 2d at 382. In Greene v. Thompson, supra, this Court formulated a test to determine when the denial of a Rule 59(g) request for a hearing is harmless error:
554 So. 2d at 381. Kitchens argues that the trial judge's denial of his motion for a new trial, which included a request for a remittitur, see Rule 59(f), without granting his request for a hearing, injuriously affected a substantial right by depriving him of an opportunity to present evidence that the award of punitive damages was excessive. He contends that denying him an opportunity to be heard and to present evidence deprives him of his property without due process, in violation of § 13 of the Alabama Constitution of 1901. In support of this argument, Kitchens stresses that one purpose of the post-judgment hearings mandated by Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), is to determine whether the judgment is so large that it goes beyond an amount necessary to punish the defendant and to deter the defendant and others from similar conduct.[4]
Given the sparse record before us, we cannot say that the failure to grant a hearing on the motion for remittitur was harmless error. For example, the record is devoid of any evidence of Kitchens's financial position. Notwithstanding the egregiousness of Kitchens's conduct, we cannot say, without considering such evidence, that Kitchens's challenge to the amount of the punitive damages award has no probable merit.
We remand this case for the trial court to hold a hearing on the question of excessiveness of the punitive damages award, in light of the factors set forth in Hammond and Green Oil.
REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Kitchens's trial attorney is not his attorney on appeal.
[2] Upon request by Maye's attorney, the trial judge included the blood-alcohol test results in the record, but noted that they were not being considered to determine whether to grant Kitchens's motion for a continuance. The trial judge expressly grounded his decision on his personal observations of the defendant in the courtroom.
[3] Rule 45 provides:
"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."
[4] In his brief, Kitchens also cites § 6-11-23(b) to support his argument that the trial court was required to conduct a post-trial hearing concerning the amount of punitive damages and their economic impact. Section 6-11-23(b) provides, in pertinent part, that the trial court "shall, upon motion of any party, either conduct hearings or receive additional evidence, or both, concerning the amount of punitive damages." | June 25, 1993 |
f8638490-0a8d-4211-8930-301fd455420f | Jefferson County v. SOUTHERN NATURAL GAS | 621 So. 2d 1282 | 1911985 | Alabama | Alabama Supreme Court | 621 So. 2d 1282 (1993)
JEFFERSON COUNTY
v.
SOUTHERN NATURAL GAS COMPANY.
1911985.
Supreme Court of Alabama.
June 4, 1993.
*1284 Charles S. Wagner, Asst. County Atty., Birmingham, for appellant.
Cathy S. Wright, Jarred O. Taylor II and Lucinda P. Cole of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.
HOUSTON, Justice.
The defendant, Jefferson County, appeals from a judgment on a jury verdict entered for Southern Natural Gas Company ("Sonat"), in an action for damages brought pursuant to § 235 of the Constitution of Alabama of 1901 for a taking of, injury to, or destruction of Sonat's property for public use and for damages for tortious conduct. We affirm.
This case is fact-specific.
In 1929, Tennessee Coal, Iron & Railroad Company (hereinafter referred to as United States Steel Corporation), deeded to Sonat an easement (which was later amended in 1931), granting Sonat the right to construct, operate, maintain, and remove a pipeline. In the agreement, U.S. Steel reserved the right to grant easements to others, but expressly stated that such grants of future easements could not unreasonably interfere with Sonat's pipelines. The agreement also provided that Sonat's rights would be superior to any such rights U.S. Steel might grant to others in the future and that the character of the use of other easements "shall be in accordance with the reasonable requirements" of Sonat.
Around 1930, pursuant to the agreement with U.S. Steel, Sonat installed a pipeline. In 1961 and in 1968, Sonat obtained two additional easements from U.S. Steel to install an additional pipeline parallel to the first pipeline. According to Sonat, the two pipelines cross under Valley Creek east and upstream from where the creek flows under the Powder Plant Road bridge in Bessemer, Alabama; the pipelines were in somewhat of a "U" shape to follow the shape of the then-existing creek banks and creek bottom; and running along the north side of Valley Creek is a county road.
Sonat maintains and protects its pipelines by conducting two types of surveillance (a weekly aerial patrol and an annual foot patrol); this surveillance alerts Sonat to any problems or potential problems with the pipelines. In the early 1980's, Sonat surveillance teams noticed that some of the three-foot soil cover over part of one of the pipelines crossing under Valley Creek had begun to "scour." By 1984, approximately 20 feet of the top of the scoured pipeline could be seen in the bottom of the creek and a two- to three-foot section of that same pipeline had become scoured all the way around, so that for a short distance, water could actually pass under the pipe. However, the other 17 to 18 feet of the exposed pipeline was still securely supported by the creek bank and the creek bed. Because the pipeline was still supported by the creek bank and the creek bed, Sonat determined that it need not make repairs or adjustments to the scoured pipeline at that time. However, according to Sonat, had the scouring continued, allowing much longer lengths than the two- to *1285 three-foot sections to be suspended without any soil support, a hazard would have resulted, and Sonat then would have remedied the problem by a relatively inexpensive repair of the creek bank that entailed covering the exposed pipeline with "riprap" or other suitable material.
In 1973, the County acquired from U.S. Steel a right-of-way for drainage in Valley Creek, "subject to such easements as may exist over, across or upon said right-of-way for pipelines, transmission lines...." In July 1984, a County employee telephoned Sonat, informing Sonat that because of a flooding problem during periods of heavy rain, the County was planning to enlarge Valley Creek and add spans to Powder Plant Road bridge. The County confirmed the telephone call by letter dated July 9, 1984, advising Sonat that the County would begin the project in August. Enclosed with the letter were plans reflecting the County's proposal to widen Valley Creek to 150 feet.
Because the engineering lines of the new creek channel on the County's plan went directly through the area of Sonat's pipelines, Sonat concluded that the County's plan would take part of Sonat's right-of-way. Consequently, Sonat notified the County in writing that Sonat would have to conduct a field inspection and survey of the location "in order to determine any adjustments to the pipelines which might be required." Sonat also requested that the County not begin the project until Sonat had completed the study.
Thereafter, the County drawings were given to Sonat's engineering department. A Sonat surveyor and the head of Sonat's division over the two pipelines met with a County employee at the location of the pipelines to get a "general feel for the site." Although the head of Sonat's division over the pipelines noted the scouring of the pipeline, including the two- to three-foot open area under the pipe, he nonetheless concluded that, at that time, the scouring posed no hazard.
In late August or early September 1984, upon Sonat's completing its study of the County's proposed widening of the creek in the area of the pipelines, Sonat concluded that 80 to 90 feet of one of the pipelines and approximately 30 to 40 feet of the other pipeline would be exposed and unsupported in the air by the County's proposed project. Thus, according to Sonat, in order to accommodate the County's project and to avoid damage to the two pipelines, Sonat concluded that it would have to relocate and adjust the pipelines, at an estimated cost of $187,700. In September 1984, Sonat presented to the County engineering drawings showing the effect of the County's project on the pipelines and explaining how the pipelines would have to be relocated and adjusted to accommodate the new channel the County proposed to excavate. Sonat also informed the County of the estimated cost of the relocation and adjustments and explained that Sonat expected the County to pay for the relocation and adjustments.
The County told Sonat that the County would not pay for any pipeline relocation or adjustment; and, according to Sonat, the County told Sonat that it would simply dig the new channel up to one side of Sonat's right-of-way and begin again on the other side, thus leaving the pipelines as a "plug" in the middle of the new creek channel and "let nature take its course." Subsequently, the County began the project.
By early October 1984, aerial photographs indicated that the excavation had left Sonat's easement as a "plug" or "finger" jutting out into the new creek channel and had diverted the creek water onto a part of Sonat's pipeline not impacted by the old creek channel. Another photograph revealed that the County's heavy equipment had crossed over Sonat's pipelines in the creek bed. When the head of the division over the two pipelines saw these photographs, he became concerned over the impact of the County's project on the easement and the pipelines. He testified that this "plug" of the old creek bank would simply wash away and leave the pipelines suspended in the air, subject to buckling; that this situation constituted an unacceptable risk to Sonat and to the public; that he recommended that Sonat relocate the *1286 two pipelines in spite of the fact that the County refused payment; and that but for the County's project, Sonat would not have had to relocate the pipelines. He also testified that with respect to the preexisting scoured pipeline, if that pipeline had become more scoured in the creek bank in the future to the extent that it had become a hazard, the most Sonat would have had to do would have been to add "riprap" and other creek bank repair material, at a cost of no more than $10,000 to $15,000.
Although there was some uncertainty as to when the "plug" would wash away, according to the evidence presented by Sonat it would wash away and could do so "at any time"; therefore, Sonat said it could not take the risk that it would occur in the first year. Furthermore, Sonat's testimony and its brief on appeal indicated that it believed that it had no choice but to go ahead and relocate the pipelines to prevent the "plug" from washing away and thereby to prevent the pipeline from buckling and rupturing and causing harm to the public and disrupting the supply of natural gas to the public.
Sonat received bids for the relocation work, which consisted of removing the two existing pipelines, redigging new trenches, and putting in new pipelines to replace the old ones. The lowest bid was accepted; the project took over one month to complete and cost $186,121.22.
After relocating and adjusting the pipelines, Sonat requested that the County reimburse Sonat for the cost. It refused to do so.
Consequently, Sonat sued the County, alleging that "the improvement by [the County], including the necessary relocation of [Sonat's] pipeline, was a taking, injury or destruction of [Sonat's] property for public use within the meaning of § 235 of the Alabama Constitution of 1901 entitling [Sonat] to compensation [of $186,121.22]" and alleging that the "actions of [the County] were tortious and caused [Sonat] to suffer consequential damages in the amount of $186,121.22." The County moved for a summary judgment, which the trial court denied.
At the outset of the trial, the court granted Sonat's motion in limine to restrict the County's presentation of evidence as to the County's experience in dealing with other utility companies, which the County said had voluntarily relocated their utilities in connection with the Valley Creek project at no cost to the County. At the close of Sonat's evidence and again at the close of all the evidence, the County moved for a directed verdict, which the trial court denied.
The jury returned a verdict for Sonat in the amount of $190,303.80. The trial court entered a judgment on the jury's verdict. Thereafter, the County moved for a judgment notwithstanding the verdict and moved for a new trial or, in the alternative, for remittitur; the motions were denied. The County appeals.
The County maintains that the trial court erred in allowing the jury to determine whether Sonat's property had been taken, injured, or destroyed pursuant to § 235, because, it says, pursuant to Ala.Code 1975, § 18-1A-150(b), the issue of the right to condemn in eminent domain cases is a question for the trial court and only the amount of compensation is to be determined by the jury.
Although in formal condemnation cases brought by the condemning authority, the issue whether the authority had the right to condemn is determined by the trial court, with the jury deciding compensation only, in inverse condemnation proceedings, such as this case, the jury decides not only the question of the amount of compensation but also whether there was a § 235 "injury." See, Town & Campus Apartments, Inc. v. Kemp, 548 So. 2d 436 (Ala. 1989).
Section 235 specifically requires municipalities and other corporations "invested with the privilege of taking property for public use" to make "just compensation" for "property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements," where there is evidence of some direct physical *1287 injury to the property. See, Alabama Power Co. v. City of Guntersville, 235 Ala. 136, 177 So. 332 (1937).
In United States v. Clarke, 445 U.S. 253, 100 S. Ct. 1127, 63 L. Ed. 2d 373 (1980), the United States Supreme Court explained the difference between formal condemnation proceedings and inverse condemnation proceedings. A formal condemnation proceeding is a legal action brought by a condemning authority, such as the Government, in the exercise of its power of eminent domain. "Inverse condemnation" refers to a legal action against a governmental authority to recover the value of property that has been taken by that governmental authority without exercising its power of eminent domainit is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when the taking authority has not initiated condemnation proceedings. Condemnation proceedings require affirmative "taking" action on the part of the condemning authority; the particular action required depends on the particular statute applicable. However, in inverse condemnation actions, a governmental authority need only occupy or injure the property in question; when that occurs and the property owner discovers the encroachment, the property owner has the burden of taking affirmative action to recover just compensation.
This case involves inverse condemnation; therefore, the trial court did not err in allowing the jury to determine whether there had been a § 235 "taking" or "injury."
The County maintains that "[t]he Valley Creek anti-flooding project as performed by the County at no time resulted in a `taking, injury, or destruction' of [Sonat's] property[;]... it did not interfere in any way whatsoever with Sonat's property rights or easement[;] ... [and it] did not result in an `injury' to [Sonat's] property as contemplated in § 235."
From a review of the record, we conclude that the evidence established that the County's widening of Valley Creek to alleviate flooding resulted in the diversion of water onto Sonat's pipelines and thereby transformed a large segment of the pipelines into a "plug" in a new creek channel and that this "construction or enlargement" of the County's works or improvements along Valley Creek resulted in a direct physical "injury" to Sonat's pipelines.
The County also argues that its anti-flooding project was a valid exercise of its police powers and, therefore, that Sonat can have no recovery pursuant to § 235. We find that argument without merit.
Whereas the exercise of a valid police power is an exception to the requirement that an authority compensate one whose property has been injured, in exercising its police power an authority cannot disregard constitutional inhibitions, such as that found in § 235. See, e.g., Panhandle Eastern Pipe Line Co. v. State Highway Comm'n of Kansas, 294 U.S. 613, 622, 55 S. Ct. 563, 567, 79 L. Ed. 1090 (1935) ("The police power of a state, while not susceptible of definition with circumstantial precision, must be exercised within a limited ambit and is subordinate to constitutional limitations."). Before the provisions now found in § 235 were incorporated into the Constitution, an authority could act and would not be held responsible for any consequential damages if no actual "taking" occurred. However, construing a predecessor of § 235, this Court held that it was intended to remedy this hardship caused to the individual property owner, by "requir[ing] the public to bear the burden of municipal improvements ... made for the public benefit, and not to crush the private citizen by imposing upon him alone the entire damage which may have been caused to his property." City Council of Montgomery v. Maddox, 89 Ala. 181, 189, 7 So. 433, 436 (1890).
Although there is no Alabama case directly on point, we note that there is a distinction between the "taking" of or "injury" to property pursuant to police powers and a "taking" of or "injury" to property that is compensable under § 235. *1288 For example, when the property taken is itself a nuisance, so that the authority must act, then that taking would be within the exercise of the police power and would not be compensable if it was not achieved in an arbitrary or corrupt manner and did not amount to an abuse of the police power. See, e.g., City of Mobile v. McClure, 221 Ala. 51, 127 So. 832 (1930); City of Birmingham v. Graves, 200 Ala. 463, 76 So. 395 (1917). However, if the authority is enlarging or improving something, e.g., a highway or a creek, and in achieving that enlargement or improvement it must "take" or "injure" property that is not itself a nuisance or is not the reason for the project, then that "taking" of or "injury" to the property would be constitutionally compensable. See City Council of Montgomery, supra; see, also, McEachin v. Mayor of City of Tuscaloosa, 164 Ala. 263, 51 So. 153 (1909); Town of Avondale v. McFarland, 101 Ala. 381, 13 So. 504 (1893); Panhandle Eastern Pipe Line Co., supra.
In this case, although the County initiated its project for the general welfare of the publicto alleviate flooding throughout the Valley Creek areathere was no evidence that Sonat's pipelines were a nuisance or were the reason for the project. Therefore, the County's action in taking or injuring the pipelines was not a valid exercise of its police power.
The County also argues that if the Court determines that its actions injured Sonat's easement and pipelines, the injury is not compensable because, it argues, the proof of damages was speculative.
The evidence established that the cost of relocating the pipelines was known at the time of the County's project. Thus, it seems that what the County is arguing is the speculative nature of relocating the pipelines. Suffice it to say, without further discussion, that there was sufficient evidence in the record for the jury to conclude that the "plug" created by the County's widening of Valley Creek would wash away and leave the pipelines suspended in the air, subject to buckling and rupturing, so that if Sonat had not relocated them there would have been a risk of explosion and harm to human health and the environment. Furthermore, there was sufficient evidence that the injury to Sonat's pipelines, which was the proximate result of the County's widening of Valley Creek, was clearly ascertainable at the time of construction. See, e.g., Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737 (1915). Therefore, the damages (based on the evidence that the pipelines were at risk and the evidence of the cost of relocating them) were ascertainable, not speculative, when the County undertook the widening project.
The County also argues that the trial court erred in granting Sonat's motion in limine to preclude the County's introducing evidence that "all other utilities voluntarily relocated their lines without charge to the County." It is well settled that the trial court has broad discretion in granting a motion in limine, see Bush v. Alabama Farm Bureau Mutual Casualty Insurance Co., 576 So. 2d 175 (Ala.1991), and that its decision will not be reversed absent a clear abuse of discretion, see Works v. Allstate Indemnity Co., 594 So. 2d 60 (Ala.1992). Considering the facts of this case, the nature of the motion in liminethat is, that it was directed to evidence as to what other utilities may have done in Valley Creekand the broad discretion accorded the trial court in granting motions in limine, we hold that the trial court did not err in granting Sonat's motion in limine.
For the foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | June 4, 1993 |
44fd5ece-85a3-4187-8f9b-388070c9397d | Roberts v. PEARCE CONST. CO., INC. | 624 So. 2d 1009 | 1911755 | Alabama | Alabama Supreme Court | 624 So. 2d 1009 (1993)
William B. ROBERTS
v.
PEARCE CONSTRUCTION COMPANY, INC.
1911755.
Supreme Court of Alabama.
June 25, 1993.
Rehearing Denied August 20, 1993.
*1010 Roscoe O. Roberts, Jr., Huntsville, for appellant.
Stuart E. Smith of Bell Richardson, P.A., Huntsville, for appellee.
ALMON, Justice.
The defendant, William B. Roberts, appeals from a summary judgment entered by the trial court in favor of the plaintiff, Pearce Construction Company, Inc. ("Pearce") in its declaratory judgment action. The issues for our review are: 1) whether Pearce has standing to bring an action to determine its rights and liabilities under a contract between Roberts and Madison Square Townhomes ("MST"); and 2) whether the trial court erred in holding that that contract was invalid because a) Roberts did not provide sufficient consideration, or b) an order of the judge in the bankruptcy proceedings of Roberts's company served to nullify the condition precedent to the contract.
William Roberts was the president and a stockholder of R & L Excavating, Inc. In 1985, R & L entered into a contract with MST, whereby R & L agreed for $250,000 to prepare a site for the construction of condominiums. R & L completed the work in 1986, but as of February 1987, $39,500 of the contract price was still outstanding. Because MST was having financial difficulties, and thus could not meet its obligation to R & L, the president of MST[1] agreed to sell to Roberts one of the condominiums on the condition that Roberts would not be obligated to pay the $57,500 purchase price until 90 days after the $39,500 had been paid by MST to R & L. This contract was reduced to writing, and, after paying $500 in earnest money, Roberts moved into the condominium. The contract did not obligate Roberts to pay any rent for his use of the condominium.
In 1989, MST executed to Pearce a deed in lieu of foreclosure. In return for a fee simple title to the premises, which include the specific condominium in controversy, Pearce agreed to: 1) release MST from its obligation on the original bank mortgage, which had been assigned to Pearce; 2) release MST from its obligation on the mortgage taken by Pearce to assure payment of the construction costs; and 3) release MST from an additional construction debt of approximately $20,000. Pearce also agreed to release the guarantors of personal liability on the bank mortgage, provided that the guarantors truthfully disclosed the future debts of MST. The debt to R & L was disclosed on an attachment to the contract entitled Exhibit "D," which provided:
This agreement clearly contemplates that MST, not Pearce, would be responsible for the payment of the debt to R & L.
After receiving the deed to the premises, Pearce asked Roberts to either pay the purchase price of $57,500 or vacate the premises; Roberts refused. Pearce then brought an eviction action against Roberts. The trial court initially entered a judgment granting the relief sought by Pearce, but it later set aside that judgment.
Just before MST executed to Pearce the deed in lieu of foreclosure, R & L filed a Chapter 11 bankruptcy petition, which was thereafter converted to a Chapter 7 proceeding. In June 1991, Pearce filed in the bankruptcy court a motion to require the trustee of R & L to abandon the debt owed to R & L by MST. In that motion, Pearce alleged that to the best of its knowledge MST was no longer doing business, and that the debt was therefore uncollectable. The bankruptcy judge granted that motion; neither R & L nor Roberts moved to set the ruling aside.
Pearce then brought this action, claiming breach of contract and seeking specific performance; Pearce later amended its complaint *1011 to ask, under Ala.Code 1975, § 6-6-220 et seq., for a declaration of its rights to the disputed condominium. After considering the pleadings, the affidavits, and the arguments of the parties, the trial court entered a summary judgment in favor of Pearce. The trial court's order, in pertinent part, reads:
Roberts argues that Pearce lacked standing to bring this action because MST had not properly assigned the sales contract to Pearce in accordance with Ala.Code 1975, § 8-5-20. Although this argument may have some validity with respect to Pearce's breach of contract and specific performance counts, Pearce also sought declaratory relief. Section 6-6-221 of the "Declaratory Judgments" article provides, "[T]his article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect[ ] to rights, status and other legal relations and is to be liberally construed and administered." Also, § 6-6-223 provides:
(Emphasis added.) Finally, § 6-6-226 states that "[t]he enumeration in section[ ] 6-6-223... does not limit or restrict the exercise of the general powers conferred in section 6-6-222 in any proceeding where declaratory relief is sought in which a judgment will terminate the controversy or remove an uncertainty."
Here, Pearce gave valuable consideration in exchange for a fee simple title to the premises owned by MST. Also, in the agreement Pearce declined to assume the debt owed by MST to R & L. Pearce's claim to the property is contested by Roberts, who is a party to a written contract of sale of the disputed condominium. Pearce's rights to the condominium are clearly affected by the Roberts-MST contract, and, given the broad remedial scope of the Declaratory Judgment Act, we hold that Pearce has standing to bring an action to determine its rights to the condominium.
This Court also concludes that the trial court did not err in holding that the contract between Roberts and MST was not supported by valid consideration flowing from Roberts to MST. It is fundamental that the president of a corporation has no authority to bind the corporation merely by virtue of his office; any such authority must come from the charter or bylaws of the corporation, or from authority delegated to him by the board of directors of the corporation. *1012 Belcher v. Birmingham Trust Nat'l Bank, 348 F. Supp. 61 (N.D.Ala.1968); McMillan v. Dozier, 257 Ala. 435, 59 So. 2d 563 (1952). Here, the consideration underlying the condition precedent in the Roberts-MST contract was presumably R & L's forbearance from suing on the matured debt owed to it by MST. An agreement to forbear from prosecuting a claim does normally constitute valid consideration. Rogers v. First Nat'l Bank of Birmingham, 282 Ala. 379, 211 So. 2d 796 (1968). Here, however, there is no evidence that R & L, through its board of directors or otherwise, authorized Roberts to so utilize a property right of the corporation. Absent such authority, Roberts may not use the property of the corporation to further his self-interests. See C.J.S. Corporations § 494 (1990). This rule holds true even in the context of close corporations. See Cole Real Estate Corp. v. Peoples Bank & Trust Co., 160 Ind.App. 88, 310 N.E.2d 275 (1974). Moreover, Roberts himself gave no consideration, except the $500 earnest money, for the rent-free occupation of the premises. Therefore, the condition precedent was not supported by valid consideration.
As part of its reasoning in entering the summary judgment for Pearce, the trial court noted that "the obligation has been abandoned by the bankruptcy court." When the bankruptcy judge ordered the trustee of the R & L estate to abandon R & L's right to collect the MST debt, that debt did not cease to exist in a legal sense. Rather, when the trustee is ordered to abandon property (here, an action for breach of contract) pursuant to 11 U.S.C. § 554(b), the property is not "extinguished"; it merely reverts to the debtor: the bankruptcy court loses all jurisdiction over the property. Thereafter, any interested party may pursue its rights to the property under applicable state law. In re Tarpley, 4 B.R. 145 (M.D.Tenn.1980); In re Gassaway, 28 B.R. 842 (N.D.Miss.1983). Therefore, R & L may bring an action against MST to recover the $39,500 debt. However, this does not change the fact that Roberts provided no consideration for MST's promise to postpone the closing until 90 days after the debt was paid. Hence, even if the trial court's order can be read as misstating the legal effect of the bankruptcy judge's order, any such misstatement is harmless error.
The summary judgment for Pearce is hereby affirmed.[3]
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The president of MST is David Lanier: Lanier also is a stockholder in R & L; in fact, the "L" stands for Lanier.
[2] The parties do not explain why the $39,500 debt is represented as $42,000 in the contract.
[3] Roberts also argues that Pearce failed to include MST as a necessary party, as required by Ala.Code 1975, § 6-6-227, and A.R.Civ.P. 19. This argument is flawed, for MST no longer has any legal interest in the condominium currently occupied by Roberts. MST's sole interest in the controversy lies in the fact that the bankruptcy judge's order did not nullify its $39,500 liability to R & L. This does not affect the validity of the contract between MST and Roberts, and therefore MST is not a necessary party. | June 25, 1993 |
84c07fe5-7eba-45e3-850f-1508d9707094 | Henderson by Hartsfield v. Alabama Power | 627 So. 2d 878 | 1901875, 1901946 | Alabama | Alabama Supreme Court | 627 So. 2d 878 (1993)
Craig HENDERSON, a minor, By and Through his mother and next friend, Linda HARTSFIELD
v.
ALABAMA POWER COMPANY.
ALABAMA POWER COMPANY
v.
Craig HENDERSON, a minor, By and Through his mother and next friend, Linda HARTSFIELD.
1901875, 1901946.
Supreme Court of Alabama.
June 25, 1993.
Rehearing Denied August 27, 1993.
*879 Joseph G. Pierce and Jack Drake of Drake & Pierce, Tuscaloosa, and Ralph I. Knowles, Jr. of Doffermyre, Shields, Canfield & Knowles, Atlanta, GA, for appellant/cross-appellee.
S. Allen Baker, Jr. and James A. Bradford of Balch & Bingham, Birmingham, and William J. Hust, Jr. of Zeanah, Hust, Summerford, Davis & Frazier, Tuscaloosa, and Forrest S. Latta of Pierce, Carr & Alford, Mobile, for appellee/cross-appellant.
Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.
ADAMS, Justice.
Craig Henderson and Alabama Power Company ("APCo") appeal and cross appeal, respectively, from a judgment awarding Henderson $15,303.84 in compensatory damages, *880 but reducing to $250,000 a jury's $500,000 punitive damages award, in Henderson's personal injury action against APCo. We affirm in part, reverse in part, and remand.
In 1988, APCo owned and operated an "electrical transmission switching tower" near the Cedar Knoll and Idlewood residential subdivisions of Tuscaloosa, Alabama. The tower, which was constructed in 1957, supported a number of transmission lines carrying 44,000 volts of electricity. It was approximately 33 feet high and 5 feet square and was composed of vertical and horizontal steel bands reinforced by diagonal steel braces.
When initially constructed, the tower was fitted with an "anti-climbing guard"a barbed wire latticework enclosed within a square steel frame. This framework was installed horizontally on the tower midway between the base of the tower and the first series of wires. The width of the frame exceeded the width of the tower; thus, the barbed wire extended slightly beyond the tower on all four sides. In 1967, APCo attached to the toweroutside the guarda steel "switch operating rod," or pole, two inches in diameter.
On September 13, 1988, 12-year-old Craig Henderson and at least three other children climbed the tower, getting past the anti-climbing device by means of the switch operating pole. While Henderson was playing on the tower, his head contacted one of the power lines and the resulting electrical "flash" knocked him from the tower. He was transported by helicopter to the burn unit at the Children's Hospital in Birmingham, where he was treated for "deep second degree" burns to his face, thighs, and other parts of his upper body.
On November 23, 1988, Henderson, by and through his mother, sued APCo on counts alleging negligence and wantonness. The cause proceeded to trial, and, on May 23, 1991, the jury awarded Henderson $15,303.84 in compensatory damages and $500,000 in punitive damages. APCo moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial; and for a "remittitur, or, in the alternative, [a vacation of] the punitive damage[s] award." Henderson, in a "motion for [a] declaratory judgment and for entry of judgment in excess of $250,000," challenged the constitutionality of Ala.Code 1975, § 6-11-21, which, subject to enumerated exceptions, limits to $250,000 jury awards of punitive damages.
Following a post-verdict review of the damages award as required by Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), the trial court entered an order expressly finding that the jury's award was supported by clear and convincing evidence of wantonness and was not excessive. Although "acknowledg[ing] its continuing questioning of the constitutional [validity] of § 6-11-21," the trial court, nevertheless, reduced the punitive damages award to the statutory limitdeferring to this Court a resolution of the plaintiff's challenge to the constitutionality of the statute.
Both parties appeal the judgment, which was based on the jury's verdict and the trial court's ruling on the post-verdict motions. The dispositive issues on appeal, broadly stated, are whether the punitive damages award, which was based on the wantonness count, was supported by the evidence, and, if so, whether § 6-11-21 violates the constitution of Alabama.
Section 6-11-21 was enacted as part of a "package of bills" collectively called "the Alabama Tort Reform Act." L. Nelson, Tort Reform in Alabama: Are Damages Restrictions Unconstitutional? 40 Ala.L.Rev. 533, 533 (1989); Act No. 87-185, § 2, 1987 Ala. Acts 251. The section provides:
*881 Although Henderson contends that APCo's conduct falls within at least one of the first two statutory exceptions to the damages limitation, his contentions are unsupported by the evidence and must be rejected. We address, therefore, the broader question presented by APCo's motion for a new trial, that is, whether the jury's finding that APCo wantonly breached the duty owed to the plaintiff was against the weight of the evidence.
The duty owed to trespassing children by individuals and entities maintaining artificial conditions on land is set out by Restatement (Second) of Torts § 339 (1977). That section states:
See also Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976) (adopting § 339).
In adopting § 339, this Court recognized the special duty owing to a class of plaintiffs, defined in § 339(c), whose natural proclivity for wonder and adventure often exceeds their sense of impending danger. See Motes v. Matthews, 497 So. 2d 1121 (Ala.1986). Whether a particular plaintiff falls within this class will ordinarily present a jury question. See Lyle v. Bouler, 547 So. 2d 506 (Ala.1989).
APCo contends that § 339 "establishes a special `negligence' standard for the benefit of trespassing children." Brief of Appellant Alabama Power Company, at 54. It concedes, however, that the duty set forth in § 339 may also form the basis of a cause of action for wantonnesssubject to a "heightened knowledge" requirement. Id.[1]
This "heightened knowledge" requirement for wantonness has been defined as "the conscious doing of some act or the omission of some duty [while] under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result." Lewis v. Zell, 279 Ala. 33, 36, 181 So. 2d 101, 104 (1965). Wantonness will be found where the evidence demonstrates "that with reckless indifference to the consequences [a party] consciously and intentionally did some wrongful act or omitted some known duty which produced the result." Id.
In the context of § 339, wantonness may be summarized as the defendant's conscious acts or omissions in the maintenance of an artificial condition on a place where the defendant knows children will likely trespass, accompanied by the awareness that they will thereby expose themselves to a high probability of injury. It need not be shown that the defendant specifically anticipated the trespass of the plaintiff, Tolbert, 333 So. 2d at 134, but only that the defendant anticipated trespasses by members of the protected class to which the plaintiff belonged, and that such persons trespassing would thereby be exposed to a high risk of injury due to the defendant's acts or omissions. The defendant's knowledge, although the sine qua non *882 of wantonness, "may be made to appear like any other fact, by showing circumstances ... from which the fact of knowledge is a legitimate inference." Blount Brothers Constr. Co. v. Rose, 274 Ala. 429, 437, 149 So. 2d 821, 830 (1962).[2]
APCo argues that liability must be predicated on its knowledge that "children were likely to trespass on the transmission tower" involved in this case. In fact, the jury was so instructed at APCo's request. Reply Brief of Appellant Alabama Power Company, at 6 n. 1 (emphasis in original.) Henderson contends that this proposition mischaracterizes the duty set forth in § 339, and that the relevant "place" is the area of the easement in the vicinity of the tower. We need not resolve this issue, because APCo's awareness of the likelihood that children would attempt to climb the tower itself was clearly inferable from the evidence.
This evidence included, inter alia, testimony and documents demonstrating the extent of knowledge possessed by the utility industry generally. For example, Henderson introduced provisions of the National Electrical Safety Code, which in pertinent part provides:
National Electrical Safety Code, § 280 A. 1.b. (1987) (emphasis added).
Henderson also presented the testimony of M.A. Martin, Jr., an electrical engineer, who for 18 years had engaged in equipment evaluation and research and development for Georgia Power Company. In response to questions from Henderson's counsel, Martin testified:
(Emphasis added.)
In this connection, Martin read into evidence a bulletin issued in 1967 by the transmission department of Georgia Power dealing with public safety. Under the heading "Anti-climb Guards and Warning Signs for Steel Structures," the bulletin stated:
Moreover, Henderson, through the testimony of APCo's own personnel, produced evidence of its subjective knowledge of these conditions. For example, Jimmy Oden, who since 1971 had engaged in the inspection and clearing of APCo's easements, knew that at least two residential subdivisionsCedar Knoll and Idlewoodadjoined and abutted *883 APCo's easement. He also knew that two footpaths crossed the easement in the vicinity of the tower, one of which was 15 feet to 20 feet from the tower.[3] Oden knew that the area's residents were using these paths, and he testified that children not infrequently walked and played on APCo's easements, stating that he "assumed" they were doing so in this case.
Perhaps the most notable evidence of APCo's knowledge, however, was the existence of the anti-climbing guard itself, which APCo had originally installed to prevent persons from climbing the tower. APCo's representatives thus stood before the jury in the awkward position of denying knowledge of the very eventualities that it had installed the anti-climbing guard to prevent. The jury was free to reject such reasoning, and apparently it did so.
The blueprints for the construction of the Cedar Knoll tower required enclosure of all vertical bars and poles within the framework of the anti-climbing guard. Thus, as originally installed, the anti-climbing guard rendered the power lines atop the tower virtually inaccessible to unauthorized climbers. When APCo added the 2-inch steel pole to the tower in 1967, however, it did not incorporate the pole within the confines of the guard.
Regarding the effect of this "modification" on the effectiveness of APCo's anti-climbing precaution, Martin gave the following testimony:
(Emphasis added.)
In response to Martin's statement of his opinion that the modification placed the design of the tower in noncompliance with APCo's own specifications, as well as with the intent of the National Electrical Safety Code, APCo contends that § 280 A. 1.b. requires only that towers, even those located in residential areas, be "equipped with barriers to inhibit climbing" or be "posted with appropriate warning signs." APCo, pointing out the fact that § 280 A. 1.b. contains the dis junctive, contends that the section thus allowed it to exercise discretion in deciding whether to install a guard or to post a sign.
APCo elicited some testimony that the anti-climbing guard, even after the addition of the switching pole, somewhat "inhibited" climbing. It also produced some testimony, although contradicted, that the tower was posted with a warning sign at the time of the accident. This evidence of compliance with the Code, APCo contends, shields it from liability. We disagree with this contention.
The applicable duty in this case is defined not by § 280 A. 1.b., but by Restatement *884 § 339. Furthermore, although the violation of a statutory standard may constitute negligence per se, Fox v. Bartholf, 374 So. 2d 294 (Ala.1979), it does not follow that compliance with the "letter" of a statutory standard is nonnegligence per se. W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts § 36, at 233 (5th ed.). Under the totality of the circumstances in a particular case, a defendant's conduct, although technically in compliance with a minimal standard, may be unreasonableeven so unreasonable as to constitute wantonness or willfulness. See Prosser and Keeton, at 233.[4]
Indeed, APCo's placement of the switching pole outside the anti-climbing guard may be analogized to the removal from machinery of a safety device provided by the manufacturer. In the context of actions by injured workers against co-employees, the legislature has included such a removal within its definition of "willful conduct"conduct exhibiting a greater degree of immoderation than wantonness. Ala.Code 1975, § 25-5-11(c)(2).
The portent of the tower's modification was augmented by the presence of "switching stools," wooden platforms that APCo had placed for the use of its linemen just below the switching pole. Richard Henderson, the plaintiff's brother, testified that these stools facilitated the children's access to the switching pole, the base of which was approximately three feet above the ground. He further testified to the ease with which the children reached the barbed wire framework by climbing the pole, and then, by stepping on the guard, gained access to the tower's unguarded upper regions. The plaintiff's evidence also demonstrated that it was feasible to secure the tower from such intrusions at minimal cost.
All this evidence supports the jury's conclusion that APCo maintained the Cedar Knoll tower in a condition that, it knew, posed a high probability of death or serious injury to the area's children. A "jury's verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of the motion for a new trial." Thorne v. C & S Sales Group, 577 So. 2d 1264, 1267 (Ala.1991); Whisenant v. Nationwide Mut. Fire Ins. Co., 577 So. 2d 909, 911 (Ala.1991). Consequently, the trial court did not err in denying APCo's post-trial motions. For the reasons explained above, and because we find no merit in other issues raised by the appellant APCo in its cross-appeal (number 1901946), the judgment, as to the issues raised in that appeal, is affirmed.
Henderson contends that § 6-11-21 violates a number of provisions of the Alabama Constitution, in particular, Ala. Const. 1901, art. I, § 11, which provides: "That the right of trial by jury shall remain inviolate." This Court has held that the jury trial right protected by § 11 of the 1901 Constitution is the right as it existed at common law: "The right ... is confined to those classes of cases in which the right existed at common law, or in which it was used at the time of the adoption of the Constitution." Gilbreath v. Wallace, 292 Ala. 267, 270, 292 So. 2d 651, 653 (1974), quoting Alford v. State ex rel. Attorney General, 170 Ala. 178, 188-89, 54 So. 213, 215-16 (1910) (Mayfield, J., dissenting).
This rule is merely a restatement of the principle declared in Thomas v. Bibb, 44 Ala. 721, 722 (1870): "[T]he right of trial by jury is confined to cases in which it was conferred by the common law, to suits which the common law recognized amongst its old and settled proceedings and suits, in which legal rights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which was a mixture of law and equity." (Emphasis added) (citing Story on Const. § 1763; Tims v. State, 26 Ala. 165 (1855); Boring v. Williams, 17 Ala. 510 (1850)).
The essence of the common law is its "inherent capacity ... for growth and change." 15A Am.Jur.2d Common Law § 3 (1976). Its capacity to adapt to the changing needs of society depends on "judicial inventiveness." Id. Judicially created causes of action, such as the Alabama Extended Manufacturer's *885 Liability Doctrine, bad faith failure to pay an insurance claim, or willful violations of § 339 are part of the warp and woof of the common law and are, therefore, inherently within "those classes of cases in which the right [to a trial by jury as guaranteed by § 11] existed at common law." Gilbreath, 292 Ala. 267, 270, 292 So. 2d 651, 653 (emphasis added). Such causes of action are, as explained by Thomas, clearly "legal" in nature, requiring a determination of fault and, most significantly"in contradistinction to those in which equitable rights ... were recognized"damages. Thus, in Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991), this Court held that Ala.Code 1975, § 6-5-544(b), which limited to $400,000 the amount of "noneconomic" damages recoverable in a medical malpractice action, violated the right to trial by jury as guaranteed by § 11.
Henderson insists that the disposition of this case is controlled by Moore. APCo, however, contends that the Code section here under review differs fundamentally from the statute invalidated in Moore, because § 6-11-21, unlike § 6-5-544(b), purports to regulate only punitive damages, which, APCo contends, are not constitutionally protected. It is therefore apparent that Moore controls the resolution of this issue unless the operational effect of § 6-11-21 differs substantially from the effect of § 6-5-544(b) or the species of damages addressed in § 6-11-21 necessitates a result different from the one reached in Moore. Because we address only rights arising under the Alabama Constitution, our conclusions regarding the constitutionality of § 6-11-21 are based entirely on adequate and independent state law grounds.
A. Operation of § 6-11-21
In Moore, we analyzed the operational effect of the damages limitation imposed by § 6-5-544(b). In doing so, we explained:
Moore, 592 So. 2d at 163-64 (footnote omitted.) We then concluded that such "automatic" and "absolute" limitations imposed on the jury's discretion rendered nugatory the jury's functionthereby destroying the essence of the right guaranteed by § 11.
Section 6-11-21, like § 6-5-544(b), does not abrogate any cause of action. See Moore, 592 So. 2d at 165 (the "right to a trial by jury does not arise in the absence of a *886 cause of action requiring a finder of fact"). Instead, under the law as currently constituted, once the jury, which may be demanded by either party, is selected and empaneled, it is authorized to award every species of damagesincluding punitive damages. Sections 6-11-20 and -21; Moore, supra; Fuller v. Preferred Risk Life Ins. Co, 577 So. 2d 878 (Ala.1991). Like § 6-5-544(b), § 6-11-21 requires the trial judge, after the jury has awarded a sum of punitive damages corresponding to its impression of the character of the defendant's conduct, to reduce automatically that portion of the verdict exceeding the predetermined statutory limit. We thus conclude that the operational effect of § 6-11-21 differs in no material respect from the mechanics of § 6-5-544(b).
In support of its argument that punitive damages awards are not constitutionally protected, APCo cites Alabama Power Co. v. Rembert, 282 Ala. 5, 208 So. 2d 205 (1968); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24 (1961); Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386 (1937). The principle expressed in these cases, however, upon close analysis, forecloses the rule that APCo proposes.
In Rembert, Leek, and Sharit, the issue was whether the trial court had properly instructed the jury on the question of the plaintiff's interest in punitive damages. In each case, this Court held that the challenged charge was erroneous in that it unconstitutionally impaired the discretion of the jury to award punitive damages.
More specifically, in Rembert, the jury was instructed "that it should assess punitive damages against appellants if appellants were guilty of wantonness." 282 Ala. at 6, 208 So. 2d at 205 (emphasis in original.) On appeal, this Court stated: "The trial court erred in directing the jury that it `should' assess punitive damages, and the failure to leave such assessment to the discretion of the jury has been held to be reversible error." (Citing Sharit, supra). Similarly, in Leek, this Court held that a challenged jury charge "was erroneous in that it assert[ed] that [the] plaintiff would be entitled to recover punitive damages under the circumstances hypothesized in the charge." 272 Ala. at 546, 133 So. 2d at 25. This Court again explained that the infirmity of the charge was its failure to leave the imposition of punitive damages to the sound discretion of the jury. Id. Thus, if the jury's discretion was unconstitutionally impaired by these instructions, which, in effect, directed the jury to award punitive damages, then a fortiori, a statute interdicting such damages is patently impermissible.
Justice Houston's dissent in this case criticizes the foregoing discussion of Rembert, Leek, and Sharit. The dissent's analysis, however, is faulty and its criticism of our reasoning is misdirected. Although it correctly observes that each of those cases contains the statement, "Punitive damages are not recoverable as a matter of right except as provided by statute" (emphasis by Justice Houston), it misapprehends the purpose for which they are here cited. In particular, Justice Houston omits the second sentence of the pertinent quotation from Sharit:
234 Ala. at 43, 173 So. at 388 (emphasis added).
Birmingham Elec. Co. v. Shephard, 215 Ala. 316, 318, 110 So. 604, 605 (1926) (emphasis added; citations omitted).
Louisville & N. R.R. v. Bizzell, 131 Ala. 429, 437, 30 So. 777, 780 (1901) (emphasis in original; other citations omitted).
In none of the three cases cited was the Court addressing a statute making punitive damages recoverable as a matter of right. Sharit, in which the Court first made the statement, cited only two cases, which do not include any reference to a statute. Indeed, Sharit actually says "except as provided by the statute," 234 Ala. at 43, 173 So. at 388 (emphasis added). If the Court had a particular statute in mind, it did not say so. Such a statute would probably violate the right to jury trial in the opposite direction from the invasion committed by § 6-11-21. Leek merely repeats the statement from Sharit, omitting "the," and Rembert merely repeats the statement from Leek.
Obviously, these cases are not cited herein for any proposition that punitive damages are recoverable as a matter of right, but only for the proposition that a legislative prohibition against a jury's awarding punitive damages in its sound discretion is subject to a challenge similar to the objection to a trial court's instruction that a jury "should" award punitive damages. Just as a trial court cannot insist that a given jury "should" award punitive damages, the legislature cannot prohibit juries from awarding an amount commensurate to the wrongdoing shown by the evidence in a particular case. A fair reading of Moore reveals that its holding rested on this principle. Such a reading also reveals that the present issue was, in fact, there decided sub silentio.
Section 6-5-544(b) expressly included punitive damages within the class of damages subject to the $400,000 limitation. This Court invalidated in toto the damages limitations provisions of subsection (b)including the limitation on punitive damagesas violative of § 11. Moore, supra, at 164. If punitive damages awards are, as APCo contends, not constitutionally protected, this Court would have expressly excluded from its holding and rationale that portion of subsection (b) limiting such awards. See Fuller v. Preferred Risk Life Ins. Co., 577 So. 2d 878, 884 (Ala.1991) (in a case in which punitive damages are permitted, "[o]nce a jury is demanded by either party, the jury has the constitutional authority to determine what amount, if any, of punitive damages is necessary to punish a defendant for wrongful conduct and to deter future conduct of a like nature").
Of course, because Moore was addressing a statute that limited both compensatory and punitive damages, there was no need for the Court to address punitive damages separately. Section 6-5-544 limited the recovery of damages for "pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium and other nonpecuniary damage," as to which a plaintiff clearly has a vested, individual right to challenge the violation of the right to jury trial. There was no suggestion in Moore that the Court should rewrite § 6-5-544 to make it a limitation on punitive damages alone if the Court found that the limitation on nonpecuniary compensatory damages violated the plaintiff's right to jury trial. Therefore, the punitive damages limitation fell along with the compensatory damages limitation, and there was no need in Moore to decide whether punitive damages were subject to the same analysis. Because that argument is made here and addressed in Justice Houston's dissent, we will answer it now.
The question may be seen as, Was the jury used in punitive damages cases when the Constitution was adopted? Was the right of trial by jury in existence as to punitive damages at that time? The answer to these questions is clearly "yes."
Rhodes v. Roberts, 1 Stew. 145, 146-47 (Ala. 1827) (emphasis added).
Mitchell v. Billingsley, 17 Ala. 391, 392-94 (1850) (emphasis added).
Parker v. Mise, 27 Ala. 480, 483 (1855) (emphasis added; citations omitted).
South & North Alabama R.R. v. McLendon, 63 Ala. 266, 274-75 (1879). See also, e.g., Louisville & Nashville R.R. v. Whitman, 79 Ala. 328 (1885); Ala. Great Southern R.R. v. Frazier, 93 Ala. 45, 9 So. 303 (1891); Ala Great Southern R.R. v. Sellers, 93 Ala. 9, 9 So. 375 (1891).
The manner in which punitive damages were viewed in the late 19th century can be seen from the opinion of the United States Supreme Court in Barry v. Edmunds, 116 U.S. 550, 6 S. Ct. 501, 29 L. Ed. 729 (1886). In that case, a Federal circuit court, sitting as a trial court, had sustained a plea to the jurisdiction of the court, on the theory that the actual damages suffered by the plaintiff did not meet the court's jurisdictional threshold of $500, and dismissed the action. The plaintiff alleged that he had attempted to pay the defendant tax collector with bonds issued by an earlier Virginia legislature, but that the tax collector had willfully refused the payment and had seized the plaintiff's horse to sell at public auction, knowing the bonds to be valid debts of the state. The taxes due were $59.15 and the horse was worth $125. The Supreme Court held that the allegations of the complaint and the prayer for $6000 damages presented a question for the jury as to the amount of damages, and that the trial court encroached upon the province of the jury in holding that the facts alleged in the complaint would not support a verdict sufficient to meet the jurisdictional threshold. Although the cause of action would support an award of noneconomic damages, e.g, damages for injury to the plaintiff's reputation and credit, the Court based its reversal on the right to have a jury award punitive damages. Because the discussion in Barry v. Edmunds is so enlightening, and because it collects numerous pertinent authorities of the time, we quote it at length:
116 U.S. 550, 562-65, 6 S. Ct. 501, 508-09 (1886) (footnote added) (emphasis in original).
Just as it was improper for the trial court in Barry "to substitute itself for the jury ... *891 as the standard and measure of that justice, which the jury itself is the appointed constitutional tribunal to award," 116 U.S. at 565, 6 S. Ct. at 509, it is improper for the legislature to substitute itself for the jury and to fix an arbitrary, predetermined limit of "that justice, which the jury itself is the appointed constitutional tribunal to award." Because the above discussion shows that juries awarded punitive damages just as they did nonpecuniary compensatory damages before the adoption of the Constitution of 1901, the discussion in Moore regarding the application of § 11 is equally applicable to both kinds of damages.
The case of Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775 (1910), is cited in the dissent for the propositions that "[e]xemplary damages are in no case a right of the plaintiff" and that "[t]he state [has] the right to remit punitory damages." 165 Ala. at 599, 51 So. at 778. At 909. These statements were made more strongly than was necessary to the decision of the opinion. The legislation in question had simply approved, after the fact, the taking by the Terminal Company of portions of Sixth Avenue. The Court held that, in light of this and other facts shown, the trial court did not err in dismissing the count alleging a wanton and willful taking, which added to the other counts only the possibility of punitive damages. The first statement, that exemplary damages are not a right of the plaintiff, is consistent with other cases, such as Rembert, Leek, and Sharit, supra,[6] to the effect that punitive damages are discretionary with the jury. As we stated above, the plaintiff does not have a right to receive punitive damages in the same sense that a defendant does not have a right to avoid them: the matter is discretionary with the jury. The second statement from Meighan, that the state had the right to remit punitive damages, is not therein supported by any authority, but seems to be an attempt at extending the principle that punitive damages are imposed on behalf of society to prevent such wrongs.
The dissent's interpretation of Meighan results, in part, from its misreading of Ala. Const.1901, § 104(28). Section 104 is not a specific directive to the legislature to act in the instances enumerated, as the dissent would have it, but a prohibition against enacting special, private, or local laws on the 31 subjects listed. Although the last sentence of the section states that "[t]he legislature shall pass general laws for the cases enumerated in this section," this statement cannot be construed to mean that the legislature must pass general laws on all the subjects in the list to accomplish the things that cannot be done by special or private laws. On the contrary, § 104 was clearly designed principally to end legislative responsibility in many of the areas mentioned.
The first item on the list of prohibited private laws is "granting a divorce." Article VI, § 13, of the 1819 Constitution had provided:
The requirement of legislative approval was removed from the 1861 Constitution (Art. VI, § 13), but it is clear that the memory of the provision of the 1819 Constitution was behind the prohibition of Const.1901, Art. IV, § 104(1).
Similarly, § 104(5) prohibits a special, private, or local law "Incorporating a city, town, or village." In the early days of statehood, this was a major function of the legislature. Toulmin's Digest of The Laws of the State of Alabama (1823), includes 75 Acts of the territorial and early state legislatures on the subject of "Towns," with most of those acts establishing, incorporating, or changing the names of towns and cities. Before the 1901 Constitution was adopted, this practice had been abandoned (see, e.g., Code 1876, §§ 1763-1768), but, again, the historical practice *892 of legislative incorporation of cities is what is prohibited by § 104(5).
Directly on the point at issue, the early legislatures had passed private laws remitting fines and penalties against named individuals. See, e.g., the Act "For the relief of John M'Shan and William M'Shan, of Jefferson county":
1821 Ala. Acts, p. 110. By Act No. 394 of the 1857-58 Alabama legislature, Austin Murphree, sheriff of Blount County, was "released from all liabilities and penalties he may have incurred from his failure to make returns of the election for Governor in the year 1857, all laws to the contrary notwithstanding." The index to the 1857-58 Alabama Acts shows approximately 60 "Relief Acts" for the benefit of named individuals; 473 Acts were passed by that legislature. Not many of the relief acts were remittances of fines, penalties, and forfeitures, but most of them fit within one of the prohibitions listed in § 104. The passage of numerous such relief acts persisted until the adoption of the Constitution of 1875, after which their number dwindled rapidly and the category disappeared from the index of the Acts in 1882-83.
The Constitution of 1875 included several generalized prohibitions against special or local laws: Art. IV, §§ 23, 24, and 25. These apparently proved insufficient to stop the practice, because the legislature continued to pass acts for the benefit of individuals. For example, although the Acts of 1882-83 contain no index topic of "relief acts," such acts were passed, such as Act No. 261, for the relief of John Rupert, circuit clerk of Escambia County. Thus, the itemized prohibitions were included in § 104 of the 1901 Constitution.
The point here is not that the legislature cannot pass general acts remitting fines, penalties, and forfeitures. Rather, the point is that § 104 is not so much a specific authorization to pass such general acts as a prohibition against private acts on the subject. Thus, the point stressed by the dissent (quoting Jefferson County v. Braswell, 407 So. 2d 115, 119 (Ala.1981)) that specific provisions of the Constitution prevail over more general provisions, can be seen to be completely irrelevant here.
More pertinent here is the principle that, if two provisions of the Constitution are seen to conflict, and one of them is contained in Article I, the Declaration of Rights, the provision from the Declaration of Rights will prevail. State ex rel. Galanos v. Mapco Petroleum, Inc., 519 So. 2d 1275, 1277 (Ala. 1987), quoting In re Dorsey, 7 Port. 293, 359 (Ala.1838). Of course, §§ 11 and 104(28) do not conflict, because the latter is not a specific grant of a right to remit fines, penalties, and forfeitures, but is a limitation on the legislative power, just as § 11 is. Nor does the last sentence of § 104 conflict with § 11, because that sentence should not be read as a directive to enact general laws on the subjects enumerated. If it were read as specific authorization for general laws remitting fines, penalties, or forfeitures, it would also specifically authorize general laws "Granting a divorce" and "Incorporating a city, town, or village," neither of which makes any sense. Thus, the last sentence of § 104 can be read only as a statement of the legislature's plenary power to enact general laws not otherwise prohibited.
In light of the above discussion, the statement in Meighan that "the state had the right to remit punitory damages," 165 Ala. at 599, 51 So. at 778, is not only unsupported by, but is contrary to, § 104(28). Moreover, the holding in Meighan was correct regardless *893 of the passage of the act ratifying the Birmingham Terminal Company's taking of the streets in question. The opinion states:
165 Ala. at 598, 51 So. at 777. This alone was sufficient to support the affirmance of the trial court's judgment based on an affirmative charge for the defendant on count two, which would have allowed the recovery of punitive damages: the plaintiff did not present any evidence that would support an award of punitive damages. The remainder of the paragraph, quoted by the dissent, was unsupported by any citation except a citation to Sedgwick on Damages for the irrelevant proposition that a claim for punitive damages did not survive the death of the wrongdoer.
Whether Meighan was rightly or wrongly decided on this point, it should not be taken as meaning that the Legislature can violate or diminish the jury's historic, constitutionally preserved function of punishing egregiously wrongful conduct by the imposition of punitive damages in civil actions. Such damages have long been imposed by the jury according to its sound discretion and according to its findings as to the degree of the wrong and the amount of damages necessary and appropriate as punishment. Thus, a limitation on punitive damages such as that imposed by § 6-11-21 clearly impairs the traditional function of the jury.
In performing this function, the jury is an institution of the body politic. In a jury, citizens exercise direct democracy, whereas the legislature consists of representatives of the people, exercising the people's power and doing their will only indirectly. The jury serves as the conscience of the community. It acts in particular cases, whereas the legislature makes rules for general classes of situations. Legislation cannot take into account the particular circumstances of a particular wrong.
This Court, in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), articulated, clarified, and refined the common law mechanism of remittitur, so as to protect defendants on a case by case basis from verdicts so excessive or out of proportion to the wrong or to the individual defendant as to violate the defendant's right not to be deprived of property without due process of law. A legislative act that is not so particularized is a grave imposition on the discretion that has always been given to juries.
Such a limitation could properly be imposed by constitutional amendment, in which the people exercise direct democracy, just as they do when they serve on juries. If the people, as amenders of their constitution, wish to limit their power as jurors, they can do so. Section 11 of the Constitution reserves this power of the people out of the powers granted to the legislature.
With regard to Justice Houston's assertion that the majority is exercising its will, not its judgment, in holding § 6-11-21 unconstitutional in this case, we say only this: In our considered opinion and judgment, the constitutional protection of the right to jury trial imposed by § 11, and the consequent limitation on legislative power, are much broader, deeper, and more important than Justice Houston would have them be.[7] Thus, we *894 hold that § 6-11-21 is unconstitutional. The judgment, to the extent that it reduced and remitted to $250,000 the jury's punitive damages award, is reversed, and the cause is remanded with directions to reinstate the full amount of the verdict.
1901946 (Part I)AFFIRMED.
MADDOX, ALMON, SHORES, KENNEDY and INGRAM, JJ., concur.
HOUSTON and STEAGALL, JJ., dissent.
HORNSBY, C.J., recused.
1901875 (Part II)REVERSED AND REMANDED WITH DIRECTIONS.
ALMON, SHORES, KENNEDY and INGRAM, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
HORNSBY, C.J., recused.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in the majority's conclusion that there was sufficient evidence of wantonness to present a jury question on that issue, but I must respectfully disagree with the majority's conclusion that the legislative act setting a limit on punitive damages at $250,000 is unconstitutional.
The right to trial by jury is one of the basic constitutional rights that we all cherish, and the people, in their Constitution, have specifically said that the right shall remain inviolate. If the issue in this case involved the substantive right of this plaintiff to a trial by jury composed of 12 persons, or the substantive right to a unanimous verdict, I would join the majority, as I did in Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974), a case cited by my colleagues in which the legislature sought to establish a six-person jury instead of a 12-person jury, but this case is not about the right of a party to have a jury determine the factual issues in a case; it is about a more serious question of the role of the judiciary and the legislature in the development of tort law. Specifically, it is about the role of the judiciary when interpreting a duly enacted act of the legislature that establishes a limit on the amount of punitive damages that can be awarded in a civil case.
The majority's conclusion is based upon a proposition of law never before decided in this State, insofar as I knowthat a civil jury possesses more power and right to decide the amount of penalty to assess against a civil wrongdoer than the duly elected representatives of the people. My colleagues say:
At 893. (Emphasis in original.)
This holding, I believe, establishes a new and dangerous principle of democratic government that is foreign to any concept of democratic rule with which I am familiar. If the principle should be extended to other cases, both civil and criminal, it would have the effect of allowing a jury to supplant the will of the people, as expressed through their duly elected legislators, with respect to the fixing of penalties, whether civil or criminal, and could raise some very serious questions as to the validity of any legislative act that would alter the role of juries in civil or criminal cases as that role existed when the Alabama Constitution of 1901 was adopted.
In striking down the cap statute, the holding also has other repercussions. It removes one of the underpinnings that I believe *895 caused the United States Supreme Court to approve Alabama's procedures for reviewing punitive damages awards in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). In Haslip, the Court, in footnote nine, noted: "The Alabama Legislature recently enacted a statute that places a $250,000 limit on punitive damages in most cases. See 1987 Ala. Acts, No. 87-185, §§ 1, 2, and 4 [Sec. 2 of Act 87-185 is Ala.Code 1975, § 6-11-21, which the majority declares to be unconstitutional]. The legislation, however, became effective only on June 11, 1987, see § 12, after the cause of action in the present case arose and the complaint was filed." 499 U.S. at 20, 111 S. Ct. at 1044 n. 9.[8]
The act this Court strikes down was passed by a legislature that has been reapportioned as provided by the United States Constitution to guarantee and protect the rights of all its citizens, including its corporate citizens, one of which is a defendant in this case. The act was part of the so-called "Tort Reform Package," which was debated for numerous legislative days, and there were numerous compromises and amendments adopted during its passage through the legislature. See Robert D. Hunter, Alabama's 1987 Tort Reform Legislation, 18 Cumb.L.Rev. 281 (1987-88) (detailing some of the history of the legislation).
The wisdom of this legislation was vigorously challenged at the time it traveled through the legislature, and there were disagreements about various provisions. I do not address the wisdom of the act; there may be some inherent inequities in placing a cap of $250,000 on the award of punitive damages, especially when a tort-feasor's conduct is especially egregious. The legislature, making a policy choice, has made some exceptions for conduct to which the cap would not apply. When this act was being debated in the House and the Senate, the legislature heard all the arguments for and against the placing of caps, and another legislature, composed of different representatives and senators, might reach a different conclusion than did the legislature that passed this act. If so, those legislators could repeal it, and that would be their prerogative, but whatever is done, either by this Court, or by the legislature, must comport with guidelines that are being established by the United States Supreme Court to accord due process of law to civil defendants when punitive damages are awarded against them.
As I view this case, the crucial issue is a constitutional question of the role of the judiciary when a legislative act is challenged as violating fundamental law, either state or federal. Because the issue in this case involves the assessment of punitive damages, the act must be reviewed not only to make sure that it comports with Alabama's fundamental law, but also to make sure that a defendant's federal due process rights are also considered.
There are certain principles that have long been a part of this State's jurisprudence that I believe should be applied in determining whether the cap statute violates state or federal fundamental law. I state them now and will expound on their meaning and apply them to the particular facts of this case later in this opinion:
On several other occasions, I have expressed my view of the role of this Court when reviewing legislation that is alleged to violate the Alabama Constitution. See Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 178-83 (Ala.1991) (Maddox, J. dissenting); Clark v. Container Corp. of America, 589 So. 2d 184, 201-02 (Ala.1991) (Maddox, J., dissenting); Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414, 423-27 (Ala.1991) (Maddox, J., dissenting); see also Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 824-29, 833-34 (Ala.1988) (Maddox, J., concurring in part; dissenting in part); Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334, 355-58 (Ala.1981) (Beatty, J., dissenting, joined by Maddox, J.); Grantham v. Denke, 359 So. 2d 785, 789-92 (Ala.1978) (Maddox, J., dissenting); Bagby Elevator & Electric Co. v. McBride, 292 Ala. 191, 200-08, 291 So. 2d 306 (1974) (Maddox, J., dissenting). I could end this dissenting opinion by referring to the views I expressed in those opinions, but my belief in the plenary power of the legislature, when exercised in a manner congruent with the due process guaranteed by the United States Constitution, is so strong that I am compelled to express the reasons for my disagreement, believing, as Thomas Jefferson did, and as I have written before, that "each judge should write an opinion in every case so as to `throw himself in each case on God and country; both will excuse him for error and value him for honesty.'" McBride, 292 Ala. at 200, 291 So. 2d at 314 (Maddox, J., dissenting) (quoting 32 J.Am.Jud.Soc'y, at 106). Throwing myself on God and country, and believing firmly that my view of legislative power in this case is the correct one, I set forth, once again, why I think the Court errs in striking down this statute that limits the recovery of punitive damages to $250,000.
One of the first principles of democratic government that young school children learn is that the legislature makes the law, the executive enforces the law, and the judiciary interprets the law. That principle of democratic government, the separation of powers doctrine, is at the very foundation of a government of the people, for the people, and by the people, and is included in the Alabama Constitution of 1901.
Ala. Const.1901, § 43 provides:
Id. (Emphasis added.)
I believe that my colleagues, in allowing for the recovery against this defendant of punitive damages in excess of the maximum amount fixed by the legislature, have implicitly held that the judicial branch of government is the only branch that can determine *897 what constitutes a civil wrong and the recoverable damages for that wrong. Although I agree with much of what my colleagues say about the role of common law judges in developing the law of torts, and although I voted to create the cause of action, not available in 1901, that permitted this plaintiff, a trespasser, to sue in this case, see Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976), I cannot accept the proposition that the legislature is powerless to legislate, as has in effect been held here, in setting a limit on the recovery of punitive damages in a tort action, whether it existed in 1901 or was created later.
I recognize that courts have the power, and indeed the duty, to declare an act of the legislature void if it offends the fundamental law of the people, provided, of course, the constitutionality of the act is properly and timely challenged by a party having standing to sue. As I view the law, however, courts are required to apply the following principles of law before striking down a duly enacted law of the legislature:
Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 814-15 (1944). (Emphasis added.)
Several times in recent years I have been compelled to disagree with this Court's striking down of a legislative act as violating either § 11 or § 13 of the Constitution, and in each case I thought that the Court failed to apply this uniform principle of law that guides us when a legislative act is questioned on constitutional grounds. See Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 178-183 (Ala.1991) (Maddox, J. dissenting); Clark v. Container Corp. of America, 589 So. 2d 184, 201-02 (Ala.1991) (Maddox, J., dissenting); Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414, 423-27 (Ala.1991) (Maddox, J., dissenting); see also Grantham v. Denke, 359 So. 2d 785, 789-92 (Ala.1978) (Maddox, J., dissenting); and Fireman's Fund American Insurance Co. v. Coleman, 394 So. 2d 334 (Ala.1981) (Beatty, J. dissenting, joined by Maddox, J.). In his dissenting opinion in Fireman's Fund, Justice Beatty quoted from McAdory the following passage, which I believe is uniquely applicable here:
Fireman's Fund, 394 So. 2d at 357 (quoting McAdory, 246 Ala. at 13, 18 So.2d at 818). (Emphasis added in Fireman's Fund.)
It seems such a basic principle of law that it is the legislative branch of government that has the power to decide the amount of penalty that can be imposed for wrongful conduct, whether that wrongful conduct is criminal or civil, especially when the legislative branch is acting in a manner that is congruent with federal constitutional requirements of due process of law in the imposition of punitive damages. It also seems, therefore, that there could be no question as to the right of the legislature to limit the amount of *898 punitive damages fixed by a jury in a civil case.
The majority believes that the Alabama Constitution does not authorize the legislature to remit a punitive damages award. Admittedly, no specific constitutional provision grants the legislature power to remit "punitive damages," as such, but punitive damages serve punitive goals, Day v. Woodworth, 54 U.S. (13 How.) 363, 14 L. Ed. 181 (1851), and "the labels `criminal' and `civil' are not of paramount importance." United States v. Halper, 490 U.S. 435, 447, 109 S. Ct. 1892, 1901, 104 L. Ed. 2d 487 (1989). "It is well settled that a penalty imposed by law may be remitted by the legislature, and that a legislature may remit penalties under a general law even if the state constitution forbids remission of penalties by special law." 36 Am.Jur.2d Forfeitures and Penalties, § 110, at 677 (1968) (citing Maryland v. Baltimore & O. R.R., 44 U.S. (3 How.) 534, 11 L. Ed. 714 (1845)). It would seem, therefore, to be settled that the prohibition in § 104(28) of the Constitution against the legislature's remission of fines by local, special, or private law does not prohibit the legislature from enacting a general act, to remit a fine. Cf. Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130 (1931). Furthermore, if "punitive damages" are, in fact, a "fine," as they obviously are, then Amendment 38 to the Constitution, although generally applying to the remission of fines in criminal cases, specifically provides that "[t]he legislature shall have power to provide for and to regulate the administration of ... remission of fines and forfeitures...."
The excessiveness of punitive damages awards has been a question that this Court, the United States Supreme Court,[9] and the legislature have addressed on several occasions in the last two decades. As jury awards of punitive damages increased, this Court was increasingly faced with requests to reduce jury verdicts on the ground that they were excessive.[10]
My colleagues cite Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974), in support of their opinion that the legislature could not adopt this act because in 1901 this plaintiff would have been entitled to have a jury determine the amount of punitive damages to award. I participated in the Gilbreath decision, and I cannot accept the broad scope that my colleagues give it. Gilbreath involved a question of whether the legislature could authorize the convening of a six-person jury in a will contest, not the power of the legislature to address what it perceived to be a social evil. Gilbreath involved a question of the size of a common law jury and the question whether a verdict had to be unanimous. If this case involved an act of the legislature *899 that permitted juries of fewer than 12 persons or permitted less than unanimous verdicts in negligence actions like this one, then I would vote, as I did in Gilbreath, to hold that the legislature did not have that power. I voted in that case for that proposition only after I had read the 1901 Constitutional Convention debates and realized that the delegates had discussed at length the ideas of having juries of fewer than 12 and of allowing less than unanimous verdicts. The debates of the Constitutional Convention do not support the proposition that the Convention considered jury verdicts to be sacrosanct. In fact, the opposite was true. Much of the debate centered on trying to prevent jury fraud in the factfinding process; therefore, Gilbreath does not address the issue presented in this casethe right of a common law jury to exercise an unbridled discretion to award punitive damages. Consequently, any statement in Gilbreath directed at an issue other than the one presented in that case, whether the legislature could provide for a six-person jury, is pure dictum. My vote in Gilbreath was limited to the sole proposition that, if a party was entitled to a trial by jury at common law or if the right was given by statute, then the 1901 Constitution preserved to that party the right to a 12-person jury and a unanimous verdict. If I thought that Gilbreath held that everything was frozen as of 1901, as the majority concludes here, I would have filed a special concurrence in that case to state specifically the limits of my concurrence. In Gilbreath, the Court was dealing only with the "substance of [the right to trial by jury]." 292 Ala. at 269, 292 So. 2d at 652. (Emphasis in original.) The Court said:
292 Ala. at 269, 292 So. 2d at 652. (Emphasis added.)
If the legislature can confer a right of trial by jury that did not exist, can it not limit that right, provided it is exercising a power granted to it by the people? It would seem that it could, because this Court has held that the legislature can even abolish a cause of action entirely. Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939).[11]
I recognize that this class of cases, even though created by this Court, was one in which a trial by jury was authorized at common law, and I agree with my colleagues that at the time the 1901 Constitution was adopted, a jury could award punitive damages and could fix the amount in this class of cases.[12] However, the amount of punitive damages that a jury could award has always been subject to judicial review,[13] and one of the reasons for that judicial review is to protect defendants against unjust and unconstitutional awards made by juries. Consequently, it has always been accepted that jury verdicts are revisable. The only question *900 is whether the repository of power to revise a jury verdict is the courts, or whether the legislature can establish the limit of any penalty a jury can impose. I do not think that the judiciary is the only repository of the power to review, alter, and revise a jury verdict. I think that the people have left great powers to the legislature, including the power to place a cap on the amount of any penalty that a citizen will have to pay; that judicial power to strike down what the legislature has done is very delicate; and that courts should not strike down an act unless convinced that the legislature did not have the power to enact it, or that it acted arbitrarily or capriciously. It is at that point that my view of legislative power versus judicial power conflicts with that of the majority.
The majority seeks to justify its action by stating that "[t]his Court, in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), articulated, clarified, and refined the common law mechanism of remittitur, so as to protect defendants on a case-by-case basis from verdicts so excessive or out of proportion to the wrong or to the individual defendant as to violate the defendant's right not to be deprived of property without due process of law," At 893, and seems to believe that the question of the excessiveness of a punitive damages award is a judicial concern only, and that the legislature is powerless to limit the amount that can be awarded. Although I recognize that in Haslip the United States Supreme Court held that Alabama's procedure for reviewing jury awards of punitive damages "ensures meaningful and adequate review by the trial court," 499 U.S. at 20, 111 S. Ct. at 1044, and that "the Alabama Supreme Court provides an additional check on the jury's or trial court's discretion," 499 U.S. at 20, 111 S. Ct. at 1045, I believe that the Supreme Court, by noting the cap statute in a footnote, would not necessarily approve the procedure as comporting with federal due process requirements, if the cap statute was stricken down as it is.[14]
*901 In view of these questions regarding the State's right, through the legislative process to impose outer limits on punitive damage awards, I believe the footnote in the Haslip takes on added significance.
The Alabama procedure for reviewing the alleged excessiveness of a jury award, although approved in Haslip, may not be the last word from the Supreme Court, because that Court may decide a case this term, see TXO Production Corp. v. Alliance Resources Corp., cert. granted, ___ U.S. ___, 113 S. Ct. 594, 121 L. Ed. 2d 532 (1992), in which the question of the excessiveness of a punitive damages award by a West Virginia court is specifically presented. Hopefully, the Supreme Court will provide state courts with additional guidance, so that we can better determine the fundamental rights of both plaintiffs and defendants in cases involving awards of punitive damages.[15]
In recent years, many states have enacted statutes that cap or otherwise limit damages recoverable in personal injury actions. See Leonard J. Nelson, Tort Reform in Alabama: Are Damages Restrictions Unconstitutional? 40 Ala.L.Rev. 533, 549 n. 119 (1989). Clearly, the last word has not been spoken on state legislative caps of damages and their relation to federal due process rights. Recently, two other courts upheld statutes very similar to the one at issue today. Gordon v. State, 608 So. 2d 800 (Fla. 1992); Wackenhut Applied Technologies Center v. Sygnetron Protection Systems, 979 F.2d 980 (4th Cir.1992). The United States Supreme Court has heard arguments in TXO Production Corp., and the search for constitutional standards goes on. See Volz, Punitive Damages and the Due Process Clause: The Search for Constitutional Standards, 69 U.Det.L.Rev. 459 (1992).
The provision of the Alabama Constitution guaranteeing the right to trial by jury should not override the legislative power to remit penalties, also granted by the same Constitution, or the power of the legislature to exercise the police power of the State; provided, of course, that there is a rational basis for remitting penalties or exercising the police power. The right of the legislature to remit punitive damages, I thought, was not seriously questioned. See Meighan v. Birmingham Terminal Co., 165 Ala. 591, 598-99, 51 So. 775, 777-78 (1910). I note that my colleagues seem to think that Meighan does not address the power of the legislature to deal with punitive damages. Of course, I think they are wrong, because, as I have already shown, the question of excessive verdicts has been a concern of this Court, the legislature, and the United States Supreme Court.
My colleagues quote extensively from Barry v. Edmunds, 116 U.S. 550, 562-65, 6 S. Ct. 501, 507-09, 29 L. Ed. 729 (1886), in support of the result they reach, but the portion of the opinion that they quote, specifically recognizes, in two places, that jury verdicts are subject to a "precise rule of law [that] fixes the recoverable damages." The act that my colleagues invalidate is just such a "precise rule of law [that] fixes the recoverable damages." The particular quote I refer to reads as follows:
116 U.S. at 565, 6 S. Ct. at 509.
My colleagues say that "[j]ust as it was improper for the trial court in Barry `to substitute itself for the jury ... as the standard and measure of that justice, which the jury itself is the appointed constitutional tribunal to award,' 116 U.S. at 565, 6 S. Ct. at 509, it is improper for the legislature to substitute itself for the jury and to fix an arbitrary, predetermined limit of `that justice, which the jury itself is the appointed constitutional tribunal to award.'" At 891. I fail to see how the legislature, in adopting a limit on the amount of penalty that can be imposed for wrongful conduct, is substituting itself for the jury. On the contrary, it has provided a "precise rule of law [fixing] the recoverable damages," such as the Supreme Court mentions in Barry v. Edmunds. In any event, Barry v. Edmunds must be read in the light of the developments in the last two decades of the law relating to the recovery of punitive damages.
This dissent is probably much too long, and I probably should have just cited the reader to the other dissents that I have previously written in which I have stated the law that ought to govern this Court's review, but I have written at length because of the depth of my conviction of the soundness of both the doctrine of separation of powers and the plenary power of the legislature to pass laws that the legislature considers to be in the public interest.
From the time of this Court's creation until its decision in Grantham v. Denke, 359 So. 2d 785 (Ala.1978), this Court had steadfastly recognized the plenary power of the legislature to establish the public policy of the State. Grantham v. Denke was an aberration, representing a basic departure from the rule that had been embedded in the jurisprudence of this Statethat the legislature had the power to address what it perceived to be a social evil. I dissented in Grantham, for the same reasons I dissent today. Applying the principle of law I believe to be applicable, I am not convinced beyond reasonable doubt that the legislature violated fundamental law in capping punitive damages as it did. On the contrary, I believe that the views I have expressed in various dissents on this issue are sound, and in view of the fact that the United States Supreme Court upheld Alabama's review process, and in doing so, cited approvingly the act that today is obliterated, I can only believe that the majority's reasoning is seriously flawed.
I end my writing with this quote of the law:
Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9-10, 18 So. 2d 810, 815. (Emphasis added.)
*903 HOUSTON, Justice (dissenting).
Alabama Power Company filed a motion for a directed verdict at the close of the plaintiff's case and also at the close of all the evidence, asserting as one ground for the motion that the evidence adduced by the plaintiff on his claim of wantonness was insufficient. The trial court denied these motions and submitted both the negligence claim and the wantonness claim to the jury, which returned a verdict for the plaintiff. Alabama Power timely moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial, asserting as one of the grounds that there was insufficient evidence to submit the wantonness claim to the jury. Because I believe that there was substantial evidence of negligence to submit that claim to the jury but insufficient evidence of wantonness to submit the wantonness claim to the jury, I would reverse and remand under the authority of Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981).
The claim of wanton misconduct should not have been submitted to the jury unless there was substantial evidence ("evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved," West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); Ala.Code 1975, § 12-21-12) that Alabama Power consciously did some act or omitted some duty under knowledge of existing conditions and that Alabama Power was conscious that from doing the act or omitting that duty an injury would likely or probably result. Stone v. Southland National Insurance Corp., 589 So. 2d 1289 (Ala.1991); Kelley v. Smith, 581 So. 2d 1096 (Ala.1991). "[L]ikely" is defined as "[l]ogically or expectedly about to occur; imminent." The American Heritage Dictionary of the English Language, 757 (1969). "[P]robably" is defined as "[m]ost likely; in all probability; presumably." The American Heritage Dictionary of the English Language, 1043 (1969).
The plaintiff had the burden of proof. The standard for reviewing the denial of a motion for a directed verdict is whether the party with the burden of proof has produced substantial evidence of the elements of his claim so as to require a jury's determination. Alabama Great Southern R.R. v. Jackson, 587 So. 2d 959, 962 (Ala.1991). Likewise, we must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable inferences from the evidence as the jury would be free to draw. Springer v. Jefferson County, 595 So. 2d 1381, 1383 (Ala. 1992).
In 1988, Craig Henderson, age 12, was injured when he and two older friends, without permission, climbed an electrical switching tower owned and maintained by Alabama Power Company within an easement owned by Alabama Power Company. The easement bordered the rear of lots in Cedar Knoll, a residential subdivision, on one side and bordered woods and a corn field on the other side. The tower was a five-foot by five-foot vertical structure with steel-latticed supports and was approximately 33 feet high. The purpose of the tower was to allow Alabama Power to switch the direction or flow of electric power under emergency situations. There was an anti-climbing barricade made of barbed wire mesh installed on the tower, approximately 13 feet above the ground. This barricade extended outward from the tower approximately 18 inches on all four sides. The tower was constructed in 1957. There were two switching poles incorporated within the anti-climbing barricade when the tower was erected. In 1967, the tower was modified to include a third switching pole to provide a tap to another location. The switching pole was a smooth metal pole two inches in diameter with no handles or footholds to facilitate climbing. It was located three inches to six inches from the outermost strand of barbed wire on the anti-climbing barricade.
Alabama Power had no knowledge that children had been climbing the tower. The only evidence that children had climbed the tower before Craig's injury was evidence that Craig and his 14-year-old brother had climbed the tower, for the first time, approximately two weeks before the accident.
*904 Between 75 and 100 feet from the tower there was a path that crossed under the transmission line and permitted persons to walk from the neighborhood through the woods to Bowers Park, approximately a mile away. This path was separated from the tower by thick underbrush. A much less conspicuous path came within 10 to 15 feet of the tower. An adjacent landowner maintained a garden on the right-of-way near the tower.
There was a wooden step less than a foot from the ground on which Alabama Power personnel would stand when it was necessary to turn the switching poles to switch the direction or the flow of power.
Craig pulled himself up the two-inch metal switching pole for more than 13 feet until he could put his feet on the top of the anti-climbing barricade.
Fair-minded persons in the exercise of impartial judgment could reasonably infer from all the evidence that employees of Alabama Power breached the duty of due care stated in § 339, Restatement (Second) of Torts, by placing the switching pole where it was placed and outside the anti-climbing barricade. Therefore, there was substantial evidence to justify the submission of the negligence claim to the jury. Motes v. Matthews, 497 So. 2d 1121, 1123 (Ala.1986); Torbert v. Gulsby, 333 So. 2d 129, 132-35 (Ala.1976).
Could fair-minded people in the exercise of impartial judgment reasonably infer that the employees of Alabama Power were conscious that children would likely or probably pull themselves up the two-inch smooth metal pole, which was located within three to six inches of a strand of barbed wire, to a height of more than 13 feet so that they could step on the top of the barbed wire anti-climbing barricade? I think not. This pole had been in existence for more than 20 years when the injury occurred. Time alone would refute the idea that injury is likely to or probably will occur from the construction of the pole. There was no evidence of any attempts by children to climb this pole during this 20-year period until two weeks before the injury occurred. There was no knowledge on the part of Alabama Power Company that children had ever attempted to climb this pole prior to Craig's injury. There was no evidence of a change in the area surrounding the pole to establish that injury would likely or probably occur. Therefore, there was no substantial evidence of wantonness; and Alabama Power's motion for a judgment notwithstanding the verdict should have been granted as to the claim of wantonness.
When punitive damages are sought in a wantonness claim, as they were in this case, the plaintiff has the burden of proving "wantonness" as defined in Ala.Code 1975, § 6-11-20(a), (b)(3), by "clear and convincing evidence" as defined in § 6-11-20(b)(4), to recover punitive damages. "Clear and convincing evidence" is a standard of proof greater than "substantial evidence." Berry v. Fife, 590 So. 2d 884, 887 (Ala.1991), Ala.Code 1975, § 6-11-20(b)(4). Therefore, because in my opinion, there was no substantial evidence of wantonness, there certainly was no "clear and convincing" evidence of wantonness to justify an award of punitive damages. Berry v. Fife, supra.
In 1215 at Runnymede, King John sealed Magna Carta, thereby creating or preserving two concepts of governance that protect individual liberty: representative democracy and trial by jury.
I could fill the book in which this dissent appears with praises for both concepts, but this is not the occasion to write a Te Deum for representative democracy or trial by jury; this is a time to rationally decide if these two concepts, whereby free people are to be governed, are in conflict. I do not believe that they are.
*905 If I believed that Ala.Code 1975, § 6-11-21, unconstitutionally deprived a plaintiff, who seeks punitive damages, of a right to trial by jury guaranteed by § 11 of the Alabama Constitution, then I would join the majority opinion and vote to hold the act unconstitutional, knowing full well that in doing so I was opening Pandora's box even further than the original majority opinion (which I incorrectly joined) did in Ex parte Coker.[2]
I believe that the legislature was specifically empowered by the Alabama Constitution to enact § 6-11-21 (Art. IV, § 104(28) Constitution). What is now § 6-11-21 was a general act, and it remits penalties; therefore, the legislature had the express constitutional authority to enact it.
I believe that the legislature was specifically empowered by the Constitution to enact Chapter 5 of Title 13A of the Code (Ala.Code 1975, §§ 13A-5-1 through 13A-5-59), "Punishments and Sentences." What is now §§ 13A-5-1 through 13A-5-59 was a general act, and it regulates punishment of crimes, which the legislature was specifically empowered to do by Art. IV, § 104(14).
However, if the legislature did not have the power to remit penalties by virtue of § 104(28), then the legislature had no power to take away the jury's right to sentence a defendant for murder in the first and second degree, manslaughter, rape, and numerous other offenses by virtue of § 104(14); and all sentences to death, imprisonment, and fines imposed for murder, manslaughter, rape, robbery, and many other offenses that occurred after 12:01 A.M. on July 1, 1981 (§ 13A-5-57), are unconstitutional under § 11 of the Alabama Constitution.
When the Constitution of 1901 was ratified, the power was expressly conferred in juries to impose the sentence of death or life imprisonment for defendants found guilty of murder in the first degree (Ala.Code 1897, § 4858); to impose the term of imprisonment for defendants found guilty of murder in the second degree (§ 4858), manslaughter (§ 4862), rape (§ 5444), robbery (§ 5479), and other offenses (§§ 5050, 4420, 4758); and to fix and determine the amount of the fine that a convicted felon had to pay (§ 5415). Section 1205 of Act No. 607, Acts of Alabama 1977 (now codified at Ala.Code 1975, §§ 13A-5-1 through 13A-5-59), removed from the jury the right to sentence and to fix and determine the amount of fines.
The right to trial by jury guaranteed by § 11 of the Alabama Constitution is confined to those classes of cases in which the right existed at common law or by statutory law at the time of the adoption of the Constitution of 1901. Gilbreath v. Wallace, 292 Ala. 267, 270, 292 So. 2d 651, 653 (1974) (all Justices concurring); Miller v. Gaston, 212 Ala. 519, 103 So. 541 (1925); In re One Chevrolet Automobile, 205 Ala. 337, 87 So. 592 (1921); Alford v. State ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910). The concept of the constitutional right to trial by jury, extending to those cases to which that right existed by statutory law at the time of the adoption of the most recent Constitution, predated the Constitution of 1901. See Tims v. State, 26 Ala. 165 (1855). This is consistent with the way in which the common law grew in this country. See Manoukian v. Tomasian, 237 F.2d 211, 215 (D.C.Cir.1956).[3]
Just as the Constitution specifically empowered the legislature to enact § 6-11-21, the Constitution empowered the legislature to enact §§ 13A-5-1 through 13A-5-59. See Art. IV, § 104(14), Constitution.
If, as the majority holds, the right to trial by jury divested the legislature of the right to remit penalties, which the jury had the discretionary right to fix at common law, then by the same reasoning the right to trial by jury divested the legislature of the power *906 to deprive the jury of the right to impose sentences for those criminal offenses as to which the jury had the exclusive right to impose sentence at the time of the ratification of the 1901 Alabama Constitution.
Even knowing the potential disaster that the majority opinion could cause, the majority refuses to consult the Official Proceedings of the Constitutional Convention of 1901 to examine the delegates' comments and thereby to envision the legislative power to "pass general laws for the cases enumerated in this section." Art. IV, § 104, Constitution. The delegates to the Constitutional Convention of 1901 clearly recognized that the legislature had the power to "remit ... penalties" and that the legislature had the power to "fix punishment for crimes"; and the delegates clearly believed that they were ensuring that the legislature would retain those powers under the new Constitution. As even a cursory examination of the Official Proceedings of the Constitutional Convention of 1901 shows, § 104 was viewed as a necessary restriction on the legislature's plenary power to enact laws dealing with the remission of penalties. The evil sought to be eliminated by § 104 was the legislature's propensity to enact laws that were not of interest to the state as a whole. According to Emmett O'Neal (a delegate from Lauderdale County and chairman of the Committee on Local Legislation and later Governor of Alabama, 1911-1915), local, special, or private laws were condemned because they "destroy the harmony of the law, consume the time of the legislature, obscure in the eyes of members of the General Assembly the importance of general laws, furnish opportunity for perpetuating jobs, [and] inflict injustice on individuals or localities in the interest of a favored few." Id. at 1799. After much debate over its scope and wording, the delegates finally adopted § 104 so as to require the legislature to exercise its power to remit penalties and to regulate punishment for crime only through the enactment of laws of statewide application. However, to eliminate any doubt as to whether the legislature would retain the power to legislate with respect to the 31 subjects specifically enumerated in § 104, the delegates approved the following language in the last paragraph of § 104: "The legislature shall pass general laws for the cases enumerated in this section." That this language was intended to be an express grant of power to the legislature is no more clearly illustrated than by the following exchange between Mr. O'Neal and delegate W.T. Sanders, a fellow member of the Committee on Local Legislation:
Id. at 1799-1800. There does not appear to be any hint in the minutes of the Official Proceedings that any of the delegates considered any other provision of the Constitution to be a restriction on the legislature's express power to remit penalties or to regulate punishment under § 104.
What are punitive damages? "Punitive" is defined as "[r]elating to punishment; having the character of punishment or penalty; inflicting punishment or a penalty." Black's Law Dictionary 1234 (6th ed. 1990). "Penalty" is defined as "[a]n elastic term with many different shades of meaning; it involves the idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to pecuniary punishment...." Black's Law Dictionary, supra, at 1133. Thus, punitive damages are a form of civil penalty." `The imposition of punitive *907 or exemplary damages ... cannot be opposed as in conflict with the prohibition against the deprivation of property without due process of law. It is only one mode of imposing a penalty for the violation of duty, and its propriety and legality have been recognized....'" Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 16, 111 S. Ct. 1032, 1042, 113 L. Ed. 2d 1 (1991), quoting Minneapolis & St. Louis R.R. v. Beckwith, 129 U.S. 26, 36, 9 S. Ct. 207, 210, 32 L. Ed. 585 (1889). Punitive damages have historically been awarded for the sole purpose of vindicating and protecting society's (i.e., the public's) right to be free from certain kinds of egregious tortious conduct, not for the purpose of providing a private compensatory remedy. See Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775 (1910). In Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 837 (Ala.1988), this Court noted:
"Remit" means "[t]o give up; to pardon or forgive; to annul; to relinquish as to remit a fine, sentence, or punishment." Black's Law Dictionary, supra, at 1294. In The Oxford Thesaurus American Edition, 417 (1992), synonyms for "remit" are "abate, diminish, slacken, decrease, lessen, subside, alleviate, mitigate, assuage, ebb, dwindle, reduce, relax, ease." The power "to remit ... penalties" encompasses the power to impose a cap on punitive damages.
In that case that I fear will be filed within days of the release of this opinion, the majority of this Court must either reverse a precedent of over 138 years as to what right to trial by jury is protected by § 11 of the Constitution, see Tims v. State, supra, or, to be consistent with its holding in this case, hold that the legislature did not have the power under the Alabama Constitution to remove the right of the jury to sentence a defendant to death or imprisonment or to set finesand it must do this to protect punitive damages, which we have consistently held no one has a right to recover; and it must be done when the Constitution so specifically empowers the legislature to remit punitive damages and to fix the punishment for crimes.
According to statistics cited by the Chief Justice of this Court in an address to the May 1993 Alabama Bar admittees, there were only 54 cases in which punitive damages in any amount were awarded by juries in Alabama during the 1992 calendar year.[4] While this statistic may cause one to wonder if punitive damage awards need remitting, that has been decided by representative democracy, a concept of governance that has protected individual liberty since 1215 at Runnymede. However, viewed from my judicial vantage point, I wonder why the majority of this Court feels that it is one of the "felt necessities of our time" to strike this statute (disregarding our time-honored standards of review), when so few potential cases are involved and when the method of doing this may disrupt most of the cases decided in Alabama's criminal justice system during the last 12 years.
*908 This issue may not have been raised in most criminal cases, so there was no reason for this Court to reach it. However, in capital cases, this Court is required to search the record for error. If § 11 of the Alabama Constitution prohibited the legislature from divesting the jury of the right to impose the death sentence or a sentence of life imprisonment and empowering the trial court to do so, then why has the majority of this Court not recognized that as error when the trial court has set a sentence, sometimes even contrary to the jury's advisory opinion?
The concept of judicial review is a challenge. See Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414, 427-35 (Ala.1991) (Houston, J., dissenting); and Clark v. Container Corp. of America, Inc., 589 So. 2d 184, 196-98 (Ala.1991). It is easy enough to follow and agree with Chief Justice John Marshall's pronouncement: "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803). It is easy enough to follow and agree with the reasoning of Publius ("Publius" was Alexander Hamilton's nom de plume): "Where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former." The Federalist, No. 78, at 294 (The Legal Classics Library, 1983). The difficulty lies in determining when a legislative statute "stands in opposition" to the Constitution.
It is even more essential in regard to the Alabama Constitution than it is in regard to the Federal Constitution to make certain that a legislative statute clearly "stands in opposition" to the Constitution before it is held to be unconstitutional by the judiciary, for not only is there a distribution of powers of government in Alabama (Art. III, § 42, Constitution), there is the expressed declaration of the people that "the judicial [department] shall never exercise the legislative and executive powers, or either of them; to the end that [our state government] may be a government of laws and not of men." (Art. III, § 43, Constitution).
It was perceived that the federal judiciary must never exercise "WILL" in striking down a duly enacted statute of the legislature, but that it must exercise only "JUDGMENT" when striking down such a statute (The Federalist, No. 78 at 295).
In Alabama, Supreme Court Justices should never exercise "WILL" in striking down a duly enacted statute of the legislature; we should, nay, we must, exercise only "JUDGMENT" when striking down such a statute. Supreme Court Justices exercise only judgment in determining the constitutionality of a statute by adhering to the established rules of constitutional construction and by declaring a statute unconstitutional only if doing so is necessary to prevent the legislature from violating a clear and paramount constitutional principle. See Judge Learned Hand, The Bill of Rights 14-29 (1958); see, also, Mayor of Mobile v. Stonewall Insurance Co., 53 Ala. 570 (1875). The judiciary should hold a duly enacted statute unconstitutional only when it finds a "neutral principle" that is independent of its view of the policies behind the duly enacted law. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L.Rev. 1, 6 (November 1959). The judicial process must be genuinely principled and reach judgment on sound legal analysis and reasoning that transcends the immediate result that is reached. 73 Harv.L.Rev. 12, 15.
Therefore, before I can vote to invalidate a statute duly enacted by that body given the power by the people to enact that statute (the legislature) (Art. IV, § 44, Constitution) and approved by that official given the power by the people to veto that statute (the governor) (Art. V, § 125, Constitution), in short, when I vote against representative democracy, I must be able to articulate what clear and paramount constitutional principle the statute violates; and I must be principled enough to show by sound legal analysis and sound legal reasoning that the constitutionally challenged statute violates that clear and paramount constitutional principle. If I cannot do this, then it is I, a member of the judicial branch of government, and not the legislature or the governor, that "stands in *909 opposition" to the will of the people declared in the Constitution.
What clear and paramount right did Article I, § 11, of the Constitution of 1901, guarantee to the citizens of this state? Section 11 explicitly states "[t]hat the right of trial by jury shall remain inviolate." This Court, interpreting these words, has consistently held that the ratification of § 11 effected a "freezing" of the right of trial by jury as that right existed at common law or by statute in 1901. Stated differently, § 11 did not enlarge the right of trial by jury that existed in any individual when the Constitution was ratified. Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651 (1974).
What exactly, then, were an individual's rights vis-a-vis trial by jury before the ratification of the 1901 Constitution? This Court and the courts of appeals of this state have held that an individual, before the Constitution was ratified, had the right, in certain cases, to have a 12-person, impartial jury unanimously decide the facts. See Clark v. Container Corp. of America, Inc., supra, citing Gilbreath v. Wallace, supra; Kirk v. State, 247 Ala. 43, 22 So. 2d 431 (1945); Baader v. State, 201 Ala. 76, 77 So. 370 (1917); Alford v. State ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910); Tims v. State, 26 Ala. 165 (1855); Culbert v. State, 52 Ala.App. 167, 290 So. 2d 235 (1974); Brown v. State, 45 Ala.App. 391, 231 So. 2d 167 (1970); Dixon v. State, 27 Ala.App. 64, 167 So. 340 (1936), cert. denied, 232 Ala. 150, 167 So. 349 (1936); Judge Walter B. Jones, Trial by Jury in Alabama, 8 Ala.L.Rev. 274, 277 (1956); 16 Ruling Case Law 181 (1917). Of specific importance to this case is the fact that juries were allowed, in proper cases, to assess punitive damages at common law, L. Schleuter and K. Redden, Punitive Damages, § 1.3, at 12 (2d ed. 1989); and, indeed, punitive damages were awarded to the injured parties who brought suit. See, e.g., Rhodes v. Roberts, 1 Stew. 145, 146-47 (Ala.1827), where this Court, in affirming a $1,500 judgment against the defendant under a trespass theory, held:
(Emphasis added.) However, as Rhodes illustrates, even though juries were allowed to assess punitive damages at common law, and even though punitive damages were awarded to the injured parties who brought suit, punitive damages at common law were awarded for the sole purpose of vindicating and protecting society's (i.e., the public's) right to be free from certain kinds of egregious tortious conduct, not for the purpose of providing a private compensatory remedy. See e.g., Meighan v. Birmingham Terminal Co., 165 Ala. 591, 598-99, 51 So. 775, 777-78 (1910), wherein this Court stated:
(Emphasis added.)
The idea that punitive damages are awarded solely for the purpose of vindicating and protecting society's interests by punishing those who engage in egregious tortious conduct and deterring them and others from engaging in such conduct in the future, and the idea that only an amount necessary to accomplish these goals may be awarded, have been restated many times since Meighan. See e.g., Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 837 (1988):
Consequently, before the ratification of the 1901 Constitution, if the defendant was not shown to be guilty of the kind of egregious conduct that was contemplated by the common law as deserving of punishment, then the jury had no legal authority to award punitive damages. Furthermore, in cases involving egregious conduct, discretionary awards of punitive damages by juries were subject to post-judgment review by the courts under an abuse of discretion standard. Thus, the kind of discretion that juries were allowed to exercise at common law before the ratification of the 1901 Constitution was a limited discretion, which this Court has compared to the kind of "legal" discretion that is routinely exercised by courts. Coleman v. Pepper, 159 Ala. 310, 49 So. 310 (1909). Black's Law Dictionary 466-67 (6th ed. 1990), under "Discretion," defines "judicial and legal discretion," in pertinent part, as follows:
(Emphasis added.)
It is clear, therefore, that before the ratification of the 1901 Constitution, an individual had the right in certain cases to have a jury make the factual determination as to whether punishment was necessary to protect society's interests and to have the jury award punitive damages if the jury was so inclined. This right received constitutional protection by virtue of § 11. However, it is equally clear that in performing its factfinding function before the ratification of the Constitution in 1901, the jury was always subject to the rule of law in exercising its discretion. The jury could award punitive damages only in those cases involving egregious tortious conduct on the part of the defendant, and any award made by the jury in such a case could not exceed an amount that would accomplish society's goals of punishment and deterrence. When the Constitution of 1901 was ratified, it was the right of an individual to have a jury *911 act as factfinder and to return a verdict in accordance with the rules of law applicable to the particular case that was afforded constitutional protection by § 11. Before the ratification of the 1901 Constitution, there was no legislative restriction on the exercise of a jury's discretion in awarding punitive damages, such as the one at issue in this case. In other words, the legislature had taken no steps to declare the maximum amount that could be awarded by the jury to vindicate and protect society's interests. It was the function of the court to declare what this amount was on a case-by-case basis and to order a remittitur if necessary. Although § 11 prohibited legislative interference with an individual's common law right to have a jury perform its historic factfinding function, § 11 did not confer upon an individual the right to have a jury perform this function in a vacuum, i.e., freed from the guidance or control of the law.
Section 6-11-21 represents a change in the law only in the sense that it declares the maximum amount that is allowable to accomplish society's goals of punishment and deterrence. Section 6-11-21 did not affect the discretionary authority that the jury had, before the ratification of the 1901 Constitution, to award punitive damages. The jury has never been allowed to award more than an amount deemed necessary by society to punish and deter. Who has the authority to determine the outer limits of punishment and deterrence? Those duly elected by a majority of Alabamians to make law, or 12 people randomly selected from driver's license records, who have survived challenges for cause, Batson challenges,[5] and peremptory challenges of attorneys for particular parties in a particular civil action? I have to believe that those duly elected, not those randomly selected, have the power to determine what is a maximum amount needed to punish and deter. When viewed from this perspective, it is clear that § 6-11-21 did not change the law, at least with respect to the extent of the jury's discretion to award punitive damages, and, therefore, that it does not violate § 11.
I began my dissent in Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414, 427 (Ala.1991), with a quote from the oral argument before the United States Supreme Court of Bruce J. Ennis, Esquire, arguing on behalf of the plaintiff/appellee, Ms. Haslip, in Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991): "I think this is a paradigmatic case for judicial restraint, not judicial activism."
In Armstrong, the majority of this Court deviated from our judicially prescribed standard of review to strike down portions of Ala.Code 1975, § 6-11-23, proclaiming that Armstrong presented a "unique situation." I described the action of the majority as "judicial activism at its worse." 581 So. 2d at 427-28. I think that the majority, by its opinion in this case, is not adhering to at least three well-established rules of constitutional construction.
In Home Indemnity Co. v. Anders, 459 So. 2d 836, 840 (Ala.1984), this Court, quoting Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944), held:
This Court has also held that "[e]ach section of the Constitution must necessarily be considered in pari materia with all other sections," and that "[w]hen there is a conflict, or apparent conflict, between sections of the Constitution, the more specific will prevail as against a more general statement pertaining to the same subject matter." Jefferson County v. Braswell, 407 So. 2d 115, 119 (Ala. 1981).
The legislature's power to regulate punitive damages is derived from two provisions in the Alabama Constitution. "The legislative power of this state shall be vested in a legislature" (Art. IV, § 44). "It is of course *912 well understood that the only authority which has the power to make State laws is the legislature. Section 44, Constitution." Personnel Board of Mobile County v. City of Mobile, 264 Ala. 56, 60-61, 84 So. 2d 365, 369 (1955) (emphasis added). "Section 44 of the Constitution is the express constitutional provision for representative government." Opinion of the Justices No. 263, 379 So. 2d 939, 940 (Ala.1980). "`It [representative government] is based on the concept that democratic government functions best through a written Constitution vesting the full legislative power in representatives chosen by the people....'" Opinion of the Justices No. 201, 287 Ala. 321, 323, 251 So. 2d 739, 741 (1971) (quoting Opinion of the Justices No. 36, 232 Ala. 56, 166 So. 706 (1936)).
As previously discussed, according to the plain wording of Art. IV, § 104(28), the legislative department of government has the power to "remit ... penalties," if it does so by general law. Section 6-11-21 is a general law. "Penalty" includes punitive damages. "Remit" means to "give up" or "reduce." "The state had the right to remit punitory damages ...," Meighan, 165 Ala. at 599, 51 So. at 778, if it did so by a general law, which § 6-11-21 is.
All Justices agree that no citizen has a right to recover punitive damages; therefore, there is no life, liberty, or property interest of a plaintiff involved where punitive damages are concerned. State ex rel. Galanos v. Mapco Petroleum, Inc., 519 So. 2d 1275, 1277 (Ala.1987), stands for the proposition that if two provisions of the Constitution are seen to conflict and one of them is contained in Art. I, the Declaration of Rights, the provision from the Declaration of Rights will prevail. State ex rel. Galanos specifically involves § 35, "Objective of Government." This has paramountcy among constitutional provisions:
Government includes the judiciary:
Section 42, Constitution. (Emphasis added.)
Since we all agree that a plaintiff has no life, liberty, or property interest in an award of punitive damages, the only legitimate end of government in connection with the issue of punitive damages is to protect a defendant's property interest in not having to pay punitive damages that would exceed government's goal of punishment and deterrence. I believe that government, in its legislative capacity, set society's goal of punishment and deterrence by enacting § 6-11-21. Whether this was wise or needed is not for the judiciary to say, because the legislature was not prohibited by the Constitution from enacting § 6-11-21. Not only was the legislature not prohibited from enacting § 6-11-21, it was expressly empowered to do so by the Constitution (§ 104(28)). I believe that government, in its judicial capacity, as represented by the majority opinion in this case has assumed functions other than protecting "the citizen in the enjoyment of life, liberty, and property" when it strikes down § 6-11-21 as violating § 11 of the Constitution.
From what reservoir of strength for denying the legislature its constitutional power to make laws and to remit penalties does the majority draw? I shall discuss Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156 (Ala. 1991), later, for Justice Adams, the author of the majority opinion in Moore, writes in the majority opinion in this case, "A fair reading of Moore reveals that its holding rested on this principle." At 887. It is that "principle" that I address firstthe "principle" on which, according to the author of Moore v. Mobile Infirmary Ass'n, the holding in Moore rested. If that "principle" is wrong, then, a fortiori, Moore is wrong.
The majority relies on Alabama Power Co. v. Rembert, 282 Ala. 5, 208 So. 2d 205 (1968); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So. 2d 24 (1961); and Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386 *913 (1937), to establish the "principle" upon which Moore and the majority opinion in this case rest.
Because the jury was instructed in those cases that it "should" assess punitive damages or that the plaintiff would be entitled to punitive damages if the defendants were guilty of wantonness, this Court reversed for failure to leave the assessment to the discretion of the jury. The majority opinion in this case makes this quantum leap, which cannot be made in keeping with those three opinions: it concludes that "if the jury's discretion was unconstitutionally impaired by these instructions, which, in effect, directed the jury to award punitive damages, then a fortiori, a statute interdicting such damages is patently impermissible." At 886 (emphasis original).
The majority gives those three cases constitutional underpinnings, which they do not have. In those cases the trial court improperly instructed the jury as to the law of punitive damages as it existed. Those cases do not stand for the proposition that the law of punitive damages cannot be changed by the legislature to set the outer bounds of society's goals of punishment and deterrence. In fact, dicta in those cases clearly indicate that the law of punitive damages can be changed to remove unbridled jury discretion.
"Punitive damages are not recoverable as a matter of right except as provided by statute...," Alabama Power Co. v. Rembert, 282 Ala. at 6, 208 So. 2d at 206; "Punitive damages are not recoverable as a matter of right except as provided by the statute ...," Treadwell Ford, Inc. v. Leek, 272 Ala. at 546, 133 So. 2d at 25; "Punitive damages are not recoverable as a matter of right except as provided by the statute." Lehigh Portland Cement Co. v. Sharit, 234 Ala. at 43, 173 So. at 388. (Emphasis added in each quote.)
In the name of jurisprudence, what does "except as provided by statute" in each of the three cases (Rembert, Leek, and Sharit) mean except that the legislature by statute could make punitive damages recoverable as a matter of rightthat the legislature had the power to change the jury's unbridled discretion in regard to punitive damages?
In Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 157 (Ala.1991), punitive damages were not awarded by the jury, and it was my understanding that punitive damages were in no way involved. My disagreement with the rationale of the Court's opinion, and my opinion concurring in the result, were based upon this understanding.
Other cases quoted by the majority as support for its faulty premises are Fuller v. Preferred Risk Life Ins. Co., 577 So. 2d 878 (Ala.1991), and Barry v. Edmunds, 116 U.S. 550, 6 S. Ct. 501, 29 L. Ed. 729 (1886). The per curiam opinion in Fuller relies on Barry v. Edmunds as authority for the portion of Fuller quoted in the majority opinion. See 577 So. 2d at 884. The extensive quote from Barry is founded upon its quote from Mr. Justice Story for the following: "that a verdict will not be set aside in a case of tort for excessive damages `unless the court can clearly see that the jury have [here are set out in the alternative the things that can be considered, concluding with] or have totally mistaken the rules of law by which the damages are to be regulated'that is `unless the verdict is so excessive or outrageous' with reference to all the circumstances of the case `as to demonstrate that the jury have acted against the rules of law....'" 116 U.S. at 565, 6 S. Ct. at 509. (Emphasis added.) Further, the per curiam opinion in Fuller states, immediately after citing Barry v. Edmunds, supra: "That authority [the authority of the jury to set the amount of punitive damages] is not diminished by post-verdict review of the verdict by the trial court. Trial courts were assigned that function at common law." 577 So. 2d at 884. Likewise, that authority (the authority of the jury to set the amount of punitive damages) is not diminished by a statutory change in the law of punitive damages, for Parliament was permitted to statutorily change the common law. 5 Macaulay, The History of England from the Accession of James II (Aldine Book Publishing Co.) 478; 15A Am.Jur.2d Common Law § 8, 593, 605 (1976); see Manoukian v. Tomasian, supra.
The majority clearly bases its decision on Alabama law: "[O]ur conclusions regarding the constitutionality of § 6-11-21 are based entirely on adequate and independent state *914 law grounds." At 885. It is questionable why so much of the opinion is a quote from Barry v. Edmunds, 116 U.S. 550, 6 S. Ct. 501, 29 L. Ed. 729 (1886), which did not involve Alabama law. However, it is to the majority's credit that it does base its decision on Alabama "law," because it certainly is not supported by decisions of the United States Supreme Court, including Barry v. Edmunds.
Justice Scalia, in his concurrence in the judgment in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 39, 111 S. Ct. 1032, 1054, 113 L. Ed. 2d 1 (1991), wrote: "State legislatures and courts have the power to restrict or abolish the common-law practice of punitive damages...." Except in Alabama, from whence came Pacific Mutual v. Haslip.
The majority of the United States Supreme Court in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88, 98 S. Ct. 2620, 2638, 57 L. Ed. 2d 595 (1978), also shared Justice Scalia's view; the following appeared in footnote 32:
It is not necessary to address the other cases cited by the majority. Suffice it to say that none of them stands for the proposition that punitive damages are above the law.
As a result of the majority's opinion, if a case is tried to a jury, then § 6-11-21 ("[a]n award of punitive damages shall not exceed $250,000") is unconstitutional. However, if the trial court is the trier of the facts, then punitive damages cannot exceed $250,000 unless the punitive damages award is based on one of the three exceptions listed in § 6-11-21, because clearly what the trial court does as trier of the facts is in no way affected by § 11 of the Constitution. This anomaly results from the majority's unprecedented myopic view of § 11 of the Constitution.
The people spoke through their legislature in 1987. The people spoke after all sides had been heard. The best and the brightest advocated or opposed a fixed limitation on punitive damages. What is now § 6-11-21 was legally adopted by a duly elected legislature, and it was approved by a duly elected governor. This was representative democracy at work. If excessiveness of a punitive damages award is raised, should not I, as an appellate court judge, treat $250,000 as the outer limit of what society deems necessary in the way of punishment and deterrence for civil wrongs (except those for which the limit was not made applicable). As the author of Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), I believe that a $250,000 limitation should be factored into the Green Oil Co. standard of review. The legislature can by general act change rules adopted by this Court. Section 6.11, of Amendment 328, Alabama Constitution.
And Thames, that knows the moods of kings, And crowds and priests and such like things,
Rudyard Kipling, The Reeds of Runnymede (1911).
*915 STEAGALL, JUSTICE (dissenting).
I respectfully dissent from Part I of the majority opinion. I would hold that there was not sufficient evidence to support the jury's award of punitive damages. I also respectfully dissent from Part II of the opinion, which holds that the legislation placing a cap on punitive damages is unconstitutional. See my dissent in Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala.1991).
[1] This proposition was tacitly anticipated in Owens v. Grant, 569 So. 2d 707 (Ala.1990), where we noted: "The court instructed the jury on negligence and wantonness as set forth in Restatement (Second) of Torts § 339 (1986), and the jury returned a verdict in the amount of $125,000 against Owens." 569 So. 2d at 709-10. (Emphasis added.) The judgment was reversed, however, because the trial judge had refused to submit to the jury the question of the applicability of Ala.Code 1975, § 35-15-1 et seq., as a defense to the action.
[2] Additionally, the net inference derived from balancing the "utility ... of maintaining the condition and the burden of eliminating the danger," § 339(d), may be an aggravating or mitigating factor, depending on the circumstances.
[3] One path led from Cedar Knoll to a playground area known as Bowers Park, and the other path connected Cedar Knoll to Idlewood.
[4] Moreover, under the evidence presented in this case, the jury was warranted in rejecting APCo's contention that the tower held a warning sign at the time of the accident.
[5] This Court set forth a portion of the same passage from Day v. Woodworth in South & North Alabama R.R. v. McLendon, supra, 63 Ala. at 274.
[6] See also Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604 (1926); Cox v. Birmingham Ry., Light & Power Co., 163 Ala. 170, 50 So. 975 (1909); and Coleman v. Pepper, 159 Ala. 310, 49 So. 310 (1909).
[7] In this connection, it is with amazement that we read in Justice Houston's dissent the implication that by virtue of this opinion, "punitive damages are above the law." At 914. This assertion is utterly unsupported by our decision, which merely re-establishes the judiciary's common law role in reviewing jury verdicts under factors such as those set forth in Green Oila case authored by Justice Houston himself. In other words, instead of a jury's award being limited by an arbitrary cap of $250,000, regardless of the reprehensibility of the defendant's conduct, each case is treated individually to ensure that no award is too little or too great. Not only does the jury initially perform this function, but the result is reviewed by the trial judge and, finally, by this Court under principles set forth in Green Oil, authored by Justice Houston.
[8] Why did the Supreme Court mention the "cap" statute when discussing the Alabama scheme for limiting jury discretion in order to comport with federal "due process" requirements? By mentioning the effective date of § 6-11-21, did the Court suggest that had the Act been applicable in Haslip, it would have applied it? The footnote, in view of its inclusion in the opinion, seems to suggest that.
[9] In Haslip, the Supreme Court noted that "[t]his Court and individual Justices thereof on a number of occasions in recent years have expressed doubts about the constitutionality of certain punitive damages awards." 499 U.S. at 9, 111 S. Ct. at 1038.
[10] In General Motors Corp. v. Edwards, 482 So. 2d 1176 (Ala.1985), this Court discussed at length remittitur practice in Alabama, and although the Court was divided on whether to affirm the trial court's remittitur order in that case, the Court seemed to recognize that some procedures and standards should be adopted for reviewing claims of excessiveness. In Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), this Court set out the standards that now govern trial courts in reviewing such awards, which the United States Supreme Court, in Haslip, found guaranteed sufficient due process in that case, but as I have already pointed out, the Supreme Court cited the act struck down today as according a measure of due process for future cases in which punitive damages were awarded.
In Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986), the United States Supreme Court was called upon to address the question of whether Alabama's procedure of allowing juries a standardless discretion in awarding punitive damages, which the Court today approves, violated due process under the United States Constitution. Although the Court did not address the constitutionality of the award in that case, the Court did indicate that it would address the federal constitutional issue when it was properly presented. It was against this background of concern about the excessiveness of jury awards that the Alabama legislature adopted this act, as part of the "Tort Reform Package." Consequently, I think that the Supreme Court's reference in Haslip to this act, albeit in a footnote, has some federal constitutional significance.
[11] In Pickett, this Court held that the legislature had the power to abolish a cause of action entirely, and not merely the power to limit the recovery in an action. This Court reaffirmed that principle as recently as last term in Northeast Utilities, Inc. v. Pittman Trucking Co., 595 So. 2d 1351, 1354 (Ala.1992). The first aberration of this principle seems to have come when a majority of this Court struck down a legislative act in Grantham v. Denke, 359 So. 2d 785 (Ala.1978). When this Court decided Reed v. Brunson, 527 So. 2d 102 (Ala.1988), I thought the question of legislative power had been settled, whether it was challenged under § 11 or § 13, unless the substantive right to a trial by jury was at issue.
I recognize that a majority of this Court might disagree with Pickett, but some Justices that I believe as among the best ever to serve on this Court concurred in the opinion. I think Pickett correctly interpreted the proper role of this Court when construing an act of the legislature and is still sound in interpreting the plenary power of the legislature.
[12] In 1901, of course, the plaintiff here would not have been allowed to sue because this Court did not recognize a cause of action in cases such as this until 1976, when it decided Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976).
[13] Courts have traditionally had the power to review jury verdicts for excessiveness and to grant remittiturs. That power has been statutorily granted in some instances. See Ala.Code 1975, § 12-22-71. I thought that the review procedures that the legislature adopted were designed to comport with federal and state requirements regarding review of claims of excessiveness.
[14] The fact that the Supreme Court cited the act that the majority strikes down today, when considered along with the fact that the question of legislative caps was discussed at the oral arguments in Haslip, a case in which the issue involved the excessiveness of a jury award of punitive damages, leads me to conclude that the Supreme Court attached some significance to the legislature's having placed a cap on punitive damages.
During oral arguments in Pacific Mutual Life Ins. Co. v. Haslip, the following exchange between the Court and Mr. Ennis, attorney for Haslip, occurred:
"QUESTION: Well, what isis thereis there some due process requirement that the punitive damages not be excessive?
"MR. ENNIS: Yes, Your Honor, I think that there are decisions of this Court that do impose an outer limit, regardless of the fairness of the standard of procedure.
"QUESTION: What, there's not a limit like, excessive?
"MR. ENNIS: The outer limit would be, under the substantive component of the due process clause
"QUESTION: Yes?
"MR. ENNIS: that the punitive award not exceed an amount that would rationally further the State's legitimate objectives.
"Now, in this case, I think that there can be no serious argument that this award violates that standard, for the simple reason
"QUESTION: And you say this excessiveness comes out of the due process clause, thisyou say? How does it do that? You say thatI thought you started out saying the due process clause just doesn't read on punitive damages?
"MR. ENNIS: I think that the due process clause does not apply to whetherto predictability of the amount of the punitive damage award. I think that's right.
"QUESTION: But it does apply, you sayit can be too great?
"MR. ENNIS: There is, perhaps, a substantive component of the due process clause.
"QUESTION: Well, you said there was a while ago."
In his closing remarks, Mr. Ennis said:
"MR. ENNIS: Let me simply conclude, since my time is almost to expire, by saying that the principal issue here I think is the standards issue. I think that Alabama has developed a rational system for achieving legitimate and very important State objectives. Alabama provides substantially more protection than the common law standards that were well established when the due process clause was adopted and that are still the prevailing standards today.
"This Court should not expand upon that traditional understanding of due process and throw settled State tort law into complete disarray without compelling evidence that the punitive damage awards are fundamentally unfair in the majority of cases, and without compelling reason to believe that the legislative process is closed or is incapable of addressing that problem." (Emphasis added.)
The above excerpts from the oral arguments in Haslip are taken from a transcript of those arguments prepared by Alderson Reporting Company, Inc., Washington, D.C. 20005.
[15] Because of what the United States Supreme Court had held in other cases involving federal constitutional claims, I thought that the Supreme Court would decide Haslip differently. See Pacific Mutual Life Insurance Co. v. Haslip, 553 So. 2d 537, 544 (Ala.1989) (Maddox, J., dissenting). See also Southern Life & Health Ins. Co. v. Turner, 586 So. 2d 854, 859-61 (Ala.1991) (Maddox, J., concurring in the result). Because my prediction of what the Supreme Court would do in Haslip was misplaced, I shall await its decision in the case now before it. I have no way of knowing how the United States Supreme Court would view the holding in this case if this Court's holding is challenged, but I believe that the Supreme Court would be interested in knowing that this Court raised the § 11 arguments on its own in Armstrong v. Roger's Outdoor Sports, Inc., 581 So. 2d 414 (Ala.1991).
[1] Rudyard Kipling, The Reeds of Runnymede (1911).
[2] The original opinion in Ex parte Coker was released on December 7, 1990, and, on application for rehearing, an extension to that opinion was released on January 11, 1991. Ex parte Coker, 575 So. 2d 43 (Ala.1990).
[3] "British statutes antedating the Declaration of Independence have almost universally been regarded as having the effect of judicial precedent, rather than legislative enactment. `The common law of the mother country as modified by positive enactments, together with the statute laws which are in force at the time of the emigration of the colonies, becomes in fact the common law rather than the common and statute law of the colony.'"
[4] Of these, 42 cases involved punitive damages of $250,000 or less; 2 cases involved punitive damages in the range between $250,001 to $1,000,000; and 10 cases involved punitive damages of $1,000,000 or higher. Of the 54 cases in which punitive damages were awarded, 33 cases involved jury awards and 16 involved awards made by a trial court.
[5] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). | June 25, 1993 |
01c5e787-5081-4fb6-8d73-5c8f954b7125 | Ex Parte Jackson | 640 So. 2d 1050 | 1920376 | Alabama | Alabama Supreme Court | 640 So. 2d 1050 (1993)
Ex parte Willie Simmons JACKSON.
(In re Willie Simmons Jackson, alias Willie S. Jackson, alias Billy Boy Jackson v. State.)
1920376.
Supreme Court of Alabama.
June 11, 1993.
Paul A. Young, Jr., Enterprise, and Jackson W. Stokes, Elba, for petitioner.
James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr. and Sandra J. Stewart, Asst. Attys. Gen., for respondent.
STEAGALL, Justice.
Willie Simmons Jackson was convicted for the capital offense of murder during a robbery, in violation of Ala.Code 1975, § 13A-5-40(a)(2); four counts of forgery in the second degree, in violation of § 13A-9-3; and four counts of possession of a forged instrument in the second degree, in violation of § 13A-9-6. The trial court sentenced Jackson to consecutive 15-year terms for each of the counts of forgery and possession of forged instruments and sentenced him to death for the capital murder conviction. Jackson appealed to the Court of Criminal Appeals, which affirmed the convictions and the sentences. See Jackson v. State, 640 So. 2d 1025 (Ala.Cr. App.1992). Jackson then petitioned for a *1051 writ of certiorari to this Court, and we granted the petition.
Jackson, a black male, argues that the prosecution used its peremptory strikes to systematically exclude black veniremembers from the jury and thereby violated his constitutional right to a fair trial. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
The record shows that one black served on the jury and that a second black served as an alternate. During jury selection, the prosecutor used 10 of his 35 strikes to remove blacks from the jury (the 10th strike was against the person who sat as an alternate). Jackson objected on the basis of Batson and specifically listed the jurors he believed to have been excluded on the basis of race, including Juror No. 48, a black male. The trial court then stated:
(Emphasis added.) In a lengthy discourse that followed, the State gave its reasons for each of the strikes, except for the strike of Juror No. 48. The trial court nevertheless pronounced that all of the State's peremptory strikes were race-neutral.
In its opinion, the Court of Criminal Appeals stated that the prosecution listed race-neutral reasons for all of its 10 strikes against black veniremembers and that there was no violation of Batson. The record shows, however, that the prosecution gave reasons for only 9 of its 10 strikes against the black veniremembers. We agree that the reasons actually contained in the record are sufficiently race-neutral; however, the record is devoid of any reason for the striking of Juror No. 48.
This Court has established that in reviewing allegations that the prosecution exercised its peremptory challenges in a racially discriminatory manner, the reviewing court's inquiry, regardless of whether the State's explanations are offered voluntarily or are offered by order of the court, shall focus solely upon the propriety of the ultimate finding of discrimination vel non. Huntley v. State, 627 So.2d. 1013 (Ala.1992). Here, the trial court could not properly determine whether the prosecution's striking of Juror No. 48 was motivated by racial bias; no reason was given. We note that Jackson did not object to the prosecution's failure to articulate its reason for striking Juror No. 48; however, the omission constitutes "plain error." See Rule 45A and Rule 39(k), Ala. R.App.P. The removal of even one juror for a racially discriminatory reason is a violation of the equal protection rights of both the excluded juror and the minority defendant. Ex parte Bird, 594 So. 2d 676 (Ala.1991).
We therefore remand this cause to the Court of Criminal Appeals for that court to remand to the trial court. The trial court is to determine if the prosecutor's reason for striking Juror No. 48 was race-neutral. The trial court shall enter its determination on the record and shall, within 60 days of the remand from the Court of Criminal Appeals, make a return to that court supplementing the record to include the determination. The Court of Criminal Appeals shall promptly forward that return to this Court.
Because of the remand on the Batson issue, we do not now address the other issues raised; review of those other issues remains pending until this Court receives the trial court's return to the remand.
REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS and KENNEDY, JJ., concur. | June 11, 1993 |
325a54d1-7e62-4b9c-8b6f-784cede21f64 | Lambert v. Wilcox County Com'n | 623 So. 2d 727 | 1911747 | Alabama | Alabama Supreme Court | 623 So. 2d 727 (1993)
Frank LAMBERT, et al.
v.
WILCOX COUNTY COMMISSION, et al.
1911747.
Supreme Court of Alabama.
June 25, 1993.
*728 J. Garrison Thompson of Pitts, Pitts and Thompson, Selma, and Donald D. McLeod, Camden, for appellants.
Mary E. Pilcher of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for appellees.
ALMON, Justice.
The plaintiffs, Frank Lambert, Greg Oakley, Roberta T. Jordan, David Wright, and Earnest Boyd (hereinafter "Taxpayers"), appeal from a judgment in favor of the defendants, the Wilcox County Commission and four of its members in their individual and official capacities[1] (hereinafter "Commission"), in an action for a declaratory judgment and injunctive relief. The Taxpayers sought a declaration of the legality of the Commission's adoption of a county ordinance increasing the sales tax in Wilcox County by one-half cent for one year and an injunction against implementation of the ordinance. The one dispositive issue raised by the Taxpayers is whether a member of the Wilcox County Commission, employed as a bus driver by the Wilcox County Board of Education, was prohibited by the Alabama Ethics Law from voting on a sales tax increase benefiting the County Board.
The undisputed facts are as follows. On January 27, 1992, the Wilcox County Commission considered a proposal to levy a one-year, one-half cent sales tax in order to refinance a bond issue authorized years earlier for the construction of a high school. The purpose of the proposal was to take advantage of then lower interest rates. Pursuant to its authority under § 40-12-4, Alabama Code 1975, the Commission adopted the ordinance, by a vote of 3-2.[2]
One of the county commissioners voting with the majority was Darryl Perryman, who was employed as a bus driver by the County Board. Before voting on this proposal, Darryl Perryman asked S.E. Collier, superintendent of the County Board, whether funds raised from the sales tax increase would become part of the general fund from which his salary as bus driver was paid. Collier informed Perryman that his salary was not paid from the general fund and that the funds raised by the sales tax increase would be used only to retire the bond issue.
The Taxpayers filed an action for declaratory judgment and injunctive relief, alleging *729 that because Perryman was an employee of the County Board, he was ineligible, under § 36-25-5(a), Ala.Code 1975, to vote on the proposed ordinance. The Taxpayers argued in the trial court that because Perryman was ineligible to vote, under the Alabama Ethics Law, there were not enough votes to pass the ordinance and the ordinance was, therefore, invalid or void. The Taxpayers sought a judgment enjoining implementation of the ordinance and prohibiting Perryman and "any other Commissioner employed by the Wilcox County Board of Education from voting on future Wilcox County School System Appropriations." After a nonjury trial, the court entered a judgment on March 17, 1992, in favor of the Commission, holding that Perryman's vote on the proposed sales tax increase did not violate the Alabama Ethics Law because Perryman had received no direct, personal, financial gain from his action. On April 3, 1992, the Alabama Ethics Commission issued an advisory opinion stating that there was probable cause to believe that Perryman violated the Ethics Law and that the Commission was reporting the case to the Wilcox County district attorney for appropriate legal action. On April 10, 1992, the Taxpayers filed a "Motion to Alter or Amend Judgment," supported by the April 3, 1992, advisory opinion. The trial court denied this post-trial motion, and the Taxpayers appealed.
The general issue raised by the Taxpayers is whether Perryman had a disqualifying conflict of interest under § 36-25-5(a), Ala.Code 1975, and was therefore ineligible to vote on the proposal to increase the sales tax.
The Taxpayers argue that Perryman was ineligible to vote, because, as a County Board of Education employee, he obtained "direct personal financial gain for himself" by voting on a school funding measure. In the alternative, the Taxpayers argue that Perryman's employer, the County Board of Education, constitutes a "business with which he ... is associated," and that § 36-25-5(a) therefore prohibits him from voting on a proposed ordinance that will result in direct financial gain to the County Board.
In construing § 36-25-5, this Court is aided by certain rules of statutory construction:
Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So. 2d 1378, 1380-81 (Ala.1979).
The first question raised by the Taxpayers' argument is whether Perryman obtained any "direct personal financial gain for himself" within the meaning of § 36-25-5(a) by voting on the sales tax ordinance. In Opinion of the Justices No. 317, 474 So. 2d 700 (Ala. 1985), the Justices answered a request for an advisory opinion dealing with similar issues. Two of the questions presented were (1) whether it was constitutional under § 82 of the Alabama Constitution of 1901 for members of the state House of Representatives who were employed or whose spouses were employed by the public educational system to vote on a bill granting pay increases to teachers and other employees and (2) whether such action violated § 36-25-5(a).
Section 82 of Article IV of the Alabama Constitution of 1901 provides:
Deciding only the issue relating to § 82, the Justices expressed the opinion that "it is constitutional for an educator/legislator to vote on a pay raise for teachers, at least so long as the bill does not affect the legislator in a way different from the way it affects the other members of the class to which he belongs." Opinion of the Justices No. 317, 474 So. 2d at 704. The Justices construed the phrase "personal or private interest" in § 82 to mean "an interest affecting the legislator individually or as a member of a small group." Id. at 704. The Justices, however, declined to answer whether the actions of educator legislators violated § 36-25-5(a), on the ground that the question involved the construction of a statute that had already passed the legislature, not the constitutionality of pending legislation. Id. Nevertheless, the Justices noted that their analysis of § 82 "would appear to apply to `direct personal financial gain' in § 36-25-5(a)." Id.
The authorities discussed and the analysis set forth in Opinion of the Justices No. 317, supra, in regard to § 82 of the Constitution also establish that the phrase "direct personal financial gain" in § 36-25-5(a) can only mean, as regards the facts of this case, "an interest affecting the legislator individually or as a member of a small group." Supporting this construction of the statute are the language of § 36-25-5(a), its legislative history, and the legislature's avowed intent that the Ethics Law balance various public policy objectives. First, we note that by its own language § 36-25-5(a) prohibits only those uses of official positions or offices that result in financial gain that is "direct" and "personal."
Second, changes to § 36-25-5(a) made by 1975 Alabama Acts, No. 130, show inter alia that when the legislature amended and reenacted the Ethics Law in 1975, it intended to define more narrowly the class of private interests giving rise to a potential conflict with a public official's or public employee's duties. Act No. 130 amended § 36-25-5(a) by adding the words "direct" and "personal" to qualify "financial gain."[3] Before the enactment of Act No. 130, § 3 of the Ethics Law, now codified, as amended, at § 36-25-5(a), provided as follows:
Moreover, our interpretation of "direct personal financial gain" strikes the balance intended by the legislature between the policy of eliminating conflicts of interest and the policy of recruiting and retaining those persons best qualified to serve in government. In § 36-25-2(b), the legislature states that while the purpose of the Ethics Law is to eliminate conflicts between the private interests of public officials or employees and their public duties as such, the "legal safeguards against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the government of those men and women who are best qualified to serve it." Any broader view of "direct personal financial gain" would seriously impair not only the ability of county commissions to attract and retain qualified officials, but also their ability to deal with fiscal problems generally. In Opinion of the Justices No. 317, supra, the Justices noted, in their analysis of § 82, the consequences of a broad interpretation of "personal or private interest":
474 So. 2d at 704.
Therefore, in the circumstances of this case, Perryman did not obtain any "direct personal financial gain for himself" by voting on a measure that would have the general effect of increasing funding for public education. The measure neither affected Perryman as an individual or as a member of a small group nor affected him in a way different from the way it affected other members of the class to which he belonged.
The second question raised by the Taxpayers' argument is whether Perryman was ineligible to vote on an ordinance conferring a financial benefit on his employer, the Wilcox County Board of Education. To address this issue, we must first consider whether the Wilcox County Board of Education is a "business with which [Perryman] is associated" under § 36-25-5.
Section 36-25-1(2) defines a "business with which he is associated" as "[a]ny business of which the person or a member of his family is an officer, owner, partner, employee or holder of more than 10 percent of the fair market value of such business." Section 36-25-1(1) defines a "business" as "[a]ny corporation, partnership, proprietorship, firm, enterprise, franchise, association, organization, self-employed individual and any other legal entity."
Applying the doctrine of "ejusdem generis," we decline to construe the § 36-25-1(1) definition of "business" to encompass the Wilcox County Board of Education. "Ejusdem generis" is a general principle of statutory construction under which general words, following the enumeration of particular classes of persons or things, are construed to apply only to persons or things of the same general nature or class as those specifically enumerated. Flav-O-Rich, Inc. v. City of Birmingham, 476 So. 2d 46 (Ala.1985). Under § 36-25-1(1), the enumerated classes of things preceding the general term "any other legal entity" are in the nature of private enterprises, not county governmental agencies. We do not believe that the legislature intended to include county governmental agencies in the § 36-25-1(1) definition of "business." Therefore, Perryman's vote on the ordinance conferring a financial benefit on his employer, the Wilcox County Board of Education, does not violate the prohibition against obtaining a financial benefit for a "business with which he is associated."
Perryman, a Wilcox County commissioner and employee of the Wilcox County Board of Education, obtained no "direct personal financial gain," either for himself or for a "business with which he is associated," when he voted on the measure to augment county public educational funding with a one-year, *732 one-half cent sales tax increase. We therefore affirm the judgment.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] The Wilcox County Commission consists of six members, of whom four are named defendants in this case: Bobby Jo Johnson, chairman; Darryl D. Perryman, vice chairman; Percy L. Hale; and Elijah Shaw III. The other members, not parties to this action, are J.C. Martin and James R. Jackson.
[2] Bobby Jo Johnson, Elijah Shaw III, and Darryl Perryman voted in favor of the proposal. James R. Jackson and J.C. Martin voted against it. Percy L. Hale abstained.
[3] Act No. 130 also added a new subsection to § 3, now codified at § 36-25-5(b), providing as follows:
"(b) Unless prohibited by the Alabama Constitution, nothing herein shall be construed to prohibit a legislator from introducing bills and resolutions, serving on committees or from making statements or taking action in the exercise of his legislative duties." | June 25, 1993 |
0036bade-020b-4c54-abbd-d9160048e2cd | Ex Parte State Ex Rel. GMF | 623 So. 2d 722 | 1920914 | Alabama | Alabama Supreme Court | 623 So. 2d 722 (1993)
Ex Parte STATE of Alabama ex rel. G.M.F.
(Re W.F.F. v. G.M.F.)
1920914.
Supreme Court of Alabama.
June 25, 1993.
William Prendergast and Mary E. Pons, Asst. Attys. Gen., for petitioner.
Jacob A. Walker III of Walker, Hill, Adams, Umbach, Meadows & Walton, Opelika, for respondent.
ALMON, Justice.
The State of Alabama ex rel. G.M.F. petitions this Court for a writ of mandamus directing the Honorable Robert M. Harper, circuit judge for Lee County, Alabama, to rescind an order directing that the parties submit to blood testing.
W.F.F. and G.M.F. were divorced on August 22, 1983. G.M.F., the wife, was awarded custody of T.F., the only child born during the marriage, pursuant to the "Agreement of the Parties" that was part of the divorce proceedings. W.F.F. was ordered to pay child support.
On March 18, 1992, almost nine years later, W.F.F.'s lawyer filed a "Joint Motion to Amend Divorce Decree." The motion asked the court to relieve W.F.F. from paying child support, based on the following affidavit:
The materials before us do not show whether the court ruled on this motion to amend.
On August 3, 1992, W.F.F. filed a motion to set aside the divorce judgment pursuant to Rule 60(b), Ala.R.Civ.P., based on G.M.F.'s affidavit. The motion sought either an order stating that W.F.F. is not T.F.'s father or an order appointing a guardian ad litem for T.F. to commence paternity proceedings against the man believed to be T.F.'s natural father.
In September 1992, the State of Alabama Department of Human Resources filed a motion to intervene in the proceedings on the grounds that G.M.F. had assigned her rights to child support payments to the Department. The State was allowed to intervene as an interested party pursuant to Rule 24(a)(2), Ala.R.Civ.P.[1] The State filed both an opposition to W.F.F.'s Rule 60(b) motion and a motion for summary judgment, arguing that the doctrine of res judicata prevents the relitigation of a final paternity judgment.
In January 1993 Judge Harper denied the State's motion for summary judgment and ordered the parties to submit to blood testing. The State filed a motion for reconsideration, which was denied. The State then petitioned the Court of Civil Appeals for a writ of mandamus directing Judge Harper to rescind his order. The Court of Civil Appeals denied the State's petition, without opinion.
It is well established that the doctrine of res judicata applies to determinations made in paternity proceedings. When the parties in a present proceeding have previously litigated a matter and have previously received a final adjudication of that matter from a court of competent jurisdiction, the doctrine of res judicata bars those parties from challenging in the present action the prior adjudication. Ex parte State ex rel. Harrell, 588 So. 2d 868 (Ala.1991). In this case the 1983 divorce judgment included an order for W.F.F. to pay child support. This is a judicial determination of paternity qualifying for res judicata finality.
In some rare instances the Court of Civil Appeals has, based on Rule 60(b), Ala.R.Civ. P., relieved a party from the res judicata effect of a judgment or order adjudicating paternity. That court has required extraordinary circumstances to justify application of this exception to the doctrine of res judicata. In deciding what circumstances are extraordinary, the court generally looks to both the basis of the previous determination and the validity of the recent developments suggesting a need for Rule 60(b) relief. Ex parte State ex rel. McKinney, 567 So. 2d 366 (Ala. Civ.App.1990); K.W. v. State ex rel. S.G., 581 So. 2d 855 (Ala.Civ.App.1991).
In Ex parte State ex rel. McKinney, supra, the child was born out of wedlock. The original paternity determination was based on a stipulation of the parties. The paternity determination was therefore more readily subject to a Rule 60(b) challenge than it would have been if the mother and adjudged father had been married. There is no common law presumption of paternity when a child's mother is unmarried, as there is when the mother is married. Ex parte State ex rel. McKinney, supra. In denying the State's petition for a writ of mandamus to set aside the order granting the adjudged father's Rule 60(b) motion, the court in McKinney also considered the adjudged father's recently discovered sterility. The combination of the absence of a presumption supporting the initial determination and the conclusive nature of the new evidence was deemed to qualify as an extraordinary circumstance meriting Rule 60(b) relief from the res judicata effect of the prior judgment.
*724 This Court in Ex parte W.J., 622 So. 2d 358 (Ala.1993), held that W.J. could not relitigate a paternity determination, even in the face of conclusive evidence that W.J. could not have been the child's biological father. The child was born out of wedlock and the earlier judgment held W.J. to be the father. Years later, both a DNA test and a blood test established that W.J. was not the child's biological father. This Court acknowledged that these facts did present exceptional circumstances; however, this Court held that W.J. could not obtain Rule 60(b) relief from that earlier judgment because he had waited nine years to file his Rule 60(b) motion. "Because W.J. failed to appeal the 1981 order or the order increasing child support, and because he failed to seek relief from that judgment pursuant to Rule 60(b)(6) within a reasonable time, we hold that W.J.'s motion was untimely filed and should not have been considered by the trial court." Ex parte W.J., 622 So. 2d at 362. Not only must an adjudged father present extraordinary circumstances for Rule 60(b) relief from a final judgment of paternity; he also must request that relief within a reasonable time.
W.F.F. and G.M.F. were married when T.F. was born. The original paternity determination, therefore, was supported by the common law presumption that the mother's husband was the father. "This presumption may be rebutted, at a procedurally proper time and place, only `by clear and convincing evidence which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father.'" State ex rel. R.A.L. v. B.G.A., 591 So. 2d 875, 877 (Ala.Civ.App.1991), quoting Leonard v. Leonard, 360 So. 2d 710 at 712 (Ala.1978). Aside from the fact that W.F.F. has not sought relief in "a procedurally proper time and place," we note that the evidence W.F.F. has to support his Rule 60(b) motion is only G.M.F.'s documented belief that W.F.F. is not T.F.'s father. This evidence is inadequate to justify the granting of extraordinary relief under Rule 60(b). Not only did W.F.F. fail to show extraordinary circumstances, he waited nine years to seek relief from the judgment. Nine years is an unreasonably long delay. Ex parte W.J., 622 So. 2d at 363. This situation does not qualify for Rule 60(b) relief from the divorce judgment, because the evidence supporting this new belief is intrinsically inconclusive and because the petitioner waited nine years to ask for a reevaluation of paternity.
An adjudication of paternity is res judicata. The Court of Civil Appeals has granted exceptions to this in very rare instances where the moving party has shown extraordinary circumstances justifying Rule 60(b) relief. For the reasons stated above, however, the paternity question in this case should not be opened for readjudication.
WRIT GRANTED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Even though the State takes a position opposed to G.M.F.'s position as stated in her affidavit and in the joint motion to amend, it has styled its petition as "Ex parte State of Alabama ex rel. G.M.F." Presumably this choice of style derives from the fact, stated in the motion to intervene, that G.M.F. has assigned to the State her right to child support payments as a condition of receiving aid to families with dependent children. See Ala.Code 1975, § 38-10-4. | June 25, 1993 |
d00d0a41-4739-4e1d-a538-39a23e8c7694 | Jones v. DCH Health Care Authority | 621 So. 2d 1322 | 1920570 | Alabama | Alabama Supreme Court | 621 So. 2d 1322 (1993)
Linda Darlene JONES, individually and as Executrix of the Estate of Gladys Mae Jones, deceased,
v.
DCH HEALTH CARE AUTHORITY.
1920570.
Supreme Court of Alabama.
June 11, 1993.
Harry M. Renfroe, Jr. of Mountain & Renfroe, Tuscaloosa, for appellant.
Scott Donaldson of Tipton & Donaldson, Tuscaloosa, for appellee.
HOUSTON, Justice.
The trial court entered a summary judgment for DCH Health Care Authority ("DCH"), on the claims of conversion and fraud alleged by the plaintiff, Linda Darlene Jones, individually and as executrix of the estate of Gladys Mae Jones, deceased. Linda Jones is not only the executrix of the estate of the decedent, but is also her daughter and sole heir. Linda Jones appeals.
On December 31, 1990, Gladys Mae Jones ("decedent"), was injured in a motor vehicle collision with James P. Swindle. On that same day, she was taken to DCH Regional Medical Center, a medical facility operated by DCH, and she remained a patient there until her death on January 27, 1991. She died from injuries received in the collision.
On January 16, 1991, while the decedent was still a patient at DCH Regional Medical Center, DCH filed in the probate office of Fayette County, Alabama, a partial statutory lien in the amount of $86,795.99, pursuant to the provisions of Ala.Code 1975, §§ 35-11-370 through XX-XX-XXX, against "all judgments, settlements, and settlement agreements entered into ... on account of [Gladys Jones's] injuries." This lien covered hospital expenses incurred by Gladys Jones from her admission through January 15, 1991. After she died, DCH filed in the Fayette County probate office an additional lien to cover medical expenses incurred by *1323 Gladys Jones through the date of her death. The total of both liens was $154,481.06.
Alfa Mutual Insurance Company had insured Swindle with an automobile insurance policy that had a maximum personal injury liability coverage of $20,000 per person. Alfa had also insured Gladys Jones with an automobile liability insurance policy that had a maximum medical payments limit of $10,000 per person and a maximum underinsured motorist limit of $20,000 per person. The hospital notified Alfa and Gladys Jones's estate that the statutory liens had been filed.
Alfa issued three drafts (two in the amount of $20,000 each and one in the amount of $10,000) payable to the executrix and DCH as co-payees. The gravamen of the plaintiff's claims is that DCH had no right to the two $20,000 drafts; she relies on the Wrongful Death Act, Ala.Code 1975, § 6-5-410, which provides:
See Board of Trustees of University of Alabama v. Harrell, 43 Ala.App. 258, 188 So. 2d 555 (1966), cert. denied, 279 Ala. 685, 188 So. 2d 558 (1966).
The holding in King v. National Spa & Pool Institute, 607 So. 2d 1241 (Ala.1992), has no application to this case, for no action had been filed by Gladys Jones to recover for her personal injuries prior to her death. King held that the Wrongful Death Act no longer operates to extinguish an action that has been filed to recover for personal injuries, where those injuries later result in death. If a personal injury action had been filed by Gladys Jones, then clearly DCH would have a lien for all reasonable charges for hospital care, treatment, and maintenance of the decedent up until the time of her death upon "all judgments, settlements and settlement agreements entered into by virtue thereof." Ala.Code 1975, § 35-11-370; King v. National Spa, supra. See, also, Hogland v. Celotex Corp., 620 So. 2d 621 (Ala.1993).
The plaintiff, individually and as executrix, contends that the hospital converted these two $20,000 drafts, for the following reasons:
She says that if Alfa had issued one or more of the drafts to her either as executrix or individually, then Alfa would have been liable to DCH for the full amount of Gladys Jones's medical expenses, which totaled $154,481.06 (well in excess of the $50,000 total of the applicable Alfa coverages). Ala.Code 1975, § 35-11-372. Therefore, she says, under the circumstances of this case DCH's use of the hospital expense lien statute compelled Alfa to issue its policy payments to DCH and the executrix as co-payees. This, she says, resulted in DCH's acquiring funds over which it could not exercise dominion, possession, title, or control under Alabama law. Ala.Code 1975, § 6-5-410(c). The hospital's misusing these statutes, she says, while completely ignoring the clear and specific terms of the Wrongful Death Act, forced her as executrix to indorse all checks to the hospital for the payment of medical expenses, regardless of whether they were wrongful death benefits.
The undisputed evidence is that the executrix, who was a co-payee on all three drafts, was given these drafts by Alfa. She consulted a lawyer while she had possession of these drafts. She telephoned DCH from her lawyer's office and secretly tape recorded this conversation. She was accompanied to the hospital by a private investigator, who secretly tape recorded the conversation between the executrix and the employees of the hospital.
Tyler v. Equitable Life Assurance Society of the United States, 512 So. 2d 55, 57 (Ala.1987).
*1324 It is not clear which of these kinds of conversion the executrix is proceeding under, for DCH was a co-payee of all three of the drafts; and the executrix, after consulting a lawyer, indorsed and delivered these drafts to DCH, without protest. Likewise, the executrix did not demand the return of these drafts; she merely filed this action.
"In order to constitute conversion, nonconsent to the possession and the disposition of the property by defendant is indispensable." 89 C.J.S. Trover & Conversion § 5, p. 535 (1955). DCH showed that the executrix consented to its having possession of the three drafts. This showing was not refuted by the executrix.
Clay County Abstract Co. v. McKay, 226 Ala. 394, 397, 147 So. 407, 410 (1933). DCH showed that the executrix made no demand for the return of the drafts. This showing was not refuted by the executrix.
If the plaintiff can show an illegal user or misuser, a demand and refusal is not essential to the right of recovery in conversion. Clay County Abstract Co. v. McKay, supra.
In Board of Trustees of the University of Alabama v. Harrell, 43 Ala.App. 258, 260-61, 188 So. 2d 555, 557 (1965), Presiding Judge Price wrote for the Court of Appeals:
However, in the case before us the executrix is also the sole beneficiary under the Wrongful Death Act. There is no "illegal user or misuser" in Jones's voluntarily paying her deceased mother's hospital bill with money that under the Wrongful Death Act would belong to Jones. All of the evidence showed that she did this with full knowledge of what she was doing and without insisting upon her right to the two $20,000 drafts freed from the hospital's lien.
The plaintiff, individually and as executrix, contends that DCH was guilty of fraud, for the following reasons:
She says DCH made a misrepresentation by filing the statutory liens. She says it made a further misrepresentation by contacting Alfa and informing Alfa of its claims, because that notice to Alfa then prohibited Alfa from issuing any drafts without making DCH a co-payee, unless Alfa wished to incur direct liability to the hospital for the decedent's entire medical bill under § 35-11-372. DCH, the plaintiff says, thereby actively used the lien statute to secure on a hospital lien a payment that it was not legally entitled to under § 6-5-410.
The trial court properly entered the summary judgment as to the fraud claim, because there was no justifiable reliance by the plaintiff, either individually or as executrix, as a matter of law, for the following reasons: It is apparent that the plaintiff had full knowledge of the law, for she had retained lawyers and was acting on advice of her lawyers when she took the drafts to DCH and indorsed and delivered them to DCH. She had secretly tape recorded a conversation with DCH employees, from her lawyer's office, before taking the drafts to DCH. She was accompanied by a retained private investigator, who had a secret tape recorder, when she took the drafts to DCH. The plaintiff, either individually or as executrix, did not justifiably rely on any representations by DCH. *1325 Smith v. MBL Life Assurance Corp., 589 So. 2d 691 (Ala.1991).
It would be health care reform of a most peculiar kind, if, under our established standard of review, we were to permit the plaintiff to prevail on the hospital's motion for summary judgment on either the conversion count or on the fraud count.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur. | June 11, 1993 |
8de2dc8d-7149-4afb-b165-2761df71b241 | Ajdarodini v. State Auto Mut. Ins. Co. | 628 So. 2d 312 | 1911827 | Alabama | Alabama Supreme Court | 628 So. 2d 312 (1993)
Javad A. AJDARODINI d/b/a Winner Team Construction Company a/k/a Winner Team Construction Company, Inc.
v.
STATE AUTO MUTUAL INSURANCE COMPANY.
1911827.
Supreme Court of Alabama.
June 4, 1993.
Rehearing Denied September 3, 1993.
Danny D. Henderson of Spurrier, Rice & Henderson, Huntsville, for appellant.
Gary K. Grace of Grace & Shaw, Huntsville, for appellee.
STEAGALL, Justice.
State Auto Mutual Insurance Company (hereinafter "State Auto") filed a declaratory judgment action against Javad Ajdarodini, doing business as Winner Team Construction Company (hereinafter "Winner Team"); Edna Ragland; and Houston Ragland. State Auto sought a determination of whether a general liability policy it had issued to Winner Team required State Auto to defend and indemnify Winner Team in a lawsuit alleging breach of contract and fraud brought by the Raglands. The trial court entered summary judgment in favor of State Auto, holding that its policy did not require a defense and indemnity; Winner Team appeals.
The record reveals these facts: State Auto issued a general liability policy insuring Winner Team for one year beginning December 4, 1987. In September 1989, the Raglands sued Winner Team, alleging breach of contract and fraud arising out of a construction contract they had entered into with Winner Team in July 1987; the Raglands did not seek damages for mental anguish. Winner Team thereafter submitted a claim to State Auto for coverage under the general liability policy. State Auto denied the claim.
The Raglands amended their complaint against Winner Team in June 1990 to seek damages for mental anguish based on each of their allegations of fraud and breach of contract. The Raglands' case was tried in October 1991, and the jury returned a verdict against Winner Team on the breach of contract claims only. In November 1991, Winner Team filed an amended claim with State *313 Auto, seeking coverage under the general liability policy based on the Raglands' June 1990 additional claims against Winner Team. State Auto again denied coverage and State Auto thereafter filed this declaratory action.
An insurance company's duty to defend its insured is determined by the language of the insurance policy and by the allegations in the complaint giving rise to the action against the insured. American States Insurance Co. v. Cooper, 518 So. 2d 708 (Ala. 1987). If the allegations accuse the insured of actions for which the insurance company has provided protection, the insurance company is obligated to defend the insured. American States.
The policy contained the following provisions:
The policy also contained certain exclusions:
From the plain language of the policy, it is clear that the Raglands' breach of contract claims were not eligible for coverage under the policy; however, the Raglands also alleged four claims of fraudulent misrepresentation. In American States Insurance Co. v. Cooper, 518 So. 2d 708 (Ala.1987), this Court determined that a plaintiff's reliance upon misrepresentations by an insured that resulted in the plaintiff's suffering mental anguish constituted an "occurrence" resulting in "bodily injury," construing policy terms identical to those in the policy now before us. In this case, however, the Raglands originally sought only damages to compensate for payments they had made to Winner Team in reliance on the alleged misrepresentations. The Raglands did not allege in their original complaint that they had suffered mental anguish, nor did they otherwise seek damages for noneconomic injury. It was the original complaint that State Auto had before it when it first denied coverage. The Raglands amended their complaint in June 1990 to add claims of mental anguish; however, Winner Team did not submit the amended complaint to State Auto until November 1990, after the case had been tried and a judgment entered against Winner Team.
Because Winner Team delayed submitting the Raglands' amended complaint to State Auto for its consideration until after the trial, the issue of whether State Auto had a duty to defend Winner Team in the proceeding is moot. The only remaining issue is whether State Auto has a duty to pay the judgment against Winner Team. The record shows that the jury returned its verdict for the Raglands solely on the claims of breach *314 of contract, not on the fraud claims. Because the policy clearly excludes breach of contract claims from its coverage, the trial court properly determined in this declaratory action that State Auto has no duty to pay the judgment against Winner Team. The trial court's judgment is therefore affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES and ADAMS, JJ., concur. | June 4, 1993 |
2b56cc3e-f9b0-482c-91c6-514ccd240813 | Hicks v. Dunn | 622 So. 2d 914 | 1920313 | Alabama | Alabama Supreme Court | 622 So. 2d 914 (1993)
Kenneth K. HICKS,
v.
Cherry DUNN.
1920313.
Supreme Court of Alabama.
June 18, 1993.
*915 Mark A. Scogin of Espy, Nettles and Scogin, P.C., Tuscaloosa, for appellant.
Charles M. Coleman and Ralph L. Dill of Crownover, Coleman & Standridge, Tuscaloosa, for appellee.
SHORES, Justice.
Kenneth Hicks appeals from a summary judgment denying his claim against Cherry Dunn for specific performance of a contract for the sale of land. We affirm.
Hicks was an assignee to the rights of Kayo Booth and James T. Booth under a contract to purchase land from Cherry Dunn Hulsey and her husband, Malcolm Hulsey. The Booths had entered a contract with the Hulseys dated October 4, 1989, to purchase Lot 13 of the Lake Sherwood subdivision in Tuscaloosa County from the Hulseys. The contract, entitled a "Bond for Title",[1] was duly executed and recorded. Under the contract, the Booths paid $1000 to the Hulseys, and agreed "to pay promptly and in strict accordance with the terms [of the contract] the balance of the purchase price" on the closing date of October 3, 1990. By its terms, time was of the essence in the contract, and the Booths were given a 30-day grace period after October 3, 1990, in which to pay the $9500 balance remaining on the purchase price. The contract provided that, should the Booths default and fail to pay the balance within the 30-day grace period, the Hulseys had a right to re-enter and take possession of the land. All rights and interests given the Booths by the contract would "utterly cease and terminate" upon their default, without any right for reclamation of any moneys paid under the contract; any moneys so paid would be retained by the Hulseys as rent in compensation for the Booths' use and occupation of the property.
In a written "Bond for Title Subordination Agreement," which was executed and *916 recorded on January 3, 1991, the Hulseys and the Booths extended the time for performance of the bond for title to October 3, 1991.[2] Malcolm and Cherry Hulsey later divorced, and Malcolm Hulsey transferred all his rights, title, and interest in Lot 13 of the Lake Sherwood subdivision to Cherry Hulsey on July 29, 1991. Then, on August 22, 1991, the Booths assigned their interest in the bond for title to Kenneth Hicks. The Booths' attorney, Louise Turner, says that at that time she told Hicks to pay the balance due to Cherry Hulsey's attorney, Charles M. Coleman. Hicks denies this, and insists that he tried unsuccessfully to find out from Turner in October 1991 where payment of the balance to Cherry Hulsey was to be made. Cherry Hulsey returned to using her maiden name of Dunn and moved to a new address during this time; the Booths and Hicks were unaware of this until later.
Cherry Dunn learned of the assignment to Hicks sometime after the due date on the bond for title of October 3, 1991, when her attorney, Coleman, contacted the Booths' attorney, Turner, about payment of the balance due on the bond for title. Turner wrote Hicks on November 4, 1991, and informed him that Cherry Dunn (formerly Hulsey) had received the bond for title in the property settlement from her divorce, and that Dunn considered him in default on the payment of the balance due on the bond for title. Hicks received the letter on November 6, and he immediately tendered payment of the balance due under the bond for title to Coleman, who refused the tender.
On November 14, 1991, Hicks sued Cherry Dunn and the Booths, alleging a breach of contract and claiming damages for that alleged breach and requesting specific performance of Dunn's agreement to sell Lot 13. Dunn filed a counterclaim against Hicks and a cross-claim against the Booths, requesting that all rights, title, and interest of the Booths and Hicks to Lot 13 be terminated and that Hicks and the Booths be ordered to execute a recordable instrument releasing their interest in the property. Dunn moved for a summary judgment. The trial court, after a hearing and a consideration of the motions, pleadings, depositions, and arguments of counsel, entered a partial summary judgment for Dunn on October 7, 1992, declaring that any interest in the property claimed by Hicks or the Booths was terminated because payment of the balance due was not timely made under paragraph 2 of the subordination agreement,[3] and granting relief on Dunn's cross-claim and counterclaim, declaring all interest in the property to be vested in Dunn. The Booths received a judgment in their favor on Hicks's remaining claims against them on October 15, 1992. Hicks appeals from the partial summary judgment in favor of Dunn.
We must place our two standards of review in juxtaposition in reviewing the summary judgment on the claim for specific performance. Gulf City Body & Trailer Works, Inc. v. Phoenix Properties Trust, Inc., 531 So. 2d 870, 872 (Ala. 1988). Specific performance is an equitable remedy that rests largely in the discretion of the trial court, based on a consideration of the particular circumstances of each case. The trial court's ruling may be overturned only if it is shown to be palpably erroneous. Allen v. Storie, 579 So. 2d 1316, 1318-19 (Ala.1991).
"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. In determining whether a summary judgment was properly entered, *917 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. In determining the existence or absence of a genuine issue of material fact, this Court is limited to a consideration of the factors that were before the trial court when it ruled on the summary judgment motion. However, this Court's reasoning is not limited to that applied by the trial court."
As an assignee of their contract rights, Hicks is bound by the obligations of the Booths to Dunn under the bond for title and the subordination agreement. The terms of the contracts, the forfeiture clause in each, and the 30-day grace period in the contract clearly manifest the parties' intention that time be of the essence. The contract expressly required strict compliance with its terms of performance for payment of the balance of the purchase price when due. Although the parties disagree as to whether the 30-day grace period of the bond for title should have been applied to the payment date under the subordination agreement, there is no dispute over the fact that Hicks did not tender payment to Dunn's attorney until November 6, 1991, more than 30 days after the due date of October 3, 1991.
Hicks contends that Dunn waived the provision that time be of the essence through her conduct under the agreement to sell Lot 13. His contention that Dunn waived her right to declare a forfeiture for untimely performance when the Hulseys granted a one-year extension to the Booths is misplaced, because the granting of an extension with a grace period is evidence that the parties consider time to be of the essence. Bell v. Coots, 451 So. 2d 268, 269 (Ala.1984). His argument that Dunn's failure to declare a forfeiture when the Booths did not timely pay taxes on the land as required by the bond for title is likewise misplaced, because the contract gave Dunn the option of either terminating the contract, or paying the taxes herself and requiring repayment by the purchaser. There is no evidence that Dunn waived the time requirement in the contract, and the trial court's conclusion that Dunn did not waive her rights under the contract was not palpably erroneous. Dunn was entitled to strict compliance with the terms of the agreement, including the forfeiture provision. Id. at 269-70.
We note that the place for payment of the balance due was not indicated in the contract or in the subordination agreement, and that Cherry Hulsey's change of name and address created some confusion as to where the payment should have been made. However, the date for performance was clearly stated in the subordination agreement, and Hicks testified that he never read either document carefully. A party to a contract should exercise due diligence in performing the obligations under that contract.
Hicks contends that Dunn's failure to inform him or the Booths of her new name and address should excuse his failure to perform, citing Holmes v. Myles, 141 Ala. 401, 37 So. 588 (1904). In Holmes, the owner of land subject to an option contract was unavailable the day the option came due. This Court held that the right of the purchaser to exercise the option "was not subject to be defeated by any voluntary act on the part of defendant, whether done with intent to defeat the exercise of the option or not." 141 Ala. at 405, 37 So. at 589. Specific performance was compelled because the purchaser "acted with due promptness in attempting to communicate to [the owner] his acceptance of the option." Id. His attorneys went to the owner's residence, discovered she was visiting 50 miles away at a place 16 miles off the railroad, and left a letter at her residence exercising the option and indicating that *918 the purchaser was ready and willing to tender the purchase price, and, in addition, mailed a subsequent letter to her exercising the option. Id. The purchaser's actions there showed due diligence during an era with, by today's standards, no mass communication and no expedient means of transportation. Hicks did not exercise a similar due promptness in his attempts to contact Ms. Dunn that would compel specific performance in this day and age.
The use of a bond for title to convey land is an archaic means to transfer ownership of land, whose use no longer comports with its original purpose. See Bonds for Title in Alabama, note 1, supra. "In fact, the reference to a land contract as a `bond for title' is a confusion in terms. The earliest cases concerned land contracts in which, in addition to the vendor's promise contained in the agreement, the vendor also gave a bond conditioned on his making title to the land when the consideration was paid." Gay v. Tompkins, 385 So. 2d 973, 978 (Ala.1980). A law review article over 40 years ago concluded that the use of bonds for title in the conveyance of land was intended to avoid excessive costs when purchasing small tracts of land, but that the practice was generally disfavored as dangerous and unsound because it is more likely to result in litigation than the use of a mortgage transaction is. Bonds for Title in Alabama, supra. The use of a bond for title to convey land should be very carefully considered if not entirely abandoned.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] "A bond for title is a conditional contract for the sale of land whereby the vendor covenants to make title to the vendee upon payment of the purchase price." J. Thaddeus Salmon, Comment, Bonds for Title in Alabama, 2 Ala.L.Rev. 327, 327 (1951). A bond for title is an executory contract for the sale of land which creates an equitable mortgage on the land. Id. at 328.
[2] The Booths paid $1000 for the one-year extension under the subordination agreement, and allowed the Hulseys to increase the amount of their existing mortgage on Lot 13. The agreement also provided that the Booths' interest in the property would be subordinate to the interest of the mortgagee.
[3] Paragraph 2 stated:
"2. Should the Booths fail to perform [i.e., fail to make payment under the bond for title] on October 3, 1991, all their interest in and to the property shall terminate, provided further that upon such termination the Booths agree to provide the Hulseys with a duly executed instrument in recordable form releasing their interest in and to said property." | June 18, 1993 |
a5a179fa-4bf4-4e14-8091-9370a28e63fe | Harmon v. Blackwood | 623 So. 2d 726 | 1920407 | Alabama | Alabama Supreme Court | 623 So. 2d 726 (1993)
Dr. Phillip HARMON
v.
Terry Wayne BLACKWOOD, as personal representative of the Estate of Terry Wayne Blackwood, Jr., a deceased minor.
1920407.
Supreme Court of Alabama.
June 25, 1993.
Thomas W. Christian, Deborah Alley Smith and Julia Jordan Weller of Rives & Peterson, Birmingham, for appellant.
Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellee.
HOUSTON, Justice.
This is an appeal by permission of this Court pursuant to Rule 5, Ala.R.App.P., from an interlocutory order allowing the plaintiff, Terry Blackwood, as personal representative of the estate of his minor son Terry Wayne Blackwood, Jr., deceased, to substitute Dr. Phillip Harmon for a fictitiously named defendant and allowing that substitution to relate back to the date of the filing of the original complaint, pursuant to Rules 9(h) and 15(c), Ala.R.Civ.P. We reverse and remand.
This wrongful death action is based on an allegation of medical malpractice. The plaintiff knew the identity of Dr. Harmon and knew the full extent of Dr. Harmon's involvement in the treatment of the minor son, before the plaintiff filed this action on February 21, 1990, against named defendants and fictitiously named defendants described as "those persons or entities which caused or contributed to cause the death of the infant [on February 4, 1989], as set forth in the complaint." On May 14, 1992, the plaintiff amended his complaint to substitute Dr. Phillip Harmon for fictitiously named defendant *727 number 3. Dr. Harmon moved for a summary judgment on the ground that the plaintiff's claims could not properly relate back and therefore were barred by the statute of limitations. The trial court denied the motion. Dr. Harmon appeals.
In order to invoke the relation-back principles of Rule 9(h) and Rule 15(c), a plaintiff must state a cause of action against the fictitiously named defendant in the body of the original complaint and must, when he files the action, be ignorant of the identity of that defendant, i.e., must have no knowledge that the fictitiously named defendant was in fact a party intended to be sued. Rule 9(h) does not, however, excuse the plaintiff's ignorance of a cause of action against the fictitiously named defendant; it only excuses, under certain circumstances, the ignorance of the name of the party against whom the plaintiff has a cause of action. See Miller v. Norwood Clinic, Inc., 577 So. 2d 860 (Ala. 1991); Davis v. Mims, 510 So. 2d 227 (Ala. 1987); Columbia Engineering International, Ltd. v. Espey, 429 So. 2d 955 (Ala.1983); Walden v. Mineral Equipment Co., 406 So. 2d 385 (Ala.1981); Minton v. Whisenant, 402 So. 2d 971 (Ala.1981); see, also, Clay v. Walden Joint Venture, 611 So. 2d 254 (Ala.1992). "A contrary rule would emasculate the statute of limitations, which sets the time period a plaintiff has in which to determine who has hurt him and how." Columbia Engineering International, Ltd. v. Espey, supra, at 959.
When the plaintiff filed the original complaint against the two named defendants and the fictitiously named defendants number 3 and number 4, he was apparently relying on a discussion with Dr. Edward Conner, a neonatologist, concerning the involvement in the child's death of the nurses in the nursery at the hospital and of the obstetrician who had delivered the child. Nonetheless, when a plaintiff knows the name of a physician and the involvement of that physician in the treatment of the patient, it is incumbent upon the plaintiff, before the running of the statutory period, to investigate and to evaluate his claim to determine who is responsible for the injury and to ascertain whether there is evidence of malpractice. In this case, the plaintiff did not do that.
Therefore, because the plaintiff failed to meet the criteria for invoking the relation-back principles of Rule 9(h) and Rule 15(c), the amendment to his complaint did not relate back to the date of the filing of the original complaint; consequently, the cause of action stated against Dr. Harmon was barred by the statute of limitations. Therefore, we reverse the trial court's order allowing the substitution and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., dissents. | June 25, 1993 |
da9f3941-a602-4889-bbe4-090a35b1abd7 | Coca-Cola Bottling Co. v. Stripling | 622 So. 2d 882 | 1911778, 1912010 | Alabama | Alabama Supreme Court | 622 So. 2d 882 (1993)
COCA-COLA BOTTLING COMPANY UNITED, INC.
v.
William R. STRIPLING.
William R. STRIPLING.
v.
ANCHOR GLASS CONTAINER CORPORATION.
1911778, 1912010.
Supreme Court of Alabama.
June 4, 1993.
*883 Harvey Jackson, Jr. and Richard E. Fikes of Tweedy, Jackson and Beech, Jasper, for Coca-Cola Bottling Co. United, Inc.
William R. Murray, Northport, for appellee, cross-appellant William R. Stripling.
James L. Clark of Lange, Simpson, Robinson & Somerville, Birmingham, for Anchor Glass Container Corp.
MADDOX, Justice.
In this personal injury action, the plaintiff, William R. Stripling, alleged that he received cuts to the inside of his mouth and throat while drinking Coca-Cola Classic from a 20-ounce glass bottle. Stripling alleged that these cuts were caused by glass fragments inside the bottle.
Stripling sued Coca-Cola Bottling Company United, Inc., the bottler; and Anchor Glass Container Corporation, the manufacturer of the glass bottle,[1] and in his final amended complaint, he asserted claims based on negligence, wantonness, breach of warranty, and the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD").
The case was tried before a jury, and after Stripling had presented his evidence, Coca-Cola moved for a directed verdict. This motion was denied. Subsequently, the jury returned a general verdict in favor of Anchor Glass, but against Coca-Cola for compensatory damages of $1 and punitive damages of $34,000, apparently based on a finding that Coca-Cola had been guilty of wanton conduct. Coca-Cola subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial or a remittitur. Stripling also filed a motion for a new trial against both defendants.
The trial court, after being presented evidence that the jury had returned a quotient verdict against Coca-Cola, granted Coca-Cola's motion for a new trial as to all claims asserted by Stripling against Coca-Cola. The trial court denied Coca-Cola's motion for J.N.O.V., as well as Stripling's motion for a new trial against Anchor Glass.
Coca-Cola appeals the denial of its J.N.O.V. on the wantonness claim. Stripling cross appeals from the denial of a new trial on his claims against Anchor Glass.
*884 I. Coca-Cola's Motion for J.N.O.V. on the Claim for Wantonness
We first address Stripling's argument that Coca-Cola's appeal from the denial of its J.N.O.V. motion is premature. We do not agree with Stripling's argument. This Court, in John Crane-Houdaille, Inc. v. Lucas, 534 So. 2d 1070 (Ala. 1988), addressed the question of the finality of an order denying a J.N.O.V. when the trial court grants a new trial:
534 So. 2d at 1075.
Having resolved the question of Coca-Cola's right to appeal the denial of its motion for J.N.O.V., we now address Coca-Cola's argument that Stripling did not present "clear and convincing evidence"[2] that it was guilty of wanton conduct, so as to allow submission of the issue of its wantonness to the jury.
The standard applied on this Court's review of an order denying a motion for J.N.O.V. is the same standard used on review of an order granting or denying a motion for a directed verdict. Griggs v. Finley, 565 So. 2d 154, 159 (Ala.1990). "Granting a motion for JNOV is proper `only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ' and the moving party is entitled to judgment as a matter of law." Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162, (Ala. 1988), quoting Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984).[3] Whether the trial court erred in ruling on a motion for J.N.O.V. is tested by the purely objective standard of whether the party having the burden of proof has produced proof to create an issue requiring resolution by a jury. Smith v. MBL Life Assur. Corp., 589 So. 2d 691, 696 (Ala.1991). On review of a J.N.O.V., the evidence must be reviewed in the light most favorable to the nonmoving party. Id. The same principle would apply here, to our review of the denial of a J.N.O.V. motion.
The Legislature, in Ala.Code 1975, § 6-11-20(b)(3), has defined "wantonness" as "[c]onduct which is carried on with a reckless disregard of the rights or safety of others." This definition of "wantonness" is similar to what this Court said in Lynn Strickland Sales & Serv., Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142, 145 (Ala. 1987), where the Court emphasized that wantonness requires some degree of consciousness on the part of the defendant that injury is likely to result from an act or omission, and stressed that *885 wantonness is not to be confused with negligence:
(Emphasis in McNeil.) See also Central Alabama Elec. Co-op. v. Tapley, 546 So. 2d 371 (Ala.1989).
After a thorough review of the record, we hold that the trial court erred in denying Coca-Cola's motion for J.N.O.V. on Stripling's claim of wantonness. Stripling failed to offer clear and convincing evidence that Coca-Cola acted with reckless or conscious disregard of the rights and safety of persons like Stripling.
In his brief, Stripling argues that the issue of wantonness was properly presented to the jury:
(Appellee's brief at 22-23.)
While Stripling places great emphasis on the fact that the jury sat through more than three days of testimony and on his argument that it could "see through" the evidence presented in favor of Coca-Cola, this alone is insufficient to support Stripling's claim of wantonness on the part of Coca-Cola.
Employees of Coca-Cola testified that Coca-Cola's bottling and distribution process were "state of the art" in the bottling industry. Stripling presented no evidence to dispute this testimony. Furthermore, none of these employees testified as to any *886 knowledge of any procedure used by Coca-Cola in the bottling process that was likely to cause injury. Rather, they testified to the various safety precautions taken by Coca-Cola throughout the bottling process. For example, there was testimony that bottles were randomly tested upon arrival from Anchor Glass and that certain quality control procedures, such as pressure testing, were randomly conducted during the bottling process. The bottling line had nine rinse jets that rinsed out the bottles before any product was placed in them. Contrary to Stripling's argument in his brief that this rinsing system was an "ineffective" method of cleaning the bottles, there was undisputed testimony that these jets were adequate for this purpose and were of a type used extensively in the bottling industry. There was no testimony, expert or otherwise, that Coca-Cola's bottling process was carried on with a reckless or conscious disregard of the rights or safety of others.
An employee of Coca-Cola testified that the Birmingham, Alabama, bottling facility produces approximately 17 million bottles of Coca-Cola products a year. Testimony also indicated that the standard in the industry is one bottle failure on the line per 10,000 bottles. When a bottle does break on the line, Coca-Cola has a procedure whereby the line is stopped and three bottles ahead of the breakage and six bottles behind the breakage are removed from the line and disposed of.
As for the "protective sensors" referred to by Stripling in his brief, he offered no evidence that such sensors were necessary or readily available for use in this particular high-speed bottling process. In addition, Stripling offered no evidence that Coca-Cola had any knowledge of glass getting into bottles that were reaching consumers and he offered no evidence that other consumers had ingested glass from bottles filled at Coca-Cola's plant. Finally, Stripling offered no evidence by expert or by literature, or otherwise, that any method utilized in the bottling process, or the absence of any particular method, was inappropriate or was known to create a hazard to consumers.
While there was evidence of injury to Stripling, the jury initially returned a verdict of $0 compensatory damages, and it changed its verdict to $1 only after the trial judge told the jurors they would have to find at least nominal damages in order to award punitive damages.[4] The fact that Stripling was injured does not establish that Coca-Cola was guilty of wanton conduct.
Because the plaintiff Stripling failed to present clear and convincing evidence that Coca-Cola was guilty of wantonness, the trial erred in denying Coca-Cola's motion for J.N.O.V. on the wantonness claim. Accordingly, as to that claim, the judgment is due to be reversed and the cause remanded for an order or proceedings consistent with this opinion.
II. Stripling's Motion for a New Trial as to Claims Against Anchor Glass
We now address the plaintiff Stripling's cross appeal from the denial of his motion for a new trial against Anchor Glass.
Stripling first argues that the granting of a new trial to the defendant Coca-Cola requires that Stripling be granted a new trial against Anchor Glass. That argument is not supported by the law. Rule 59(a), Ala.R.Civ.P., states that "[a] new trial may be granted to all or any of the parties." Furthermore, in Trimble v. Bramco Products, Inc., 351 So. 2d 1357, 1359 (Ala.1977), this Court stated the general rule: "Under Alabama practice, it has long been permissible in proper cases to grant a new trial as to one or more defendants and deny a new trial motion as to the others." As the Trimble Court further stated:
"It would be manifestly unfair to require [the defendant in whose favor the jury had found] to defend the suit *887 against it again. The plaintiff has had one trial against it which went to the jury. The jury returned a verdict in [the defendant's] favor. The trial court has twice denied the plaintiff's motion for a new trial as to [the defendant]. Rule 59(a) does not require a reversal of the trial court."
351 So. 2d at 1360.
This case was tried to a jury, which found that Anchor was not liable under any theory advanced against it by the plaintiff. Stripling offered no proof concerning the source of the glass fragments that were found in the bottle in question. Conversely, Anchor offered testimony that the glass fragments were probably not from glass being manufactured by Anchor at the time the bottle was made. Additionally, the parties stipulated that at the time of the incident the bottle was completely intact, with no cracks, chips, or other damage. The jury could logically have inferred that any chips of glass found in the bottle had no connection with Anchor, and the jury evidently did just that. After a jury verdict, when the trial court denies a motion for a new trial, this Court, upon appellate review, does not, and should not, disturb the verdict "unless it is plainly erroneous or manifestly unjust." Williamson v. United Farm Agency, Inc., 401 So. 2d 759, 763 (Ala.1981). We cannot find this verdict "plainly erroneous or manifestly unjust."
Stripling next argues that he is entitled to a new trial against Anchor Glass because, he says, the trial court erred by excluding Stripling's rebuttal expert on the basis that Stripling had not disclosed the existence of the expert.
On August 28, 1991, after a hearing on the employment of experts to examine the bottle in question, the trial court entered a scheduling order, which stated in part:
"(5) That, by January 15, 1992, plaintiff shall disclose to defendants any and all expert witnesses to be used at trial."
Anchor elected to have an employee, Keith Painter, examine the bottle and the glass fragments inside the bottle. More specifically, Mr. Painter took two fragments found inside the bottle for further testing. On February 6, 1992, Anchor produced a "Product Liability Examination" report, which contained an analysis of the density of the glass fragments. This report was received by Stripling on February 20, 1992.
On April 2 or 3, 1992, Stripling received a "Supplemental Report" from Anchor Glass. This report was dated March 25, 1992, and it compared the differences in the density of the glass fragments and that of the bottle and concluded that "[the] large difference in values reduces greatly any consideration on our part the fragments in question are of Anchor Glass Container origin."
On April 13, 1992, immediately before the trial, Stripling, in effect, announced that he had an expert witness who would testify in opposition to Mr. Painter's supplemental report and that that witness would be designated a rebuttal witness. Stripling had, before that time, consistently stated that he would use no expert witness at trial. The trial court disallowed Stripling's use of the expert witness, stating that, whereas the testimony of a rebuttal witness is in fact properly allowed in some cases, "when you are talking about an expert who will give a history and nature of this case, ... it's not fair to do so." We agree.
It has long been a rule in Alabama litigation practice that a party's counsel can rely on the answers to interrogatories of an adverse party to determine the identity of any expert witness expected to be called, as well as "the subject matter on which the expert is expected to testify, and ... the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Rule 26(b)(4)(A), Ala.R.Civ.P. When interrogatories are used to discover information about experts who will testify at *888 trial, if the identity of the expert and information about the substance of the expert's testimony are not known when the interrogatories are answered, the answering party is under a duty to supplement his response to the questions. Rule 26(e)(1)(B), Ala.R.Civ.P.
In addition, in this case, as in many others, the parties were subject to a "scheduling order"; the scheduling order in this case stated the following requirement, which was agreed to by counsel for Stripling at a scheduling conference: "(5) That by January 15, 1992, plaintiff shall disclose to defendants any and all expert witnesses to be used at trial."
In Electrolux Motor AB v. Chancellor, 486 So. 2d 414 (Ala. 1986), also a products liability case, but involving a chain saw, the defendant, Electrolux, failed to furnish the information required by the trial court's pretrial order. In its answer to interrogatories from the plaintiff, Electrolux stated that it would have a manufacturer's representative at trial who "may be called to give expert opinions about the state of the art at the time this chain saw was manufactured. If any additional experts are going to be used we will supplement the record." 486 So. 2d at 415.
In this case, at the time of Stripling's deposition, his counsel stated, "If we had an expert, we would tell you; but we do not anticipate at this time bringing in any experts." Counsel for Stripling also stated: "Of course, as soon as we determine an expert, we are required by your interrogatories to let you know."
In Electrolux, at trial, when Electrolux attempted to elicit expert testimony from the manufacturer's representative, whose name had never been furnished, as the answer to the interrogatory had suggested it would be, the court sustained the plaintiff's objection and refused to the let the representative testify as an expert. 486 So. 2d at 416. Additionally, the court did not allow Electrolux to take the testimony of its outside expert, after the plaintiff advised the court that he had not received a witness list. 486 So. 2d at 415.
On appeal, Electrolux contended that it had been "denied due process by the trial court's refusal to allow it to present its own expert to rebut the testimony of Chancellor's expert as to the defectiveness of the chain saw." 486 So. 2d at 416. (Emphasis added.) This Court did not agree.
Citing Rule 16, Ala.R.Civ.P., for the proposition that the parties are bound by the pretrial order, the Court held that the trial court had not abused its discretion in disallowing the testimony of the two expert witnesses. Id. Also, citing Rule 26(e)(1)(B), Ala.R.Civ.P., the Court noted that Electrolux had a duty to supplement its response to the plaintiff's interrogatories with the names of each expert it expected to use, as well as the name of its own representative from whom it expected to elicit expert testimony. The Alabama Rules of Civil Procedure "placed upon Electrolux the burden of supplementing its answer when it decided who it would use as an expert witness at trial, rather than requiring that [the plaintiff] again request the name of the expert witness from Electrolux." Id. at 417. Thus, this Court held that the trial court did not deprive Electrolux of "that fundamental fairness to which it was entitled." Id. at 418.
Stripling argues that if a witness is to be used as a rebuttal witness, the witness is somehow exempt from the requirements of Rule 26(b)(4)(A) regarding expert witnesses. However, in Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987), in a similar procedural context, this Court addressed that question. Super Valu, the appellant, made in its brief an argument very similar to that made by Stripling in this case. Super Valu argued:
The Court rejected this assertion, citing Rule 16, Ala.R.Civ.P., and reiterating the virtue of the pretrial order in controlling *889 the course of the action. The Court ruled that the trial court's refusal to allow the expert testimony because of a party's failure to comply with the pretrial order "is clearly a matter of discretion, not subject to reversal." Id.
We hold that the trial court did not abuse its discretion in precluding Stripling's expert witness from testifying because that expert's identity and the substance of his expected testimony had not been revealed before trial, as required by the pretrial order and by Rule 26(b)(4)(A), Ala.R.Civ.P.
Based on the foregoing, as to this issue the judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] The bottle had been manufactured by Anchor Glass at its Henryetta, Oklahoma, plant and was then sold to and filled by Coca-Cola in Birmingham, Alabama. After it was filled, the bottle was shipped to Coca-Cola's distribution center in Jasper, Alabama, from which it was delivered to Stripling's place of employment, where he purchased it.
[2] Because this cause of action accrued in July 1989, after the effective date of § 6-11-20, Ala. Code 1975, and because the plaintiff sought punitive damages for wantonness, the provisions of § 6-11-20 apply. See, Berry v. Fife, 590 So. 2d 884 (Ala.1991). Section 6-11-20(b)(3) defines "wantonness" as follows:
"(3) WANTONNESS. Conduct which is carried on with a reckless or conscious disregard of the rights or safety of others."
In addition, wantonness must be proved by "clear and convincing evidence." Section 6-11-20(b)(4) defines "clear and convincing evidence" as follows:
"(4) CLEAR AND CONVINCING EVIDENCE. 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."
[3] Obviously, under the "clear and convincing evidence" standard a party may present insufficient proof to submit the case to the jury (and thereby fail to defeat the J.N.O.V. motion), even though there has not been "a complete absence of proof."
[4] At the time of this trial, this Court had not decided Shoals Ford, Inc. v. McKinney, 605 So. 2d 1197 (Ala.1992). | June 4, 1993 |
d9a37df7-d2b1-481d-b50d-5c96fb17a005 | Beavers v. Woods | 624 So. 2d 1343 | 1921075 | Alabama | Alabama Supreme Court | 624 So. 2d 1343 (1993)
Albert Waylon BEAVERS and Linda Beavers
v.
Billy WOODS and Deva Woods.
1921075.
Supreme Court of Alabama.
June 25, 1993.
Rehearing Denied August 6, 1993.
*1344 Sherryl Snodgrass Goffer, Huntsville, for appellants.
H.R. Campbell, Scottsboro, for appellees.
HOUSTON, Justice.
Although this case involves a boundary line dispute, the dispositive issue before us is whether, under the circumstances of this case, the trial court's denying the defendants' "motion" for a continuance of their trial deprived them of their constitutional and procedural rights to counsel and to a trial by jury.
The plaintiffs, Billy Woods and Deva Woods, sued Wayne Beavers and Linda Beavers, seeking a judicial determination of the boundary line between their respective properties; the Woodses claimed certain land by adverse possession and sought a declaration that they had title to that land, and they sought to enjoin the Beaverses from encroaching upon or trespassing on that land. The Beaverses answered pro se, requesting "a trial date as soon as possible." The following day, on December 18, 1991, the trial judge entered a "CIVIL NON-JURY PRE-TRIAL ORDER," the first paragraph of which stated that "this cause is scheduled for final hearing on the 2nd day of March 1992, at 9:00 o'clock a.m."
Thereafter, in January 1992, the Beaverses took the pre-trial notice to the clerk's office for advice as to whether they needed an attorney for the March 2, 1992, "final hearing," and they also told the clerk that they wanted a jury trial. The clerk told the Beaverses that they had plenty of time to retain an attorney for the trial of the case and that they could request a jury at the March 2 hearing. Mr. Beavers testified that he subsequently learned from an attorney that what Mr. Beavers and the clerk had "thought was a pre-trial hearing was in fact the trial," and Mr. Beavers said that he and the clerk "immediately met with the trial judge on Friday afternoon, February 28, 1992 [the Friday before the March 2 `final hearing'], to seek a continuance of said trial so he could retain counsel and have a jury trial and to explain the reason for this seemingly delayed request for the same." According to the affidavit filed by the clerk, both he and Mr. Beavers "misread the notice"; the clerk confirmed that on February 28, 1992 (the Friday before the March 2 "final hearing"), he went with the Beaverses to explain to the judge why the Beaverses were not represented by an attorney and that they had requested a jury trial. The trial judge told the Beaverses that he could not postpone the trial without the consent of the Woodses' attorney. The *1345 Beaverses were unable to locate the Woodses' attorney to ask for that consent. The case proceeded to trial without a jury and with the Beaverses appearing pro se.
At trial, when the Beaverses attempted to introduce a survey of the property, the trial court sustained the Woodses' objection, holding that "the proper evidentiary predicate [had] not been laid for that survey to be admitted in evidence." After hearing the evidence, the trial court asked to view the property; no one objected. The Beaverses then suggested that the trial court "appoint another survey to be run," saying, "that should settle it right there." Thereafter, the trial court ordered a survey of the section line between the properties at issue, reserving "jurisdiction to render final order resolving the issues between the parties upon completion of the survey and the surveyor's report to the court, and to conduct further hearings as may be necessary."
After viewing the property with the consent of the parties and in their presence and after considering all of the evidence and the report of the surveyor, the trial court entered a judgment for the Woodses, holding that they owned the property in question by prescription, having exercised the requisite possession and prescriptive acts for longer than the requisite period.
The Beaverses, having retained counsel, moved for a new trial, alleging only that they were denied their constitutional rights to counsel and to a jury trial because of the erroneous advice given them by the clerk and because of the trial court's denial of their "motion" for a continuance. The trial court denied the motion for a new trial. The Beaverses appeal. We affirm.
There is no evidence in the record that anyone prevented the Beaverses from seeking counsel or a jury trial prior to the date of the trial; and there was no indication in the Beaverses' answer to the complaint or in any other documents filed with the court that they sought a jury trial. See Rule 38, Ala. R.Civ.P.
Furthermore, where a true boundary line lies is a question for the trial court, Bell v. Jackson, 530 So. 2d 42 (Ala.1988). Neither side is entitled to a jury trial as a matter of right in a boundary line dispute (see Ala.Code 1975, § 35-3-2); unless the parties have consented to a trial by jury under Rule 39(c), if the question is submitted to a jury, its verdict is merely advisory and can be rejected by the trial court. White v. Berrey, 266 Ala. 379, 96 So. 2d 725 (1957); Lucas v. Scott, 247 Ala. 540, 24 So. 2d 247 (1945).
In addition, we note that, pursuant to Rule 7(b), Ala.R.Civ.P., all motions, "unless made during a hearing or trial, shall be made in writing." The Beaverses filed no written motion for a continuance of the trial and they made no such motion at the trial. Even assuming that under the facts of this case the actions of the Beaverses amounted to a "motion" for a continuance, whether to grant or to deny a motion for a continuance is a matter of discretion with the trial court and the court's ruling on that question will not be reversed except for an abuse of discretion. See, e.g., Wood v. Benedictine Society of Alabama, Inc., 530 So. 2d 801 (Ala.1988); Scullin v. Cameron, 518 So. 2d 695 (Ala.1987); Steele v. Gill, 283 Ala. 364, 217 So. 2d 75 (1968).
From a review of the record, we find no abuse of discretion by the trial court in denying the Beaverses' motion for continuanceassuming that their actions amounted to such a motion.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., dissents. | June 25, 1993 |
153b4ce1-6440-4c07-bbb7-d4a3e309a1ed | Dorman v. Jackson | 623 So. 2d 1056 | 1912016 | Alabama | Alabama Supreme Court | 623 So. 2d 1056 (1993)
Myra DORMAN
v.
Jeanette JACKSON and Bobby Jackson.
1912016.
Supreme Court of Alabama.
June 11, 1993.
Rehearing Denied September 10, 1993.
G. Rick Digiorgio of Jaffe, Burton & Digiorgio, Birmingham, for appellant.
*1057 R.M. Woodrow of Doster & Woodrow, Anniston, for appellees.
KENNEDY, Justice.
The plaintiff, Myra Dorman, appeals from a summary judgment entered in favor of the defendants, Jeanette Jackson and Bobby Jackson.[1]
On August 20, 1990, Ms. Dorman was injured in an automobile accident; she was a passenger in a car driven by Jeanette Jackson. She was riding in the front of the car in the passenger's seat when Ms. Jackson turned left at an intersection, crossing the northbound lanes of traffic. A car in the northbound lane struck Ms. Jackson's car. The police accident report indicated that Jackson was at fault for failing to yield the right of way to the car in the northbound lane.
At the time of the accident, Dorman and Jeanette Jackson were co-workers. They had ridden to work together several times before the accident. Three weeks before the accident, Dorman's daughter had been the babysitter for Ms. Jackson's son while Ms. Jackson was at work. According to Dorman, Ms. Jackson agreed to drive her own car to work so that Dorman's daughter could use Dorman's car to transport Ms. Jackson's child while she was babysitting. Ms. Jackson did not charge Dorman for the ride to work, and Dorman did not offer to pay Ms. Jackson.
Dorman sued Ms. Jackson, alleging, inter alia, negligence and wantonness. Jackson moved for a summary judgment, arguing that the Guest Statute barred any claim of negligence and contending that there was no evidence of wantonness. The trial court entered a summary judgment in favor of Jackson.
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" showing the existence of a genuine issue of material fact. Ala.Code 1975, § 12-21-12. 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).
Dorman argues that the trial court erred in entering the summary judgment. She says the Guest Statute did not bar her claim of negligence, because, she argues, Ms. Jackson received a benefit by giving Dorman a ride. Dorman further argues that Jackson's benefit was in providing Dorman's daughter with a car so that the daughter could take Ms. Jackson's child on outings.
The Alabama Guest Statute, § 32-1-2, Ala. Code 1975, provides:
If the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than hospitality, goodwill, or the like are conferred on the person furnishing the transportation, then the rider is a "guest." If the transportation
We find a question of fact that should be determined by a jury. A jury could consider that Dorman and Ms. Jackson had a business relationship because of the babysitting arrangement. Therefore, we reverse the summary judgment as to the negligence claim and remand for further proceedings on that claim.
The second issue is whether the trial court erred in entering the summary judgment as to the wantonness claim. Dorman argues that Ms. Jackson acted with reckless misconductthat she purposefully crossed the northbound lane of traffic without looking, even though her view was unobstructed. Ms. Jackson contends that she did not see the oncoming car and that any act on her part was merely inadvertent.
Central Alabama Elec. Cooperative v. Tapley, 546 So. 2d 371, 379 (Ala.1989) (emphasis added in Tapley).
The evidence indicates that Ms. Jackson slowed down before crossing the northbound lanes of traffic, and she stated that she merely failed to see the oncoming car. The facts here are distinguishable from these in Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317 (Ala.1984). In Osborne, a tractor-trailer truck collided with an oncoming vehicle. The truck driver failed to stop or slow down, and there was evidence that the driver was fatigued from the inordinate length of time he had been driving the truck.
The present case is similar to George v. Champion Insurance Co., 591 So. 2d 852 (Ala. 1991), where the defendant driver, while engaged in conversation with passengers in the car, ran a red light and collided with an oncoming vehicle. In George, this Court held that the plaintiff had failed to present substantial evidence of wantonness.
Viewing the evidence in a light most favorable to the plaintiff, we conclude that she failed to present substantial evidence of wantonness. Therefore, the trial court properly entered the summary judgment in favor of Jackson on the wantonness claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES and HOUSTON, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur in the Court's affirmance of the summary judgment on the wantonness count, and I write specially only to state specifically why I think that a fact question is presented as to whether the plaintiff was a "guest," within the meaning of Alabama's Guest Statute.
The purpose of Alabama's so-called Guest Statute is succinctly stated in Justice Livingston's dissenting opinion in Blair v. Greene, 247 Ala. 104, 109, 22 So. 2d 834, 837 (1945), as follows:
(Livingston, J., dissenting.)
This Court has stated also that "the guest statute is in derogation of the common law and as such [it] should be strictly construed." Walker v. Garris, 368 So. 2d 277 at 279 (Ala. 1979), citing Green v. Jones, 136 Colo. 512, 319 P.2d 1083 (1957).
Because the term "guest" is not defined in the statute, the duty to define that term falls upon the Court. Harrison v. McCleary, 281 Ala. 87, 199 So. 2d 165 (1967); Sullivan v. Davis, 263 Ala. 685, 83 So. 2d 434 (1955). This Court has held that "[i]t is a question of fact whether one is a guest within the statute." Roe v. Lewis, 416 So. 2d 750 (Ala.1982), citing Boggs v. Turner, 277 Ala. 157, 168 So. 2d 1 (1964), for that proposition of law. As the Court said in Roe, "A multitude of factual situations exists to which the statute must be applied." 416 So. 2d at 752. Quoting from an earlier Alabama decision, the Court listed some of those factual situations:
416 So. 2d at 752-53 (quoting Sullivan v. Davis, 263 Ala. 685, at 687-88, 83 So. 2d 434, at 436 (1955)).
I can appreciate the defendant's argument that the plaintiff's daughter and the defendant's child are not parties to this action, but, using the quote from Sullivan v. Davis as a guideline, I find sufficient evidence to present a fact question whether the defendant was deriving some benefit from having the plaintiff ride with her. Consequently, I agree that the summary judgment was improper on the negligence claim.
[1] The plaintiff has presented no arguments as to Bobby Jackson. | June 11, 1993 |
6e4d4b0b-f305-4539-80ce-3dfca47d98e8 | First Financial Ins. Co. v. Tillery | 626 So. 2d 1252 | 1911681 | Alabama | Alabama Supreme Court | 626 So. 2d 1252 (1993)
FIRST FINANCIAL INSURANCE COMPANY
v.
James R. TILLERY[1].
1911681.
Supreme Court of Alabama.
June 25, 1993.
Rehearing Denied August 27, 1993.
*1253 Robert E. Cooper and Rhonda K. Pitts, Rives & Peterson, Birmingham, for appellant.
W. Cameron Parsons and David M. Anderson, Parsons, Hall, Sutton & Delchamps, Tuscaloosa, for appellee.
MADDOX, Justice.
James R. Tillery sued First Financial Insurance Company ("First Financial"), seeking damages for breach of contract and bad faith refusal to pay insurance benefits. The jury returned a verdict for Tillery and the trial court entered a judgment on that verdict. First Financial appeals.
Tillery alleged that First Financial had breached its insurance contract with him by refusing to pay his claims after his mobile home was destroyed by fire, and he claimed that First Financial's refusal was in bad faith. The jury awarded Tillery $64,750 in compensatory damages on the breach of contract claim and $75,000 in punitive damages on the bad faith claim.
*1254 The central issue raised in this appeal is whether the trial court erred in denying First Financial's motions for summary judgment and for judgment notwithstanding the verdict. Because we find substantial evidence on which the trial court could rest its decision to submit the issues to the jury, we affirm.
In July 1990, Tillery contacted Roger Downs, at Roger Downs Insurance Agency, about insuring his mobile home. Downs visited Tillery to complete an application for coverage. After the application was completed, Downs forwarded it to Strickland General Agency, Inc., First Financial's general agent, for processing and First Financial issued a policy on the mobile home. On April 29, 1991, Tillery's mobile home was destroyed by fire and Tillery reported the loss to Downs. During its investigation of the loss, Strickland and First Financial found that Tillery's application for insurance contained omissions and misrepresentations about prior losses and, in accordance with a statement on the application, First Financial voided the policy and refunded Tillery's premiums. Tillery sued Downs, the Downs Agency, the Strickland General Agency, and First Financial.
First, we note that a strong presumption of correctness attaches to a jury verdict in Alabama, if the verdict passes the "sufficiency test" presented by motions for directed verdict and JNOV. Christiansen v. Hall, 567 So. 2d 1338, 1341 (Ala.1990); Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala.1988). This presumption of correctness is further strengthened by the trial court's denial of a motion for new trial. Christiansen, 567 So. 2d at 1341. Denying these motions is within the sound discretion of the trial court. See, Jawad v. Granade, 497 So. 2d 471, 477 (Ala.1986).
This Court will not reverse a judgment based on a jury verdict on a sufficiency of the evidence basis unless the evidence, when viewed in a light most favorable to the appellee, shows that the verdict was "plainly and palpably wrong and unjust." Christiansen, 567 So. 2d at 1341. In its sound discretion, the trial court found genuine issues of material fact and allowed certain issues to go before the jury. The trial court denied First Financial's motions for directed verdict, JNOV, and new trial. Based on our review of the record, we cannot say that the verdict was plainly and palpably wrong or unjust.
First Financial argues that the trial court erred in denying its motion for summary judgment. For a summary judgment to be proper, there must be no genuine issue of material fact and the movant must be entitled to a judgment as a matter of law. Ala.R.Civ.P. 56(c), Tripp v. Humana, Inc., 474 So. 2d 88 (Ala.1985). Further, on 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. Fincher v. Robinson Bros. Lincoln-Mercury, 583 So. 2d 256 (Ala.1991). See, also, Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
The movant must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law. Fincher, 583 So. 2d at 257. If this showing is made, the burden then shifts to the nonmovant to rebut the movant's prima facie showing by "substantial evidence" to create a genuine issue of material fact. Section 12-21-12, Ala.Code 1975. The record showed disputed factual issues to be decided by the jury; therefore, First Financial was not entitled to a summary judgment.
First Financial cites Clark v. Alabama Farm Bureau Mutual Casualty Insurance Co., 465 So. 2d 1135, 1140 (Ala.Civ.App. 1984), for the proposition that misrepresentations by an insured need not be "intentional for an insurance company to void a policy, if the facts concealed were material and they increased the loss." First Financial argues that even if Downs made the misrepresentations regarding Tillery's former losses, and not Tillery himself, the misrepresentations were material to First Financial's acceptance of the risk and should permit First Financial to void Tillery's coverage. However, Tillery *1255 submitted substantial evidence raising factual issues about the origin of the misrepresentations[2] and about the materiality of the representations. There was also disputed evidence as to which underwriting standards were to apply to Tillery's application.
In Hyde v. Humana Insurance Co., 598 So. 2d 876, 880-81 (Ala.1992), this Court stated that because it was impossible to answer the question from the language of an insurance policy "transplant rider," the question of "exactly what `written criteria and procedures' would be used to deny or to provide coverage for a transplant" was one for a jury. In Hyde, "[i]n moving for a summary judgment, Humana had the burden of making a prima facie showing that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law" (citations omitted). First Financial likewise failed to meet the burden, and the trial court correctly submitted these issues to the jury.
First Financial argues that had it known the truth regarding Tillery's prior losses, it would not have issued a policy of insurance to cover Tillery's mobile home. However, insurers are not allowed to avoid coverage in every case of a misstatement by an insured, and the insurer cannot be allowed automatically to avoid coverage simply because its own employee testified that the company would not have undertaken the risk had it known the truth as to the particular fact. State Farm General Insurance Co. v. Oliver, 658 F. Supp. 1546 (N.D.Ala.1987), aff'd., 854 F.2d 416 (11th Cir.1988).
Finally, Tillery argues that it was Downs who made misrepresentations on the application and that Downs was an agent of First Financial. In order for an insurer to avoid coverage under § 27-14-7, Ala.Code 1975, "the representation or omission must have been `material' to the acceptance of the risk. The question of whether a particular fact is or is not material is almost invariably a question for the jury, which is entitled to consider the factual context in which the determination is to be made." Oliver, 658 F. Supp. at 1552. The trial court properly submitted to the jury the questions of the existence and scope of the agency relationship between Downs and First Financial.
A motion for a directed verdict is a procedural device by which one party tests the sufficiency of the other party's evidence. See, Rule 50(a), Ala.R.Civ.P.; Alabama Power Co. v. Williams, 570 So. 2d 589 (Ala.1990); John R. Cowley & Bros., Inc. v. Brown, 569 So. 2d 375, 376 (Ala.1990); J. Hoffman & S. Guin, Alabama Civil Procedure § 8.37 (1990). Similarly, a motion for JNOV simply "permits the trial court to revisit its earlier ruling denying the motion for directed verdict." Alabama Power Co. v. Williams, 570 So. 2d at 591. The ultimate question, of course, as to either motion is whether the nonmovant has presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution. Hoffman & Guin, supra, at § 8.37.
For actions filed after June 11, 1987, the standard of review applicable to motions for directed verdict and JNOV is the "substantial evidence rule." See, § 12-21-12(a), Ala. Code 1975; Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226, 228 (Ala.1990). Thus, in an action filed after June 11, 1987, a nonmovant must present "substantial evidence" supporting each element of his cause of action or defense in order to withstand a motion for a directed verdict or JNOV. "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); see Ala.Code 1975, § 12-21-12.
This calls for "a purely objective determination of whether the party having the burden of proof has produced [sufficient] evidence [of a factual dispute] requiring resolution by the jury." Ex parte Oliver, 532 So. 2d 627, 628 (Ala.1988); and see, John R. Cowley *1256 & Bros., Inc. v. Brown, 569 So. 2d at 375. Additionally, in reviewing a motion for directed verdict or for JNOV, this Court must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury has been free to draw. Williams v. Allstate Ins. Co., 591 So. 2d 38 (Ala.1991).
We conclude, after thoroughly reviewing the record, that Tillery presented more than sufficient evidence to create factual disputes requiring resolution by the jury.
First Financial argues that Tillery's misrepresentations as to prior losses entitles it to void the policy. The general rule is that "[a]n insurance company does not normally have a duty to inquire further to verify that an applicant has told it the truth." Old Southern Life Insurance Co. v. Spann, 472 So. 2d 987, 989 (Ala.1985). Indeed, "[a]n insurer has the right to expect applicants for insurance policies to tell the truth." Id. Alabama has written this policy into law, § 27-14-7(a)(3), Ala.Code 1975, which permits insurers "to contractually require applicants for insurance to tell the truth upon penalty of a voidance of the contract." State Farm General Insurance Co. v. Oliver, 658 F. Supp. 1546, 1550 (N.D.Ala.1987).
However, "the law of Alabama is clear that an insurance policy cannot be voided if the insurer either knew the true facts or had sufficient indication that would put a prudent person on notice so as to induce inquiry which, if done with reasonable thoroughness, would have revealed the truth." Oliver, 658 F. Supp. at 1552. Tillery argues that even if misrepresentations or omissions were made so that coverage would be voided if the facts concealed were material and increased the risk, First Financial was put on notice so that further inquiry was required in regard to Tillery's application. Tillery contends that First Financial's failure to investigate amounted to a waiver. In Bankers Life & Casualty Co. v. Long, 345 So. 2d 1321 (Ala. 1977), we examined whether an insurance application can create a duty on the part of the insurer to inquire further into an applicant's medical history, so that the failure to do so precludes the insurer from voiding the policy on the ground of misrepresentation. In Long, we answered the question in the affirmative.
There was evidence that First Financial had previously paid one of Tillery's losses and that this loss was one of those not disclosed on Tillery's application. This evidence, if believed by the trier of fact, was sufficient to show that First Financial should have been on notice that further inquiry was necessary. In short, the jury could have found that, with a minimum of inquiry, First Financial could have checked its records and found that Tillery's application misrepresented the actual facts. See, American Casualty Co. v. Wright, 554 So. 2d 1015 (Ala.1989).
For the foregoing reasons, the judgment of the circuit court is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ. concur.
[1] This appeal came to this Court styled First Financial Insurance Co. v. James R. Tillery and Green Tree Acceptance, Inc. It appears from the record and the notice of appeal that Green Tree is not a party to this appeal. Accordingly, we have restyled this appeal.
[2] Tillery asserted that he never filled out the insurance application, that he did not provide the information required to answer the questions material to assuming the risk, and that he did not sign the application. | June 25, 1993 |
050922de-157a-4f10-b534-7f2bd146fe08 | Ex Parte Robertson | 621 So. 2d 1289 | 1920248 | Alabama | Alabama Supreme Court | 621 So. 2d 1289 (1993)
Ex parte Eddie ROBERTSON, Jr.
(Re State of Alabama v. Eddie Robertson, Jr.)
1920248.
Supreme Court of Alabama.
June 4, 1993.
George Peach Taylor and Mary A. Turner, Tuscaloosa, for petitioner.
James H. Evans, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for respondent.
ALMON, Justice.[*]
Eddie Robertson petitions this Court to grant a writ of mandamus ordering the Honorable John Karrh, judge of the Sixth *1290 Judicial Circuit, to set aside an order of October 30, 1992.[1] That order held that Ala.Code 1975, § 12-21-261, which provides that the State may preserve a witness's testimony in a criminal case only with the consent of the defendant, violates the Equal Protection Clause of the 14th Amendment to the United States Constitution, and allowed the State to proceed with "depositions" as provided in § 12-21-260.
On April 28, 1992, Eddie Robertson was indicted by the Tuscaloosa County Grand Jury for first degree burglary, first degree rape, and first degree robbery. The indictments were based on the State's evidence that Robertson had entered the homes of two elderly women, then aged 72 and 88, and had raped and robbed them. On August 3, the State moved to take the depositions of the alleged victims pursuant to § 12-21-261; Robertson objected to the State's request. A hearing on the motion was held before the Tuscaloosa Circuit Court on August 21, 1992; at that hearing, the State argued that § 12-21-261 violated the Equal Protection Clause of the 14th Amendment. After considering the briefs filed by the parties on the issue, the trial court held that § 12-21-261 did violate the Equal Protection Clause. The trial court's order, in pertinent part, is as follows:
In equal protection jurisprudence, any law that does not employ a classification based on race, sex, national origin, or legitimacy of birth and does not impinge upon a fundamental right, is subject to the "rational relationship" analysis. Under this analysis, any law rationally related to a legitimate governmental objective will withstand an equal protection challenge. See generally Lyng v. Castillo, 477 U.S. 635, 106 S. Ct. 2727, 91 L. Ed. 2d 527 (1986); County Board v. Richards, 434 U.S. 5, 98 S. Ct. 24, 54 L. Ed. 2d 4 (1977). Because a person's right to testify against a criminal defendant has not been construed by the Supreme Court to be fundamental, and because that Court has expressly held that age is not a suspect classification, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976), Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979), § 12-21-261 must be analyzed under the rational relationship test. A strong presumption of constitutionality attaches to a law reviewed under this test, and the burden rests upon the challenger to demonstrate that the law is "wholly arbitrary." City of Dallas v. Stanglin, 490 U.S. 19, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989).
Here, the trial court conceded that the governmental objective advanced by the statutethe protection of a criminal defendant's 6th Amendment right to confront witnesses against himwas legitimate. The court concluded, however, that the statute was not rationally related to this objective, because, even after the excision of the consent provision, the statute conferred upon the defendant the right to cross-examine the witness, which the court believed was sufficient to satisfy the Confrontation Clause under Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
*1292 The trial court's conclusion must be analyzed under the Confrontation Clause principles regarding the admissibility of statements of witnesses who do not testify at trial. The United States Supreme Court has held that for such statements to be admissible, it must be shown: 1) That the witness is unavailable to testify at the time of the trial; and 2) that the statement bears adequate "indicia of reliability." Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990); Ohio v. Roberts, supra. Because the right of cross-examination has long been thought to be the most important mechanism for determining the truth of a witness's testimony, this petition presents an issue of the reliability of the witnesses's statements should they be unable to testify at trial.[2]
The State agrees that an admissibility issue could later be presented, but it argues that mandamus is an improper remedy because Robertson will be free to raise the admissibility issue at trial or on appeal if he is convicted. We do not agree, because Robertson has an explicit statutory right that has already been abrogated by the trial court's order. Moreover, we would be remiss in failing to address the issue at this stage in the proceedings, because if the witnesses were to become unavailable before trial, we would be compelled to hold that their "depositions" are inadmissible because they lack "adequate indicia of reliability," for the reasons stated below.
This Court disagrees with the trial court's conclusion on the constitutional issue, because the content and scope of the cross-examination right conferred by § 12-21-260 are not sufficient to satisfy the purposes of the Confrontation Clause. The purposes of the Clause were enunciated by the Supreme Court in California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). In Green, the Court stated:
399 U.S. at 158, 90 S. Ct. at 1935, 26 L. Ed. 2d at 497. The Green Court concluded that the Confrontation Clause was not violated by admitting a declarant's statements made at a preliminary hearing, irrespective of whether the declarant testified at trial, because the declarant was testifying as a witness at the preliminary hearing and was subject to full and effective cross-examination by the defendant's counsel. The Court specifically noted that the defendant "had every opportunity to cross-examine [the declarant] as to his statement." 399 U.S. at 165, 90 S. Ct. at 1938, 26 L. Ed. 2d at 501.
The Green Court emphasized that the defendant must have the opportunity to fully and effectively cross-examine the declarant, because when the declarant does not testify at trial the third purpose of the Confrontation Clausethe jury's ability to observe the demeanor of the declarant while he testifiesis negated. This purpose has traditionally constituted the core of the Confrontation Clause protection, see Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), and its absence necessarily means that the scope of cross-examination must be correspondingly greater.
Ten years after Green, the Court decided Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). The Roberts Court followed Green by holding that a statement made by a witness at a preliminary hearing was admissible because the witness had been effectively cross-examined by the defendant at the preliminary hearing, even though the defendant's questioning *1293 actually occurred on direct examination. The Court characterized the questioning as follows:
448 U.S. at 70-71, 100 S. Ct. at 2541, 65 L. Ed. 2d at 611 (citations and emphasis omitted). The Court then stated that the questioning afforded "`substantial compliance with the purposes behind the confrontation requirement,'" and that "[a]s in Green, [defendant's] counsel was not `significantly limited in any way in the scope or nature of his cross-examination.'"
448 U.S. at 71, 100 S. Ct. at 2542, 65 L. Ed. 2d at 611 (emphasis added).
Green and Roberts make it absolutely clear that the defendant, at the very least, must have the right to conduct a full and effective cross-examination of the witness if the witness is not to appear at the trial. This is essential, for when the witness does not appear to testify at the trial, the jury is denied an opportunity to observe the demeanor of the witness.
The § 12-21-260 procedure provides that the State, after filing an affidavit stating the cause for taking the "deposition"[3] and the materiality of the deposition, must file interrogatories with the clerk to be propounded to the witness; the State must send a copy of the interrogatories to the defendant. The defendant may then file "cross-interrogatories" within 10 days. The State may, within 10 days after receiving the "cross-interrogatories," file "rebutting interrogatories."
This procedure simply does not afford the defendant the right to adequately cross-examine the witness. First, the cross-interrogatoriesthe only semblance of "cross-examination" contained in § 12-21-260do not effectively fulfill the truth-seeking purpose of cross-examination, because they do not allow the defendant to question the witness with respect to specific answers given by the witness to the interrogatories initially propounded by the State. The defendant therefore must guess what the witness's answers may be, and he must attempt to frame his cross-interrogatories on these hypothetical answers. Second, the truth-seeking function is also undermined because the statute does not require that the defendant be present at the "deposition." Without the presence of the defendant, the witness may feel freer to depart from the truth. See Coy v. Iowa, supra. Finally, the State is given the final opportunity to question the witness through the "rebutting interrogatories"; the defendant is not permitted to conduct any type of recross-examination. The effect of this is potentially damaging, especially if the State is able to elicit crucial, inculpatory information on the "rebutting interrogatories."[4]
This is the kind of practice the Confrontation Clause was designed to prevent. As the Supreme Court explained long ago in Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339, 39 L. Ed. 409 (1895):
Because § 12-21-260 does not confer on the defendant a constitutionally sufficient right of cross-examination, the trial court erred in holding that § 12-21-261, the consent provision, "serves no cause, but to deny a victim the right to preserve testimony." Therefore, we hold that § 12-21-261 is rationally related to the legitimate governmental end of protecting the Confrontation Clause rights of citizens.
The State argues that it is willing to forgo the § 12-21-260 procedure and to employ deposition methods used in civil cases in taking the testimony of the witnesses; it has also offered to videotape the depositions. It is well settled that this would solve the confrontation problems caused by § 12-21-260, because the testimony would be given under oath and would be subject to a full and effective cross-examination. See United States v. King, 552 F.2d 833 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S. Ct. 1646, 52 L. Ed. 2d 357 (1977); United States v. Singleton, 460 F.2d 1148 (2d Cir.1972), cert. denied, 410 U.S. 984, 93 S. Ct. 1506, 36 L. Ed. 2d 180 (1973); Coffman v. State, 81 Nev. 521, 407 P.2d 168 (1965). However, the Alabama Rules of Criminal Procedure are silent on this point. Cf. Rule 16, Ala.R.Crim.P. Also, the trial court denied the State's motion to videotape the depositions. Most important, it held that the State "is allowed to proceed with taking the victim's depositions as provided in § 12-21-260." Because this Court is reviewing only the trial court's actual order, we must reject the State's otherwise reasonable arguments.
The error in holding § 12-21-261 unconstitutional arises partly from the limited interrogatory procedure provided in § 12-21-260, which does not allow adequate protection of the 6th Amendment right of confrontation. Because we agree with the trial court that this problem should be eliminated, we are referring this matter to the Standing Committee on the Rules of Criminal Procedure for it to consider whether this Court should adopt a rule allowing both the State and the defendant, in the limited circumstances specified in § 12-21-260, to take depositions of witnesses to preserve their testimony. That committee may consider Rule 15(d) of the Federal Rules of Criminal Procedure.
Nevertheless, no such procedure is now available for the taking of depositions in criminal cases, and, moreover, the trial court specifically ordered the use of the limited interrogatory procedure provided in § 12-21-260. Because that limited procedure does not protect the defendant's 6th Amendment right of confrontation, the consent requirement of § 12-21-261 bears a rational relation to the purpose of protecting that right. Therefore, the trial court should not have held § 12-21-261 unconstitutional and should not have allowed the use of the interrogatory procedure of § 12-21-260 without Robertson's consent. The petition for the writ of mandamus is hereby granted.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX,[*] SHORES and ADAMS, JJ., concur.
[*] Although Justices MADDOX and ALMON did not sit at oral argument, they have studied the record and listened to the tapes of oral argument.
[1] We note that Judge Karrh retired effective May 1, 1993. The writ of mandamus we issue in response to Robertson's petition will be addressed to the circuit judge to whom Robertson's cases have been assigned. See Rule 43(b), Ala.R.App.P.
[2] If the witnesses are available to testify at trial, the "depositions" would not be admissible. See Ala.Code 1975, § 12-21-262.
[3] It is clear that the term "deposition" in the statute does not refer to an oral deposition, but refers to written interrogatories.
[4] This lack of opportunity for recross-examination also conflicts with the explicit mandate of Rule 15(d) of the Federal Rules of Criminal Procedure; this rule allows depositions to be taken in the same manner as in a civil case, provided that "the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself."
[*] Although Justices MADDOX and ALMON did not sit at oral argument, they have studied the record and listened to the tapes of oral argument. | June 4, 1993 |
5f6b77cf-389a-482a-97c7-acae1d13956f | Roberts v. C & S Sovran Credit Corp. | 621 So. 2d 1294 | 1920279, 1920280 | Alabama | Alabama Supreme Court | 621 So. 2d 1294 (1993)
Mildred ROBERTS
v.
C & S SOVRAN CREDIT CORPORATION OF ALABAMA, f/k/a C & S Family Credit of Alabama, et al.
Billy WHORTON and Mary Sue Whorton
v.
C & S FAMILY CREDIT OF ALABAMA, INC., et al.
1920279, 1920280.
Supreme Court of Alabama.
June 4, 1993.
*1295 Robert C. Gammons and Charles H. Pullen of Watson, Gammons & Fees, P.C., Huntsville, for appellants.
R. Wayne Wolfe and Joan-Marie Pace of Wolfe, Jones & Boswell, Huntsville, for appellees.
SHORES, Justice.
On July 27, 1990, Billy Whorton and Mary Sue Whorton bought a used house from C & S Family Credit of Alabama Inc. ("C & S"). On the same day, Mildred Roberts bought the house next door from C & S. Both the Whortons and Roberts were shown the properties by Russell B. Taylor, an agent for C & S. Both the Whortons and Roberts had to leave their houses because of defective septic tanks.
On July 12, 1991, the Whortons sued C & S, David Keiffer (its branch manager at the time they bought the house), and Russell B. Taylor, complaining of matters arising out of the sale of the house, and alleging (1) fraud and misrepresentation; (2) suppression of material facts; (3) fraudulent deceit; and (4) breach of express or implied warranties. On January 23, 1992, Mildred Roberts sued the same defendants, making similar allegations concerning her house. The plaintiffs filed a motion to consolidate the two cases, which was granted on July 23, 1992. On August 6, 1992, C & S moved for a summary judgment, which was entered on October 7, 1992. The plaintiffs appeal. We reverse and remand.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must 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. In determining whether a summary judgment was properly entered, the reviewing court must view the *1296 evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). Rule 56 is read in conjunction with the "substantial evidence rule" § 12-21-12, Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the nonmovant must present "substantial evidence," i.e., "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). Viewing the evidence in the light most favorable to the plaintiffs and giving them the benefit of all favorable inferences that can be drawn from the evidence, we find it clear that a genuine issue of material fact existed as to whether the defects were ever repaired, and, therefore, as to whether a duty was owed by the defendants to the plaintiffs.
The record reflects that the real properties involved in this action were mortgaged to C & S in February 1989. Shortly thereafter, C & S foreclosed and took possession of the property; these two properties were part of a parcel of land with three houses on it. C & S discovered that the houses were in partial disrepair, although renovation had been contemplated when the original mortgage had been taken. C & S's branch manager, David Keiffer, secured the services of various contractors to perform those repairs and prepare the houses for sale. As those repairs were being initiated, C & S was notified by a neighbor that one of the septic tanks had caused problems in the past. C & S then retained John Sanford, a local contractor. C & S contends that Sanford cleaned out the septic tank at the Whorton house and the tank at the Roberts house, verified that the field lines were operational, and made other necessary repairs at that time.
In December 1989, Keiffer left the employment of C & S and was replaced by Russ Taylor, who was given the task of selling the property. In July 1990, Taylor met with the plaintiffs and showed them the subject properties. After the initial inspection, the plaintiffs did not revisit the properties, nor did they have an independent inspection of the properties conducted before purchasing them, although they were aware that the properties were used. The plaintiffs lived in the houses from July 1990 until October/November 1991.
The plaintiffs contend that C & S suppressed the fact that the septic tanks were defective. The Madison County Health Department told the plaintiffs that the septic tanks at both residences were discharging raw sewage onto the ground and that they would have to repair the septic systems to avoid legal action. There is no dispute that the discharge of raw sewage onto lawns and into an occupied dwelling constitutes a health hazard. There is no dispute that C & S had knowledge of the defective condition of the septic tanks as early as June 1989. According to the affidavits of Glen Beavers and Joe McBride, the Health Department gave C & S notice of the defects in July 1989. There is, however, conflicting testimony as to whether the defects in the septic tanks were ever repaired.
In his affidavit, Glen N. Beavers[1] attested to the following:
*1297 Joe Wayne McBride[2] attested to the following:
In her deposition, Ms. Roberts stated that she first noticed the septic tank running over approximately two weeks after she purchased the house, immediately after the first rain. Mr. Whorton testified that sewage began to leak into his house soon after the purchase. On the other hand, C & S claims that Sanford cleaned out each tank, verified that the field lines were operational, and made whatever other repairs were necessary, and claims that, after completing these repairs, Sanford was contacted by a Madison County Health Department official, who inspected the job site. C & S says that that official indicated that all repairs seemed satisfactory and were in accordance with the requirements of the building permit that Sanford had previously secured. These conflicting affidavits create a fact question that must be resolved by the factfinder.
In Alabama the seller of used residential real estate generally has no duty to volunteer knowledge; however, when a direct inquiry is made of him or her, the seller has a duty to respond honestly. Leatherwood, Inc., d/b/a Coldwell Banker First Ozark Realty v. Baker, 619 So. 2d 1273 (1992); Ivey v. Frankle, 619 So. 2d 1277 (Ala.1993). However, if the seller, or the seller's agent, is questioned directly about specific defects, or if the seller or the agent has knowledge of specific defects that affect health or safety and the defect is not known to or readily observable by the buyer, the seller or the agent has a duty to disclose and is liable for damages for nondisclosure. Fennell Realty Co. v. Martin, 529 So. 2d 1003, 1005 (Ala.1988). The rule is:
Williamson v. Realty Champion, 551 So. 2d 1000, 1002 (Ala.1989). (Emphasis added.) We have held that whether the seller or the seller's agent owes a duty to disclose is a question for the factfinder to decide. Lowder Realty, Inc. v. Odom, 495 So. 2d 23, 26 (Ala.1986).
The plaintiffs claim that Taylor made the following statements about the houses: that the houses were "completely redone," "renovated and redone," and, as a result, were "good houses," and that they were "in real good shape" and "liveable." Whether such statements are statements of opinion or of fact is a question for the factfinder. See, e.g., Boswell v. Coker, 519 So. 2d 493, 496 (Ala.1987), and Davis v. Brown, 513 So. 2d 1001, 1005 (1987). In Davis, we said:
Because there exist genuine issues of material fact, the trial court erred in entering the summary judgment for the defendants. Accordingly, that judgment is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON, and KENNEDY, JJ., concur.
[1] Beavers is a public health environmentalist employed by the Madison County Health Department, and he was so employed in July 1989. He had received the initial complaints about the raw sewage problems, and, as a result, had contacted the owners of the houses and told them that they were in violation of Ala.Code 1975, § 22-26-1, et seq.
[2] McBride is a public health environmentalist with the Madison County Health Department, and he was so employed in July 1989. He received the initial complaints about the raw sewage problems and informed Keiffer about them because C & S held the mortgage on the property. | June 4, 1993 |
a706de58-c7cf-4773-91c7-f12d7c6bae26 | Building Maint. v. Intern. Shipbuilding | 621 So. 2d 1303 | 1920500 | Alabama | Alabama Supreme Court | 621 So. 2d 1303 (1993)
BUILDING MAINTENANCE PERSONNEL, INC.
v.
INTERNATIONAL SHIPBUILDING, INC.
1920500.
Supreme Court of Alabama.
June 4, 1993.
*1304 Winn Faulk of Drinkard, Ulmer, Hicks, & Leon, Mobile, for appellant.
Suzanne Paul and C. Michael Smith of Paul and Smith, P.C., Mobile, for appellee.
SHORES, Justice.
This is a contract dispute involving Alabama's "forum-closing" provisions, Alabama Code 1975, § 10-2A-247, and Art XII, § 232, Ala. Const. 1901, which bar foreign corporations from enforcing their contracts when they are not qualified to do business in Alabama. Building Maintenance Personnel, Inc., a Louisiana corporation, d/b/a BMPS, Inc., sued International Shipbuilding, Inc. ("International"), an Alabama corporation located in Mobile County, to enforce a contract between them. The trial court entered a partial summary judgment for International on the grounds that under § 10-2A-247 and Art. XII, § 232, Ala. Const. 1901, the contract was void because, when the contract was made, BMPS had not obtained a certificate of authority to transact business in Alabama. The partial summary judgment was made final under Rule 54(b), A.R.Civ.P. BMPS appeals. We affirm.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must 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. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., "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 foreign corporation that has not been authorized to do business in Alabama is not barred from enforcing its contracts in the courts of this state, however, "unless the business conducted here by [the] nonqualified corporation[] is considered `intrastate' in nature." Wise v. Grumman Credit Corp., 603 So. 2d 952, 953 (Ala.1992). Thus, the statutory and constitutional provisions do not bar enforcement of BMPS's contract if by that contract BMPS was conducting "interstate" business in this state. International, in support of its summary judgment motion, made a prima facie showing that the contract at issue here was of an "intrastate" character and that International was therefore entitled to a judgment as a matter of law. See Rule 56, A.R.Civ.P. We find in the record no substantial evidence to rebut that showingi.e., BMPS presented no substantial evidence that its contractual activities in Alabama were "interstate" in nature.
We have carefully examined the record and the law in this case and we conclude that there was no evidence creating a genuine *1305 issue of material fact as to whether BMPS was engaged in intrastate commerce, and that International was entitled to a judgment as a matter of law.
The record reflects that BMPS is a Louisiana corporation engaged in the business of supplying temporary contract workers to employers, and that BMPS had not obtained a certificate of authority to transact business in Alabama when its Mobile branch manager, Jerry R. Thompson, signed a contract on its behalf with International. The contract was signed March 25, 1992, but BMPS did not qualify to transact business in Alabama until May 5, 1992.
BMPS argues that, because the workers supplied by BMPS were working on a "push boat," which International had a contract to build for the United States Corps of Engineers, the BMPS contract involved interstate commerce, rather than merely intrastate commerce. We disagree. The contract between BMPS and International was entirely separate from the contract with the Corps of Engineers. The BMPS contract was merely for the provision of local labor, as opposed to any interstate commodity. This Court has stated:
Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1370-71 (Ala.1988). Further, the record reflects that the providing of the services of the workers furnished under the contract was not a "necessary," "essential," or "integral" part of the "interstate" contract for the building and sale of the push boat, but were incidental to the sale. Al Sarena Mines, Inc. v. SouthTrust Bank of Mobile, 548 So. 2d 1356 (Ala. 1989); S & H Contractors v. A.J. Taft Coal Co., 906 F.2d 1507, 1511 (11th Cir. 1990).
For these reasons, we must reject BMPS's argument that the reported cases applying Alabama law do not dispose of this case, and we affirm on the authority of Haskew v. Green, 571 So. 2d 1029 (Ala. 1990); Green Tree Acceptance, Inc. v. Blalock, supra; Sanjay, Inc. v. Duncan Constr. Co., 445 So. 2d 876 (Ala.1983); and Wise v. Grumman Credit Corp., 603 So. 2d 952 (Ala.1992).
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | June 4, 1993 |
65e1cc57-271e-48a8-95a2-75949e8986cf | AC, INC. v. Baker | 622 So. 2d 331 | 1911862 | Alabama | Alabama Supreme Court | 622 So. 2d 331 (1993)
AC, INC.; Robinson's Printing Company, Inc.; and D.G. Robinson Corporation
v.
Leon C. BAKER; S. David Johnston; and Johnston, Joyce & Wiginton.
1911862.
Supreme Court of Alabama.
June 11, 1993.
*332 James L. North and J. Timothy Francis of James L. North & Associates and John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
John D. Snodgrass of Balch & Bingham, Huntsville, for Leon C. Baker.
W. Stanley Rodgers and H. Harold Stephens of Lanier Ford Shaver & Payne P.C., Huntsville, for S. David Johnston and Johnston, Joyce & Wiginton.
HORNSBY, Chief Justice.
The plaintiffs, AC, Inc.; Robinson's Printing Company, Inc.; and D.G. Robinson Corporation (successor to Robinson's Printing), appeal from a summary judgment in favor of the defendants, Leon C. Baker; S. David Johnston; and Johnston, Joyce & Wiginton ("JJW"), in an action alleging breach of contract, unjust enrichment, and breach of warranty. We affirm.
Johnston is a certified public accountant and a partner in the accounting firm of JJW. The plaintiffs allege that beginning before 1981, and continuing thereafter, Johnston performed accounting services for them. Baker is an attorney, licensed to practice in New York, specializing in tax law; in addition, he is the sole owner and employee of Coleman Leasing Corporation ("Coleman"). In 1981, AC and Robinson's Printing entered agreements, separately, with Coleman to purchase computer equipment from it. Each plaintiff contends that it purchased this equipment solely in reliance on promises made by Johnston, JJW, and Baker that ownership of the equipment would provide legitimate tax deductions, through depreciation and interest expenses, to reduce each plaintiff's tax liability for the years 1981 through 1985. Under those 1981 purchase agreements, AC promised to pay Coleman $720,000, and Robinson's Printing promised to pay Coleman $100,000. Final payments under both contracts were made on December 31, 1992.
In 1986, the Internal Revenue Service ("IRS") and the Alabama Department of Revenue audited the plaintiffs' tax returns and disallowed the income tax deductions related to the computer equipment for all of the years 1981 through 1985. On September 4, 1991, the plaintiffs filed this action against Johnston, JJW, and Baker, alleging breach of contract, unjust enrichment, and breach of warranty.[1] The defendants moved to dismiss this action. Pursuant to Rule 12(b)(6), Ala.R.Civ.P., the trial court treated the defendants' motion as a motion for a summary judgment, and entered a summary judgment as to all claims except the breach of contract claims against Johnston and JJW based on their preparation of the plaintiffs' 1985 tax returns, holding that the statute of limitations barred all other claims.[2] The trial court then made its judgment final pursuant to Rule 54(b), Ala.R.Civ.P. The plaintiffs appealed.
The plaintiffs present two issues for review: (1) whether the trial court erred in *333 treating the defendants' motion to dismiss as a motion for summary judgment when the defendants offered no evidence specifically supporting their statute of limitations defense; and (2) whether the summary judgment was improper as to the breach of contract and breach of warranty claims. Because the plaintiffs make no argument regarding the propriety of the summary judgment as to their unjust enrichment claim, we affirm the judgment as to that claim.
We hold that the trial court did not err in treating the defendants' motion to dismiss as a motion for a summary judgment. Even though the defendants presented no evidence specifically supporting their statute of limitations defense, counsel for both parties submitted affidavits, legal memoranda, letter briefs, and correspondence outside the pleadings, and the trial court considered those items in ruling on the defendants' motion to dismiss. Thus, the trial court's action was proper under Rule 12(b)(6), Ala.R.Civ.P.; see Garris v. Federal Land Bank of Jackson, 584 So. 2d 791, 793 n. 1 (Ala.1991); Underwood v. Allstate Ins. Co., 590 So. 2d 258 (Ala.1991).
"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), Ala. R.Civ.P. When the movant has carried the burden of making a prima facie showing, by admissible evidence, that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the party opposing the summary judgment motion has the burden of presenting substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. "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); Ogle v. Long, 551 So. 2d 914, 915 (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, resolving all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986).
The plaintiffs' breach of contract claims and breach of warranty claims are based on various oral and written contracts between the plaintiffs and the defendants. We will discuss these contracts in connection with each of the plaintiffs' claims. The statute of limitations for a claim based on a contract is six years. Ala.Code 1975, § 6-2-34(9). This six-year period begins to run when the contract is breached. Stephens v. Creel, 429 So. 2d 278, 280 (Ala. 1983); Lipscomb v. Tucker, 294 Ala. 246, 258, 314 So. 2d 840, 850 (1975).
1. Johnston and JJW
This Court has held that when an accountant enters into an express agreement to perform his duties in accordance with generally accepted accounting principles and fails to meet this standard, the other party to the contract may sue alleging breach of contract. Blumberg v. Touche Ross & Co., 514 So. 2d 922, 925 (Ala.1987). For purposes of this appeal, we accept the plaintiffs' uncontroverted allegations that for the tax years 1981 through 1985, AC and Robinson's Printing had express agreements with Johnston and JJW that the latter would prepare and review the plaintiffs' income tax returns. We also accept, for the purpose of reviewing the *334 summary judgment, the plaintiffs' allegations that Johnston and JJW breached those agreements by recognizing deductions related to computer equipment that were not legitimate. In determining the propriety of the trial court's holding that the six-year statute of limitations barred the plaintiffs' breach of contract claims, except those claims based on the 1985 tax returns, we find ourselves faced with an issue of first impression in this State: whether the nature of the plaintiffs' agreements, as either entire contracts or separate contracts, impacts on the running of the statute of limitations.
17A Am.Jur.2d Contracts § 390 (1991); see Kirkland v. Oates, 25 Ala. 465, 467 (1854); Blythe v. Embry, 36 Ala.App. 596, 597, 61 So. 2d 142, 143 (1952).
If the agreements in this case constituted several, separate annual agreements under which Johnston and JJW prepared and reviewed the plaintiffs' tax returns from 1981 to 1985, then a breach of contract action accrued on each contract, individually, for purposes of the six-year limitations period, when performance under each contract was complete. Cannell v. Bulicek, 8 Ohio App.3d 331, 457 N.E.2d 891, 896 (1983); Intermedics, Inc. v. Grady, 683 S.W.2d 842 (Tex.App.1984). Under this interpretation of the parties' contractual relationships, the trial court's judgment would be affirmed, because the statute of limitations would bar all of the plaintiffs' breach of contract claims except the claims based on the 1985 tax returns.
However, each plaintiff contends that the accounting services performed by Johnston and JJW from 1981 to 1986 and related to deductions taken on computer equipment should be treated as services rendered under an entire contract, spanning continuously from 1981 to 1986. Further, we infer from each plaintiff's argument that each is contending that if its relationship with Johnston and JJW constituted an entire contract, then the six-year limitations periods for its breach of contract action would not begin to run until April 15, 1986, when the last returns claiming deductions were filed. See Estate of Cass, 753 S.W.2d 632 (Mo.App.1988) (if the services contracted for are properly characterized as single, entire, and continuous in nature, a contract cause of action accrues on the last date upon which services were performed).
Although this Court has never addressed a continuing contract argument such as the one the plaintiffs in this case touch upon, several courts have recognized a "continuing contract" doctrine for determining when a breach of contract action on an entire contract accrues for limitations purposes. This doctrine has been applied most often to cases concerning payment for performance of services, to determine when the plaintiff's right to sue for payment occurred.[3]
*335 However, this is not an action seeking compensation for services rendered; rather, AC and Robinson's Printing seek recovery for harm incurred from allegedly erroneous tax advice. An application of the "continuing contract" doctrine to this case would toll the running of the limitations period until the last time the plaintiffs acted upon the defendants' advice. Further, although this Court has never applied a "continuing contract" doctrine, it has recognized, in certain situations, a "continuing tort" doctrine that operates to toll the running of the limitations period in tort cases until the date that the last injury occurred.[4] However, this Court has expressly limited "recovery for a continuous tort ... to those damages that occurred within the period of limitations." McDonald, 567 So. 2d at 1216 (citing Garrett, 368 So.2d at 521); see American Mutual Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677 (1938); Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937). Too, despite the possibilities presented by the plaintiffs' continuing contract argument, this case presents no compelling reason that would dissuade us from placing a similar limitation upon a "continuing contract" action, limiting it to those breaches that occurred during the six years before the action was filed. We, therefore, decline to apply a "continuing contract" doctrine at this time.
Alternatively, the plaintiffs argue that the limitations period applicable to their breach of contract claims did not commence running until the IRS in 1986 disallowed their deductions related to the computer equipment. Admittedly, the plaintiffs did not incur any actual damage until the IRS disallowed their deductions; however, the incurring of actual damages marks the commencement point for the running of the two-year limitations period applicable to professional malpractice actions. See Leighton Ave. Office Plaza, Ltd. v. Campbell, 584 So. 2d 1340 (Ala. 1991); Stephens, 429 So. 2d at 281. The statute of limitations on a contract action runs from the time a breach occurs rather than from the time actual damage is sustained. Stephens, 429 So. 2d at 280.
Accordingly, although the plaintiffs have made well reasoned and able presentations of authority supporting their claimed right to pursue a remedy for all of the contracts allegedly breached by Johnston and JJW, we conclude that the trial court properly held that the only claims not barred by the statute of limitations were the plaintiffs' breach of contract claims based on their 1985 tax returns. Therefore, we affirm the summary judgment for Johnston and JJW as to the plaintiffs' breach of contract claims against them.[5]
2. Baker
We infer from the record that the plaintiffs' breach of contract claims against Baker are based upon the plaintiffs' written agreements with Coleman to purchase computer equipment. However, the plaintiffs do not allege that those agreements contained any express representation regarding tax liability, and they do not allege that Coleman failed in any way to perform its obligations under those agreements. They allege only that Baker, in connection with the purchase agreements, made oral promises regarding the plaintiffs' ability to deduct depreciation and interest expenses related to the computer equipment from their adjusted gross income. Those promises are also the basis for the plaintiffs' breach of warranty claims. For this reason, notwithstanding the ingenuity of the plaintiffs' arguments we find their breach of contract claims against Baker to be indistinguishable *336 from their breach of warranty claims against him and, for reasons discussed below, we conclude that both claims are barred by the six-year limitations period.
The plaintiffs' breach of warranty claims against all of the defendants are based on warranties allegedly made by the defendants in 1981, regarding the deductibility of depreciation and interest expenses on the computer equipment. When a contract of warranty relates to an existing fact or event, a party's right to commence an action for breach arises when the contract is made. Stephens, 429 So. 2d at 282-83 (citing Vilord v. Jenkins, 226 So. 2d 245, 247 (Fla.Dist.Ct.App.1969)). However, when the warranty relates to a future fact or event, a party's right to commence an action does not arise until the happening or failure of that event. Id.
The plaintiffs argue that the defendants' warranties regarding the legality of tax deductions related to the computer equipment were warranties regarding future events, specifically, the recognition of those deductions in future years and the approval of those deductions by the IRS. They contend the six-year period of limitations applicable to their breach of warranty claims began to run in 1986 when the IRS disallowed their deductions.
The warranties regarding tax liability were based on the Internal Revenue Code as it existed in 1981. For this reason, we conclude that the warranties related to existing facts, and, if erroneous, were erroneous when they were made, in 1981. Accordingly, the limitations period applicable to the plaintiffs' breach of warranty claims began to run in 1981. Stephens, 429 So. 2d at 282.
Although we sympathize with the plaintiffs' difficulties in discovering the alleged breach of warranty in 1981, we believe that they had ample opportunity to pursue other theories of recovery before 1991, when this action was filed. Because the plaintiffs did not file their breach of warranty claims until 1991, the statute of limitations barred those claims, and the trial court's judgment for the defendants as to those claims was proper.
AFFIRMED.
MADDOX, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The plaintiffs offer no explanation for their delay in filing this action.
[2] The returns for 1985 were filed on April 15, 1986.
[3] See Davis & Cox v. Summa Corp., 751 F.2d 1507 (9th Cir. 1985); Intermedics, Inc., 683 S.W.2d at 842; Gaylord Hospital v. Massaro, 5 Conn.App. 465, 499 A.2d 1162 (1985); Singer Co., Link Simulation Syst. Division v. Baltimore Gas & Elec. Co., 79 Md.App. 461, 558 A.2d 419 (1989); Pioneer Roofing Co. v. Mardian Construction Co., 152 Ariz. 455, 733 P.2d 652 (Ariz. App.1986); Annotation, Running of Statute of Limitations Against a Claim for Services Rendered Over Extended Period Under Indefinite Employment Not Fixing Time For Payment, 7 A.L.R.2d 198 (1949). In such cases, a breach does not accrue, and the statutory period of limitations does not begin to run, until all services have been performed. Intermedics, Inc., 683 S.W.2d at 845; Gaylord Hospital, 5 Conn. App. at 468-69, 499 A.2d at 1163-64; Pioneer Roofing, 152 Ariz. at 463, 733 P.2d at 660; Cass, 753 S.W.2d at 685.
[4] See Continental Casualty Ins. Co. v. McDonald, 567 So. 2d 1208 (Ala.1990) (worker's compensation action); City of Birmingham v. Cochrane Roofing & Metal Co., 547 So. 2d 1159 (Ala.1989) (malpractice action against architect); Moore v. Averi, 534 So. 2d 250 (Ala.1988) (medical malpractice action); Garrett v. Raytheon Co., 368 So. 2d 516, 521 (Ala. 1979) (products liability action).
[5] The claims related to Johnston and JJW's preparation and review of the plaintiffs' 1985 tax returns are not before this Court on this appeal. | June 11, 1993 |
35db9aa5-b9d7-4c32-b86a-ea54f8422e62 | Fina Oil and Chemical Co. v. Hood | 621 So. 2d 253 | 1910752 | Alabama | Alabama Supreme Court | 621 So. 2d 253 (1993)
FINA OIL AND CHEMICAL COMPANY
v.
Rachel HOOD, as executrix of the Estates of Doyle Chism and Norma Chism, deceased.
1910752.
Supreme Court of Alabama.
May 14, 1993.
*254 D. Coleman Yarbrough, Montgomery, for appellant.
G.A. Lindsey and Debbie L. Jared, Elba, and Paul A. Young, Jr., Enterprise, for appellee.
ALMON, Justice.
The defendant, Fina Oil and Chemical Company, appeals from a judgment entered on a jury verdict in favor of the plaintiffs, Doyle and Norma Chism (husband and wife), in their malicious prosecution action.[1] The jury awarded damages totalling $3,500,000. Fina raises several issues on appeal. Because we reverse and render a judgment based on the primary issue raisedwhether Fina had probable cause to institute and continue the actions giving rise to the malicious prosecution action we pretermit discussion of the other issues.
The facts leading up to this dispute are as follows:
The Chism Transportation Company, Inc. ("the Corporation"), was founded by Doyle Chism. Through the Corporation Chism owned and operated the Chism Truckstop in Ozark, Alabama.[2] Before 1981, Chism owned all the stock in the Corporation and controlled its activities. In 1981, Chism transferred the stock in the Corporation to four persons: Steve Czarnecki, Patty Czarnecki, Charles Mitchell, and Betty Mitchell.[3] Chism, however, retained the right to vote the stock and to repurchase the stock on demand.
In January 1982, a Fina representative, Tony Njirich, met with Charles Mitchell and Steve Czarnecki at the truckstop about the possibility of the Corporation's becoming a Fina distributor. At a later meeting, Njirich informed Czarnecki and Mitchell that Fina would need financial statements and personal guaranties from the corporate officers and anyone else who was significantly involved in the Corporation. Czarnecki and Mitchell produced their own financial statements, as well as Doyle Chism's financial statement, from the safe at the truckstop and gave them to Njirich.
On February 9, 1982, Njirich returned to the truckstop with personal guaranties to be signed by Mitchell, Czarnecki, and Doyle Chism. Mitchell and Czarnecki were present at that meeting, and they signed the *255 guaranties, which were then notarized by Betty Mitchell. Doyle Chism was not present at that time, but Mitchell and Czarnecki offered to take the guaranty to him and obtain his signature on the document. Njirich told Mitchell and Czarnecki that this course of action might not be satisfactory, because Chism's guaranty would have to be notarized in order to be valid. Czarnecki assured Njirich that he was a notary, and that he would notarize the guaranty. It is now undisputed that Czarnecki then left the truckstop, forged Doyle Chism's name on the guaranty, notarized the guaranty, and returned it to Njirich that same day.
Fina presented evidence that, on February 26, 1982, it sent a letter confirming its receipt of Doyle Chism's personal guaranty to his post office box and included a copy of the guaranty. Chism testified at trial that he never received the letter; Fina argues that the reason Chism never received the letter was that it was intercepted by someone at the truckstop. Chism testified that he received his mail at the truckstop's post office box and that some of his mail was intercepted during this period. On August 27, 1982, Fina sent a letter to Doyle Chism notifying him that the Corporation's account was delinquent in the amount of $494,912.21 and reminding him that he was liable for that amount as the personal guarantor of the debt. The receipt for this letter, which was sent to the truckstop's post office box by certified mail, was signed by Louise Chism, Doyle's sister-in-law, who, Doyle testified, worked at the truckstop "to keep an eye out for [Doyle's] interests." Doyle Chism testified that he never received the letter.
There was evidence that, in October 1982, Doyle Chism received a telephone call at his home from a Fina representative concerning the debt and his liability therefor as personal guarantor. During this conversation, Chism said, he denied ever signing a guaranty and declared that he was not liable for any debts owed to Fina by the Corporation.
The Corporation filed a Chapter 11 bankruptcy petition on November 3, 1982. On November 12, 1982, Fina, acting on the advice of counsel, brought an action against Doyle Chism in a federal district court to collect the overdue debt. About the same time, six other oil companies brought similar actions against Chism. The oil companies conducted settlement negotiations with Chism and his wife Norma, during which, according to the testimony of a lawyer who represented one of the other oil company plaintiffs, the Chisms offered to consent to a judgment against them on condition that the plaintiffs would not collect the judgment so long as the Corporation continued to make payments under its reorganization plan. In order to obtain a judgment against Norma Chism under this anticipated settlement, the lawyer testified, Fina amended its complaint on April 22, 1983, to add Norma Chism as a party defendant.[4] The Chisms apparently later withdrew their offer, although the district judge's secretary entered a notation indicating that the case had been settled.[5]
Doyle and Norma Chism filed for bankruptcy relief under Chapter 11 on August 23, 1983. In the bankruptcy petition, they disputed approximately $1,800,000 in unsecured debts to the various oil companies. The collection action in the federal district court was stayed. In the Chisms' bankruptcy proceeding, the oil companies filed proofs of claim in accordance with the Bankruptcy Code, and the Chisms objected to the claims.
At the trial to determine the validity of the claims, the oil company claimants advanced three theories of recovery: 1) that Doyle Chism was liable for the debts of the *256 Corporation by virtue of the alleged personal guaranties;[6] 2) that he was liable for the Corporation's debts on an alter ego or instrumentality theory; and 3) that the settlement purportedly entered into by the oil companies and Doyle and Norma Chism was binding on the parties.
On July 19, 1985, Judge Rodney Steele of the Bankruptcy Court for the Middle District of Alabama issued an opinion denying recovery to the oil companies. Judge Steele found that the guaranties had been forged by Czarnecki and were therefore not binding on Doyle Chism. Judge Steele also found that no written settlement was introduced into evidence by the parties; he held that Alabama law precluded enforcement of any alleged settlement under these circumstances. Finally, Judge Steele found that there was no "creditable" evidence that Doyle Chism had utilized the corporate structures of the Corporation to evade his personal obligations or to perpetrate a fraud; he then held that Chism was not liable under an alter ego or instrumentality doctrine under Alabama law.
Fina filed a motion for j.n.o.v. or a new trial, again arguing that Chism should be held liable under the alter ego or instrumentality theory because of the control he continued to exercise over the Corporation after he had transferred the stock. Judge Steele denied Fina's motion, holding that although Chism did exercise considerable influence over the Corporation, he did not control the Corporation, and that in any event there was no causal connection between any control exercised by Chism and the injustice claimed by the oil companies. Fina appealed from Judge Steele's decision to the federal district court; the district court affirmed Judge Steele's decision on May 5, 1986. On June 23, 1986, Fina voluntarily dismissed the original debt collection action filed in the federal district court.
The Chisms brought the present malicious prosecution action in the Coffee County Circuit Court on May 22, 1987. Although they initially named several defendants, they dismissed all the defendants except Fina before trial. The jury returned a verdict awarding Doyle Chism $2,500,000 and a verdict awarding Norma Chism $1,000,000. The trial court entered a judgment on the verdicts.
The action of malicious prosecution is not favored in the law. In Eidson v. Olin Corp., 527 So. 2d 1283 (Ala.1988), this Court stated:
527 So. 2d at 1284. See also Lynch v. Greentree Acceptance, Inc., 575 So. 2d 1068 (Ala.1991); Alabama Power Co. v. Neighbors, 402 So. 2d 958 (Ala.1981).
In order to succeed in a malicious prosecution action, a plaintiff must prove that a prior judicial proceeding was instigated by the present defendant without probable cause and with malice; that the prior proceeding ended in favor of the present plaintiff; and that the present plaintiff was damaged thereby. Lumpkin v. Cofield, 536 So. 2d 62 (Ala.1988).
Fina's primary argument is that the Chisms failed to prove that Fina lacked probable cause to bring the actions to collect the debt in the federal district court and the bankruptcy court. It contends that it was fully justified in attempting to collect the debt based on an apparently signed and notarized guaranty that was regular on its face and based on its other theories of recovery presented in the bankruptcy court.
*257 This Court has defined the term "probable cause" on numerous occasions. In Eidson, supra, the Court characterized the term as follows:
527 So. 2d at 1285 (emphasis in Eidson). In Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So. 2d 555 (1959), this Court defined probable cause in a malicious prosecution action where the underlying action was civil in nature:
269 Ala. at 553, 114 So. 2d at 558. Furthermore, it is clear from our cases that the existence of probable cause is to be judged in light of the facts as they appeared when the underlying action was filed. Eidson, supra; Hanson v. Couch, 360 So. 2d 942 (Ala.1978).
Fina is correct in arguing that the plaintiff in a malicious prosecution action bears the difficult burden of proving that the defendant lacked probable cause for bringing the underlying action. In Eidson, we stated:
527 So. 2d at 1285. Therefore, the Chisms had to prove that Fina could not have "reasonably believe[d] that" its attempt to collect the debt either in the federal district court or in the bankruptcy court would be "held valid upon adjudication." Boothby, supra.
If the facts relating to a determination of probable cause are undisputed, the question of probable cause is one of law for the court and is not an issue for the jury to decide. Gulf States Paper Corp. v. Hawkins, 444 So. 2d 381 (Ala.1983).
It is undisputed that Fina received a notarized document that appeared to be signed by Doyle Chism, purporting to guarantee payment of debts incurred by Chism Transportation for Fina products. With the exception of a minor omission,[7] the document was regular on its face. It is also clear from the record that Fina sent two letters, at least one by certified mail, to the truckstop's post office box, notifying Doyle Chism of the guaranty and the debt. Moreover, although it is disputed, we will assume for purposes of this appeal that Doyle Chism told a Fina representative in the October 1982 telephone conversation that he had not signed the guaranty.[8] Even assuming that Fina possessed this information, it had probable cause to bring the action in the federal court some weeks later to collect the debt. To hold that a creditor is foreclosed from instituting an action to collect a debt for which it holds an apparently signed, notarized guaranty, simply because the apparent guarantor denies liability for the debt, is not supported by law or reason. See Liberty Loan Corp. of Gadsden v. Mizell, 410 So. 2d 45 (Ala.1982).
*258 Moreover, Fina had the legal right to litigate its claim in the bankruptcy court, and we reject the argument that Fina should have abandoned its claim once Czarnecki testified in the bankruptcy proceedings that he had forged the guaranty. At that stage in the proceedings, Fina had the right to have a court of law determine whether Czarnecki was telling the truth; Fina also had the right to have the court rule on its other theories of recovery. Judge Steele found that Czarnecki had forged the guaranty, and he denied relief to Fina on the other theories of recovery. Fina then unsuccessfully appealed to the federal district court, and upon receiving an unfavorable ruling in that court it dismissed the underlying collection action. The fact that Fina was ultimately unsuccessful on its claims does not mean that it lacked probable cause to bring them in the first place. Cf. Empiregas Inc. of Elberta v. Feely, 524 So. 2d 626 (Ala.1988) (lack of probable cause shown where the malicious prosecution defendant brought the collection action after learning that the statutory period of limitations had run and knowing that its claim was meritless); First Shelby Nat'l Bank v. Mitchell, 406 So. 2d 959 (Ala. Civ.App.1981) (lack of probable cause shown where the defendant bank attempted to seize property in which it held a security interest even though it knew or should have known that its rights in the property were by law inferior to the plaintiff's). To hold otherwise would be to undermine the well-established policy of disfavoring actions for malicious prosecution.
Although she did not address this issue in her brief, the Chisms' executrix (see note 1) urged in oral argument that Fina should have engaged in a "reasonable inquiry" into the circumstances surrounding the procurement of the guaranty. She cites no authority for this supposed requirement, and the evidence in this case does not support the imposition of such a requirement.
The evidence shows simply that Czarnecki and perhaps others at the truckstop defrauded both Chism and Fina. Until the bankruptcy court's determination and the affirmance by the federal district court, it was not known whether Chism had in fact signed the guaranty or whether Fina might recover the debt from the Chisms on its other theories. Six other oil companies took the same position as Fina under similar guaranties and under all the circumstances. As a matter of law, the plaintiffs failed to prove that Fina lacked probable cause to bring the debt collection action or the claims in the bankruptcy action. Therefore, the trial court erred in denying Fina's motion for j.n.o.v. The judgment is accordingly reversed, and a judgment is hereby rendered in favor of Fina.
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] Norma Chism died before the trial of this action and Doyle Chism died shortly after the trial. Rachel Hood is the executrix of their estates; the trial court substituted her for each of them as plaintiff.
[2] Another corporation, Chism Truck Center, Inc., was also involved in the operation of the truckstop, but we shall omit reference to it because Fina extended credit to Chism Transportation, Inc., and because no issue is presented as to the different functions of the two corporations.
[3] The Czarneckis are the Chisms' daughter and son-in-law, and the Mitchells appear from the record to be long-time employees of the truckstop.
[4] In her deposition, Norma Chism was asked, "You were added to the Fina suit as a defendant only after the settlement attempt in which you were involved with all the oil companies, for lack of a better term, went sour, is that not right?" She answered, "Right." Thus, she admitted her involvement in the negotiations.
[5] The bankruptcy judge's order, infra, includes the following: "[W]e cannot conclude that the notation by a United States District Judge's secretary that a matter is `settled' is any written proof of the settlement or the terms of the settlement."
[6] Doyle Chism's name had apparently been placed on similar guaranties to the other oil company claimants.
[7] The space is left blank on the notarization of the guaranty where Doyle Chism's name was to be typed. However, this was also true of the guaranties signed by Mitchell and Czarnecki.
[8] This fact is disputed. Chism admitted that he was not sure if it was a Fina representative who had called him in October 1982, or a representative from another oil company. This uncertainty is understandable, for in November 1982 Doyle Chism was sued by six other oil companies on similar guaranties. | May 14, 1993 |
ef51f841-8e76-4cda-84be-dbcc5d8859fb | Harrison v. Bird | 621 So. 2d 972 | 1920327 | Alabama | Alabama Supreme Court | 621 So. 2d 972 (1993)
Katherine Crapps HARRISON
v.
Mae S. BIRD, as administratrix of the Estate of Daisy Virginia Speer, deceased.
1920327.
Supreme Court of Alabama.
May 28, 1993.
Wayne P. Turner, Montgomery, for appellant.
John Oliver Cameron of Cameron & Cameron, Montgomery, for appellee.
HOUSTON, Justice.
The proponent of a will appeals from a judgment of the Circuit Court of Montgomery County holding that the estate of Daisy Virginia Speer, deceased, should be administered as an intestate estate and confirming the letters of administration granted by the probate court to Mae S. Bird.
The following pertinent facts are undisputed:
Daisy Virginia Speer executed a will in November 1989, in which she named Katherine Crapps Harrison as the main beneficiary of her estate. The original of the will was retained by Ms. Speer's attorney and a duplicate original was given to Ms. Harrison. On March 4, 1991, Ms. Speer telephoned her attorney and advised him that she wanted to revoke her will. Thereafter, *973 Ms. Speer's attorney or his secretary, in the presence of each other, tore the will into four pieces. The attorney then wrote Ms. Speer a letter, informing her that he had "revoked" her will as she had instructed and that he was enclosing the pieces of the will so that she could verify that he had torn up the original. In the letter, the attorney specifically stated, "As it now stands, you are without a will."
Ms. Speer died on September 3, 1991. Upon her death, the postmarked letter from her attorney was found among her personal effects, but the four pieces of the will were not found. Thereafter, on September 17, 1991, the Probate Court of Montgomery County granted letters of administration on the estate of Ms. Speer, to Mae S. Bird, a cousin of Ms. Speer. On October 11, 1991, Ms. Harrison filed for probate a document purporting to be the last will and testament of Ms. Speer and naming Ms. Harrison as executrix. On Ms. Bird's petition, the case was removed to the Circuit Court of Montgomery County. Thereafter, Ms. Bird filed an "Answer to Petition to Probate Will and Answer to Petition to Have Administratrix Removed," contesting the will on the grounds that Ms. Speer had revoked her will.
Thereafter, Ms. Bird and Ms. Harrison moved for summary judgments, which the circuit court denied. Upon denying their motions, the circuit court ruled in part (1) that Ms. Speer's will was not lawfully revoked when it was destroyed by her attorney at her direction and with her consent, but not in her presence, see Ala.Code 1975, § 43-8-136(b); (2) that there could be no ratification of the destruction of Ms. Speer's will, which was not accomplished pursuant to the strict requirements of § 43-8-136(b); and (3) that, based on the fact that the pieces of the destroyed will were delivered to Ms. Speer's home but were not found after her death, there arose a presumption that Ms. Speer thereafter revoked the will herself. However, because the trial court found that a genuine issue of material fact existed as to whether Ms. Harrison had rebutted the presumption that Ms. Speer intended to revoke her will even though the duplicate was not destroyed, it held that "this issue must be submitted for trial."
Subsequently, however, based upon the affidavits submitted in support of the motions for summary judgment, the oral testimony, and a finding that the presumption in favor of revocation of Ms. Speer's will had not been rebutted and therefore that the duplicate original will offered for probate by Ms. Harrison was not the last will and testament of Daisy Virginia Speer, the circuit court held that the estate should be administered as an intestate estate and confirmed the letters of administration issued by the probate court to Ms. Bird.
If the evidence establishes that Ms. Speer had possession of the will before her death, but the will is not found among her personal effects after her death, a presumption arises that she destroyed the will. See Barksdale v. Pendergrass, 294 Ala. 526, 319 So. 2d 267 (1975). Furthermore, if she destroys the copy of the will in her possession, a presumption arises that she has revoked her will and all duplicates, even though a duplicate exists that is not in her possession. See Stiles v. Brown, 380 So. 2d 792 (Ala.1980); see, also, Snider v. Burks, 84 Ala. 53, 4 So. 225 (1887). However, this presumption of revocation is rebuttable and the burden of rebutting the presumption is on the proponent of the will. See Barksdale, supra.
Based on the foregoing, we conclude that under the facts of this case there existed a presumption that Ms. Speer destroyed her will and thus revoked it. Therefore, the burden shifted to Ms. Harrison to present sufficient evidence to rebut that presumptionto present sufficient evidence to convince the trier of fact that the absence of the will from Ms. Speer's personal effects after her death was not due to Ms. Speer's destroying and thus revoking the will. See Stiles v. Brown, supra.
From a careful review of the record, we conclude, as did the trial court, that the evidence presented by Ms. Harrison was not sufficient to rebut the presumption that Ms. Speer destroyed her will with the intent *974 to revoke it. We, therefore, affirm the trial court's judgment.
We note Ms. Harrison's argument that under the particular facts of this case, because Ms. Speer's attorney destroyed the will outside of Ms. Speer's presence, "[t]he fact that Ms. Speer may have had possession of the pieces of her will and that such pieces were not found upon her death is not sufficient to invoke the presumption [of revocation] imposed by the trial court." We find that argument to be without merit.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | May 28, 1993 |
549f981d-a1f4-489b-9323-6862d22031f2 | Ex Parte Jones | 628 So. 2d 316 | 1920249 | Alabama | Alabama Supreme Court | 628 So. 2d 316 (1993)
Ex parte Bruce M. JONES.
(Re Bruce M. JONES
v.
Charles S. CALDWELL III and Automatic Detection Systems, Inc.)
1920249.
Supreme Court of Alabama.
July 16, 1993.
*317 C. Lee Reeves of Sirote & Permutt, P.C., Birmingham, for petitioner.
George G. Lynn and Thomas W. Thagard III of Maynard, Cooper, Frierson & Gale, P.C., Birmingham, for respondents.
KENNEDY, Justice.
This mandamus proceeding stems from a lawsuit involving a dispute over a stock purchase agreement between the plaintiff/petitioner, Bruce M. Jones, and the defendant/respondent Charles S. Caldwell III. Jones seeks a writ of mandamus requiring the Jefferson County Circuit Court to set aside its order directing arbitration as to some of Jones's claims. We grant the writ.
Caldwell is the majority shareholder and president of Automatic Detection Systems, Inc. ("ADS"). ADS is an Alabama corporation that sells, installs, maintains, and monitors security system equipment. ADS is also a defendant in the underlying action.
Jones owned all of the stock in another Alabama corporation, Birmingham Protection Systems, Inc. ("BPS"). In November 1990, Caldwell, individually, entered into a stock purchase agreement with Jones. Under the agreement, Jones, as the sole stockholder of BPS, was to sell Caldwell his BPS stock. This agreement contained an arbitration provision requiring that disputes regarding the stock agreement be arbitrated. Later, such disputes arose and Jones sued.[1]
The trial court ordered arbitration. At issue in this mandamus proceeding is whether the stock purchase agreement "involves interstate commerce," and thus, invokes the Federal Arbitration Act, which would render the arbitration provision in the contract enforceable.
Predispute arbitration agreements are unenforceable under Alabama law. Ala. Code 1975, § 8-1-41. If, however, an arbitration agreement was voluntarily entered into, and relates to a contract involving interstate commerce, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA") applies, and preempts Alabama law. See Ex parte Alabama Oxygen Co., 433 So. 2d 1158 (Ala.1983) (Maddox, J., dissenting), review after remand from United Supreme Court, 452 So. 2d 860 (Ala.1984) (adopting views expressed in Justice Maddox's original dissent); A.G. Edwards & Sons, Inc. v. Syvrud, 597 So. 2d 197 (Ala.1992). Under the FAA, a predispute arbitration agreementin the context of a contract involving interstate commerceis enforceable. Id.
At the outset, we note that ADS was not a party to the stock purchase agreement. Thus, ADS has no standing to seek enforcement of the arbitration provision therein, and it would be error for the trial court to compel arbitration of claims against ADS, under this arbitration provision. We do not necessarily read the trial court's order to so require, but we address this question nonetheless, because the parties suggest that they so read the trial court's order.
We turn to the dispositive issue before us, whether the agreement between Caldwell and Jones involved "interstate commerce." In this regard, Caldwell, citing Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272, 1275 (Ala.1986), argues that even the "slightest nexus" of an agreement with interstate commerce will bring the agreement within the scope of the FAA. See Ex parte Brice Building Co., 607 So. 2d 132 (Ala. 1992). Caldwell discusses, in this regard, ADS and BPS's interstate connections outside the agreement. Caldwell concedes that the stock purchase agreement between himself and Jones makes no reference to any interstate matters. However, for the FAA to apply, the agreement that contains the predispute arbitration provision must involve interstate commerce.
Our review of the record indicates that the agreement relates to the sale of all the stock in an Alabama corporation (located solely within Alabama), between two Alabama businessmen, negotiating within Alabama to create an agreement consisting of duties and obligations to be performed within *318 Alabama. Based on these facts, we hold that the FAA does not apply.
Although one could reasonably conclude that the agreement had not even the "slightest nexus" with interstate commerce, we reach our holding by applying the standard set out in Ex parte Warren, 548 So. 2d 157 (Ala.1989), for determining whether a contract involves interstate commerce, rather than the Costa "slightest nexus" standard. The Warren standard is "[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 Metro Industrial Painting Corp. v. Terminal Constr. Co., 287 F.2d 382, 387 (2d Cir.1961) (emphasis in Metro), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961).
In Warren the Court declined to apply the Costa "slightest nexus" standard and implicitly overruled it in a "narrow" set of circumstances. Warren, 548 So. 2d at 160. Warren, which involved a retail automobile sales contract, had a very limited applicability, as was indicated by the Warren opinion itself and as subsequent cases suggested. Noting this, we observed in Ex parte Brice Bldg. Co., 607 So. 2d 132 (Ala.1992):
607 So. 2d at 134. (Emphasis original.)
To resolve any inconsistency or confusion generated by the existence of two different standards, and determining, as we now do, that Warren represents a more reasoned approach than the Costa standard, we overrule any case inconsistent with Warren, to the extent that it states a different standard for determining the involvement of interstate commerce.
In this case, because the FAA does not apply, Alabama law renders the arbitration provision unenforceable. Ala.Code 1975, § 8-1-41; Wells v. Mobile County Bd. of Realtors, Inc., 387 So. 2d 140 (Ala.1980).
WRIT GRANTED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
MADDOX and INGRAM, JJ., dissent.
MADDOX, Justice (dissenting).
I respectfully dissent. I disagree with the majority as to the applicable test for determining whether a transaction involves interstate commerce for purposes of the FAA. I also believe that the stock purchase agreement containing an arbitration clause involves interstate commerce and, therefore, that the trial court properly granted the motion to compel arbitration.
In determining whether a transaction involves interstate commerce, I believe that the "slightest nexus" test set forth in Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala.1986), and not the "contemplation" test set forth 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), provides the proper analysis. See Warren, 548 So. 2d at 160-63 (Maddox, J., dissenting). Although the majority concludes "that Warren represents a more reasoned approach than the Costa standard," 628 So. 2d at 318, the majority also recognizes that Warren "had a very limited applicability, as was indicated by the Warren opinion itself and as subsequent cases suggested." 628 So. 2d at 318.
Indeed, Warren's "contemplation" test has been applied in only two contextsthose involving automobile sales contracts between dealers and consumers, see Warren and Ex parte Williams, 555 So. 2d 146 (Ala.1989), and those, like this present case, involving stock purchase agreements. See Ex parte Clements, *319 587 So. 2d 317 (Ala.1991). That this Court has applied the "contemplation" test sparingly indicates "that Warren has a `narrow application.'" Ex parte Brice Building Co., 607 So. 2d 132, 134 (Ala.1992) (quoting in part Roscoe v. Jones, 571 So. 2d 1043, 1046 (Ala.1990)). In contrast, in addition to cases involving construction contract disputes, such as Brice Building Co., this Court has also recently applied the "slightest nexus" test in a number of other contexts. See First Real Estate Corp. of Alabama, Inc. v. Brown Marx Tower Ltd., 620 So. 2d 648 (Ala.1993) (real estate management agreement); Circle "S" Industries, Inc. v. Berryman, 613 So. 2d 329 (Ala.1993) (consent judgment involving agreement not to compete); Garikes, Wilson, & Atkinson, Inc. v. Episcopal Foundation of Jefferson County, Inc., 614 So. 2d 447 (Ala. 1993) (contract for architectural services); and A.J. Taft Coal Co. v. Randolph, 602 So. 2d 395 (Ala.1992) (mining lease).
Because this Court had already adopted the "slightest nexus" test in Costa & Head, its adoption of the "contemplation" test in Warren has been criticized as "creating a double standard." Stanley D. Bynum & J. David Pugh, Enforcing Arbitration Agreements in Alabama: A Double Standard Dilemma, 54 Ala.Law. 38, 43 (January 1993). Bynum and Pugh wrote that Costa & Head "brought Alabama law generally in line with the majority of other jurisdictions" but that Warren "is inconsistent with all other jurisdictions that have addressed the issue." Id. at 38-39 and 41. The authors particularly criticized Warren's "contemplation" test for its subjectivity. Id. at 43.
I do not think that the United States Supreme Court's denial of the petition for certiorari in Warren should be viewed as that Court's imprimatur of the "contemplation" test, because a denial of a petition for certiorari review has no significance in regard to the merits. Parker v. Ellis, 362 U.S. 574, 576, 80 S. Ct. 909, 911, 4 L. Ed. 2d 963 (1960).[2]
Based on the foregoing, I believe that the "slightest nexus" test gives more effect to Congress's intent in enacting the FAA, which was "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, 2525-26, 96 L. Ed. 2d 426 (1987). I am unwilling to overrule recent, well-reasoned cases applying the test this Court adopted in Costa & Head.
Regarding whether the arbitration agreement in this case is enforceable, I note that "[a]rbitration clauses contained in contracts involving stock purchases are enforceable." Warren, 548 So. 2d at 161 n. 2 (Maddox, J., dissenting) (citing Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987)). I believe that the stock purchase agreement in this case had at least the "slightest nexus" with interstate commerce, so that the arbitration agreement is specifically enforceable pursuant to the FAA. Consequently, I must respectfully dissent.
INGRAM, J., concurs.
[1] There are also disputes between the parties as to an "independent consulting agreement" between ADS and Jones, but the issues here relate solely to the trial court's order requiring the arbitration of claims arising under the stock purchase agreement.
[2] For example, last year the United States Supreme Court denied a petition for certiorari review raising the issue of whether the principle of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), applies to gender-based peremptory strikes, Murphy v. State, 596 So. 2d 42 (Ala.Cr.App.1991), cert. denied, ___ U.S. ___, 113 S. Ct. 86, 121 L. Ed. 2d 49 (1992), but in another case that Court has recently granted a certiorari petition raising the same issue. J.E.B. v. State, 606 So. 2d 156 (Ala.Civ.App.1992), cert. granted, ___ U.S. ___, 113 S. Ct. 2330, 124 L. Ed. 2d 242 (1993). | July 16, 1993 |
a3f729ab-2ab9-4577-aaa3-51e6665c57f6 | Shearry v. Sanders | 621 So. 2d 1307 | 1911839 | Alabama | Alabama Supreme Court | 621 So. 2d 1307 (1993)
Luke SHEARRY and J.C. Summers
v.
Cleveland SANDERS.
1911839.
Supreme Court of Alabama.
June 4, 1993.
*1308 Guy F. Gunter III of Melton, Gunter & Melton, Opelika, for appellants.
C.S. Whittelsey of Whittelsey, Whaley & Whittelsey, P.C., Opelika, for appellee.
RICHARD L. JONES, Retired Justice.
Luke Shearry and J.C. Summers, elders of the Southside Church of Christ in Opelika, Alabama, appeal from a declaratory judgment in favor of Cleveland Sanders, the church's minister. We reverse and remand.
Churches of Christ are organized and governed "according to Scripture." Elders, chosen by Biblical standards, oversee the congregation, control the church's money and property, and employ and discharge the minister. The minister has no authority or control over the church or the congregation. Church business is not conducted according to a "majority vote" of the congregation; rather, the elders have the first and final say in all matters.
Because the Southside Church of Christ did not have elders when Cleveland Sanders came to the church as its minister, his one-year employment contract (September 1990August 1991) was signed by several leaders among the "brethren" of the congregation. Shearry and Summers were ordained and installed as Southside's elders in June 1991.
Sanders's employment contract expired on the last Sunday in August 1991, and the elders gave Sanders a deadline for signing a new contract. Sanders refused to sign the contract, which named the elders as the employing parties instead of the "male brethren" of the congregation; therefore, the elders gave Sanders a deadline for "vacating the pulpit" and removing his possessions from the Southside minister's home. After that deadline, however, Sanders continued to live in the home and continued to preach at Southside, and the church treasurer continued to pay Sanders's salary, over the elders' objections.
Sanders requested a "congregational meeting" on September 21, 1991, which was attended by "30 to 35" of the 162 active members of Southside. At that meeting, Sanders announced from the pulpit that Shearry and Summers had been impeached and removed as Southside's elders. Because of deepening differences at Southside, a committee of Church of Christ ministers and elders from around Alabama met with Sanders, Shearry, Summers, and Southside's deacons in an attempt at conciliation.
In November 1991, the committee made its report and recommendations to Sanders, Shearry, Summers, and the deacons. The committee reminded them that 1) once a Church of Christ ordains elders, the elders "determine the expedient needs of the congregation" and are the "overseers" of the church; 2) there is no congregational or "democratic" vote in the Church of Christ; and 3) a Church of Christ minister does not have the authority to impeach an elder, but is, like the other members of the church, "under the oversight of the elders."
The committee concluded its report:
The elders and deacons accepted the committee's report and recommendations, and Sanders agreed to announce to the congregation that he would recognize Shearry and Summers as the church's elders and that he would submit himself to their oversight. Instead, in a written statement distributed to the congregation in December 1991, Sanders publicly repudiated the committee's report and recommendations and refused to submit to the authority of the elders.
On January 17, 1992, Shearry and Summers sued for injunctive relief in the Lee County Circuit Court. The court conducted two hearings at which "numerous witnesses" testified. In an order dated March 11, 1992, it held that the authority for all church matters rested in the elders, and in that order it granted the relief sought, by 1) enjoining Sanders from transacting business on behalf of the church; 2) enjoining Sanders from performing services as minister of the church; 3) directing Sanders to vacate the minister's home; and 4) enjoining Sanders from using any real or personal property of the church.
On Saturday, March 7, 1992 (after the hearings but before the trial court's judgment), Sanders convened a meeting of 27 members of Southside. Shearry and Summers were not notified of the meeting. The church secretary testified that those attending the meeting voted to "disfellowship" the elders.
On Sunday, March 8, 1992, during the morning worship service, it was announced that a "congregational meeting" would be held immediately after the service. No purpose was given for the meeting, but the minutes of the meeting state that "the church matter to be heard was that of notifying Luke Shearry and J.C. Summers that the church was withdrawing fellowship from them because of their willful and persistent violation of scripture in taking Bro. Cleveland Sanders to court." (Emphasis supplied.) Summers attended the meeting, but Shearry did not. On the evening of March 8the day after they had been "disfellowshipped" by a "consensus of the church"Shearry and Summers received copies of the minutes of the March 7 and 8 meetings.
On March 18, 1992, on Sanders's post-judgment motion, and after conducting another hearing, the court set aside its March 11, 1992, order of injunctive relief and entered a declaratory judgment in favor of Sanders, declaring that Shearry and Summers were no longer elders at Southside. The court based its judgment on the proposition that Shearry and Summers had been removed as Southside's elders and that "sufficient due process rights [had] been afforded [Shearry and Summers] to render their removal as elders legally sufficient." Shearry and Summers have appealed from this final judgment.
In their brief to this Court, Shearry and Summers contend that the single issue for review is "whether the elders of Southside Church of Christ of Opelika have been removed from office in accordance with the *1310 tranditional discipline, customs, teachings, and usages of a Church of Christ." In essence, the appellants contend that the trial court's initial judgment granting the requested injunctive relief was correct, and that its order setting aside that judgment and entering a declaratory judgment for Sanders is erroneous, whether judged by the standard of the church's doctrines and procedural rules or by the standard of basic due process.
Sanders's only defense of the trial court's final judgment in his favor is his contention that Summers's attendance at the Sunday, March 8, 1992, congregational meeting satisfied the requisites of due process and thus validated the "disfellowshipping" of Summers. Therefore, contends Sanders, "[b]y the removal of one of the two existing elders, the Southside Church of Christ ... effectively removed ALL Elders in that a Church of Christ can have no elders unless there be at least two." (Emphasis in original.)
While Sanders's contention is flawed for several reasons, one reason is readily apparent: The removal action taken by Sanders and his supporters was accomplished on the evening of Saturday, March 7, 1992, without any notice to either of the elders. The minutes of the two meetings (Saturday, March 7, and Sunday, March 8) clearly reflect that the purpose of Saturday's meeting was the removal of the two elders and that the purpose of the Sunday congregational meeting was to inform the elders and the congregation that this action had been taken. The removal action was supposedly accomplished at the Saturday, March 7, meeting, and Summers was notified of that action during the meeting following the worship service on Sunday, March 8.
Moreover, even assuming that the Sunday meeting could be interpreted as a verification of the attempted removal that had occurred on the day before, the basic elements of due process as prescribed by the church's own rules were not complied with. According to the testimony of the appellants' "expert witnesses" (ministers of other Churches of Christ), when members of a church are attempting to remove elders, proper process requires that the members follow an established procedure intended to protect the elders' rights to due process. This procedure requires 1) that the elders be given written notice and specification of the charges before any meeting regarding the charges; 2) that the elders be given an opportunity to be heard; 3) that two or three witnesses be called to substantiate the charges; 4) that the elders be given an opportunity to confront the accusers; and 5) that the elders be given the opportunity to present evidence in their own behalf, including calling witnesses to testify.
Although we have found no Alabama cases dealing directly with the structural and procedural rules for governing a Church of Christ congregation, the appellants have favored the Court with several authorities from other jurisdictions that support our reversal in this case. See, e.g., Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988) (Supreme Court of Arkansas refused to apply state corporation laws regarding inspection of corporate records that would infringe upon the doctrine of the Church of Christ); Church of Christ at Centerville v. Carder, 105 Wash. 2d 204, 713 P.2d 101 (1986) (Supreme Court of Washington refused to accept "majority vote" dismissing the elders because the church members had failed to follow the church's procedural rules governing such action); and Stony Island Church of Christ v. Stephens, 54 Ill.App.3d 662, 12 Ill.Dec. 299, 369 N.E.2d 1313 (1977) (court affirmed arbitrators' finding that Church of Christ elders had sole authority to terminate the minister's employment and that his employment had been properly terminated according to established church procedures).
Furthermore, our holding is consistent with this Court's decision in Trinity Presbyterian Church of Montgomery v. Tankersley, 374 So. 2d 861 (Ala.1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980), and the cases cited *1311 therein.[2] Accordingly, the judgment appealed from is reversed, and this cause is remanded with instructions to reinstate the order of March 11, 1992, granting the injunctive relief sought by Shearry and Summers.
This opinion was prepared by retired Justice Richard L. Jones, sitting as a Justice of this Court pursuant to § 12-18-19(e), Ala. Code 1975, and it is hereby adopted as that of the Court.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON and KENNEDY, JJ., concur.
[1] This Court finds the following portion of the committee's report to be particularly informative regarding the conduct required of a Church of Christ congregation, its elders, its deacons, and its minister:
"Nowhere in the scriptures do we find a minister given the right to impeach an elder or deacon. Impeachment is an American concept concerning the checks and balances of government, not of our Lord's kingdom. The elders at Southside were scripturally appointed. No scriptural reason was given why they should not be ordained. The elders were properly ordained, and therefore remain the elders of the Southside congregation. The mere statement of removal or impeachment does not make it so. Again, the committee urges the congregation, including the four deacons and minister, to serve under the oversight of these two elders. To do otherwise is to violate the plain teachings of our God and Savior."
[2] The appellants have also called the Court's attention to the following statement, which they contend expresses the applicable principle: "Clearly, the civil court will not review acts of church discipline or membership expulsion where there is no question as to the invasion of civil or property rights. However, the court has jurisdiction to review an expulsion from a religious society to determine whether the expelling organization acted in accordance with its own regulations, or to determine whether it acted in accordance with the principles of natural justice...." 66 Am.Jur.2d Religious Societies § 34, p. 785 (1973). | June 4, 1993 |
b4568996-7d62-4a7d-aec8-14fa1514606d | Williamson v. Tyson Foods, Inc. | 626 So. 2d 1261 | 1920752 | Alabama | Alabama Supreme Court | 626 So. 2d 1261 (1993)
Rita WILLIAMSON, as mother and next friend of Nicholas Williamson, a minor; and Rita Williamson, individually
v.
TYSON FOODS, INC., et al.
1920752.
Supreme Court of Alabama.
July 9, 1993.
Rehearing Denied August 27, 1993.
*1262 Leila H. Watson and Susan J. Walker of Johnson & Cory, P.C., Birmingham, for appellant.
Jerry B. Oglesby and Fred Ray Lybrand, Anniston, for Tyson Foods, Inc.
John M. Fraley of McDaniel, Hall, Conerly & Lusk, P.C., Birmingham, for C.T.B., Inc.
INGRAM, Justice.
The plaintiff, Rita Williamson, who sued individually and as mother and next friend of Nicholas Williamson, appeals from a summary judgment entered in favor of the defendants, Tyson Foods, Inc.; C.T.B., Inc.; and Sherrill Smith. Nicholas Williamson was injured when he stuck his finger into a hole in an automatic chicken feeding system that had been manufactured by C.T.B. and that was being used in a chicken house owned by Sherrill Smith, who raised chickens under a contract with Tyson Foods. Rita sought damages on the basis of product liability, a negligent failure to warn, and premises liability.
This Court's review of a summary judgment is limited to the record. Kemp Motor Sales, Inc. v. Lawrenz, 505 So. 2d 377, 379 (Ala.1987). 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. In reviewing a summary judgment, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991).
The record reveals the following facts surrounding the accident: Smith is in the business of raising chickens. He testified in his deposition that, since the early 1980s, he had used the automatic feeders manufactured by C.T.B. The automatic feeders distributed feed along a metal pipe; augers within the pipe forced the feed through holes in the underside of the pipe. The feeders had been manufactured with the holes encircled by a wire cylinder; the cylinder was attached to the feeding pan approximately six inches below the pipe.
Smith testified that he had modified the feeders by drilling additional holes in the bottom of the metal pipe that distributed the feed. The system as modified allowed more feed to come out of the pipes. Smith testified that he used the modified automatic feeder only to feed new chicks, and that after the chicks were seven days old, the extra holes were covered with PVC slides.
In 1989, Smith hired Terry Williamson, Nicholas's father, to work on Smith's chicken farm. Smith furnished Williamson and his family a place to live on his property close to the chicken house where the accident occurred. On the day of the accident, May 14, 1990, another of Smith's employees had told Terry to prepare the chicken house for the receipt of a shipment of day-old chicks. Terry worked that morning preparing the chicken house for the chicks. Terry testified that he went to his house for lunch and brought Nicholas back with him when he returned to work in the chicken house.
Terry worked on the motor of the automatic feeder and then turned on the feeder to see if it was operating properly. The holes drilled by Smith were uncovered in preparation for the new chicks. After turning the feeders on, Terry, accompanied by Nicholas, walked along the feeder line. Reaching the end of the line, Terry said, he turned around and began to walk in the other direction; approximately 30-45 seconds later, he said, he saw the feed line "give." Terry testified that he turned around and saw Nicholas, who said, "My finger is gone." Nicholas, who was four years old at the time of the accident, testified in his deposition that his father had told him to check and see if food was coming out of the pipe. He testified that he had gotten down on his knees and had stuck his finger into the pipe.
Rita argues on appeal that Tyson Foods was not entitled to a summary judgment because, she says, Tyson had asserted control over Smith and his management practices and that control placed Tyson and Smith in a master/servant relationship and placed joint liability on Tyson for Nicholas's injury. Tyson, however, contends that Smith was an independent contractor and that it did not retain the right to control Smith's means of operations.
The record contains no evidence that Tyson retained the right to control the manner in which Smith was to perform the contract. This Court has held:
Jenkins v. Gadsden Times Pub. Corp., 521 So. 2d 957, 958 (Ala.1988); see also Spell v. ConAgra, Inc., 547 So. 2d 501, 502-03 (Ala. 1989).
Because the plaintiff presented no substantial evidence to rebut Tyson's prima facie showing that it did not retain the right to control the manner in which Smith performed his contract, we affirm the summary judgment as to Tyson Foods.
Rita argues on appeal that C.T.B. manufactured a feeder that was not reasonably safe for its intended use and that it failed to warn of the unreasonably dangerous condition of the feeder. She also argues that C.T.B. failed to submit any affidavits to establish that it was entitled to a judgment as a matter of law and, therefore, that she never had the burden of presenting substantial evidence creating a genuine issue of material fact.
C.T.B. contends that, in this case, it properly established that it was entitled to a judgment as a matter of law through deposition testimony in the record, specifically the deposition testimony of Nicholas and Terry, and that it was not required to establish that it was entitled to judgment as a matter of law through affidavits. C.T.B. also contends that the undisputed deposition testimony established that the alleged dangerous condition that injured Nicholas was the result of Smith's modification of the feeder.
In his deposition testimony, Terry Williamson testified as follows:
This Court has recently restated the elements of a claim under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD):
Yamaha Motor Co. v. Thornton, 579 So. 2d 619, 621 (Ala.1991) (quoting Casrell v. Altec Indus., Inc., 335 So. 2d 128, 132-33 (Ala. 1976)) (emphasis added).
We note that "the mere fact that a product has been modified by the buyer subsequent to the sale does not always relieve a manufacturer of liability." Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88, 91 (Ala.1989). However, the plaintiff must show that "the injury was not caused by the change." Id. (quoting Industrial Chemical & Fiberglass Corp. v. Hartford Acc. & Indem. Co., 475 So. 2d 472 (Ala.1985)). The record in this case clearly shows that Nicholas was injured when he stuck his finger into a hole drilled by Smith. Rita failed to produce substantial evidence in order to defeat C.T.B.'s properly supported motion for summary judgment. Therefore, we affirm the summary judgment as to C.T.B.
Rita argues that Smith failed to exercise reasonable care to protect children from the dangerous artificial condition he had created in his chicken house. She contends that Smith could have prevented this accident by posting signs warning of the dangers of the chicken house and the feeder, by warning his employees that the chicken house was dangerous and that they should not bring their children into the chicken house, and/or by putting around the holes wire cages similar to those around the pre-drilled holes.
Terry Williamson testified that Smith had told him that a person could lose a finger by sticking it into one of the drilled holes when the automatic feeder was running. Terry also testified that he knew the machine was running at the time of the accident and that he was aware that "mechanical equipment inside the pipe was turning at the time the auger was on." Based upon this testimony, and assuming that Smith had a duty to warn his employees of the dangers of the automatic feeder, one must conclude that Smith had warned Terry, his employee, of the dangers of sticking a finger into the drilled holes while the feeder was running.
The issue then becomes whether Smith is liable to Rita Williamsoneither to her individually or to her as mother and next friend of Nicholasfor the injuries Nicholas suffered, while with his father at work, when Nicholas stuck his finger into one of the drilled holes while the feeder was running.
Although this Court has stated that the contributory negligence of a parent will not be imputed to his child so as to bar the child's recovery, a consideration of negligence on the part of Nicholas's father is useful in determining whether the injury to Nicholas was foreseeable to Smith. A case from the Maryland Court of Special Appeals, Laser v. Wilson, 58 Md.App. 434, 473 A.2d 523 (1984), illustrates the difference between analyzing a parent's lack of supervision and/or failure to take steps to protect his child of tender years as a factor in determining the foreseeability of the injury to the child, and analyzing it as the parent's own contributory negligence. In Laser, a 2½-year-old child, Adam Laser, had broken his leg when he fell from an unguarded stairwell and landing. Adam and his family had been invited to the Wilsons' house for a holiday party. Adam's parents sued the Wilsons, alleging a negligent breach of the Wilsons' duty owed to Adam to prevent his injury. The trial court directed a verdict in favor of the Wilsons.
Adam's parents had been specifically warned about the unguarded landing; however, on appeal, they argued that, assuming they were negligent in their supervision of Adam after being warned of the dangerous condition, their negligence could not be imputed to the child under Maryland law. Id. (citing Md.Cts. & Jud.Proc.Code Ann. § 10910). *1265 In affirming the judgment based on the directed verdict, the Maryland court held:
Id. at 528-29 (emphasis added; citations omitted).
In O'Clair v. Dumelle, 735 F. Supp. 1344 (N.D.Ill.), affirmed 919 F.2d 143 (7th Cir. 1990), the federal district court, applying Illinois law, held that a homeowner was not liable for the death of a three-year-old child that had drowned in the owner's swimming pool. In so holding, the district court stated that its decision was not based on the failure or negligence of the child's mother to supervise the child, "but the unforeseeability of her failure to do so." Id. at 1351 (emphasis added). The court went on to state:
Id. at 1351-53 (emphasis added).
In the present case, we hold that Rita failed to produce substantial evidence that Terry's failure to protect Nicholas from a risk that was well known to Terry, after bringing Nicholas to work with him, was foreseeable to Smith. Nicholas was at his father's place of work at his father's invitation, not Smith's. Terry had been warned of the danger associated with the operation of the modified automatic feeder. Also, Smith used the modified feeder only to dispense feed for a one-week period following the arrival of new chicks in the chicken house; at all other times the holes Smith had drilled in the pipe were covered with PVC slides. On the day of the accident, Terry, preparing for the arrival of new chicks, had started the automatic feeder and was alone in the chicken house with Nicholas. Rita presented no evidence that Smith knew that Nicholas would be brought to the chicken house while his father was preparing the automatic feeder for the new chicks and, more importantly, she presented no evidence that Smith had any reason to believe that Terry would not properly protect Nicholas from the known danger presented by the operation of the modified automatic feeder.
Therefore, we hold that the injury to Nicholas was unforeseeable to Smith and that Terry's failure to protect Nicholas was the proximate cause of Nicholas's injury. This decision is based on the specific facts in the record on appeal and it does not abrogate any other decision defining the scope of liability of a landowner; specifically, this decision does not affect that line of cases interpreting Restatement (Second) of Torts § 339 (1977). See Fletcher v. Hale, 548 So. 2d 135 (Ala.1989); Motes v. Matthews, 497 So. 2d 1121 (Ala.1986); Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976).
Based upon the foregoing, the summary judgment in favor of the defendants is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | July 9, 1993 |
ac7ff6b5-8d7d-4f93-9266-754f7e46563e | Mixon v. Cason | 622 So. 2d 918 | 1920335 | Alabama | Alabama Supreme Court | 622 So. 2d 918 (1993)
Yolanda D. MIXON
v.
Drs. CASON, et al.
1920335.
Supreme Court of Alabama.
June 18, 1993.
*919 Joan B. Singleton, Bessemer, for appellant.
Robert D. Norman, Jr. of Norman, Fitzpatrick, Wood, Parker & Kendrick, Birmingham, for appellees.
HOUSTON, Justice.
In this medical malpractice action, the trial court either dismissed or entered summary judgments for all 10 defendants. These dismissals and summary judgments were made final pursuant to Rule 54(b), Ala.R.Civ.P. The plaintiff, Yolanda D. Mixon, appeals. We dismiss the appeal in part; affirm in part; reverse in part; and remand.
The complaint originally charged some of the defendants with gross negligence and breach of contract for administering contaminated blood to the plaintiff in August 1989, when she underwent gall bladder surgery; she alleged that the blood caused her to become HIV positive. Later, the gravamen of the complaint was enlarged, to allege, in the alternative, that the plaintiff was HIV positive in May 1989, and that at that time the defendants knew, or should have known that fact, and that the defendants did not inform the plaintiff of her condition until November 1989.
*920 The defendant Genevieve Schechter, M.D., moved to dismiss this appeal as to her. On October 8, 1992, a summary judgment was entered and made final as to Dr. Schechter. No appeal was taken from that judgment. Because no appeal was taken, we have nothing to dismiss as to Dr. Schechter, but we note that in fact the appeal now before us does not involve her. Then there were nine.
On July 21, 1992, two of the defendants, Mark C. Phillips, M.D., and Gary Russell, M.D., were given summary judgments; those summary judgments were made final pursuant to Rule 54(b), Ala.R.Civ.P. No appeal was taken from those judgments within the 42 days allowed for appeal by Rule 4, Ala.R.App.P. The appeal now before us was taken on November 17, 1992, beyond the time allowed for an appeal as to Dr. Phillips and Dr. Russell. Drs. Phillips and Russell were named as parties to this appeal, but they are not properly before this Court. Insofar as the appeal before us relates to these two defendants, it is dismissed. Then there were seven.
The defendant, Michael Salvia, M.D.,[1] was added as a defendant on February 19, 1992. He was not substituted for a fictitiously named defendant pursuant to Rule 9(h), Ala.R.Civ.P.; Dr. Salvia was simply added as a defendant. The only evidence before the trial court when it entered a summary judgment for Dr. Salvia was that Dr. Salvia had treated the plaintiff from May 18, 1989, to May 23, 1989, while the plaintiff was a patient at Cooper Green Hospital. Dr. Salvia's name appears on the plaintiff's chart and the plaintiff easily could have ascertained his name before filing this action on August 9, 1990. The plaintiff's claim against Dr. Salvia was time-barred; and the trial court properly entered a summary judgment for Dr. Salvia. Then there were six.
The plaintiff did not name Neal Miller, M.D., as a defendant until June 8, 1992. Dr. Miller was not substituted for a fictitiously named defendant pursuant to Rule 9(h), Ala.R.Civ.P., but was merely added as a defendant. Dr. Miller was the director of the laboratory at Cooper Green Hospital, and he was sued in regard to events that occurred from May 1989 to August 1989. By due diligence, the plaintiff could have ascertained at any time the name of the director of the laboratory. The plaintiff did not plead with the specificity required by Rule 9(b), Ala.R.Civ.P., to allege a cause of action for fraudulent concealment under Ala.Code 1975, § 6-2-3, against Dr. Miller so as to extend the statute of limitations. Therefore, the claim against Dr. Miller was time-barred, and the trial court properly dismissed him. Then there were five.
The uncontradicted evidence is that the defendant Adam Robertson, M.D., never rendered any care or treatment to the plaintiff, was never in a physician-patient relationship with the plaintiff, and never prescribed or undertook any course of treatment for the plaintiff. Dr. Robertson's name was placed on emergency room charts for all patients who were presented to Cooper Green Hospital's emergency room, who did not have a personal physician. The trial court properly entered a summary judgment for Dr. Robertson. Then there were four.
The uncontradicted evidence is that William P. Cason, M.D., has a specialty in radiology, that his only involvement with the plaintiff as a physician was through the interpretation of X-ray films, which were taken at Cooper Green Hospital. The "Clinical Diagnosis, Indication for Examination" was "sickle cell crisis." The interpretation was as follows: "CHEST 23 May 88: Normal. LEFT CLAVICLE: Normal." The plaintiff had been treated for sickle cell anemia for years preceding her presentment to Cooper Green Hospital in May 1989. There is uncontradicted evidence that Dr. Cason knew the standard of care, skill, and diligence to be exercised by radiologists in interpreting X-ray films and that in interpreting the films of the plaintiff, Dr. Cason exercised that standard of care. The court properly entered a summary *921 judgment for Dr. Cason. Then there were threeJefferson Clinic, P.C.; Carol Leitner, M.D.; and Philip Johnson, M.D.
Dr. Leitner's motion for summary judgment is supported by her affidavit; Dr. Johnson's motion for summary judgment is supported by his affidavit; and Jefferson Clinic's motion for summary judgment is supported by the affidavits of Drs. Leitner, Johnson, Robertson, and Cason. These affidavits establish that the plaintiff tested positive for the HIV virus in May 1989, before any of these defendants had provided any medical services to the plaintiff, and they refute the allegations of the plaintiff's original complaint that gross negligence or a breach of contract on the part of these defendants during the plaintiff's August 1989 gall bladder surgery caused the plaintiff to become HIV positive. This was not refuted by any evidence presented by the plaintiff. Therefore, the trial court properly entered a summary judgment for Drs. Leitner and Johnson and Jefferson Clinic on the plaintiff's claims that these defendants administered to the plaintiff contaminated blood that resulted in the plaintiff's becoming HIV positive. The trial court's judgment is affirmed as to those claims against Drs. Leitner and Johnson and Jefferson Clinic.
The affidavits of Drs. Leitner, Johnson, Robertson, and Cason do not address the alternative theory presented in the plaintiff's amended complaintfailure to warn the plaintiff that she was HIV positive, which the plaintiff says was known, or should have been known, by Drs. Leitner and Johnson and Jefferson Clinic.
In a medical malpractice case, as in other cases, on a motion for summary judgment by a health care provider, the burden is on the movant (the health care provider) to make a prima facie showing, by substantial evidence, that no genuine issue of material fact exists as to whether the health care provider's alleged breach of the applicable standard of care proximately caused the injury for which damages are sought. Until this is done, the burden does not shift to the nonmovant plaintiff to present substantial evidence, through expert testimony from a similarly situated health care provider that the defendant health care provider's conduct breached the standard of care and was the proximate cause of the patient's injury or death. Brooks v. Goldhammer, 608 So. 2d 394 (Ala. 1992); Ala.Code 1975, § 6-5-542(2); § 6-5-548; and § 6-5-549. See Willard v. Perry, 611 So. 2d 358 (Ala.1992). Because Drs. Leitner and Johnson and Jefferson Clinic did not make the required prima facie showing against the plaintiff's claim of failure to warn the plaintiff that she was HIV positive, we do not look to the plaintiff's evidence. (That evidence consisted of (1) the deposition of David Scheck, M.D., which may not be evidence in this action, for it apparently was taken in the action filed by this plaintiff against the American National Red Cross and others in the United States District Court for the Northern District of Alabama, Southern Division; and (2) an affidavit of Pearson Clack, M.D.). If the burden of proof does shift to the plaintiff on subsequent motions for summary judgment, or if this case goes to trial, then the plaintiff must present evidence that substantially complies with § 6-5-548.
APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; AND CAUSE REMANDED.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
ALMON, J., concurs in the result.
MADDOX and STEAGALL, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in that portion of the opinion affirming the judgments of the trial court, but I respectfully disagree with that portion reversing the judgments entered in favor of the defendants Jefferson Clinic, P.C., Carol Leitner, M.D., and Philip Johnson, M.D. Upon consideration of the materials and the arguments, I am convinced that the trial judge correctly entered the *922 summary judgments in favor of these defendants.
STEAGALL, J., concurs.
[1] The plaintiff's filings spelled this doctor's name "Salmia." | June 18, 1993 |
e4e4d8d1-63fb-4636-8bbd-eba08d4e4305 | Griffin v. Summit Specialties, Inc. | 622 So. 2d 1299 | 1920084 | Alabama | Alabama Supreme Court | 622 So. 2d 1299 (1993)
William Michael GRIFFIN
v.
SUMMIT SPECIALTIES, INC.
1920084.
Supreme Court of Alabama.
June 18, 1993.
*1300 Lanny S. Vines and G. Whit Drake of Emond & Vines, Birmingham, for appellant.
Robert H. Harris of Harris, Caddell & Shanks, P.C., Decatur, for appellee.
PER CURIAM.
William Michael Griffin injured his ankle while he was hunting deer, using equipment manufactured by the defendant, Summit Specialties, Inc. Griffin sued Summit, making claims based on theories of negligence, *1301 strict liability, and failure to warn of latent dangers in the operation of the defendant's treestand. The circuit court entered a summary judgment in favor of Summit Specialties, Inc. Griffin appeals; we affirm.
Griffin claims that the treestand manufactured by Summit was defective because of its design. The Summit treestand consists of one part, but Summit also manufactures another product that it markets as a "Quickclimber." While the Summit treestand and the Summit Quickclimber may be used in conjunction with each other, they are distinct products, sold separately. The treestand may be used with a wide variety of climbing aids, such as a rope or a strap, and the "Quickclimber" is not a part of, and is in no way essential to the operation of, the treestand.[1]
On the morning of the accident, Griffin used the treestand and the Quickclimber while hunting, and the equipment worked satisfactorily. He returned in the afternoon to hunt again and utilized the same equipment. While either climbing up a tree, or descending (there is conflicting testimony on this issue), the treestand became disengaged from Griffin's feet and it fell to the ground. No part of either the treestand or the Quickclimber broke or failed. After the treestand became disengaged from Griffin's feet and fell to the ground, he attempted to descend the tree by wrapping his legs around the tree and using the Quickclimber. As he was descending he fell, injuring his ankle.
It is important to note that, even though this is a products liability case, it does not involve any contention that some part or component of a product manufactured by Summit failed, broke, or malfunctioned. The contention is that the product did not include some feature, accessory, or device that Griffin contends would have improved the safety characteristics of the product. Griffin contends that the treestand was defective because it did not have a tether or connector between it and the Quickclimber, and that the Quickclimber proximately caused or contributed to his injury. In conjunction with the claimed design defect (the absence of a connecting tether), Griffin also mentions two other features that he suggests might have been designed better. These two features were: (1) the design of the straps on the platform of the treestand by which it was attached to the foot of a hunter using it; and (2) the design of the metal bar frame of the treestand; that frame is bolted in position around a tree and, through compression generated by the hunter's putting pressure on the treestand platform, it holds the treestand on the tree while it is in use. The design of this frame on the treestand did not include a serrated or knife-like edge to cut into the tree. Griffin suggests that if such a feature had been included in the design of the treestand, it might have increased its safety.
The sole issue on appeal, as stated by the appellant, is "[w]hether the trial court erred in granting Summit's Motion for Summary Judgment by holding, as a matter of law, that one of plaintiff's alleged defects was open and obvious."
The accident occurred in Georgia. Alabama follows the principle of lex loci delicti; therefore, the substantive law of Georgia relating to product liability claims is to be applied. See Fitts v. Minnesota Mining & Manufacturing Co., 581 So. 2d 819 (Ala.1991). Questions related to the motion for summary judgment are procedural and are governed by the provisions of Rule 56, Ala.R.Civ.P. Bagby Elevator & Electric Co. v. Buzbee, 383 So. 2d 173, 176 (Ala. 1980).
*1302 While the action of the trial court in entering a summary judgment, and the appellate review of that action, are matters governed by Alabama's procedural rules, this circumstance does nothing to diminish the guidance provided by decisions of Georgia courts involving summary judgments in products liability cases. The procedural rules and the standard of review relating to summary judgments are the same in Georgia as in Alabama. The Alabama summary judgment procedures found in Rule 56, Ala. R.Civ.P., are the same as those found in the Georgia Civil Practice Act, S 9-11-56, Official Code of Georgia. The Georgia courts apply and interpret the summary judgment procedure the same as do the courts of Alabama.
Sullenberger v. Grand Union Co., 201 Ga. App. 194, 410 S.E.2d 381 (1991).
Griffin v. Crown Central Petroleum Co., 171 Ga.App. 534, 320 S.E.2d 383 (1984). As in Alabama, the party opposing a summary judgment motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue of material fact exists, and the trial court must give that party the benefit of all favorable inferences that can be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442 (1962).
In Alabama, in order to enter a summary judgment, the trial court must 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. In determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc, 475 So. 2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala. 1981). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Ala.Code 1975), for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). 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" in support of his position. Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990).
Product liability claims in Georgia may be presented either on the basis of a manufacturer's negligence or under the Georgia strict liability statute, OCGA § 51-1-11. This statute is, in effect, a codification of § 402A, Restatement (Second) of Torts (1965). A design defect product liability case in Georgia, based on a claim of negligence on the part of the manufacturer, proceeds on the traditional notions of duty and reasonable care. Under the strict liability statute, negligence or fault on the part of a manufacturer of a product need not be shown. As a practical matter, any conduct by a manufacturer that would give rise to a product liability claim based on negligence, i.e., conduct that produced a defective product, will necessarily sustain a strict liability claim. It is often observed by the Georgia courts in design defect product liability cases that "only semantics distinguishes" between an action based on negligence and one based on Georgia's strict liability statute.
The Georgia courts have declared a number of principles that limit or restrict a manufacturer's liability, even under the Georgia strict liability doctrine. A manufacturer does not occupy the status of an insurer with respect to a product design, Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 248 S.E.2d 15 (1978); nor is a manufacturer under any obligation to make a product "accident proof or foolproof"; *1303 Fortner v. W.C. Cayne Co., 184 Ga.App. 187, 360 S.E.2d 920 (1987); Poppell v. Waters, 126 Ga.App. 385, 190 S.E.2d 815 (1972); nor to make a product "more safe" by adding some additional safety design feature, accessory, or device. Stovall & Co. v. Tate, 124 Ga.App. 605, 184 S.E.2d 834 (1971). Thus, no liability is placed on the manufacturer of a product by proof that some other, or perhaps even safer, component, or more effective safety device, could have been incorporated in or added to the design of the product. Gragg v. Diebold, Inc., 198 Ga.App. 823, 403 S.E.2d 229 (1991); Weatherby v. Honda Motor Co., 195 Ga.App. 169, 393 S.E.2d 64 (1990); Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga.App. 811, 295 S.E.2d 183 (1982); Trailmobile, Inc. v. Smith, 181 Ga.App. 134, 351 S.E.2d 528 (1986); Hunt v. Harley-Davidson Motor Co., supra; Barnes v. Harley-Davidson Motor Co., 182 Ga.App. 778, 357 S.E.2d 127 (1987).
Under Georgia law, a comprehensive limitation on the liability of a manufacturer when a design defect claim is presented, is the "open and obvious" rule. The Georgia courts have consistently held that "[i]f a product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury, if the injury results from an open and obvious peril." Gragg, supra; Weatherby, supra; Honda Motor Co. Ltd. v. Kimbrel, 189 Ga.App. 414, 376 S.E.2d 379 (1988); Hunt, supra; Barnes, supra; Poppell, supra; Fortner, supra; Stodghill, supra.
Under Georgia law, the "open and obvious rule" is decisive as to the initial determination whether a product is defective. Unless a product is defective, an injury from its use does not give rise to a products liability claim. This is true whether the claim is based on negligence of the manufacturer or on the strict liability doctrine. Coast Catamaran Corp. v. Mann, 171 Ga.App. 844, 321 S.E.2d 353 (1984); Weatherby, supra.
The Georgia strict liability statute, § 51-1-11(b)(1), OCGA is as follows:
The phrase "not merchantable and reasonably suited to the use intended" under the Georgia law means that, in a strict liability claim, "a plaintiff must establish that there is a defect in the product". Mann v. Coast Catamaran Corp., 254 Ga. 201, 326 S.E.2d 436 (1985). Under Georgia law, a product is not defective if the injury-threatening condition, or the absence of a feature that might guard against a common danger connected with the use of the product, is open and obvious, Stodghill, supra; and whether a condition is "open and obvious" is determined by objective, not subjective, considerations. Weatherby, supra.
In Weatherby, the alleged defects were the absence of a device to attach the cap to the gasoline tank, and the absence of a shield to prevent spilled gasoline from coming into contact with the spark plug. The plaintiffs argued, just as does Griffin, that the dangers of the condition created by the alleged design defects were not generally known, i.e., that the condition was not "open and obvious". The Georgia court did not agree that jury issues were presented:
"`While in many cases the defense based upon the obvious and common nature of the peril will be a question to be determined by the jury, a manufacturer is entitled to judgment as a matter of law in plain and palpable cases.' ... We conclude, as a matter of law, that the injuries at issue in this case resulted from an obvious or patent peril."
195 Ga.App. at 173, 393 S.E.2d at 67-68.
Certainly, the absence of a connecting tether between the treestand and the *1304 Quickclimber is no less palpable, obvious, or patent than the absence of a device attaching the cap of the gasoline tank to the tank itself, or of a device to shield the spark plug from spilled gasoline. It is also apparent that the danger that the treestand could fall to the ground if it became disengaged from the climber's feet is no less obvious than the danger that gasoline might splash from a tank, fall on a spark plug, and ignite.
Griffin argues that the absence of a connecting tether between the treestand and the Quickclimber created a latent danger of which, he suggests, he was not aware. This exact argument was presented, and rejected, in Stodghill, supra, and Weatherby, supra. The Georgia cases have stated that, in determining the effect of the "open and obvious rule," the awareness of the individual user of the danger created by an obvious condition of the product is irrelevant. In Weatherby, the court stated:
195 Ga.App. at 172, 393 S.E.2d at 66-67 (emphasis in original).
That there was no connecting tether between the two pieces of equipment would be instantly apparent to anyone using the equipment. Griffin's testimony not only admits his awareness of the condition itself, but it also confirms that he was mindful of the very peril that he now claims the absence of the connecting tether created. Griffin's testimony demonstrates that he knew the consequences that the absence of such a tether could create:
Also, where a product-related danger is obviousor is one of which the person who claims to be entitled to warning has actual knowledgethere is no duty to warn. Coast Catamaran Corp., supra. The Georgia courts have held that "a manufacturer has no duty to warn of obvious common dangers connected with the use of a product." Weatherby, supra; Stodghill, supra; Hunt, supra.
The obvious consequence from the absence of a connecting tether between the two pieces of equipment would be that if the treestand was not properly attached to a climber's feet, and became disengaged, it could fall to the ground. This is the event that, Griffin says, produced his injury, and it is the consequence of this event that, in his brief on appeal, he professes ignorance of; but, in his deposition, he acknowledged full awareness.
In Stovall & Co. v. Tate, 124 Ga.App. 605, 184 S.E.2d 834 (1971), the court stated:
After carefully reviewing the record, we conclude that Summit is also entitled to a summary judgment on the basis of Griffin's assumption of the risk associated with the use of the product; he admitted knowledge of the condition of the product that he claims was defective and knowledge of the peril associated with its use.
Griffin also argues that the Summit equipment was defective because there was no warning relating to the absence of a connecting tether. Georgia imposes no requirement that a warning be placed on a product relating to the absence of a connection between it and another product with which it may, or may not, be used.
We conclude that Summit has no duty to warn Griffin of a condition obvious to everyone, or of the obvious potential consequence of the condition that was known to him. For the reasons stated, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The design of the Summit treestand is such that the platform of the stand attaches by straps to the hunter's boots. A metal bar system attached to the platform of the treestand is then bolted around the tree to be climbed. The hunter can then climb the tree, if he wishes, by simply wrapping his arms around the tree, lifting the treestand with his feet, and then placing pressure on the platform of the treestand, thereby clamping it to the tree, and then moving his arms upward around the tree and repeating the process. A hunter may also use a climbing aid, such as the Quickclimber, or a rope or strap wrapped around the tree. Neither the Quickclimber nor any other aid is essential to the use of the Summit treestand. | June 18, 1993 |
ffda7963-7217-40d2-9e93-4369b37225f4 | Ex Parte Jenkins | 627 So. 2d 1054 | 1911144 | Alabama | Alabama Supreme Court | 627 So. 2d 1054 (1993)
Ex parte Mark Allen JENKINS.
(Re Mark Allen Jenkins v. State).
1911144.
Supreme Court of Alabama.
May 28, 1993.
Rehearing Denied October 8, 1993.
Douglas H. Scofield of Scofield, West & French, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Sandra J. Stewart and Robert E. Lusk, Jr., Asst. Attys. Gen., for respondent.
MADDOX, Justice.
This a death penalty case. The petitioner, Mark Allen Jenkins, raises numerous issues for our review, all of which, as far as we can tell, were also raised on direct appeal to the Court of Criminal Appeals and addressed by that Court in an opinion. Jenkins v. State, 627 So. 2d 1034 (Ala.Cr.App.1992).
A. Whether the trial court erred in failing to instruct the jury on the lesser included offense of felony or unintentional murder.
B. Whether the trial court erred in refusing to charge the jury that it could not find Jenkins guilty of capital murder committed during the course of a robbery unless it found that the intent to deprive the victim of her property was formed before the victim's death.
C. Whether the trial court erred in refusing to charge the jury that it was the final arbiter of the voluntariness and reliability of custodial statements made by Jenkins.
D. Whether the trial court erred in charging the jury that no negative inference should be drawn from Jenkins's election to exercise his 5th Amendment right not to testify.
E. Whether the trial court erred in charging the jury on the standard it was to use in evaluating circumstantial evidence.
F. Whether the trial court violated Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), in its definition of "reasonable doubt."
A. Whether the prosecutor commented on Jenkins's failure to testify or present evidence, and, thus, violated Jenkins's rights under the 5th and 14th Amendments to the United States Constitution.
B. Whether the prosecutor's use of photographs, during closing argument in the guilt phase of Jenkins's trial, as evidence of intent denied Jenkins a fair trial.
C. Whether the prosecutor's reference to eyewitness Sarah Harris's explanation for *1055 her failure to positively identify Jenkins before trial denied Jenkins a fair trial.
D. Whether the prosecutor improperly offered to the jury his opinion as to Jenkins's guilt and thereby violated Jenkins's right to a fair trial.
E. Whether the prosecutor misstated points of law during his closing argument and thereby confused and misled the jury and deprived Jenkins of a fair trial.
A. Whether the evidence was legally sufficient to find Jenkins guilty beyond a reasonable doubt of the underlying offense of first degree kidnapping.
B. Whether the State's kidnapping theory was constitutionally deficient because of overbreadth.
C. Whether the evidence was legally insufficient to find Jenkins guilty beyond a reasonable doubt of the underlying offense of first degree robbery.
Whether the trial court erred in admitting a business card that was allegedly the product of an illegal search and seizure.
A. Whether the trial court erred in allowing the State to introduce identification testimony from Sarah Harris.
B. Whether the trial court erred in failing to include in its jury charge various factors that the factfinder should consider in evaluating an eyewitness identification.
A. Whether the State failed to show the requisite chain of custody for the stolen red Mazda vehicle from which numerous pieces of evidence, including the fibers connecting Jenkins with the car and with the victim, were taken.
B. Whether the State failed to show the requisite chain of custody for the business card found in Jenkins's wallet.
C. Whether the State failed to show the requisite chain of custody, and to properly identify, the boots, blue jeans, and other clothing introduced into evidence at trial.
A. Whether the trial court erred in excusing a prospective juror for cause on death-penalty-qualification grounds.
B. Whether the trial court erred in failing to excuse five prospective jurors for cause.
C. Whether the trial court erred in failing to find that the State impermissibly discriminated against jurors on the basis of race.
A. Whether the trial court erred in allowing the State to use, argue from, and place into evidence a photograph of the victim's body in an advanced state of decomposition, over Jenkins's objections that the photograph was immaterial and irrelevant.
B. Whether the prosecutor's use of the photograph to help establish the intent element of the State's case denied Jenkins a fair trial.
A. Whether the trial court erred in denying Jenkins's motion for mistrial after the State elicited testimony regarding Jenkins's character.
B. Whether the trial court erred in allowing the State to introduce testimony that Jenkins claims was immaterial and irrelevant regarding the victim's life.
A. Whether the trial court erred in allowing the prosecutor to argue a nonstatutory aggravating circumstance to the jury.
*1056 B. Whether the trial court erred in allowing the prosecutor to argue facts concerning the victim's family and lifestyle.
C. Whether the trial court erred in allowing the prosecutor to urge the jury to reject any thoughts of mercy for the defendant.
D. Whether the trial court erred in allowing the prosecutor to argue deterrence during his penalty phase closing argument.
A. Whether the trial court used an inapplicable legal standard for intoxication.
B. Whether the trial court erred in failing to find intoxication as a nonstatutory mitigating factor.
C. Whether the trial court erred in failing to consider mitigating evidence from Lonnie Seal.
D. Whether the trial court erred in failing to consider evidence of Jenkins's childhood abuse.
We have carefully reviewed the opinion of the Court of Criminal Appeals, the transcript of the trial, and the briefs and the oral arguments of the parties, and we conclude that the judgment of conviction and sentence of death were due to be affirmed. We address only one issue: whether the trial court erred in refusing to instruct the jury on the lesser-included offense of felony or unintentional murder.
The facts are stated in the opinion of the Court of Criminal Appeals, and we will not restate them except as necessary to a discussion of the issue we address.
The grand jury of St. Clair County, Alabama, indicted Mark Allen Jenkins for the murder of Tammy Hogeland. The indictment charged that Jenkins killed Hogeland by strangling her during the course of a robbery and/or during the course of a kidnapping. After a lengthy trial, the jury found Jenkins guilty. Following the presentation of penalty-phase evidence and arguments, the jury recommended, by a vote of 10 to 2, that Jenkins be sentenced to death by electrocution. The trial court sentenced Jenkins accordingly. The Court of Criminal Appeals affirmed Jenkins's conviction and sentence. We issued the writ of certiorari, pursuant to Rule 39(c), Ala.R.App.P.
The Court of Criminal Appeals held that "[t]here was no evidence to support an instruction on felony-murder [because] the evidence revealed that the victim died as a result of manual strangulation." 627 So. 2d at 1050.
Jenkins argues that, even assuming the jury believed that he committed the robbery and/or the kidnapping, it still could have found that he did not intentionally kill Hogeland during the course of the robbery or kidnapping; he says the jury could have found he was so intoxicated that he lacked the specific intent required for capital murder under § 13A-5-40(b), Ala.Code 1975.
We have reviewed the record in this case, including the oral instructions given to the jury, and we conclude, in view of the particular facts and circumstances of this case, that the trial judge did not err to reversal in instructing the jury. See, Wright v. State, 494 So. 2d 726 (Ala.Cr.App.1985), affirmed, 494 So. 2d 745 (Ala.1986), a capital case conducted prior to Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). The Court of Criminal Appeals initially reversed Wright's conviction and remanded the case on authority of Beck, but the United States Supreme Court, 457 U.S. 1114, 102 S. Ct. 2920, 73 L. Ed. 2d 1325 (1982), reversed the judgment and remanded the case to the Court of Criminal Appeals for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982), which modified Beck by holding that a lesser included offense instruction must be given in a capital case "only when the evidence warrants such an instruction." Hopper, 456 U.S. at 611, 102 S. Ct. at 2053, 72 L. Ed. 2d at 373 (emphasis in original). See also Ex parte Julius, 455 So. 2d 984 (Ala.1984) (a capital case in which this Court held that even though the trial court's instruction was "technically incorrect," when viewed "in the context of the overall charge" it was, at most, *1057 harmless). In this case, even assuming that the failure of the trial court to instruct the jury on the lesser included offense of felony-murder was incorrect, when we view it in the context of the overall charge to the jury, we, like the Court of Criminal Appeals, find no reversible error.
Although we have not addressed Jenkins's other arguments specifically, we have examined the record very carefully and we have also reviewed the propriety of the sentence of death, as we are required to do, and we conclude that the Court of Criminal Appeals properly affirmed the judgment of conviction and the sentence of death.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | May 28, 1993 |
f13d7a4e-b30c-49b5-82ef-a13c3c4c703c | Smitherman v. McCafferty | 622 So. 2d 322 | 1920081 | Alabama | Alabama Supreme Court | 622 So. 2d 322 (1993)
Keith SMITHERMAN and Pamela Smitherman
v.
Brandon McCAFFERTY.
1920081.
Supreme Court of Alabama.
June 4, 1993.
*323 Randy D. Whitten of Higginbotham, Whitten & McCutcheon, Florence, for appellants.
Ralph M. Young of Gonce, Young & Westbrook, Florence, for appellee.
MADDOX, Justice.
This appeal presents an issue of first impression: Can an employee of a grocery store maintain a negligence action against a shoplifter for injuries allegedly sustained in a struggle to apprehend the fleeing shoplifter?
The trial court held that the shoplifter (defendant) did not owe a duty to the storekeeper (plaintiff) and entered a summary judgment for the defendant. We hold that the plaintiff has shown sufficient evidence to establish that the defendant had a duty not to flee, and that there is a triable issue of fact as to whether the defendant negligently caused the plaintiff's alleged injuries; therefore, we reverse and remand.
Keith Smitherman was working as an assistant manager at a grocery store when he saw Brandon McCafferty putting several items of merchandise inside his coat. Smitherman confronted and apprehended McCafferty. Initially, McCafferty did not resist being apprehended, but while Smitherman was escorting him to the store office, the front doors of the store automatically opened and McCafferty ran outside.
*324 Smitherman chased and caught McCafferty but injured his knee during the ensuing struggle. McCafferty later admitted to the police that he was, in fact, trying to steal the merchandise; therefore, there was evidence showing probable cause for Smitherman to detain McCafferty. See Ala.Code 1975, § 15-10-14.
Smitherman and his wife, Pamela, sued McCafferty. Keith Smitherman alleged that he was injured because McCafferty negligently resisted being detained and acted wantonly and recklessly, and Pamela Smitherman sued for damages for loss of consortium.[1] Smitherman later amended his complaint to allege assault and battery.
Based on the facts alleged, the trial court determined that, as a matter of law, McCafferty did not owe a duty to Smitherman and entered a summary judgment for McCafferty on all claims except the assault and battery claim. The jury returned a verdict for McCafferty on that claim. Smitherman appeals only from the summary judgment on the negligence and wantonness claims.
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)(3), Ala.R.Civ.P. The material facts relevant to the question of duty are undisputed; therefore, the summary judgment was proper if McCafferty was entitled to a judgment as a matter of law. If McCafferty did not owe a duty to Smitherman, he was entitled to a judgment as a matter of law, because the existence of a duty of care is fundamental to the maintenance of a negligence action. Pugh v. Butler Telephone Co., 512 So. 2d 1317 (Ala.1987). Thus, we turn to the legal question of whether McCafferty owed a duty of care to Smitherman.
In general, "every person owes every other person a duty imposed by law to be careful not to hurt him." Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 453, 13 So. 2d 660, 663 (1943). In determining whether a duty exists in a given situation, however, courts should consider a number of factors, including public policy, social considerations, and foreseeability. 57A Am.Jur.2d Negligence § 87, at 143 (1989). The key factor is whether the injury was foreseeable by the defendant. See Keebler v. Winfield Carraway Hospital, 531 So. 2d 841 (Ala.1988), and cases cited therein. The essential question is "whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 357 (5th ed. 1984).
Regarding public policy and social considerations, we find it significant that Smitherman was injured during the course of a criminal act, and that as a private citizen Smitherman was authorized, but was not compelled, to arrest McCafferty, and, as a merchant, was authorized to detain him. Ala.Code 1975, §§ 15-10-7 and -14; Rule 4.1(b), Ala.R.Crim.P. Smitherman argues that McCafferty had a corresponding duty to submit peaceably. There is some authority for this argument when the arrest and detention are lawful. E.g., People v. Fosselman, 33 Cal. 3d 572, 189 Cal. Rptr. 855, 659 P.2d 1144 (1983); State v. Nall, 304 S.C. 332, 404 S.E.2d 202 (App. 1991); 1 Clarence Alexander, The Law of Arrest § 94, at 480 (1949); M. Cherif Bassiouni, Citizen's Arrest 56 (1977). McCafferty does not dispute that Smitherman acted lawfully.
In arguing that he did not owe a duty to submit, McCafferty points out that the statutes making it a crime to resist lawful arrest and prohibiting the use of physical force in resisting a lawful arrest refer to arrests by peace officers, not to arrests by private citizens or merchants. Ala.Code 1975, §§ 13A-10-41 and 13A-3-28. We are not persuaded that the enactment of these criminal laws is, by negative inference, an exclusion of any duty when *325 the arrestor is not a peace officer. The Criminal Code may not encourage citizen's arrests, Commentary to Ala.Code 1975, § 13A-3-27, but the fact that a person who resists a lawful citizen's arrest has not committed a crime does not mean that he has not violated a duty imposed upon him by law to submit peaceably to a lawful detention.
Long ago, this Court held that "every criminal act which injures the person or property of another is also a civil tort, redressable by the courts." Hardie-Tynes Manufacturing Co. v. Cruse, 189 Ala. 66, 78, 66 So. 657, 661 (1914). More recently, this Court restated the rule as follows:
Martinson v. Cagle, 454 So. 2d 1383, 1385 (Ala. 1984).
In its order, the trial court cited Martinson, wherein this Court held that allegations that certain criminal acts were committed and that the plaintiffs were thereby injured did not state a cause of action for which relief could be granted. 454 So. 2d at 1385. This case is different, because Smitherman has more particularly alleged that McCafferty's crime caused the injuries and that in committing the crime McCafferty breached a duty owed to Smitherman.
We recognize that "[a] citizen's arrest or attempted arrest can create a dangerous situation, and [that] one who attempts it does so at his peril," 6A C.J.S. Arrest § 12, at 20 (1975), but the "peril" to which this statement refers is subsequent liability, not injury. See, e.g., Bowling v. Popp, 536 N.E.2d 511 (Ind.App.1989); Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 261 A.2d 731 (1970); State v. Tripp, 9 N.C.App. 518, 176 S.E.2d 892 (1970); Martin v. Castner-Knott Dry Goods Co., 27 Tenn.App. 421, 181 S.W.2d 638 (1944); Bassiouni, supra, at 13 and 23. Moreover, the public policy of this State, as expressed in §§ 15-10-7 and -14 and Rule 4.1(b), is to authorize, in certain circumstances, private citizens to arrest or detain suspected criminals, and the legislature has expressly recognized that some citizen's arrests involve pursuit and has provided that in such a case the arrestor need not inform the arrestee of the cause of the arrest. See § 15-10-7(c) and Rule 4.1(b)(2).
Courts in several other jurisdictions have held that a storekeeper may be liable to a customer injured during the pursuit of a shoplifter if the injury was foreseeable. Annotation, Liability of Storekeeper for Injury to Customer Arising out of Pursuit of Shoplifter, 14 A.L.R.4th 950 (1982 & Supp.1992). This case, of course, involves alleged injuries to the storekeeper, not a customer, but we believe that the foreseeability analysis is the same in both instances. Smitherman apprehended McCafferty while he was trying to conceal merchandise that, he admitted, he intended to steal. McCafferty initially submitted to the detention, indicating that he understood that he was being lawfully arrested or detained. McCafferty created a risk of harm when he tried to escape by running out the front door and into the parking lot, because it was reasonably foreseeable both that Smitherman would pursue him and that, if Smitherman caught him, there would be a struggle that could result in injury. Having created the peril, McCafferty was charged with knowing the natural and probable consequences of his act. See, e.g., Railway Express Co. v. Real, 253 Ala. 489, 45 So. 2d 306 (1950) (quoting 45 C.J. Negligence § 27, at 655 (1928)); 57A Am.Jur.2d Negligence § 134, at 193 (1989).
McCafferty's conduct created a foreseeable risk of harm and did not serve any useful social purpose, whereas Smitherman's conduct was permitted by statute and court rule and served a useful social purpose. Smitherman's interests are entitled to legal protection from McCafferty's conduct; therefore, we hold that McCafferty *326 owed a duty to submit peaceably to the lawful arrest or detention. To hold otherwise would punish a responsible citizen and reward a wrongdoer.
Having decided that, as a matter of law, McCafferty owed a duty of care to Smitherman, we reverse the summary judgment and remand the cause for a determination of the factual elements of breach of duty, causation, and damages.
Although I concur in the result reached by the majority, I would hold that because McCafferty admits that he was attempting to steal merchandise from Food World when Smitherman arrested him, and because McCafferty had submitted to Smitherman's custody, McCafferty had a duty not to escape from custody and is liable for any injury proximately caused by his attempt to escape.
In this case, Smitherman saw McCafferty putting merchandise in his coat and attempting to leave Food World's premises without paying for it. Smitherman approached McCafferty and asked him to accompany Smitherman to the office. McCafferty consented, but as the two men walked past the front doors of the store, a door opened automatically and McCafferty ran outside. Smitherman pursued him into the parking lot and tackled him. The two men landed on the asphalt pavement, and Smitherman hurt his knee in the fall.
Both § 15-10-14(a) and § 15-10-7(a)(1), Ala.Code 1975, authorized Smitherman's arrest of McCafferty. Section 15-10-14(a) provides that a merchant or his employee "who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person, and [for believing] that he can recover [those goods] by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time." Section 15-10-7(a)(1) empowers a private person to arrest an individual who commits a public offense in his presence.
Ala.Code 1975, § 13A-10-33(a), provides that "[a] person commits the offense of escape in the third degree if he escapes or attempts to escape from custody." "Custody" is defined in the Commentary to § 13A-10-31 through -33 to include "any detention pursuant to a lawful arrest or court order." Under this definition, when Smitherman asked McCafferty to accompany him to Food World's office, and McCafferty consented, Smitherman took McCafferty into custody. McCafferty's subsequent escape from Smitherman's custody would authorize the State to charge McCafferty with the crime of escape in the third degree.
Although the State has not charged McCafferty with violating § 13A-10-33(a), I would hold that Smitherman may sue McCafferty civilly for violating § 13A-10-33(a) and recover for injuries that were a foreseeable result of McCafferty's attempt to escape.
As the majority's opinion points out, this Court has held that "every criminal act which injures the person or property of another is also a civil tort, redressable by the courts." Hardie-Tynes Manufacturing Co. v. Cruse, 189 Ala. 66, 78, 66 So. 657, 661 (1914). In Martinson v. Cagle, 454 So. 2d 1383 (Ala. 1984), this Court restated that rule:
McCafferty admits that he was attempting to steal merchandise from Food World *327 and that Smitherman was authorized to take him into custody. McCafferty's escape would have deprived Smitherman of his right to protect Food World's merchandise. Therefore, I would hold that Smitherman is entitled to sue McCafferty to recover for injuries proximately caused by McCafferty's attempt to escape. Further, a jury should determine whether Smitherman's pursuit of McCafferty and Smitherman's injury sustained during the pursuit were foreseeable.
[1] Because Pamela Smitherman's claims are derivative of her husband's claims, we refer to the plaintiffs simply as "Smitherman." | June 4, 1993 |
867130a5-ae39-4600-a72b-5df5cce0aecf | Phillips v. WAYNE'S PEST CONTROL CO., INC. | 623 So. 2d 1099 | 1911484 | Alabama | Alabama Supreme Court | 623 So. 2d 1099 (1993)
Larry PHILLIPS and Elaine Phillips
v.
WAYNE'S PEST CONTROL COMPANY, INC., et al.
1911484.
Supreme Court of Alabama.
June 30, 1993.
*1100 David McKnight of Baxley, Dillard & Dauphin, Birmingham, for appellants.
John W. Clark, Jr. and Michael E. Henderson of Clark & Scott, P.C. and Garrick L. Stotser of Massey & Stotser, P.C., Birmingham, for appellees.
ALMON, Justice.
The plaintiffs, Larry and Elaine Phillips, brought an action against Thomas Travis,[1] from whom the plaintiffs had bought a house, and Wayne's Pest Control Company, Inc. ("WPC"), alleging fraud and breach of contract after they discovered that their house had been damaged by termites. The Phillipses appeal from a summary judgment for WPC on the fraud claim, made final pursuant to Rule 54(b), Ala.R.Civ.P.
In reviewing a summary judgment, this Court must determine if the moving party made a prima facie showing that there was no genuine issue of material fact and that he was entitled to a judgment as a matter of law. Raymond v. Amason, 565 So. 2d 614 (Ala.1990); A.R.Civ.P. 56. If the movant carries this burden, then the nonmoving party must rebut that showing by presenting substantial evidence creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12(d). "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., 547 So. 2d 870, 871 (Ala.1989). Additionally, all reasonable doubts concerning the evidence must be resolved in favor of the nonmoving party. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
On September 18, 1989, the Phillipses purchased Travis's house in Leeds, Alabama. The contract expressly provided that the existing termite bond on the house be transferred to the buyers at the seller's expense.
WPC had treated the house on August 17 and had given Travis a termite bond with an effective date of September 1, 1989. On October 12, 1989, WPC sent to the Phillipses a Veterans Administration ("V.A.") form entitled "WOOD DESTROYING INSECT INFORMATION EXISTING CONSTRUCTION." In this form, WPC stated that "Based on careful visual inspection of the readily accessible areas of the property ... [n]o visible evidence of infestation from wood *1101 destroying insects was observed." This form also provided, however, that "[t]his is not a structural damage report. Neither is this a warranty as to absence of wood destroying insects."
On that same day, WPC issued to the Phillipses a renewal of Travis's termite bond. The closing of the sale occurred in November 1989, and the Phillipses discovered no problems with termite infestation for several months. In the spring of 1990, Larry Phillips noticed active termites and substantial termite damage when he removed a rotten board while repairing the deck attached to the back of the house. Phillips then telephoned WPC, and Larry O'Brien, a WPC representative, came to inspect the house. After acknowledging the termites and the damage, O'Brien showed Phillips an August 17, 1989, graph of the house prepared by WPC and signed by Travis that had indicated the existence of the termites. Phillips told O'Brien that he had never seen that document.
Phillips subsequently asked the Alabama Department of Agriculture and Industries ("ADAI") to inspect the house. At the inspection, ADAI found active termites in the deck area, and it concluded that WPC's treatment of the house was "inadequate." ADAI then ordered WPC to retreat the house. WPC did retreat the house, but upon reinspection, ADAI once again discovered active termites. Thereafter, the Phillipses obtained an estimate from Colonial Construction Company for the cost of repairing the termite damage to the house; Colonial concluded that the cost of repair exceeded $8,000.
The essential elements of a fraud action are: 1) misrepresentation of a material fact; 2) made willfully to deceive, or recklessly without knowledge; 3) which was justifiably relied upon by the plaintiff under the circumstances; and 4) which caused damage as a proximate consequence. Harris v. M & S Toyota, 575 So. 2d 74 (Ala.1991); Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746 (Ala.1990).
The Phillipses argue that WPC defrauded them when it represented in the V.A. form of October 12, 1989, that "[n]o visible evidence of infestation from wood destroying insects was observed."[2]
The V.A., as a prerequisite to approving financing for a house, requires the buyer to have a pest control company inspect the house and to report on a V.A. form the condition of the house. The form provides, in pertinent part:
WPC checked the box beside alternative B, and its general manager signed the form and dated it "10/12/89." The Phillipses argue that this statement constitutes either a willful or a reckless misrepresentation, Burlington Northern R.R. v. Warren, 574 So. 2d 758, 766-67 (Ala.1990), because, they argue, two WPC agents had in fact observed active infestation in August 1989 and no one from WPC had reinspected the house before WPC issued the V.A. form on October 12, 1989. WPC appears to concede that it did not reinspect the house before October 12, 1989.
WPC raises two arguments. First, it argues that this situation is controlled by this Court's decision in Reynolds v. Fowler Pest Control & Insulation, Inc., 479 So. 2d 1185 (Ala.1985). Reynolds involved a fraud claim *1102 against a pest control company based on a V.A. form almost identical to the one here. In affirming a summary judgment for the defendant, this Court found it significant that the form was not a structural damage report and that it did not guarantee the absence of wood-destroying insects. The exact language from the Reynolds form is present on the form in this case.
However, the Reynolds Court did not base its decision entirely on the disclaimer in the form. The Court also stated that the plaintiff had been shown a graph indicating the existence of termites, and that he had admitted in his deposition that he understood the graph. Therefore, the Court found that the plaintiff in Reynolds knew of the termite infestation and could not have justifiably relied on the V.A. form. The Phillipses argue that because they never knew of the termite infestation, Reynolds should not control this case.
WPC argues that Reynolds should control even if the Phillipses had no knowledge of the August graph showing termites in the house, because, it says, it informed Travis of the termites and Travis therefore had a duty to inform the Phillipses of the termites.[3] This argument is flawed, because it addresses only the August 1989 inspection and treatment. The question of whether Travis informed or should have informed the Phillipses that WPC had found termites in August 1989 and had treated the house to remove them does not affect the question of whether WPC made a material misrepresentation on which the Phillipses could rely when it stated on the October 12, 1989, V.A. form that "[n]o visible evidence of infestation ... was observed." If it made this representation without conducting another inspection of the premises, and if the Phillipses can present evidence that another inspection would have disclosed termites or termite damage (see below), the misrepresentation could support a verdict for the Phillipses. Any notice to the Phillipses that there had been a problem in August would not be such a contradiction of the representation on the V.A. form regarding an October inspection as to preclude any reliance on that representation. Thus, WPC's argument does not support an affirmance on the authority of Reynolds. See Savage v. Wright, 439 So. 2d 120 (Ala.1983).
WPC also argues that its representation in the V.A. form that no "visible" evidence of termites existed cannot be false because, it says, Travis had nailed boards across the affected area to prevent detection of the damage; it alleges that it discovered this when it reinspected the premises in 1990. WPC argues that it would have had to remove the boards to discover the damage, and to do so, it says, is not its standard procedure.
The parties presented conflicting evidence as to whether Travis had concealed the termite infestation and damage. WPC presented the affidavits of three of its employees, who stated that, when they reinspected the property in July 1990, there were boards nailed to the damaged area and that those boards would have prevented WPC from discovering the infestation. However, Travis stated that he did not nail any wood to the house other than some lattice work around the deck, and he denied knowing of any termite infestation. The evidence is therefore conflicting as to whether the termite infestation had been concealed and, if so, when. Because a court may not determine the credibility of witnesses on a motion for summary judgment, WPC did not show the absence of a genuine issue of material fact as to whether "visible" evidence of termites existed when WPC issued the V.A. form. There is also a genuine issue as to whether WPC should have marked alternative "E" on the V.A. form in reference to the damage caused before the August treatment.
For the foregoing reasons, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
*1103 HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Thomas Travis's wife, Jennifer Travis, joined in the sale of the house and is also a defendant in the action, but we refer only to Thomas, for simplicity.
[2] Because we reverse on this ground, we pretermit other arguments by the Phillipses.
[3] Travis argues that he had no duty to tell the Phillipses about any termite infestation because they did not ask about termite damage. He also argues, and submitted evidence, that the diagram of the house that he signed did not show the presence of termites when he signed it and that WPC did not tell him the house had termites. We express no opinion on these questions. | June 30, 1993 |
3ae00a08-4088-458f-985a-caba90e898a5 | Fidelity & Guar. Ins. Co. v. Sturdivant | 622 So. 2d 1279 | 1911587, 1911588 | Alabama | Alabama Supreme Court | 622 So. 2d 1279 (1993)
FIDELITY AND GUARANTY INSURANCE COMPANY
v.
Dannie STURDIVANT.
G.H. HICKMAN CONSTRUCTION, INC., et al.
v.
Dannie STURDIVANT.
1911587, 1911588.
Supreme Court of Alabama.
May 21, 1993.
Rehearing Denied July 30, 1993.
L. Graves Stiff III and Rhon E. Jones of Starnes & Atchison, Birmingham, for appellant Fidelity & Guar. Ins. Co.
L. Scott Coogler of Coogler & Copeland, P.C., Tuscaloosa, for appellants G.H. Hickman Const., Inc., Gerald H. Hickman and Ethel H. Hickman.
Rodney A. Max and Rachel J. Moore of Najjar Denaburg, P.C., Birmingham, for appellee.
*1280 INGRAM, Justice.
The defendants, G.H. Hickman Construction, Inc., Gerald H. Hickman, Ethel H. Hickman, and Fidelity and Guaranty Insurance Company, appeal from a judgment entered on a jury verdict and an award of attorney fees and costs in favor of Dannie Sturdivant. G.H. Hickman Construction, Inc., Gerald Hickman, and Ethel Hickman will be collectively referred to as "Hickman Construction."
Sturdivant alleged that he was a subcontractor and that Hickman Construction was the general contractor on a public works project for the University of Alabama. He alleged that he had a contract with Hickman Construction and that he was not paid for his labor and materials furnished to the public works project under this contract. He sued Hickman Construction, alleging breach of contract and fraud; he also alleged against Hickman Construction and its surety, Fidelity and Guaranty Insurance, a cause of action under the Public Works Act, § 39-1-1, Ala.Code 1975.
The jury returned a verdict in favor of Sturdivant and against Hickman Construction and Fidelity and Guaranty Insurance in the amount of $23,176.42; the jury also returned a verdict in favor of Fidelity and Guaranty Insurance and against Hickman Construction for $23,176.42. Hickman Construction and Fidelity and Guaranty Insurance moved for a new trial on the ground that the jury verdict was not supported by the evidence. The trial court denied the motion for new trial.
The trial court had specifically instructed the jury that the bonding company, Fidelity and Guaranty Insurance, would be liable to Sturdivant if the jury found that Sturdivant had established a public works claim. Therefore, because the jury returned a verdict against both Hickman Construction and its surety, Fidelity and Guaranty Insurance, the trial court determined that the judgment was entered on the public works claim and it awarded Sturdivant attorney fees and costs, totaling $41,614.14, under § 39-1-1(b).
The defendants argue that the trial court erred in denying the motion for new trial because, they argue, the amount of the jury verdict, $23,176.42, is not supported by the evidence. A strong presumption of correctness attaches to a jury verdict in Alabama. Christiansen v. Hall, 567 So. 2d 1338, 1341 (Ala.1990). This presumption of correctness is further strengthened by a trial court's denial of a motion for new trial. Id. This Court will not disturb a trial court's denial of a motion for new trial when evidence has been presented that, if believed, would support the jury's verdict. Stokes v. Long-Lewis Ford, Inc., 549 So. 2d 51, 52 (Ala. 1989). However, "[when] there is no evidence to support a jury verdict, the trial court should grant a motion for new trial on that ground." Posey v. Meyers, 370 So. 2d 986, 986 (Ala.1979). Also, the trial court should grant a motion for new trial when the amount of a jury verdict "cannot be justified upon any reasonable hypothesis presented by the evidence." See Holcombe & Bowden v. Reynolds, 200 Ala. 190, 190, 75 So. 938, 938 (1917).
In Holcombe & Bowden, this Court reversed a trial court's judgment because the amount of the judgment was not supported by the evidence. This Court stated:
200 Ala. at 190, 75 So. at 938 (emphasis supplied).
Although Hickman Construction disputed whether Sturdivant was a "subcontractor," the record reveals the following regarding Sturdivant's alleged subcontract with Hickman Construction: Sturdivant agreed to furnish all labor and materials and to perform all work for Hickman Construction pursuant to Hickman Construction's contract with the University; in return, Hickman Construction agreed to pay Sturdivant $216,413.23. Hickman Construction was to be paid $246,320.00 by the University for the project; subsequent change orders increased the amount actually paid to $248,989.57. In arriving at the precise figure of $216,413.23, Sturdivant estimated that the total cost of labor and materials for the project would be $178,413.23, and he added in a profit of $38,000. According to Sturdivant's testimony, his contract did not guarantee a profit of $38,000; he testified as follows:
Sturdivant testified that the terms of his contract provided that Hickman Construction would pay him $216,413.23; however, Hickman Construction would actually pay for the materials and would handle the payroll for the labor. Any amounts paid by Hickman Construction for materials and/or labor for the University project were to be credited against the subcontract amount of $216,413.23.
On or about June 26, Sturdivant abandoned the project, before its completion. He filed his notice of claim, as required by § 39-1-1(b), claiming Hickman Construction owed him $68,879.04. He arrived at this figure by "estimating" the total actual cost of the project at $147,534.19. Hickman Construction presented evidence, including ledger sheets, cancelled checks, and project documentation maintained by the University, that showed the actual cost of the project was $246,660.07. Hickman Construction was paid $248,989.57 for the project, a "profit" for Hickman Construction of $2,329.50.
As stated above, the jury returned a verdict in favor of Sturdivant for $23,176.42. This amount is not supported by the record. Considering the testimony of the parties, considering the exhibits, and *1282 allowing for the calculation of interest, we cannot find support for this figure in the evidence presented at trial.
Assuming that the jury found that Sturdivant had a subcontract with Hickman Construction and that he was entitled to damages because of Hickman Construction's failure to pay, the jury was required to award him damages in accordance with the terms of his contract. See Price v. H.L. Coble Construction Co., 317 F.2d 312, 319 (5th Cir.1963). Under the terms of his contract, Sturdivant was entitled to the difference between $216,413.23 and the actual cost of labor and materials for the project; if the cost of labor and materials for the project was over $216,413.23, Sturdivant alleges, he and Hickman Construction agreed to split any profit that Hickman Construction received.
Sturdivant testified that the cost of the project was $142,934.19; if the jury believed this testimony, Sturdivant should have been awarded approximately $69,000 plus interest. Hickman Construction, however, testified that the actual cost of the project was $246,660.07, which is greater than Sturdivant's subcontract amount of $216,413.23 and only $2,329.50 less than the amount the University paid to Hickman Construction. Sturdivant testified that Hickman Construction had agreed to split any profit if the cost of the project was over the subcontract estimated cost; therefore, the jury could have returned a verdict for $1,164.75 plus interest. The evidence would support a verdict in favor of Sturdivant, based upon the alleged subcontract, of $1,164.75 plus interest or one that approximated $69,000 plus interest. However, after carefully and thoroughly considering all the exhibits and all the testimony offered at trial, we hold that the evidence does not support a verdict for $23,176.42, based on the alleged subcontract.[1]
In the case of S.D. Winn Cigar Co. v. Wilson, 35 Ala.App. 466, 48 So. 2d 64 (1950), the Court of Appeals stated:
Id., 35 Ala.App. at 468, 48 So. 2d at 65. The Court of Appeals further stated:
Id., 35 Ala.App. at 469, 48 So. 2d at 66 (quoting Stetson v. Stindt, 279 F. 209, 211 (3d Cir.1922), as quoted in Metropolitan Life Ins. Co. v. Ray, 28 Ala.App. 357, 184 So. 282 (1938)).
The defendants, Hickman Construction and Fidelity and Guaranty Insurance, have been "deprived of the right of a litigant to have the jury determine his liability under the law as laid down by the court." *1283 See S.D. Winn Cigar Co., 35 Ala.App. at 469, 48 So. 2d at 66. Indulging all presumptions of correctness and carefully considering all the evidence in the record, we hold that the jury verdict in favor of Sturdivant for $23,176.42 is not supported by the evidence; therefore, the trial court erred in denying the defendants' motion for a new trial.[2]
The judgment in favor of Sturdivant is reversed. Because we reverse the judgment in favor of Sturdivant, we necessarily reverse the judgment requiring Hickman Construction to indemnify Fidelity and Guaranty Insurance. We pretermit discussion of the defendants' challenge to the trial court's award of attorney fees and costs and remand this cause for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] Sturdivant argues in his brief that the verdict amount may be based upon the jury's determination of the value of his labor and materials furnished; this argument ignores the fact that Sturdivant offered no evidence as to the value of services he had provided to Hickman Construction and the University project, but for which he had not been paid. He also argues that the figure may be the result of the jury's determination of a set-off or of the jury's finding as to cost-to-complete after he abandoned, the project. However, no testimony, other than what is set forth above, was offered to prove costs of the project. Indeed, Sturdivant's own testimony is that his figure as to the total cost of the project ($147,534.19) is an estimate as of June 26, the day he abandoned the project. Quite simply, there is no way to mathematically approximate the amount of the jury verdict, based upon the testimony and exhibits in the record.
[2] We note that the claim based upon the subcontract was not the only claim submitted to the jury. The trial court also instructed the jury on Sturdivant's claims based upon quantum meruit and upon fraud. The general verdict returned in favor of both the Hickmans and their surety, Fidelity and Guaranty Insurance, precludes a finding that the general verdict was based on fraud. The record is also devoid of any evidence, other than that related to the alleged contract, regarding the value or worth of the labor and/or materials furnished by Sturdivant; thus any recovery on a quantum meruit theory is precluded. | May 21, 1993 |
04731ce9-8f92-4281-ad84-1c31a05c0fdf | Hurst v. Nichols Research Corp. | 621 So. 2d 964 | 1920567 | Alabama | Alabama Supreme Court | 621 So. 2d 964 (1993)
Noah Jerome HURST
v.
NICHOLS RESEARCH CORPORATION and Chris Horgen.
1920567.
Supreme Court of Alabama.
May 28, 1993.
David H. Marsh of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, and Marc Sandlin, Huntsville, for appellant.
James E. Davis, Jr., John M. Heacock, Jr. and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
HOUSTON, Justice.
The plaintiff, Noah Jerome Hurst, appeals from a summary judgment for the defendants, Nichols Research Corporation ("the corporation") and its chief executive officer, Chris Horgen, in this action seeking damages for breach of contract and fraud. We affirm.
The material facts in this case are undisputed. In the fall of 1983, Hurst, a mechanical engineer, entered into employment negotiations with Horgen for a management position with the corporation, a Huntsville-based company that provides advanced technical services to various government agencies. Those negotiations focused primarily on the subject of stock options that the corporation provided to management level employees. At some point during the negotiations Horgen showed Hurst a handwritten chart containing a breakdown as to the number of shares that could be purchased by employees at different management levels, based on the amount of business developed for the corporation.
After the negotiations were completed, Horgen presented a letter to Hurst, dated December 1, 1983, offering him employment on certain terms. That letter specified, among other things, the position that *965 Hurst would assume with the corporation, the salary that he would be paid, the date on which his employment would begin, the amount of a one-time bonus that he would receive to cover certain expenses, the name of the individual who would be his immediate supervisor, and the terms governing his purchase of the corporation's stock. Hurst asked Horgen to make certain changes to the letter with regard to the dates on which he could purchase the corporation's stock. Horgen made those requested changes. In its final form, the corporation's letter read as follows:
Hurst also received a typed version of the benefits chart that Horgen had shown him during the negotiations. The chart, which was entitled "NRC's Management Level Benefit Guidelines," specifically and clearly provided: "These are not hard rules or benefit packages at NRC." The chart was not attached to the letter offering employment. Instead, it was provided to Hurst along with a cover letter stating: "Enclosed please find a copy of the information we discussed." The back of the chart contained certain handwritten calculations that had been made by Horgen. Hurst accepted the corporation's offer of employment by letter dated December 7, 1983:
Hurst later sued the corporation and Horgen, alleging that Horgen had promised him during the negotiations that he would be eligible to purchase more stock than was specified in the December 1, 1983, letter and that Horgen had failed to keep that promise. The corporation and Horgen moved for a summary judgment, arguing that the parol evidence rule barred evidence with respect to the pre-contract negotiations and that they were entitled to a judgment as a matter of law as to the contract claim based on the evidence that would be admissible at trial. The defendants *966 maintained that a summary judgment as to the fraud claim would be proper because, they argued, Hurst could not have justifiably relied on any misrepresentation that might have been made by Horgen with regard to the stock options provided by the corporation. The defendants also argue that there was no evidence that Horgen intended to deceive Hurst, even assuming that he promised Hurst additional stock options. The trial court granted the defendants' motion, and this appeal followed.
With regard to the contract claim, the parties are at issue over whether the parol evidence rule applied so as to bar evidence that, Hurst says, would have established that Horgen made a promise during the contract negotiations to allow him to purchase more of the corporation's stock than was specified in the December 1 written offer. Hurst maintains that he and Horgen intended for the benefits chart, which on the back contained certain handwritten calculations made by Horgen as to the number of shares that Hurst claims he was eligible to purchase, to be a part of the corporation's offer. Hurst argues that these calculations support his claim that Horgen guaranteed him an absolute right to purchase additional stock in the corporation. Horgen testified that he made the calculations on the back of the chart to show Hurst the number of shares that he "might" be eligible to purchase after he had worked a certain number of years for the corporation and had generated sufficient business. Hurst takes the position that his written acceptance of the terms specified in the December 1 letter, which specifically stated that "[a]dditional stock options [would] be considered after [Hurst's] business base [grew] to above $500,000" (emphasis added), did not require application of the parol evidence rule so as to render the chart and his explanation of the pre-contract negotiations inadmissible. Quoting isolated portions of this Court's opinion in Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So. 2d 431, 435 (Ala.1979), Hurst argues that "[t]o the extent ... that [a written contract] contradicts the actual agreement of the parties, it is simply untrue"; that "[p]aper and ink possess no inherent power to cause statements to be true when they are actually untrue"; that "[t]he parol evidence rule does not prevent the admission of contradictory evidence to establish the truth"; and that the parol evidence rule does not "prevent the enforcement of contracts actually made."
The defendants do not disagree with these particular statements from Hibbett; they argue, instead, that the statements must be read in the proper context and with a full understanding of the holding in Hibbett. Hibbett, the defendants say, is direct authority for upholding the trial court's application of the parol evidence rule in the present case and, thus, its judgment with respect to Hurst's contract claim. We agree with the defendants' interpretation of Hibbett and with the trial court's disposition of the contract claim.
The following excerpts from Hibbett are applicable to the present case:
375 So. 2d at 434-36.
The record in the present case indicates that the trial court found that the corporation's December 1 written offer of employment was mutually assented to by Hurst and Horgen as the complete and accurate integration of Hurst's employment *968 contract and, therefore, that the negotiations leading up to that offer were discharged and nullified by the parties themselves. The evidence supports that finding. The December 1 letter, which followed extensive negotiations between Hurst and Horgen, is specific and clear with regard to the subject of stock options. Horgen stated in the letter that Hurst could raise any questions that he had concerning the terms of the offer, and Hurst sought and obtained a modification as to the time frame within which he could purchase the corporation's stock. Given the ease with which the letter could have been further modified, the trial court was justified in concluding that Hurst and Horgen intended for it to completely and accurately reflect their agreement.
We note that Hurst's reliance on Hibbett is misplaced. In Hibbett, as the defendants correctly point out, the parties to the contract stipulated that the written document evidencing their agreement was not a true and complete expression of their agreement. Simply put, the parol evidence rule was held to be inapplicable in Hibbett because the undisputed evidence showed that the parties had agreed that the written document they had signed did not reflect the truth. This Court reversed the judgment because the evidence clearly did not support the trial court's finding that the parties had mutually assented to the written contract as a complete and accurate integration of their agreement. It was in this context that this Court made the statements previously quoted and relied on by Hurst. Contrary to the facts presented in Hibbett, the facts here present the classic case for application of the parol evidence rule. As this Court noted in Hibbett:
375 So. 2d at 435.
Because the defendants made a prima facie showing that there was no genuine issue of material fact and that they were entitled to a judgment as a matter of law, and because Hurst did not present evidence creating a factual issue for resolution by a jury, the summary judgment for the defendants was proper as to the contract claim. Knight v. Alabama Power Co., 580 So. 2d 576 (Ala.1991).
Hurst's fraud claim is based on allegations that Horgen induced him to accept employment with the corporation by promising him that he would be allowed to purchase more of the corporation's stock than was specified in the December 1 letter. This Court has held that the parol evidence rule does not apply to a claim based on allegations of fraud in the inducement, see Dixon v. SouthTrust Bank of Dothan, N.A., 574 So. 2d 706 (Ala.1990); therefore, under our standard for reviewing summary judgments, see Knight v. Alabama Power Co., supra, we must assume that Horgen promised Hurst additional stock options. However, even if that assumption is made, Hurst's claim alleging promissory fraud cannot be sustained without a showing of justifiable reliance. This reliance is defined as follows:
"Withers v. Mobile Gas Service Corp., 567 So. 2d 253, 255 (Ala.1990), quoting Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially).
The undisputed evidence shows that Horgen presented Hurst with a clear and specific letter offering him employment with the corporation on certain terms. That offer did not grant Hurst the absolute right to purchase additional shares. To the contrary, the letter stated that "[a]dditional stock options [would] be considered after [Hurst's] business base [grew] to above $500,000." (Emphasis added.) Hurst read the letter and even had Horgen make certain modifications with respect to when he could purchase shares from the corporation. Hurst specifically accepted the terms set out in the corporation's written offer of employment:
(Emphasis added.) Other than by closing his eyes to avoid discovering the truth, Hurst could not have failed to realize that Horgen's alleged absolute promise of additional stock was entirely different from the terms stated by Horgen in the December 1 letter. The terms set out in the letter with respect to Hurst's right to purchase more than 12,000 shares of the corporation's stock were open-ended and clearly contemplated a future evaluation as to Hurst's eligibility to purchase that additional stock. As a matter of law, Hurst did not justifiably rely on any promise that Horgen may have made with respect to the issuance of stock options. See Parsons v. Maine Fidelity Life Ins. Co., 604 So. 2d 342 (Ala. 1992); Boland v. Fort Rucker National Bank, 599 So. 2d 595 (Ala.1992); Harrington v. Johnson-Rast & Hayes Co., 577 So. 2d 437 (Ala.1991); and Withers v. Mobile Gas Service Corp., supra.
Because Hurst failed to rebut the defendants' prima facie showing that there was no genuine issue of material fact with regard to Hurst's allegation that he justifiably relied on a promise to provide him additional stock options, and that the defendants were entitled to a judgment as a matter of law, the trial court properly entered the summary judgment as to the fraud claim. Knight v. Alabama Power Co., supra. Therefore, we need not determine if a jury question was presented as to whether Horgen had a present intent to deceive Hurst at the time he allegedly made the promise to provide additional stock options. See Centon Electronics, Inc. v. Bonar, 614 So. 2d 999 (Ala.1993).
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and SHORES, JJ., concur. | May 28, 1993 |
f542932a-8867-4366-9215-efd865602246 | Ex Parte Scarbrough | 621 So. 2d 1006 | 1911025 | Alabama | Alabama Supreme Court | 621 So. 2d 1006 (1993)
Ex parte Christopher M. SCARBROUGH.
(Re Christopher M. Scarbrough v. State).
1911025.
Supreme Court of Alabama.
May 28, 1993.
*1007 J. Edmund Odum, Jr., Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Yvonne A. H. Saxon, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
This case involves an issue of first impression in Alabama concerning pretextual arrests.
The dispositive issue is whether the defendant's confession should have been suppressed on the basis that his confession was the product of an illegal pretextual arrest. More specifically, should the defendant's voluntary admission to the killing be excluded from evidence because the police arrested the defendant under an outstanding warrant for a different crime, intending to question him solely about the killing to which he later admitted.
The victim, John C. Johnson, was found murdered in his apartment on January 31, 1990. The police began looking for the defendant, Christopher M. Scarbrough, the following day after learning from Johnson's neighbors that Scarbrough had been seen with Johnson at the apartment complex on the day of the murder. On February 7, 1990, the police talked with Scarbrough's wife but were unable to locate Scarbrough. The wife stated that she had seen him only sporadically in the past few weeks but that she would tell him that the police were looking for him. Scarbrough telephoned the police department and left messages stating that he would call back later. He did not leave a telephone number at which he could be reached.
The police then ran Scarbrough's name through the state computer files and found that there was an outstanding 1988 warrant against him for failure to pay traffic tickets. On March 20, 1990, he was arrested on the unpaid traffic ticket warrant. After being read his Miranda[1] rights, Scarbrough was questioned by the police officer investigating the murder. He subsequently admitted that he had stabbed Johnson; he claimed that Johnson had made a homosexual advance toward him and that in response he had grabbed a knife from the kitchen counter and had stabbed Johnson with it.
Scarbrough was indicted for capital murder. Before trial, he filed a motion to *1008 suppress his statement concerning the killing. The trial court held that the arrest on the two-year old traffic ticket warrant was unnecessary, because, it found, there was probable cause to arrest Scarbrough for murder; the court denied the motion to suppress. The jury found Scarbrough guilty of the lesser included offense of felony-murder.
On appeal, Scarbrough argued that his statement should have been suppressed on the grounds that there had been no probable cause for his arrest and that his statement was the product of an illegal pretextual arrest. The Court of Criminal Appeals held that there was no probable cause to arrest him for murder. 621 So. 2d 996. However, that court further held that the statement was not the product of an illegal pretextual arrest, and it affirmed the conviction.
We agree with the Court of Criminal Appeals that the police lacked probable cause to arrest Scarbrough for murder. We now turn to the issue whether his incriminating statement should have been suppressed on the basis that his arrest was the product of an illegal pretextual arrest.
Scarbrough argues that the police arrested him on a valid traffic warrant but would not have done so but for a desire to question him about the killing. He contends that his arrest was a mere "pretext" to question him about the killing and that the arrest therefore violated his Fourth Amendment right to be free from unreasonable searches and seizuresthat the arrest on the traffic ticket warrant was merely a guise to avoid what he says was a lack of probable cause to arrest him for murder.
The Fourth Amendment to the United States Constitution states:
Addressing the question of pretextual arrests, the United States Supreme Court held in 1932 that "an arrest may not be used as a pretext to search for evidence." United States v. Lefkowitz, 285 U.S. 452, 467, 52 S. Ct. 420, 424, 76 L. Ed. 877 (1932). In Lefkowitz, prohibition agents had a valid warrant to arrest the defendant for conspiracy to sell liquor. During the arrest, agents searched the defendant's desks, cabinets, and baskets, seizing certain papers and claiming them to be evidence of the conspiracy. The Supreme Court held that the searches were exploratory and general and had been made solely to find evidence of a conspiracy. There was nothing in the record to support a conclusion that the crime of conspiracy was being committed in the presence or plain view of the prohibition agents. The complaint that was made the basis of the warrant did not allege that the defendant's office was a place where liquor was stored or sold. The valid arrest warrant did not give the agents the authority to search out and scrutinize everything in the room in order to determine whether any item in the office was used in the alleged conspiracy.
Scarbrough does not challenge the validity of his arrest on the outstanding traffic warrant. Rather, he challenges the police officer's motives in arresting him on the traffic warranthe says the sole motive was to question him about the murder. That is, he challenges the validity of the search (which he says consisted of questions concerning the murder) incident to his arrest on the valid traffic ticket warrant.
The United States Supreme Court has not adopted a test for determining whether an arrest was pretextual and therefore unlawful. The Circuit Courts of Appeals are split on which test to adopt concerning pretextual arrests.
Scarbrough asks this Court to adopt the subjective test set out in United States v. Valdez, 931 F.2d 1448 (11th Cir.1991). In Valdez, police had been conducting surveillance of a residence for suspected drug trafficking when they observed two men place large garbage bags in Valdez's automobile. Shortly thereafter, Valdez left the *1009 residence. The officer in charge gave a description of Valdez's car over the police radio. Another police officer saw Valdez's car and followed it. Valdez made a right turn at a red traffic signal, causing another driver to abruptly slow down in order to avoid hitting Valdez. The police officers stopped Valdez, using the traffic violation as the basis for the stop. Valdez consented to a search of his car, where the officers found two garbage bags containing cocaine. The Court of Appeals for the Eleventh Circuit held that the stop of Valdez was pretextual and that Valdez's consent to a search was therefore not voluntary.
In Valdez, the Court of Appeals held that "the proper inquiry is whether a reasonable officer would have made the seizure in the absence of improper motivation," 931 F.2d at 1450 (emphasis in original), citing United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986). The test requires "`an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time and not on the officer's actual state of mind at the time of the challenged action taken.'" 931 F.2d at 1450. "The proper inquiry, again, is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose." Id. (emphasis in original). The Courts of Appeals for the Ninth and Tenth Circuits also apply the subjective test. See United States v. Guzman, 864 F.2d 1512 (10th Cir.1988); United States v. Smith, 802 F.2d 1119 (9th Cir.1986).
Other circuits apply an objective test. United States v. Cummins, 920 F.2d 498 (8th Cir.1990); United States v. Trigg, 878 F.2d 1037 (7th Cir.1989); United States v. Causey, 834 F.2d 1179 (5th Cir.1987); United States v. Nersesian, 824 F.2d 1294 (2d Cir.1987), cert. denied, 484 U.S. 958, 108 S. Ct. 357, 98 L. Ed. 2d 382 (1987); United States v. Hawkins, 811 F.2d 210 (3d Cir.1987), cert. denied, 484 U.S. 833, 108 S. Ct. 110, 98 L. Ed. 2d 69 (1987).
In Causey, 834 F.2d 1179, the Court of Appeals for the Fifth Circuit, sitting en banc, expressly rejected the subjective test that had previously been applied in that circuit. An anonymous tipster notified police that Causey had been involved in a recent bank robbery. The police lacked probable cause to arrest and interrogate Causey concerning the bank robbery. In looking for a way to apprehend and question Causey, the police discovered an outstanding arrest warrant for failure to appear in court. The police arrested Causey on the failure to appear warrant, gave him his Miranda rights, and questioned him about the bank robbery. Causey later confessed to the bank robbery. He filed a motion to suppress the confession on the basis that the arrest on the misdemeanor warrant was a "pretext" for questioning him about the robbery.
The court in Causey held that where a police officer has taken no action except what the law objectively allows, the officer's subjective motives are not relevant to the suppression inquiry. In adopting the objective test, the Fifth Circuit cited three Supreme Court cases,[2] indistinguishable in principle from Causey, holding that "where police officers are objectively doing what they are authorized to do, ... the results of their investigations are not to be called in question on the basis of any subjective intent with which they acted." 834 F.2d at 1184.
Recently, the Supreme Court again reiterated its preference for an objective test in the context of the Fourth Amendment. *1010 "Evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer." Horton v. California, 496 U.S. 128, 136-39, 110 S. Ct. 2301, 2308-09, 110 L. Ed. 2d 112 (1990) (holding that the Fourth Amendment does not prohibit the warrantless seizure of evidence in plain view even though the discovery of the evidence was not inadvertent).
Following the Supreme Court's preference for an objective standard, we adopt the objective test for determining whether an arrest was pretextual and therefore unlawful. As long as the police officer is doing only what is objectively authorized and legally permitted, the officer's subjective intent in doing it is irrelevant.
In the instant case, the police officers arrested Scarbrough pursuant to a valid arrest warrant. After advising him of his Miranda rights, they merely inquired whether he wanted to discuss the murder. Their conduct was reasonable under the objective test and did not violate the Fourth Amendment. Therefore, the Court of Criminal Appeals properly affirmed the judgment of the trial court.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS and INGRAM, JJ., concur.
HOUSTON and STEAGALL, JJ., concur in the result.
HOUSTON, Justice (concurring in the result).
I adopt the opinion of Judge Bowen in its entirety as the basis for my concurrence in the result.
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[2] The Fifth Circuit cited Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978) (police officer's interception of virtually all calls on a tapped line of suspected drug dealer not an unreasonable search under an objective standard); United States v. Villamonte-Marquez, 462 U.S. 579, 103 S. Ct. 2573, 77 L. Ed. 2d 22 (1983) (customs agent's boarding a ship for the purpose of examining ship documentation under 19 U.S.C. 158(a) is reasonable under the Fourth Amendment even though agents were allegedly following an informant's tip that drugs were aboard); Maryland v. Macon, 472 U.S. 463, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985) (officer's purchase of obscene materials from adult bookstores with marked money not a warrantless seizure under an objective test). | May 28, 1993 |
efd094a2-4e9a-4c15-8407-c176d13fcee5 | Independent Fire Ins. Co. v. Lunsford | 621 So. 2d 977 | 1911677, 1911807 | Alabama | Alabama Supreme Court | 621 So. 2d 977 (1993)
INDEPENDENT FIRE INSURANCE COMPANY
v.
Randall D. LUNSFORD and Betty J. Lunsford.
Randall D. LUNSFORD and Betty J. Lunsford
v.
INDEPENDENT FIRE INSURANCE COMPANY.
1911677, 1911807.
Supreme Court of Alabama.
May 28, 1993.
Albert L. Jordan, B. Glenn Murdock and R. Dale Wallace, Jr. of Wallace, Jordan, *978 Ratliff, Byers & Brandt, Birmingham, for Independent Fire Ins. Co.
James H. Starnes of Starnes & Atchison, Birmingham, and Jerry L. Thornton, Hayneville, for Randall D. and Betty J. Lunsford.
KENNEDY, Justice.
The defendant, Independent Fire Insurance Co. ("Independent"), appeals from a judgment based on a jury verdict in favor of the plaintiffs, Randall and Betty Lunsford, on a two-count complaint alleging breach of contract and bad faith (case 1911677). We affirm in part; reverse in part; and render a judgment for the defendant on the bad faith claim. The Lunsfords cross appealed, complaining of the court's denial of a directed verdict on their contract claim (case 1911807). Because they now concede that any error in denying the directed verdict would be "harmless error," we dismiss the cross appeal.
The record indicates the following facts pertinent to Independent's appeal.
In 1986, the Lunsfords purchased from Independent an insurance policy to cover a mobile home they owned. The mobile home was not a primary residence, but was used occasionally by relatives of theirs. The policy provided standard coverage for loss, subject to certain exclusions.
In February 1990, a windstorm damaged an awning attached to the mobile home. The Lunsfords notified the Elmer Tallant Agency, which in turn reported the damage to Independent. Independent retained Capitol Adjustment Company of Montgomery to handle the loss. An adjuster for Capitol Adjustment inspected the mobile home and sent a letter describing the loss, along with photographs, to Independent. Independent denied the claim, based on a windstorm exclusion endorsement on the Lunsfords' policy. That endorsement excluded coverage as to windstorm or hail damage to "canopies, awnings constructed of cloth, vinyl or canvas and other awnings not permanently attached to the mobile home."
The Lunsfords sued Independent and Capitol for damages, alleging breach of their insurance contract, arising out of Independent's denial of their claim, and alleging a bad faith refusal to pay. Capitol Adjustment was dismissed voluntarily at the close of the plaintiffs' evidence. The jury returned a verdict for the Lunsfords in the amount of $25,000 in compensatory damages on the breach of contract count and $100,000 in punitive damages on the bad faith count. The court entered a judgment on that verdict.
The issues presented are whether the evidence supported the finding that Independent's refusal to honor the claim was a bad faith refusal; whether the evidence supported the finding of a breach of contract; and if so, whether the evidence supported the jury's awards of damages.
According to National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179, 183 (Ala.1982), the plaintiff in a bad faith refusal case has the burden of proving:
The insurance policy issued to the Lunsfords was subject to an exclusion for windstorm damage to awnings. The exclusionary language in Form IMH-511 reads: "Windstorm or hail. To any of the following property: ... (g) canopies, awnings constructed of cloth, vinyl or canvas and other awnings not permanently attached to the mobile home."
*979 The awning attached to the Lunsfords' mobile home was made of cloth or vinyl and was supported by an aluminum frame. In February 1990, a windstorm tore the awning and bent the frame. After inspecting the awning for 20 to 25 minutes, the adjuster from Capitol determined that "wind destroyed cloth awning and its frame."
The burden of proof was on the Lunsfords to show, by substantial evidence, "[t]he absence of any reasonably legitimate or arguable reason for refusal" of their claim. Bowen. Thus, in the absence of substantial evidence that an insurer lacked a "reasonably legitimate or arguable" reason to deny coverage, a trial court errs by submitting the issue of bad faith to the trier of the facts. § 12-21-12(a), Ala.Code 1975.
Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989).
We conclude that the Lunsfords did not meet their burden of showing substantial evidence of "the absence of any reasonably legitimate or arguable reason for refusal" of their claim. It is undisputed that the awning was made of vinyl or cloth and was supported by an aluminum frame.
The Lunsfords argue that the awning was permanently attached to the house trailer and was constructed primarily of metal and, therefore, was not subject to the exclusion. However, no fair-minded person in the exercise of impartial judgment could reasonably infer that Independent lacked an arguable basis for denying the claim. Independent's interpretation of the exclusionary language in the insurance policy was, at least, "reasonable."
As to the breach of contract claim, the jury awarded the Lunsfords $25,000 in compensatory damages. The estimate to replace the damaged awning was $1603.68; the balance of the award represents damages for mental anguish. According to Orkin Exterminating Co. v. Donavan, 519 So. 2d 1330 (Ala.1988), citing B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala. 1979), a plaintiff may recover damages for mental anguish if the jury is satisfied "that the contractual duties imposed by this contract are so coupled with matters of mental solicitude as to the duty that is owed, that a breach of that duty will necessarily or reasonably result in mental anguish." The Lunsfords maintained the insurance policy for more than four years by paying the premiums when due. After discovering the damage to the awning, they properly notified the Elmer Tallant Agency, which then notified Independent. After an inspection of the damaged awning, an Independent agent notified the Lunsfords that the claim would be denied.
Mr. Lunsford testified at trial concerning the mental anguish he and his wife claimed to have suffered as a result of the denial of their insurance claim. That evidence presented a question for the jury.
We agree with the trial court that the evidence supported the jury's award of compensatory damages for breach of contract, including damages for mental anguish. However, the trial court erred in denying a directed verdict for the defendant on the bad faith claim. Therefore, we affirm that portion of the judgment awarding compensatory damages for breach of contract; but we reverse that portion awarding punitive damages on the bad faith claim, and on that claim we render a judgment for the defendant.
1911677AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED FOR THE DEFENDANT ON THE BAD FAITH CLAIM.
1911807DISMISSED.
HORNSBY, C.J., and SHORES, ADAMS and HOUSTON, JJ., concur.
MADDOX and INGRAM, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in that portion of the majority opinion holding that the plaintiffs failed to *980 offer substantial evidence of a bad faith failure to pay an insurance claim, but I must respectfully dissent from that portion affirming the award of damages for mental anguish arising out of the breach of this noncommercial insurance contract.
The law in this state is clear that there can be no recovery "for personal injury, inconvenience, annoyance or mental anguish and suffering in an action for breach of a contract of insurance." Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So. 2d 1054, 1056 (Ala.1979) (emphasis added); see, e.g., United Services Auto Ass'n v. Wade, 544 So. 2d 906, 913 (Ala. 1989); Aetna Life Insurance Co. v. Lavoie, 505 So. 2d 1050, 1056 (Ala.1987) (Maddox, J., concurring specially); Sanford v. Western Life Insurance Co., 368 So. 2d 260, 263-64 (Ala.1979); Stead v. Blue Cross-Blue Shield of Alabama, 346 So. 2d 1140, 1143 (Ala.1977) (quoting F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 657, 141 So. 630, 631 (1932)); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Smith, 406 So. 2d 913, 916 (Ala.Civ.App.), cert. denied, 406 So. 2d 916 (Ala.1981).
The result reached in this case shows why I believe that we should re-examine the rule of law that permits an insured to sue for a bad faith failure to pay, and should permit, instead, an insured to recover consequential damages and attorney fees upon a showing that an insurer has failed to pay a claim, without just cause. I have believed for several years that this Court should adopt an alternative to the bad faith claim. See my dissenting opinion in Continental Assur. Co. v. Kountz, 461 So. 2d 802 (Ala.1984) (Maddox, J., dissenting), where I discussed the development of the tort of bad faith and why I thought that either this Court or the Legislature should provide an alternative to the tort of bad faith failure to pay a noncommercial insurance claim, by permitting the recovery of attorney fees and consequential damages when a policyholder was forced to go to court in order to establish entitlement to insurance benefits.
In the Kountz dissent, I noted that this Court should probably consider expanding the rule of law relating to the recovery of contractual damages in noncommercial insurance contract cases, and in a footnote to that case I suggested that the Legislature might wish to address the problem by adopting legislation.[1] In that dissent, I also said that "in the absence of legislation, I would favor a rule of law which would allow the recovery of consequential damages, including reasonable attorneys' fees, when a party is forced to go to court to establish his claim under an insurance policy." 461 So. 2d at 812. I further said that "in our scheme of government, policy questions like [those presented in a bad faith failure to pay case], especially since they involve the heavily regulated insurance industry, should properly be addressed by the Legislature."[2] 461 So. 2d at 812.
I spelled out in the Kountz dissent why I thought this Court should consider a rule allowing extracontractual damages:
461 So. 2d at 813. The same public policy considerations that concerned me and other members of the Court in Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 7 (Ala.1981), when the tort was recognized, continue to concern me. Those public policy considerations are: What type of remedy should be employed when an insurer fails to pay a valid claim made by its insured? What is the measure of damages? Should this Court be deciding these public policy issues?
The failure of insurers to promptly pay what policyholders consider just claims is of great public concern. That concern is evidenced by the proliferation of cases in which policyholders seek not only redress under the contract, but also punitive damages under a "bad faith" theory. Juries, like this jury, are responding with verdicts of such magnitude that insurers are raising federal constitutional arguments that their due process rights are being violated. Cf. Pacific Mutual 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). The Legislature has responded to the problem, in part, by adopting legislation commonly referred to as the Tort Reform Package, which seeks to regulate the award of punitive damages by setting a cap on the recoverable damages, except in certain instances where there was a pattern and practice of wrongful conduct. See, Ala.Code 1975, § 6-11-21.
My position from the beginning has been that this Court should modify the rule that did not permit recovery for personal injury, inconvenience, annoyance, or mental anguish and suffering in an action for breach of a contract of insurance, and instead should adopt a rule authorizing the recovery of extracontractual damages. This Court, in Stead v. Blue Cross-Blue Shield of Alabama, 346 So. 2d 1140 (Ala.1977), was faced squarely with the legal question presented here: In an action brought for the breach of an insurance contract, can the insured recover damages for personal injury, inconvenience, annoyance, or mental anguish and suffering? Five members of this Court held that such damages were not recoverable. I did not participate in that decision, but I did participate in Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 7 (Ala.1981), in which a majority of the Court recognized the tort of bad faith failure to pay an insurance claim. I dissented in Chavers, and I still am of the opinion that the remedy sought in Stead was much preferable to that sought in Chavers, but I have found little support for that position.
The result reached here basically adopts the rationale that the insureds in Stead sought to have this Court adopt, and, because it allows the recovery of damages that this Court said, in Stead, were not recoverable, I believe that this case overrules Stead. I believe the remedy I suggested in my dissent in Kountz would be the fairest remedy and the easiest to apply. I believe we should adopt it.[3]
*982 In summary, I am of the opinion that the judicially created tort of "bad faith" has had, and continues to have, serious policy ramifications that I still believe should be addressed by the legislative body of our government, but in the absence of legislation, I think that the judiciary can determine that, in cases such as this, damages in addition to those provided for by the contract are necessary to make the policyholder whole. Consequently, I agree that the policyholder should be able to recover consequential damages for the breach of the contract.
[1] I called the Legislature's attention to a piece of legislation included in an article by K. Harvey and T. Wiseman in 72 Ky.L.J. 141 (1983-84) entitled First Party Bad Faith: Common Law Remedies and a Proposed Legislative Solution. 461 So. 2d at 812.
[2] The Legislature did adopt a so-called "Tort Reform Package" of bills, and included in the package was one that limited the amount that could be awarded as punitive damages. That legislation is being attacked as unconstitutional in a case now pending before this Court. Henderson v. Alabama Power Co., 1901875, 1993 WL 222341 (Ala.1993).
[3] In Kountz, I said:
"By dissenting in this case, and in others presented to this Court, I may appear to believe a plaintiff in a case such as the present one should be limited to his usual contract damages, but I have no such views, and have never entertained them. The Chief Justice, in his dissent in [Aetna Life Insurance Company v.] Lavoie [470 So. 2d 1060 (1984)], using a principle which I have long held to be the law, has suggested what I believe would be a sound rule of law to establish in these insurance contract cases. He suggested that this Court should adopt a rule that would restrict the cause of action, in situations such as exist here, to one sounding in contract, but expand the contractual damages rules for non-commercial insurance contracts. To me, that would be a just and fair rule which could be easily applied, and would be a rule this Court could unanimously adopt. Of course, the Legislature is the body normally relied upon to correct any ills which might exist in the insurance industry regarding payment of insurance claims."
461 So. 2d at 811-12 (emphasis original). | May 28, 1993 |
17d6334c-9904-4f0a-924f-196bdb6866db | Ex Parte Pippens | 621 So. 2d 961 | 1920065 | Alabama | Alabama Supreme Court | 621 So. 2d 961 (1993)
Ex parte Floyd Willie PIPPENS.
(Re Floyd Willie Pippens v. State).
1920065.
Supreme Court of Alabama.
May 28, 1993.
*962 William M. Dawson, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Robert C. Ward, Jr., Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted the petition for writ of certiorari to review two questions: (1) Did the trial court err in allowing the prosecutor to question the defendant, Floyd Willie Pippens, on cross-examination, about his pre-arrest silence, and (2) Did the trial court err in not instructing the jury regarding negligent homicide as a lesser-included offense of reckless manslaughter?
The Court of Criminal Appeals affirmed the conviction of reckless manslaughter, and in an unpublished memorandum, 617 So. 2d 710, citing Salter v. State, 578 So. 2d 1092 (Ala.Cr.App.1990), wrote:
After reviewing pertinent portions of the record on appeal, we conclude that the judgment of the Court of Criminal Appeals is due to be affirmed.
Petitioner, Floyd Willie Pippens, was involved in a shooting that resulted in the death of Barbara Jean White. The killing occurred in the Metropolitan Gardens housing project in Birmingham and arose out of an argument between two men. White was killed by a bullet that the jury could have found came from Pippens's .38 caliber pistol.
Witnesses for the State testified that the two men began fighting and shooting at each other; that Pippens had a gun; that he shot at one of the men; that a bullet hit White in the head; and that White died as a result of the gunshot wound. Witnesses testified that Pippens fled the scene in a black Pontiac Trans Am automobile.
Pippens elected to testify in his own behalf. He testified that he did own a .38 caliber pistol and that he did fire two shots on the night of White's death, but that he was firing in self-defense, that he had been afraid, and that he threw the pistol into a creek as he was on his way home. He also testified, on direct examination, that he voluntarily turned himself in to law enforcement officers when he heard that they were looking for him.
During cross-examination, the prosecutor asked Pippens several questions, most of them relating to his testimony that he turned himself in to law enforcement officers. First, the prosecutor asked Pippens if he talked to a Sergeant Reynolds when he went to talk to law enforcement officers, *963 and, if so, if he told him that he shot in self-defense. Pippens's attorney objected on the ground that the question violated his constitutional rights to remain silent. Outside the presence of the jury, the judge overruled Pippens's objection, on the ground that Pippens had opened the door by trying to characterize himself as a law-abiding citizen who turned himself in as soon as he heard that the law enforcement officers were looking for him.
When the jury returned, the prosecutor asked Pippens if it was true that he went to turn himself in only because his attorney had advised him to do so. Pippens denied that that was the reason. The prosecutor subsequently asked Pippens if he talked to the officers when he went to the courthouse the day after the shooting. Pippens testified that he did not. Finally, the prosecutor asked Pippens about his pistol: "And when did you go out there [to search for the pistol], before or after you went down and met with [your lawyer] and didn't talk to the authorities?"
Pippens argues first that by asking these questions the prosecutor violated his Fifth Amendment right to remain silent. As stated earlier, the Court of Criminal Appeals, citing Salter v. State, 578 So. 2d 1092 (Ala.Cr.App.1990), held that Pippens's argument was meritless because, it said in its unpublished memorandum, the prosecutor "never commented on the appellant's failure to make a statement to police."
Initially, it should be noted that this case does not involve evidence of a pre-arrest tacit admission, which must be excluded if a timely objection is made. Ex parte Marek, 556 So. 2d 375 (Ala.1989). The facts of this case are more analogous to those in Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980), in which the prosecutor tried to impeach the defendant's testimony that he stabbed a man in self-defense, by asking him why he did not talk to the police until two weeks after the stabbing. In holding that the prosecutor in Jenkins had not violated the defendant's right to remain silent, the Court noted that the defendant voluntarily took the stand in his own defense and that the attempted impeachment of the defendant could enhance the reliability of the criminal process. The Court concluded "that the Fifth Amendment is not violated by the use of pre-arrest silence to impeach a criminal defendant's credibility." Id. at 238, 100 S. Ct. at 2129.
A defendant who voluntarily testifies is generally subject to impeachment on cross-examination, as is any other witness. The prosecutor's questions were permissible in light of Pippens's testimony on direct examination that he turned himself in to law enforcement officers. Cf. Reeves v. State, 591 So. 2d 566, 569 (Ala.Cr.App.1991) (prosecutor may cross-examine defendant who waives his Miranda rights about his silence or failure to give an exculpatory statement).
Pippens argues next that he was entitled to an instruction regarding criminally negligent homicide as a lesser included offense of reckless manslaughter. The trial judge and the Court of Criminal Appeals determined that there was no evidence to warrant the instruction. We agree. Pippens testified that he intended to shoot one of the men involved in the fight, and the evidence showed that there were several people in the area when he shot. The jury apparently believed the evidence that one of Pippens's shots struck and killed White, and that he had intended to shoot someone else. There was no evidence that Pippens could have been unaware of the risk of firing a pistol twice under such circumstances. Ala.Code 1975, § 13A-2-2, Commentary.
The judgment of conviction is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | May 28, 1993 |
bbe2ef6a-d372-499e-b136-a299e8ee163a | Ex Parte Cook | 624 So. 2d 511 | 1911532 | Alabama | Alabama Supreme Court | 624 So. 2d 511 (1993)
Ex parte Teresa COOK.
(Re Teresa Cook v. State).
1911532.
Supreme Court of Alabama.
May 14, 1993.
Rehearing Denied July 2, 1993.
*512 Erskine R. Mathis, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted the petition for the writ of certiorari to examine two issues: (1) whether the State proved a sufficient chain of custody of certain items of evidence; and (2) whether the trial court abused its discretion in not ordering a new trial based on newly discovered evidence. Because of missing links in the chain of custody, we reverse and remand for a new trial.
Between 1:00 and 1:30 a.m. on September 15, 1990, Michael Dewayne Hunter was stabbed to death with a knife at his home in Birmingham. Members of the Birmingham Police Department, including Officer Belinda Weldon, were called to investigate. Officer Fred Hedgepath collected cigarette butts that were later found to have been smoked by someone with Teresa Cook's blood type. Cook was Hunter's girlfriend.
Two days later, Doolan Hoaglan called Weldon to report that Cook had told him that she had been involved in a stabbing in which a man had been stabbed several times, and that Cook had gone to stay with her mother in Rigby, Idaho. Weldon obtained a warrant, and she and Officer Don Lacey searched Cook's mobile home. Weldon directed Lacey to collect cigarette butts, a knife scabbard, a blood-soaked piece of gauze, and two socks from the bathroom.
Cook was arrested a few days later in Idaho. Weldon and another officer went to Idaho to bring Cook back to Alabama. The officers also recovered several items, including a pair of blue jeans, that Idaho law enforcement officers had seized from Cook and from her truck.
The cigarette butts, scabbard, gauze, socks, and blue jeans were admitted at trial over Cook's chain-of-custody objections. Hoaglan was the only witness who connected Cook to the murder. The jury returned a verdict of guilty, and the trial court entered a judgment against Cook based on the verdict and sentenced her to 25 years in prison.
Cook moved for a new trial based on newly discovered evidence. The trial court held two hearings on the motion. Erskine Page *513 testified that he had contacted Cook's family after reading about the trial and conviction in the newspaper. Page testified that he knew Hoaglan; that shortly after the murder he had removed Hoaglan's truck from a ditch near Hunter's house and Hoaglan's place of employment; that Hoaglan was drinking beer at the time; and that he saw a rag with blood on it in Hoaglan's truck. Gerald Palmer testified that he was driving the truck with Page when they came upon Hoaglan; this testimony contradicted Hoaglan's trial testimony that he never left work on the night Hunter was murdered. Travis Quick, Cook's stepfather, testified that Cook had been planning to go to Idaho for some time and that Hoaglan was interested in trying to convince her not to go. The State called Hoaglan, who denied the testimony of Page and Palmer, and called Weldon, who testified that she did not notice any marks on Hoaglan's truck when she met with him two days after the murder.
The trial court denied the motion for a new trial, and Cook appealed. The Court of Criminal Appeals affirmed, holding that the State had established a proper chain of custody for the evidence and that the trial court had not abused its discretion in denying a new trial. 609 So. 2d 454 (Ala.Cr.App.1992).
The first issue is whether the State established a chain of custody of the items admitted at trial. Cook, relying on Ex parte Holton, 590 So. 2d 918 (Ala.1991), argues that the trial court erred in admitting the cigarette butts, scabbard, gauze, socks, and jeans, because no witness testified regarding the handling and safeguarding of these items from the time they were recovered until the toxicologist examined them. In Holton, this Court set forth the following analysis for determining whether a proper chain of custody has been established:
590 So. 2d at 920.
At trial, Weldon identified the cigarette butts, scabbard, gauze, and socks as items that Lacey collected at Cook's mobile home. Weldon testified that the scabbard was sent to the toxicologist, and that the scabbard and gauze appeared to be in the same or similar condition as when Lacey collected them. Lacey did not testify, and neither did Hedgepath, who had collected the cigarette butts at Hunter's house. Upon objection from Cook's counsel, the prosecutor withdrew the question about where the socks were sent. The items were admitted over objections that Weldon had not personally collected them or kept them in her custody.
The jeans were admitted, based on Weldon's testimony that she received them from the Idaho law enforcement officers, examined them, and watched as they were sealed in a bag at the police station in Rigby, Idaho. The trial court overruled Cook's objection, which was based on the ground that no witness had linked the jeans to Cook. Weldon testified on cross-examination that she did not know where the jeans came from other than what she was told in Idaho.
The next witness to testify regarding the chain of custody was Phyllis Rowland, a forensic serologist. Rowland testified that she received sealed envelopes from Weldon containing *514 the cigarette butts, scabbard, gauze, socks, and jeans. Rowland could not identify the type of blood on the gauze but testified that the blood on the socks matched Hunter's blood type, although she could not be certain that the blood was his. Rowland testified that the saliva on the cigarette butts matched Cook's blood type, and that she resealed the envelopes after the tests.
The State did not identify the person who seized the jeans, or who kept them until Weldon received them, and it offered no evidence of the manner in which they were handled and safeguarded; therefore, the jeans should not have been admitted. The error was harmless, however, because the State did not connect the jeans to the case against Cook. The jeans were not probative of any fact in issue.
A link was also missing in the chain of custody of the cigarette butts, scabbard, gauze, and socks. Although Weldon testified that she directed and observed the collection, the State did not establish when these items were sealed or how they were handled or safeguarded from the time they were seized until Rowland received them. This evidence was inadmissible under Holton.
The cigarette butts were prejudicial to Cook, because they established that someone with her blood type was in Hunter's house. Likewise, the socks found in Cook's mobile home were prejudicial, because they were stained with blood that matched Hunter's type. The erroneous admission of these items probably injuriously affected Cook's substantial rights, and she is entitled to a new trial. See Rule 45, Ala.R.App.P.
Having concluded that Cook is entitled to a new trial because the State failed to establish a proper chain of custody, we need not address Cook's claim that the newly discovered evidence entitled her to a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur. | May 14, 1993 |
fbe16368-785f-40b1-a1e7-969ccae4afca | Ritchie v. Bridgestone/Firestone, Inc. | 621 So. 2d 288 | 1920242 | Alabama | Alabama Supreme Court | 621 So. 2d 288 (1993)
Larry Paul RITCHIE
v.
BRIDGESTONE/FIRESTONE, INC.
1920242.
Supreme Court of Alabama.
May 14, 1993.
Robert B. Roden of Roden & Hayes, P.C., Birmingham, for appellant.
Brittin T. Coleman and Scott M. Phelps of Bradley, Arant, Rose & White, Birmingham, for appellee.
ADAMS, Justice.
Larry Paul Ritchie was injured in June 1990, when, while mounting a truck tire *289 and rim onto the hub of a truck brought into a place of business operated by Bridgestone/Firestone, Inc. ("Firestone"). The rim exploded. Ritchie was, at that time, an employee of Firestone; he regularly mounted tires and rims in the course of his employment and when the rim exploded he was working in the course of his employment and was using the rim for its intended purpose. Following his injury, Ritchie filed for workers' compensation benefits and he received them for approximately 44 weeks. In addition, Firestone paid his medical expenses, and he received a $35,000 lump sum payment.
Thereafter, Ritchie filed this products liability action against Firestone, which had manufactured part of the rim. Ritchie alleged that the rim was defective and that the defect in the rim had caused his injury. Firestone moved for a summary judgment, contending that Ritchie had exhausted his remedy under the Workers' Compensation Act, that that remedy was exclusive, and that Firestone was therefore entitled to a judgment as a matter of law. The trial court agreed and entered a summary judgment in favor of Firestone.
Ritchie appeals, urging us to apply the "dual capacity" doctrine to this set of facts, thereby allowing Ritchie to pursue his products liability claim. In support of his argument, Ritchie contends that the portion of the rim manufactured by Firestone was not manufactured solely for the use of Firestone employees, but, instead, was manufactured for use by the general public. Thus, Ritchie contends, Firestone had an obligation separate and apart from its obligation to him as an employee and, he argues, the breach of that obligation should allow him to pursue his present action. We disagree.
In Mapson v. Montgomery White Trucks, Inc., 357 So. 2d 971 (Ala.1978), this Court stated:
Id. at 972-73.
This Court further entertained the possible adoption of the "dual capacity" doctrine in Bowen v. Goodyear Tire & Rubber Co., 516 So. 2d 570 (Ala.1987), wherein we stated:
Id. at 571-72.
Ritchie was injured while performing the task he was employed to perform. His relationship with Firestone was not altered simply because the rim he alleges was defective was manufactured for sale to the public. Simply stated, the accident was a work-related injury and Firestone's relationship to Ritchie was never anything more than that of employer/employee. For these reasons, the judgment of the trial court is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | May 14, 1993 |
a7731e3c-d605-452b-9adb-a2d1e6622272 | Ex Parte Sims | 627 So. 2d 380 | 1911395 | Alabama | Alabama Supreme Court | 627 So. 2d 380 (1993)
Ex parte Wilma D. SIMS.
(Re Willie J. DUNN, et al.
v.
Wilma D. SIMS).
1911395.
Supreme Court of Alabama.
May 28, 1993.
Rehearing Denied July 23, 1993.
*381 Charles P. Gaines of Gaines, Gaines & Gaines, P.C., Talladega, for petitioner.
Willie J. Dunn, pro se.
Richard H. Gill and George W. Walker III of Copeland, Franco, Screws & Gill, P.A., Montgomery, for amicus curiae Pioneer Financial Services, Inc.
MADDOX, Justice.
We granted the writ of certiorari to review the holding by the Court of Civil Appeals that settlement agreements entered into in the trial court are controlled by the provisions of Rule 47, Ala.R.App.P., and that the settlement agreement signed by Willie J. Dunn, the respondent here, and his attorney, was invalid because "[t]he written document was not properly executed, i.e., not signed by the party to be charged, and the record does not contain the necessary indicia of a settlement reached in open court." Dunn v. Sims, 627 So. 2d 378 (Ala.Civ.App.1992). We hold that the Court of Civil Appeals has misapplied the law, and we reverse and remand.
The background facts are recited in the opinion of the Court of Civil Appeals and need not be repeated here. However, we briefly set out the facts that are relevant to an understanding of the legal issue presented. Willie J. Dunn and his mother, Leila Dunn, filed a negligence action against Wilma D. Sims; that action arose out of an automobile accident. Leila Dunn later died from unrelated causes. Willie J. Dunn's attorneys negotiated a proposed settlement agreement with Sims's attorney. Dunn's attorneys reduced the agreement to writing, and Dunn and his attorneys signed it. The trial court subsequently enforced the written settlement agreement, and Dunn appealed to the Court of Civil Appeals. Notwithstanding the fact that the settlement agreement was entered into in the trial court, the Court of Civil Appeals applied the provisions of Rule 47, Ala.R.App.P., and concluded that the requirements of a valid settlement agreement had not been met, and that court reversed the judgment.
There may be some confusion among the bench and bar regarding whether Rule 47, Ala.R.App.P., applies to settlement agreements reached at the trial level. We take this opportunity to harmonize the cases and to guide the bench and bar in future cases.[1]
Rule 47, Ala.R.App.P., provides:
This Court and the Court of Civil Appeals have not applied Rule 47 consistently. See, e.g., Wright v. Fountain, 454 So. 2d 520 (Ala. 1984); Anonymous v. Anonymous, 353 So. 2d 515 (Ala.1977); Bowman v. Integrity Credit Corp., 507 So. 2d 104 (Ala.Civ.App.1987). Neither this Court nor the Court of Civil Appeals, insofar as we can ascertain, has discussed or applied Rule 47 in light of Rule 1, Ala.R.App.P., which specifically provides that the Rules of Appellate Procedure apply only to cases on appeal. Moreover, as noted by the Honorable Ira DeMent, United States district judge, in Spurlock v. Pioneer Financial Services, Inc., 808 F. Supp. 782 (M.D.Ala. 1992), this Court has, on several occasions, reviewed the validity of settlement agreements reached in the trial court and has on those occasions applied the provisions of Ala. Code 1975, § 34-3-21, without mentioning Rule 47. See Spurlock, 808 F. Supp. at 783, citing Beverly v. Chandler, 564 So. 2d 922, 923 (Ala.1990); King v. Travelers Ins. Co., 513 So. 2d 1023, 1026 (Ala.1987); Reeves v. Orkin Exterminating Co., 457 So. 2d 402, 404 (Ala. 1984).
Section 34-3-21 provides: "An attorney has authority to bind his client in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court." In Spurlock, Judge DeMent refused to follow the reasoning of the Court of Civil Appeals in this case, and held instead that "it would seem that Rule 47 would govern settlement agreements reached while the matter is on appeal, while section 34-3-21 would govern settlement agreements reached while the case is still at the trial level." 808 F. Supp. at 783. We agree with that interpretation.
The settlement agreement in this case meets the requirements of § 34-3-21 and is due to be enforced. Consequently, the judgment of the Court of Civil Appeals is due to be reversed and the cause remanded with instructions to enter an appropriate order.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HOUSTON, KENNEDY and INGRAM, JJ., concur.
SHORES and ADAMS, JJ., concur in the result.
[1] Pioneer Financial Services, Inc., has filed an amicus curiae brief in this case asking us to hold that Rule 47, A.R.App.P., applies only to agreements reached in cases on appeal and that the provisions of Ala.Code 1975, § 34-3-21, apply to agreements reached in cases in the trial court. | May 28, 1993 |
6cb90ea9-e757-40b5-8b66-ce6868da3bf1 | Trull v. Long | 621 So. 2d 1278 | 1911712 | Alabama | Alabama Supreme Court | 621 So. 2d 1278 (1993)
Ricky E. TRULL, as administrator of the Estate of Janet Kay Trull, deceased
v.
Dr. Robert T.L. LONG.
1911712.
Supreme Court of Alabama.
June 4, 1993.
S. Shay Samples and Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellant.
W. Stancil Starnes and W. Hill Sewell of Starnes & Atchison, Birmingham, for appellee.
MADDOX, Justice.
The sole issue presented in this medical malpractice case is whether the trial court erred in refusing to allow the plaintiff's expert witness to testify on redirect examination concerning an alleged "conspiracy of silence" among physicians. We affirm.
Ricky Trull, as administrator of his deceased wife's estate, sued Dr. Robert T.L. Long, Dr. Long's professional association, various other physicians, the Lauderdale County Hospital board, and the City of Florence, alleging medical malpractice. Trull alleged that Dr. Long had negligently treated his wife for Guillain-Barré disease and had negligently performed a tracheostomy. Also, in the same action, Trull sued Bivona, Inc., alleging products liability for marketing an allegedly defective endotracheal tube.
The trial court dismissed all defendants except Dr. Long and his professional association. Before trial, Dr. Long filed a motion in limine asking the court to prohibit the plaintiff from referring to, or discussing in any way, any alleged "conspiracy of silence" among physicians. The trial court granted Dr. Long's motion in limine.
During cross-examination of Trull's expert, Dr. Mills, the defense established that Dr. Mills had given deposition testimony 52 times in medical malpractice cases, had testified 13 times in medical malpractice cases, had testified 3 times in arbitration proceedings related to medical malpractice claims, had testified numerous other times for Trull's attorney on behalf of other plaintiffs, charged $250 an hour to review the records on potential claims, and accepted referrals from associations of professional expert witnesses. After cross-examination, Trull asked the court to allow redirect testimony concerning the alleged "conspiracy of silence," so as to explain why Dr. Mills testified so often. The court refused to allow the requested redirect testimony.
The court submitted the case to the jury and the jury returned a verdict for the defendants. Thereafter, Trull moved for a *1279 new trial. The court denied that motion. Trull appeals.[1]
Initially, we note that the alleged "conspiracy of silence" has received much critical comment. Furthermore, commentators have readily recognized the alleged "conspiracy" as fact. See, e.g., Joan Vogel and Richard Delgado, To Tell The Truth: Physicians' Duty To Disclose Medical Mistakes, 28 U.C.L.A.L.Rev. 52 (1988) (urging courts to adopt a positive legal duty requiring physicians to report their own and other physicians' mistakes to patients and a corresponding cause of action for failure to disclose); Rickee N. Arntz, Comment, Competency of Medical Expert Witnesses: Standards and Qualifications, 24 Creighton L.Rev. 1359, 1379 (1991) (discussing the "conspiracy of silence" problem, particularly the problem of explaining to the jury why the plaintiff's expert is not a local physician); Joseph Kelner, The Silent DoctorsThe Conspiracy of Silence, 5 U.Rich.L.Rev. 119 (1970-71) (an interesting discussion of the alleged "conspiracy of silence"); Melton Kelner, The Medical Conspiracy of Silence, 87 Case & Comment 10 (July-August 1982) (defining the "conspiracy" as "the unwritten code of non-criticism ... imprinted on the doctor throughout his or her entire period of training" and discussing the consequences of a local doctor's testifying against another local doctor); Richard M. Markus, Conspiracy of Silence, 14 Cleve.Marsh.L.Rev. 520 (1965) (discussing three possible causes for the alleged "conspiracy": physicians' fears of financial and professional ruin, defense attorneys' encouraging local doctors not to talk with counsel for plaintiffs, and legal rules, such as that requiring expert testimony in medical malpractice cases and the locality rule); David E. Seidelson, Medical Malpractice Cases and the Reluctant Expert, 16 Cath.U.L.Rev. 158 (1966) (discussing the "conspiracy" problem and suggesting four alternative ways of securing a medical expert: using interprofessional panels to review potential claims, using the "learned treatise" rule, using state statutes that authorize courts to appoint medical experts, and using the trial court's inherent power to appoint experts and provide for their compensation); Note, Overcoming the "Conspiracy of Silence": Statutory and Common-Law Innovations, 45 Minn. L.Rev. 1019 (1961) (discussing the "conspiracy" and suggesting use of learned treatises and medical brochures as means of overcoming its effect).
One scholar's comments are typical of the general tenor of the literature:
David M. Harney, Medical Malpractice § 5.1 at 193, 195 (1973 & Supp.1980) (Emphasis supplied).[2]
*1280 Courts, however, have been far more reluctant than commentators to embrace and recognize the alleged "conspiracy of silence." A review of our sister states' case law in point reveals that, while courts have discussed the alleged "conspiracy" in various contexts and on numerous occasions, they have been reluctant, generally, to recognize the "conspiracy."
Numerous courts have mentioned the possibility of the "conspiracy" existing as a reason to abrogate or change the "locality rule." See, e.g., Morrison v. MacNamara, 407 A.2d 555, 563 n. 7 (D.C.1979); Hansbrough v. Kosyak, 141 Ill.App.3d 538, 95 Ill.Dec. 708, 712, 490 N.E.2d 181, 185 (1986); Bartimus v. Paxton Community Hosp., 120 Ill.App.3d 1060, 76 Ill.Dec. 418, 423, 458 N.E.2d 1072, 1077 (1983); Ardoin v. Hartford Acc. & Indem. Co., 360 So. 2d 1331, 1337 (La.1978); and Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191, 1194 (1979). Other courts have discussed the alleged "conspiracy" in deciding whether their states' versions of "informed consent" should require expert testimony. See, e.g., Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647, 650 (1971); and Hunter v. Brown, 4 Wash. App. 899, 484 P.2d 1162, 1165 (1971). Still other courts have discussed the "conspiracy" problem when parties have argued that, because of the alleged "conspiracy," the doctrine of res ipsa loquitur should apply to their case. See, e.g., Gould v. Winokur, 98 N.J.Super. 554, 237 A.2d 916, 921 (1968); Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465, 437 A.2d 1134, 1138 (1981); and Irick v. Andrew, 545 S.W.2d 557, 559 (Tex.Civ.App. 1981). Additionally, courts have mentioned the alleged "conspiracy" in stating or reiterating a rule advising trial courts to exercise extreme caution in entering a summary judgment against a medical malpractice plaintiff, Buck v. Alton Memorial Hosp., 86 Ill.App.3d 347, 41 Ill.Dec. 569, 585, 407 N.E.2d 1067, 1083 (1980); Goffe v. Pharmaseal Laboratories, Inc., 90 N.M. 764, 568 P.2d 600, 607 (Ct.App.1976) (Sutin, J., concurring in part, dissenting in part); in rejecting an argument that the trial court found the plaintiff's expert competent based largely on the alleged "conspiracy," Lewis v. Read, 80 N.J.Super. 148, 193 A.2d 255, 266 (1963); in rejecting the trial court's allowing the plaintiff to treat the defense's expert witness as hostile when called by the plaintiff during direct examination, Reams v. Stutler, 642 S.W.2d 586, 588 (Ky.1982); and in rejecting a plaintiff's argument that the trial court should have compelled the defendants to reveal their expert witnesses that were not to be called at trial, Stevens v. Barnhart, 45 Md.App. 289, 412 A.2d 1292, 1294 (1980).
Several of our sister states either flatly reject or seriously doubt the notion that any "conspiracy of silence" exists among physicians. For example, in Clark v. Norris, 226 Mont. 43, 734 P.2d 182, 187 (1977), the court found no error in the trial court's refusal to take judicial notice of the alleged "conspiracy of silence," noting that "Whether or not there is a conspiracy of silence in the medical community is a subject of considerable debate."
In Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537, 539-40 (1991), the court stated:
(Emphasis supplied.)
In Hitch v. Hall, 42 Md.App. 260, 399 A.2d 953, 959 (1979), the court stated:
(Emphasis supplied.)
Other of our sister states apparently require proof in the record that the alleged "conspiracy" exists and that it adversely affected the plaintiff's ability to obtain an expert witness in his particular case. For example, in Thibodeaux v. Aetna Cas. & Sur. Co., 216 So. 2d 314, 317 (La.1968), the court stated, "As to the allegation of a conspiracy of silence, this court can do naught but consider the record as it is, and in this record we find no evidence of such conspiracy." See also, Ogletree v. Willis-Knighton Memorial Hosp., 530 So. 2d 1175, 1180 (La.App.1988), and Maxey v. Hubble, 238 Va. 607, 385 S.E.2d 593, 597 (1989).
This Court addressed a "conspiracy of silence" problem in Batizy v. Smith, 530 So. 2d 794 (Ala.1988). The issue in Batizy was whether the trial court erred in denying a new trial; the plaintiff contended that the court had erroneously sustained an objection to the plaintiff's rebuttal question "Tell the jury what the conspiracy of silence is." In affirming, we stated:
Batizy, 530 So. 2d at 796. (Emphasis supplied; citations omitted.)
Here, Trull argues that the defense's cross-examination of Dr. Mills interjected into the trial new matters that he was entitled to address on redirect examination. Basically, Trull argues that Dr. Mills was discredited on cross-examination and that he was entitled to explain why Dr. Mills gave so many depositions and testified so often in medical malpractice actions and was associated with an expert witness referral association. Also, Trull argues that Batizy does not preclude testimony regarding the alleged "conspiracy of silence" on redirect, but that it merely disallows direct evidence on the subject in a plaintiff's case-in-chief.
On the other hand, Dr. Long asserts that Batizy controls. Stressing the "[e]vidence of such a `conspiracy of silence' would not be inherently admissible" language in Batizy, Dr. Long argues that Batizy makes testimony concerning the alleged "conspiracy of silence" inherently inadmissible in medical malpractice cases.
We are inclined to disagree with Dr. Long. In Batizy, this Court did sustain the trial judge's ruling, but this Court did not intend to hold that evidence of a "conspiracy of silence" would be inherently inadmissible, under all circumstances. In fact, in Batizy, we specifically noted that the trial judge did not abuse his discretion to refuse to permit the testimony in that case.
We hold here that the trial court did not abuse its discretion in refusing to permit the witness to testify about a "conspiracy *1282 of silence" on the ground that this record fails to show that a proper predicate was laid for the admission of evidence relating to the alleged "conspiracy of silence." As the Louisiana Court of Appeal said in Thibodeaux v. Aetna Cas. & Sur. Co., "As to the allegation of a conspiracy of silence, this court can do naught but consider the record as it is, and in this record we find no evidence of such a conspiracy."[3] 216 So. 2d at 317.
Based on the foregoing, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, J., concur.
SHORES, ADAMS and STEAGALL, JJ., concur specially.
ADAMS, Justice (concurring specially).
I concur specially to point out that the result reached by the majority is dictated by the state of the record in this case. I cannot take judicial notice of a "conspiracy of silence" among physicians in Alabama. Furthermore, the plaintiff's expert witness, a nonresident of the state of Alabama, obviously is not the best witness to discuss this important issue. It is my opinion that after a full and complete presentation of the so called "conspiracy of silence" in Alabama is made in a trial court, this Court will be in a better position to address the merits of the plaintiff's claim.
SHORES and STEAGALL, JJ., concur.
[1] Trull does not appeal the judgment as to the professional association.
[2] See also, W. Page Keeton, et al., Prosser and Keeton on Torts, § 32 at p. 188 (5th ed. 1984), wherein the authors describe the alleged "conspiracy of silence" as:
"The well known reluctance of doctors to testify against one another, which has been mentioned now and then in the decisions, may make this [expert testimony on behalf of the plaintiff] difficult or impossible to obtain, especially in a jurisdiction with a narrow locality rule, and so in some instances effectively deprive the plaintiff of any remedy for a real and grievous wrong."
[3] It should be remembered also that Alabama recognizes several exceptions to the expert testimony rule, such as the common knowledge exception (see, e.g., Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969), and Lloyd Noland Foundation, Inc. v. Harris, 295 Ala. 63, 322 So. 2d 709 (1975)), res ipsa loquitur (see, e.g., Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), Powell v. Mullins, 479 So. 2d 1119 (Ala.1985), appeal after remand, 523 So. 2d 393 (Ala.1988), and Ravi v. Williams, 536 So. 2d 1374 (Ala.1988)), and the learned treatise rule (see, e.g., Stoudenmier v. Williamson, 29 Ala. 558 (1857), Zills v. Brown, 382 So. 2d 528 (Ala.1980), and Powell v. Mullins, 479 So. 2d 1119, appeal after remand, 523 So. 2d 393 (1985)). See, also, Charles Gamble, McElroy's Alabama Evidence § 258.01 (4th ed. 1991)). To the extent that the alleged "conspiracy" is factually accurate, these exceptions would aid the plaintiff in circumventing the "conspiracy." | June 4, 1993 |
d50c3211-6424-46a8-87f7-f3e76b863e30 | Lowry v. Owens | 621 So. 2d 1262 | 1920104 | Alabama | Alabama Supreme Court | 621 So. 2d 1262 (1993)
Rodney LOWRY
v.
Richard OWENS and Fitzner Pontiac-Buick-Cadillac, Inc.
1920104.
Supreme Court of Alabama.
May 28, 1993.
*1263 J.O. Isom, Hamilton, for appellant.
Franklin Williams of Gholson, Hicks, Nichols & Ward, Columbus, MS, for appellees.
SHORES, Justice.
Rodney Lowry appeals from the judgment of the Marion County Circuit Court dismissing his complaint for lack of personal jurisdiction over the defendants, Richard Owens and Fitzner Pontiac-Buick-Cadillac, Inc. ("Fitzner"). We reverse and remand.
The issue in this case is whether the defendants had sufficient contacts with Alabama to satisfy the due process clause of the Fourteenth Amendment so as to subject them to this civil action in an Alabama court.
The complaint underlying the jurisdictional question alleges fraud in the sale of an automobile. Henry Beasley and Rodney Lowry were stockholders in L & B Auto and Truck Sales ("L & B") in Winfield, Alabama. Beasley had worked for Burleson GMC, an automobile dealership in Winfield, Alabama, before the events giving rise to this action. Fitzner Pontiac-Buick-Cadillac, located in Columbus, Mississippi, is a Mississippi corporation licensed to do business in the state of Mississippi. Beasley testified that he had purchased six or seven used cars from Fitzner in Columbus, Mississippi, for resale in Alabama by Burleson GMC between 1985 and 1991, and that he had also purchased two or three cars in Columbus from Fitzner for resale in Alabama by L & B. Beasley made these purchases through Richard Owens, who was the general sales manager for Fitzner in Columbus.
Beasley, on behalf of Lowry, telephoned Owens in Columbus and told him that Lowry was interested in buying a new Cadillac automobile. Beasley testified that Owens ordered a Cadillac with Lowry's specific options and that Owens later called Beasley in Winfield, Alabama, to tell him that Lowry's car had arrived. Mr. Lowry, his wife, and Beasley went to Columbus, Mississippi, to pick up the car in October 1988. They were shown, and purchased, a white Cadillac that they contend was similar to, but not equipped exactly the same as, the one they had ordered. The bill of sale and odometer mileage statement indicate that the car was a new 1989 Cadillac DeVille sold by Fitzner to Burleson GMC of Winfield, Alabama. The new car order form shows "R. Owen" [sic] as the salesperson and "Rod Lowery" [sic] as the purchaser. Other paperwork in the record related to the purchase of the car displays Lowry's name and his address in Winfield, Alabama.
When Lowry tried to sell the 1989 DeVille two years later, an inspection revealed that the left side of the car had apparently been wrecked and then repaired. Rodney Lowry sued Fitzner and Owens, alleging fraudulent misrepresentation and deceit arising out of his October 1988 purchase of the Cadillac. After a hearing and the admission of affidavits into evidence, the circuit court granted the motion of the defendantswho were nonresidentsto dismiss for lack of jurisdiction. *1264 Lowry appeals, contending that jurisdiction over the defendants was proper under Alabama's long-arm jurisdiction rule, A.R.Civ.P. Rule 4.2(a).
Lowry filed affidavits of the tax collectors of Marion County and Lamar County, Alabama, in opposition to the defendants' motion to dismiss. Billy Moore, the tax collector of Lamar County, stated, based on his personal knowledge as the custodian of Lamar County tax records, that 10 Lamar County, Alabama, residents had purchased automobiles from Fitzner Pontiac-Buick-Cadillac, Inc., of Columbus, Mississippi, over a four-month period October 1, 1991, through February 12, 1992, and had paid to him county and state taxes on those vehicles. Susie Post, the tax collector of Marion County, stated, based on her personal knowledge as the custodian of Marion County tax records, that six Marion County, Alabama, residents had purchased automobiles from Fitzner Pontiac-Buick-Cadillac, Inc., of Columbus, Mississippi, during the period February 16, 1989, through February 18, 1992, and had paid to her county and state taxes on those vehicles. Henry Beasley testified that he had purchased several used cars from Fitzner in Columbus, Mississippi, for resale by automobile dealerships in Winfield, Alabama, both before and after he purchased the 1989 DeVille for Lowry. Beasley also testified that Danny Little was a Fitzner employee who had lived in Winfield and later moved to Columbus, and that Little had solicited business from him in Alabama while employed by Fitzner, although he did not know if Little had been directed to do so by Fitzner. Ray Thompson, a Hamilton, Alabama, resident, testified that he had bought a car from Fitzner in Columbus, and ownership papers bearing his Alabama address were admitted into evidence. Thompson swore that in Alabama he had seen and heard Fitzner's television and radio advertisements that had been broadcast from Columbus, and that Fitzner had advertised on a radio station in Fayette, Alabama, in 1989. George Fitzner, president of Fitzner Pontiac-Buick-Cadillac, swore, by affidavit admitted into evidence, that Fitzner Pontiac-Buick-Cadillac did not actively advertise by radio, television, or newspaper in Marion County, Alabama, and that it paid no Alabama use or sales tax. His supplemental affidavit, stating that Danny Little was not authorized to make wholesale car sales, or to solicit sales in Alabama, was stricken from the record.
The reach of personal jurisdiction of an Alabama court over nonresident defendants under Rule 4.2(a)(2), A.R.Civ.P., extends to the permissible limits of due process. Alabama Waterproofing Co. v. Hanby, 431 So. 2d 141, 145 (Ala.1983). A key issue in this case is whether each nonresident defendant has sufficient contacts with Alabama for its courts to acquire personal jurisdiction over that defendant. Rule 4.2(a)(2) provides, in relevant part:
To determine whether a nonresident defendant has "sufficient contacts with this state for the trial court to obtain in personam jurisdiction, we must necessarily examine all the relevant facts and attendant circumstances of the case. J. Moore, 2 Moore's Federal Practice § 4.41-1[3] at 4-449." Hanby, supra, at 145; Shrout v. Thorsen, 470 So. 2d 1222, 1224 (Ala.1985). The question of jurisdiction is always a fundamental one, and we will review the entire record in answering that question. *1265 Mobile & Gulf R.R. v. Crocker, 455 So. 2d 829, 831-32 (Ala.1984).
A nonresident defendant must have a certain level of contacts with a forum state in order for that state's courts to acquire personal jurisdiction over that defendant. Millette v. O'Neal Steel, Inc., 613 So. 2d 1225 (Ala.1992); Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). Jurisdiction is proper when the defendant has such contacts "that maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Hanby, supra, at 144, quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
Duke v. Young, 496 So. 2d 37, 39 (Ala.1986).
In Keelean v. Central Bank of the South, 544 So. 2d 153, 156 (Ala.1989), we set forth a two-part analysis for determining whether an Alabama court can exercise personal jurisdiction over a nonresident defendant:
Id. This analysis arose from a synthesis of the constitutional principles discussed earlier in this opinion.
The United States Supreme Court held in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), that a New York automobile retailer could not be subjected to a negligence action in Oklahoma based on a collision there involving a car sold by the New York retailer to New York residents. Crucial to the Court's analysis was that the retailer carried on "no activity whatsoever in Oklahoma." Id. at 295, 100 S. Ct. at 566. The retailer did not solicit business in Oklahoma "through salespersons or through advertising reasonably calculated to reach the State"; neither did it regularly sell cars to Oklahoma customers or residents or indirectly "serve or seek to serve the Oklahoma market." Id. There is evidence, however, that Fitzner solicited business in Alabama through advertising reasonably calculated to reach this State, and that Fitzner served the Alabama market by selling cars to Alabama residents.
In Ex parte Pope Chevrolet, Inc., 555 So. 2d 109 (Ala.1989), a case factually similar to this one, we held that there were sufficient contacts to uphold personal jurisdiction over a nonresident defendant, and we addressed issues remarkably similar to those before us today:
Id. at 111. In Pope Chevrolet, an Alabama resident sued a Georgia automobile dealer, *1266 alleging fraud in its sale to her, in Georgia, of a pick-up truck. Although less than one-tenth of one per cent of Pope Chevrolet's total sales were to Alabama residents, the plaintiff estimated from the dealership's figures that it sold eight or nine cars per year to Alabama residents. We found sufficient contacts to establish jurisdiction, based in part on the fact that Pope Chevrolet was a large-volume dealership that did some of its business with residents of Alabama, and in part on the fact that it advertised in a regional Atlanta newspaper and on a regional television station whose programming was broadcast into other states, including Alabama. Id. at 113-14.
The Court of Civil Appeals, in Garrett v. Key Ford, Inc., 403 So. 2d 923, 925 (Ala.Civ. App.1981), found sufficient contacts to allow jurisdiction over a Florida dealership that had sold a car to an Alabama resident with knowledge that the car would be used in Alabama; had advertised across the state line to Alabama customers in a particular locale and had further solicited their business by mail; and had "prepared and forward[ed] the necessary papers in order to obtain an Alabama title for the truck." 403 So. 2d 923-25.
Our decision in Pope Chevrolet indicates that an automobile dealership's advertising, even though not targeted at a particular locale within Alabama, may contribute toward establishing sufficient contacts when it is reasonably calculated to reach an audience in Alabama and when the dealership knowingly makes sales to residents of Alabama. Pope Chevrolet, supra.
We noted in Pope Chevrolet:
555 So. 2d at 111, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462 at 473-74, 105 S. Ct. 2174 at 2182-83, 85 L. Ed. 2d 528 (1985).
Lowry's allegation of fraud is an important aspect of our analysis of the degree of contacts between Fitzner and Alabama, although a mere allegation of purposeful or intentional fraud, standing alone, is not sufficient to establish jurisdiction. See Shrout v. Thorsen, supra, at 1226 (special concurrence of Chief Justice Torbert). However, "Alabama has an interest in providing an effective means of recovery for a resident who has been damaged, especially in a situation like the one [where the plaintiff claims that a nonresident defendant had an integral part in an alleged fraud]." Id. at 1225-26. We cannot allow a nonresident defendant accused of fraud "to manipulate our decisions on in personam due process to effect a shield against his [alleged] improper conduct." Id. at 1225.
In Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), the Supreme Court examined the impact of the nature of the defendants' intentions and activities on the jurisdictional question. The foreseeability of the consequences of the defendants' activities was significant in the Court's determination that jurisdiction was proper. Because the defendants in Calder were "not charged with mere untargeted negligence"; and because "their intentional, and allegedly tortious, actions were expressly aimed at California"; and because they knew that their distribution of a libelous article in California would in that state injure the plaintiff, a California resident, the Court found jurisdiction over the defendant Florida residents. 465 U.S. at 789-90, 104 S. Ct. at 1487.
Selling a repaired automobile as new, to an Alabama resident, is not "mere untargeted negligence," but an intentional wrongful act with foreseeable consequences. Fitzner's place of business is located within 15 miles of the Alabama state line, and Fitzner conducts some of its business with Alabama residents. It advertises on Mississippi television and radio stations that broadcast into Alabama; it is alleged *1267 to have advertised on an Alabama radio station at the time of the purported fraud; and one of its employees is alleged to have solicited sales within the state of Alabama. Thus, it can reasonably be said to have solicited business from Alabama. See Pope Chevrolet, 555 So.2d at 113-14; Garrett v. Key Ford, Inc., 403 So. 2d at 925. Requiring Fitzner to defend an action in Marion County, Alabama, does not violate the principles of "fundamental fairness," because Fitzner's place of business is only approximately 75 miles from the Marion County courthouse. See Pope Chevrolet, supra, at 114.
Appellee Owens contends that he, individually, should not be subject to the jurisdiction of Alabama courts, because, he says, his actions do not give rise to an inference that he should reasonably have anticipated being haled into court here, and because, he says, in personam jurisdiction over an employee cannot be predicated upon jurisdiction over the corporation alone. Owens cites to cases in which the "fiduciary shield" doctrine prevented jurisdiction over nonresident corporate employees because the activity of individual employees was not sufficient to establish the necessary contacts or to otherwise subject them to our long-arm rule. Thames v. Gunter-Dunn, Inc., 373 So. 2d 640, 642-43 (Ala.1979); Pierce v. Heyman, 480 So. 2d 1185, 1186 (Ala.1985); Brooks v. Inlow, 453 So. 2d 349, 350-51 (Ala.1984). However, we have earlier distinguished these three cases on their facts, because "[i]n each instance the tortious act complained of was what Calder referred to as `mere untargeted negligence.'" Duke v. Young, 496 So. 2d at 40. Lowry's allegation is that Owens fraudulently misrepresented the car as new when Owens sold it to him and that in fact it had been wrecked and repaired. This is not an example of mere untargeted negligence; it is an intentional, and allegedly tortious, action expressly aimed at Alabama. Calder, supra, 465 U.S. at 789, 104 S. Ct. at 1487; Duke, supra, at 40.
After carefully reviewing the record and considering the particular facts and circumstances of this case, we conclude that Lowry has shown that both Fitzner Pontiac-Buick-Cadillac and Owens have had at least the minimum contacts necessary to subject them to the jurisdiction of the courts of this State.
For the foregoing reasons, the judgment of the trial court is hereby reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and KENNEDY, J., concur.
MADDOX and HOUSTON, JJ., concur specially.
MADDOX, Justice (concurring specially).
I concur in the holding here that the automobile dealership had sufficient contacts with the State of Alabama that "it is fair and reasonable to require [the dealership] to come to this state to defend an action." Rule 4.2(a)(2)(I). As I view it, in determining whether there are sufficient contacts, we should review the facts much as we do when determining, for venue purposes, whether a defendant is "doing business" within a particular county. In short, I think that the "sufficient contacts" rule for service of process is not appreciably different from the "doing business" rule that is applied in determining the venue of an action against a foreign corporation. In Ex parte Snoddy, 487 So. 2d 860 (Ala.1986), this Court held that a moving company that openly and publicly offered its moving services for hire in a county, through advertisements in the yellow pages, was doing business in that county for venue purposes. The activities of the automobile dealership here seem to be just as pervasive as, if not more than those proved in Snoddy.
As I view the matter, the "nexus" test is substantially the same, whether the question is a question of venue, a question of the applicability of the long-arm rule for service of process, or a question of whether the activity is intrastate or interstate commerce.[1]
*1268 HOUSTON, Justice (concurring specially).
I agree that the plaintiff has established sufficient contacts to subject Fitzner Pontiac-Buick-Cadillac and Owens to the jurisdiction of Alabama courts. However, Alabama courts must apply the substantive law of Mississippi, including the law of damages, as to all of the acts alleged as legal fraud, fraudulent suppression, and wantonness that took place in Mississippi.
[1] I do not know whether the question of arbitration will arise in this action, but in Ex parte Warren, 548 So. 2d 157 (Ala.1989), I stated that I thought a sufficient nexus with interstate commerce existed for the provisions of the Federal Arbitration Act to apply. | May 28, 1993 |
8fcc768a-d587-40af-8cf3-9cc72d86b5d7 | Downs v. Wallace | 622 So. 2d 337 | 1920042 | Alabama | Alabama Supreme Court | 622 So. 2d 337 (1993)
Gia M. DOWNS and David L. Downs II
v.
Danny WALLACE and D. Wallace Corporation, Inc.
1920042.
Supreme Court of Alabama.
June 11, 1993.
*338 L. Thompson McMurtrie of Burwell, Hess, McMurtrie & Johnson, P.C., Huntsville, for appellants.
Danny Wallace, pro se.
HORNSBY, Chief Justice.
The plaintiffs, Gia M. Downs and David L. Downs (husband and wife), appeal from a summary judgment in favor of the defendants, D. Wallace Corporation ("the Corporation") and Danny Wallace, president of the Corporation, in an action alleging fraud.[1] We reverse and remand.
*339 On March 27, 1990, the Downses entered an agreement with Terry Steadman to purchase from him a business called Hazel Green Feed and Seed ("the Business"). The purchase price was $16,000. The Downses executed a note to finance the purchase price, promising to pay Steadman $257.43 per month, beginning April 19, 1990, and continuing for seven years. The purchase agreement also provided that for $800 per month the Downses would sublease from Steadman the building where the Business was located. It is undisputed that although Wallace and the Corporation acted as brokers in this transaction, they received no compensation for their services in regard to this transaction.
The Downses failed to earn a profit from the Business. In December 1990, they became delinquent in their monthly payments to Steadman.[2] On March 19, 1991, the Downses filed this action, alleging that Steadman, Wallace, and the Corporation had fraudulently induced them to purchase the Business by misrepresenting and suppressing facts about the former ownership, the income, and the profitability of the Business. Steadman counterclaimed, seeking payments due under the note. The trial court entered a summary judgment for the defendants as to the Downses' claims and, thereafter, the Downses settled with Steadman as to both their claims and Steadman's counterclaim. The Downses appeal the summary judgment only as to their fraud claims against Wallace and the Corporation.
"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) Ala. R.Civ.P. When the movant has carried the burden of making a prima facie showing, by admissible evidence, that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the party opposing the summary judgment motion has the burden of presenting substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant, resolving all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986).
The Downses argue that the summary judgment was improper as to their fraud claims against Wallace and the Corporation, because, they say, Wallace and the Corporation failed to make a prima facie showing that there were no genuine issues of material fact as to whether Wallace and the Corporation misrepresented and suppressed material facts to induce them to purchase the Business. According to Mr. Downs's affidavit, Steadman first placed the Business on the market for sale in 1988. The Downses, in February 1988, saw an advertisement offering the Business for sale and talked for the first time with Wallace about the possibility of purchasing *340 it. However, the Downses could not obtain financing to purchase the Business. Instead, Mike Mitchell purchased the Business from Steadman. But, when Mitchell failed to earn a profit from the Business that year, by agreement with Steadman he returned the Business to Steadman.
In February 1989, Wallace contacted the Downses and told them that the Business was for sale again, at a lower price than the previous year. Mr. Downs said that when he asked Wallace why it was for sale again so soon, Wallace told him that it had not sold in 1988. The Downses did not purchase the Business in 1989 either. Richard Maddaloni did.
In February 1990, Wallace again contacted the Downses about purchasing the Business, at an even lower price than that quoted in 1989. Mr. Downs stated that this time Wallace told him that Maddaloni had returned the Business to Steadman because a family tragedy had left Maddaloni without time to run it. However, Steadman, in his affidavit, stated that Maddaloni had returned the Business because he could not "make the business go."
In 1990 Wallace gave the Downses a prospectus on the Business; that prospectus contained 1989 income figures supplied by Maddaloni. Although the Downses knew that the income figures were supplied by Maddaloni, they allege that Wallace falsely represented that the figures (1) included the cost of hiring an employee to run the business, (2) did not reflect the most profitable months of the year, and (3) did not show the actual gross income for the year. The Downses further allege that Wallace intentionally suppressed the true income figures.
On March 19, 1990, the Downses entered a purchase agreement with Steadman and began operating the Business. However, because of a dispute over the monthly rental amount owed Steadman under this agreement, the parties executed a second purchase agreement eight days later, on March 27, 1990.
In their motion for a summary judgment, Wallace and the Corporation denied generally making any representations to the Downses or suppressing any facts. In response, the Downses presented evidence, by affidavit, that Wallace did make the representations alleged in the complaint and that those representations were untrue. We must conclude that the conflicting evidence offered on the summary judgment motion created "a genuine issue of material fact" and that the summary judgment was improperly entered. In light of the plaintiffs' specificand "substantial" evidence that Wallace made misrepresentations, Wallace's general denial of any misrepresentation or suppression cannot be taken as entitling the defendants to a judgment as a matter of law.
Nonetheless, Wallace and the Corporation argue that they cannot be held liable for any misrepresentation or suppression made by them, because the written purchase agreement between Steadman and the Downses contained the following integration clause: "This Agreement constitutes the entire Agreement of the parties, and any oral ... agreements pertaining to the terms herein are hereby declared null and void unless reduced to writing commensurate [sic] with the signing of this Agreement."
Because the Downses presented substantial evidence that Wallace and the Corporation fraudulently induced them to purchase the Business, to affirm the judgment for Wallace and the Corporation this Court would have to hold either that the integration clause (sometimes called a "merger" clause) in the Downses' purchase agreement forecloses them from introducing evidence of representations extraneous to the written agreement or that it renders their reliance on those representations unjustifiable as a matter of law.
"As a general proposition, the parol evidence rule applies to contract actions, not actions in tort. Parol evidence is ordinarily admissible to show that a written agreement was procured by fraud." Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 748 (Ala.1990). Because the *341 Downses allege that Wallace and the Corporation fraudulently procured the purchase agreement between Steadman and the Downses, the quoted language from the purchase agreement would not necessarily bar the Downses from introducing evidence of representations made outside the written agreement.
Further, this Court has never held that an integration clause such as the one contained in the Downses' purchase agreement renders a party's reliance on oral representations unjustifiable, or unreasonable,[3] as a matter of law. To the contrary, this Court has consistently held that although a written contract stipulates that there were no oral understandings not incorporated therein, such a stipulation does not foreclose a party, as a matter of law, from establishing his reliance on fraudulent representations that induced him to enter the contract. See Harris v. M & S Toyota, 575 So. 2d 74 (Ala.1991); Stanard Tilton Milling Co. v. Mixon, 243 Ala. 309, 312, 9 So. 2d 911, 913 (1942); Standard Oil Co. v. Myers, 232 Ala. 662, 665, 169 So. 312, 314 (1936); Alabama Machinery & Supply Co. v. Caffey, 213 Ala. 260, 262, 104 So. 509, 511 (1925); J.A. Fay & Egan Co. v. Independent Lumber Co., 178 Ala. 166, 168, 59 So. 470, 471 (1912); see also Advanced Studios of Alabama, Inc. v. Advanced Hairpiece, Inc., 607 F.2d 1138, 1139 (5th Cir.1979) (applying Alabama law). Accord, AgriStor Leasing v. Farrow, 826 F.2d 732, 736 n. 6 (8th Cir.1987) (applying Iowa law); V.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411, 418 (1st Cir.1985) (applying Massachusetts law); King v. Horizon Corp., 701 F.2d 1313, 1318 (10th Cir.1983) (applying Colorado law); Arnold v. National Aniline & Chemical Co., 20 F.2d 364, 369-70 (2d Cir.1927) (applying New York law); RepublicBank Dallas v. First Wisconsin National Bank, 636 F. Supp. 1470, 1473 (E.D.Wis.1986) (applying Wisconsin law); Hall v. Crow, 240 Iowa 81, 34 N.W.2d 195, 199 (1948); Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551, 557-08 (1941); Burns v. Vesto Co., 295 S.W.2d 576, 579 (Mo.App.1956); Hector M. v. Commissioner of Social Services, 102 Misc.2d 676, 425 N.Y.S.2d 199, 205 (N.Y.Fam.Ct. 1980); Angerosa v. White Co., 248 A.D. 425, 290 N.Y.S. 204, 213 (1936); McInnis & Co. v. Western Tractor & Equip. Co., 63 Wash. 2d 652, 388 P.2d 562, 565 (1964); Coson v. Roehl, 63 Wash. 2d 384, 387 P.2d 541, 544 (1963); Anderson v. Tri-State Home Improvement Co., 268 Wis. 455, 459-60, 67 N.W.2d 853 (1955). 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." Drinkard v. Embalmers Supply Co., 244 Ala. 619, 621, 14 So. 2d 585, 587 (1943); accord, Angerosa, 248 A.D. at ___, 290 N.Y.S. at 213; Coson, 63 Wash. 2d at 387, 387 P.2d at 544.
The policy behind permitting a party to establish his reliance on another's fraudulent inducements despite an integration clause in the written agreement has been well stated by the Massachusetts Supreme Court:
Bates, 308 Mass. at 182, 31 N.E.2d at 558, cited in V.S.H. Realty, Inc., 757 F.2d at *342 418; King, 701 F.2d at 1318. Thus, although a party who in fact relies upon fraudulent inducements in the face of an integration clause may be negligent in so doing, his negligence will not prohibit him as a matter of law from recovering for injuries intentionally inflicted upon him.[4] To hold otherwise is to encourage deliberate fraud.
Even though an integration clause in a written agreement may support a finding that the plaintiff did not rely on extraneous representations, when the agreement has been induced by intentional fraud the mere presence of an integration clause in the written instrument does not, as a matter of law, insulate the guilty party.
Because there exist genuine issues of material fact as to the Downses' claims against Wallace and the Corporation, the judgment is due to be reversed and the cause remanded for further proceedings.
MOTION TO STRIKE BRIEF OVERRULED; REVERSED AND REMANDED.
ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
[1] The appellees, Danny Wallace and the Corporation, submitted only one brief to this Court. The Downses moved to strike that brief as to the Corporation, because it was signed only by Wallace and not by counsel for the Corporation. This Court has recognized the general rule "that a corporation can appear in court only through an attorney." A-OK Construction Co. v. Castle Construction Co., 594 So. 2d 53, 54 (Ala. 1992). Although the record shows that, initially, the Corporation attempted to defend this action "pro se," J. Russell Munger is currently listed as the attorney for the Corporation, even though he did not sign the appellees' brief. Ordinarily, this Court would strike a brief submitted by a party represented by counsel when its counsel had not signed that brief. However, in A-OK, a corporation appealing a judgment against it submitted a brief signed by its president only, and this Court held that, although the appeal was due to be dismissed for that reason, a dismissal would only cause unnecessary delay, as the record was already before the Court and it showed that the summary judgment was due to be affirmed. In this case, because Wallace and the Corporation rely upon the same evidence in support of the trial court's judgment, striking the appellees' brief as to the Corporation would serve no real purpose. Therefore, we overrule the Downses' motion to strike the appellees' brief as to the Corporation and address the merits of the appeal as to both defendants.
[2] The Downses had paid a total of $2,227.01 toward principal and interest on the note.
[3] Before Hickox v. Stover, 551 So. 2d 259 (Ala. 1989), "reasonable reliance" was the standard in fraud actions.
[4] This holding should not be construed as encouraging negligence and inattention to one's affairs. In order to recover for loss resulting from fraudulent inducement, a plaintiff still must establish that his reliance was justifiable under the circumstances. | June 11, 1993 |
1706dcdc-7e7c-43b1-833b-5993d9bbec69 | Cantley v. Hubbard | 623 So. 2d 1079 | 1911384 | Alabama | Alabama Supreme Court | 623 So. 2d 1079 (1993)
James Bookout CANTLEY, et al.
v.
Howell HUBBARD, et al.[1]
1911384.
Supreme Court of Alabama.
June 25, 1993.
Terry McElheny and Mary P. Thornton of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellants.
Charles M. Coleman of Crownover, Coleman & Standridge, Tuscaloosa, for appellees.
ALMON, Justice.
This appeal presents a question of construction of a mineral reservation in a 1929 deed. The trial court held that by that deed the grantor reserved all minerals; the heirs of the grantee appeal.
*1080 In 1924, the United States granted a land patent to George Hallman, reserving "to the United States all coal in lands so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove coal from the same upon compliance with the conditions of and subject to the limitations of the Act of June 22, 1910 (36 Stat. 583)." On October 10, 1925, George Hallman conveyed the property to T.J. Hubbard, excepting from this conveyance "all coal in the lands above described and the right to prospect for, mine and remove coal from the same, as the coal is owned by the United States Government." On March 13, 1929, T.J. Hubbard conveyed the property by warranty deed to C.R. Bookout.[2] The deed to Bookout states: "All mineral reserved to the United States."
Pursuant to Rule 22, Ala.R.Civ.P., The River Gas Corporation brought an interpleader action to resolve competing claims to production royalties from three methane gas wells operated by River Gas in the Blue Creek Coal Degasification Field in Tuscaloosa County, Alabama.[3] The accrued royalties were deposited with the trial court pending resolution of the action. The interpleader complaint named as defendants two family groups, the heirs of C.R. Bookout (hereinafter "Bookout heirs")[4] and the heirs of T.J. Hubbard (hereinafter "Hubbard heirs").[5] Each family bases its claim on the 1929 warranty deed from Hubbard to Bookout.
The Bookout heirs moved for a summary judgment, claiming a superior right to the production royalties based on the 1929 warranty deed, which, they argued, conveyed full title to all mineral rights, excluding only the coal originally reserved to the United States. The Hubbard heirs thereafter moved for a summary judgment, arguing that the 1929 warranty deed reserved from the conveyance to Bookout all mineral rights and that all such rights not actually reserved by the United States remained with Hubbard, the grantor. The trial court entered a summary judgment in favor of the Hubbard heirs, holding that the Hubbard heirs were the owners of all accrued and future production royalties from the gas wells in question.
This Court has decided similar questions in Union Oil Co. of California v. Colglazier, 360 So. 2d 965 (Ala.1978); Turner v. Lassiter, 484 So. 2d 378 (Ala.1985); and Howell Petroleum Corp. v. Holliman, 504 So. 2d 277 (Ala.1987).
In Colglazier, the Court construed a deed providing:
360 So. 2d at 967. It was undisputed, however, that the G.C. Coggin Company had never owned any of the mineral rights that it attempted to reserve for itself in the December 22, 1950, deed. 360 So. 2d at 966. The question, therefore, was whether the undivided one-half interest, recited to have been reserved in an earlier deed, remained with the grantor or passed to the grantee. 360 So. 2d at 967. The Court held that notwithstanding the erroneous reference to the attempted reservation in the prior deed, the deed reserved from the grant an undivided one-half *1081 interest in the oil, gas, and minerals. 360 So. 2d at 968. The language referring to the prior ineffective reservation was held to be a mere erroneous recitation of fact that did not operate to void the reservation. Colglazier, 360 So. 2d at 968. See 1 Williams & Myers, Oil and Gas Law § 310.1 & n. 8, at 580.13 (1991); 26 C.J.S. Deeds § 140(1), at 1010 (1956).
The Bookout heirs' principal argument is, in effect, that the prior deeds in the chain of title excepting "all coal" as owned by the United States create an ambiguity. In Colglazier, the Court addressed a similar argument by stating:
360 So. 2d at 965. Just as the reference to the prior deeds that was necessary to ascertain the grantor's interest in Colglazier did not create an ambiguity, a reference to the prior reservation of coal similarly does not create an ambiguity here.
In Howell Petroleum v. Holliman, supra, the deed in question stated: "It is understood that the mineral rights are excepted." 504 So. 2d at 277. Only coal had previously been reservedin the original patent, just as in this case. The opinion is not exactly clear on the point, but it appears that the question was whether the quoted language was merely a reference to the prior reservation of coal or a new reservation of minerals by the grantor. The opinion quotes language from Colglazier and Sanford v. Alabama Power Co., 256 Ala. 280, 54 So. 2d 562 (1951), to the effect that erroneous references to prior reservations did not prevent an effective reservation in the deed in question. Holliman can also be understood by reference to the distinction between exceptions and reservations:
Earle v. International Paper Co., 429 So. 2d 989, 992 (Ala.1983). Thus, it can be seen that the grantees in Holliman argued in effect that the language in question was merely an exception of the coal interest previously reserved by the United States, not a reservation by the grantor of all other minerals. The Court held the language sufficient to effect a reservation. Similarly, in this case, the Bookouts argue, in effect, that the provision is an exception of the prior coal reservation, not a reservation by Hubbard of all other minerals. Just as in Holliman, the language here effectively reserves all minerals to Hubbard rather than simply excepting the coal previously reserved by the United States.
In Turner v. Lassiter, supra, this Court construed the following language in a deed from Lassiter to Turner:
Id., 484 So. 2d at 379. When Lassiter executed this deed, it was questionable whether one-half of the rights to the oil, gas, and minerals had actually been reserved by prior *1082 owners. The Court held the language of the exception to be unambiguous:
Id., 484 So. 2d at 380. Turner argued that the erroneous recitation of fact concerning reservations by prior owners created an ambiguity and that, therefore, the granting clause, which contained words of inheritance without exception or reservation, should govern. This Court responded:
Id., 484 So. 2d at 380-81.
In this case, the language "All mineral reserved" clearly reserves all mineral rights from the conveyance to Bookout. The phrase "to the United States" is merely an erroneous recitation of the prior reservation. Therefore, the summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The trial court, and now this Court, have determined as a matter of law that the words "all mineral [singular] reserved to the United States" are unambiguous and mean that the grantor reserved all the minerals, instead of just the coal, which everyone agrees had been reserved in the original patent from the United States. In reaching this conclusion, the majority holds that "[t]he phrase `to the United States' is merely an erroneous recitation of the prior reservation." Opinion at 1082.
I cannot agree with that holding. In view of the language used in the prior conveyances, and particularly the language in the original patent from the United States, which reserves "to the United States all coal in lands so patented, and to it, or persons authorized by it, the right to prospect for, mine and remove coal from the same upon compliance with the conditions of and subject to the limitations of the Act of June 22, 1910 (36 Stat. 583)," it seems to me that the reservation in the subject deed of "all mineral [singular] reserved to the United States," logically refers to the reservation of the coal to the United States in the original patent. At best, the language used in the subject deed contains a latent ambiguity; therefore, I conclude that the summary judgment was inappropriate. Consequently, I must respectfully dissent.
[1] This case reached this Court with the style "James Bookout Cantley, et al. v. The River Gas Corporation, et al.," but we have restyled it to reflect the true parties in interest.
[2] We express no opinion as to the possible effect of other conveyances in the chain of title, as no such issue has been raised by either party.
[3] Cf. Vines v. McKenzie Methane Corp., 619 So. 2d 1305 (Ala.1993), which held that a lease of coal and other minerals included coalbed methane gas. The parties did not raise this question below or on appeal. We address this appeal only as it is framed by the parties, and we make no judgment as to possible interests held by any other parties.
[4] The Bookout heirs, the appellants in this case, include James Bookout Cantley, Gertrude B. Pruitt, Clarence C. Bookout, Charles R. Owen, James W. Owen, Foster G. Owen, Sarah B. Morris, Maria J. Bradley, Harriet O. Smith, Nancy N. Tullos, and Jonathan M. Bookout.
[5] The Hubbard heirs, who are the appellees, include Howell Hubbard, Jessie Hubbard Green, Hazel Hubbard Dickey, Sue Hubbard Williams, Margaret Hubbard Xanders, Alma Hubbard, and Betty Hubbard Bryant. | June 25, 1993 |
8c8cac4d-c415-477d-8b6b-1d59f5dfa0a7 | Ex Parte Moncrief | 627 So. 2d 385 | 1911603 | Alabama | Alabama Supreme Court | 627 So. 2d 385 (1993)
Ex parte Tracy MONCRIEF.
(Re Tracy MONCRIEF
v.
RUSSELL CORPORATION).
1911603.
Supreme Court of Alabama.
May 14, 1993.
*386 William M. Cunningham, Jr. of Burns, Cunningham & Mackey, Mobile, for petitioner.
Randall S. Haynes of Morris, Haynes & Ingram, Alexander City, for respondent.
KENNEDY, Justice.
Tracy Moncrief appeals from a judgment of the Court of Civil Appeals affirming the denial of workers' compensation benefits. Moncrief worked as a manual laborer for Russell Corporation; he claimed to have sustained a back injury while on the job.
The issues are (1) whether the Court of Civil Appeals erred in affirming the trial court's denial of temporary total disability benefits to Moncrief during his convalescence following unauthorized surgery; and (2) whether the Court of Civil Appeals erred in affirming the trial court's holding that the employer did not have to pay unauthorized medical expenses.
The Court of Civil Appeals set out the facts in Moncrief v. Russell Corp., 627 So. 2d 383 (Ala.Civ.App.1992). However, we feel it necessary to recite the facts as found by that court in order to better present the issues in this case.
627 So. 2d at 384.
The trial court found that the employee had sustained a lower back injury as a result of an accident in the course of his employment. It found that the employer had paid for certain authorized medical expenses, but held that it was not liable for unauthorized medical treatment. The court determined that the employee had suffered a 10% loss of ability to earn, and it awarded benefits accordingly. The court also found that the employee had been paid temporary total disability benefits for 10 weeks and 4 days spent recuperating from the authorized treatment, but that the employee was not entitled to temporary total disability benefits for the time he spent recuperating from the unauthorized surgeries. The Court of Civil Appeals affirmed the judgment of the trial court.
The first issue is whether the Court of Civil Appeals erred in affirming the trial court's holding that the employee was not entitled to temporary total disability benefits for the time that he spent recuperating from the unauthorized surgeries. Temporary total disability refers to "the healing period during which an employee is recovering and unable to work." Haywood v. Russell Corp., 611 So. 2d 365, 367 (Ala.Civ.App.1992). "It has *388 repeatedly been held that the `time of temporary total disability' is the recovery period that lasts until maximum medical recovery is reached." Haywood, 611 So. 2d at 367, citing Ex parte DCH Regional Medical Center, 571 So. 2d 1162 (Ala.Civ.App.1990). Temporary total disability is ordinarily established by direct evidence of actual wage loss. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So. 2d 419 (1974);[*] § 25-5-57(a)(1), Ala.Code 1975.
The Court of Civil Appeals held in this case that the trial court did not err in limiting the employee's medical costs to those incurred for authorized treatments and, therefore, that it properly denied temporary total disability benefits for the periods of recovery following the unauthorized surgeries. We disagree. Nowhere in the Workers' Compensation Act is there a requirement that temporary disability be awarded solely for authorized surgeries. First, for an injury to be compensable under the Workers' Compensation Act, the employee must establish both legal and medical causation. Hammons v. Roses Stores, Inc., 547 So. 2d 883 (Ala.Civ. App.1989). Once legal causation has been established, i.e., once it has been established that an accident arose out of and in the course of employment, medical causation must be established, i.e., that the accident caused the injury for which recovery is sought. Hammons. Second, the test for total disability is whether the employee is unable to perform his trade or to obtain reasonably gainful employment; the employee need not be absolutely helpless or be entirely physically disabled in order to obtain temporary total disability benefits. Price's Bar-B-Que, Inc. v. Carter, 541 So. 2d 38 (Ala. Civ.App.1989).
The employee now seeks recovery in the form of temporary total disability benefits for the back surgeries that were necessary due to the injury. It is undisputed that the employee's injury arose out of his work and in the course of his employment with the employer. It is also undisputed that the employee was unable to work while he was recuperating from the two back surgeries. Therefore, the employee is entitled to temporary total disability benefits from the periods when he was recuperating from the unauthorized surgeries.
The second issue is whether the Court of Civil Appeals erred by affirming the trial court's holding that the employer did not have to pay medical expenses for unauthorized surgeries.
Under Alabama's workers' compensation laws, unless there is an emergency the employee must notify his employer when he wishes to consult another physician. Ex parte Grantham, 514 So. 2d 1385 (Ala.1987). In United States v. Bear Brothers, Inc., 355 So. 2d 1133 (Ala.Civ.App.1978), the Court of Civil Appeals set out exceptions for obtaining unauthorized, nonemergency treatment: (1) where the employer has neglected or refused to provide the necessary medical care; (2) where the employer has consented to the employee's choice of physicians; (3) where notice of and request for alternative care would be futile; and (4) where other circumstances exist to justify the selection of alternative care by the employee.
The Workers' Compensation Act clearly provides that an employer is not liable for medical or surgical treatment provided without notice to the employer or justification. The trial court found that no justification existed for the employee's failure to notify the employer. Appellate review in workers' compensation cases is a two-step process. Initially, the reviewing court will look to see if there is any legal evidence to support the trial court's findings; if it finds such evidence, it then determines whether any reasonable view of that evidence supports the trial court's judgment. Ex parte Eastwood Foods, Inc., 575 So. 2d 91 (Ala. 1991). A reasonable view of the evidence in *389 this case supports the trial court's finding that there was no notification and no justification to require the employer to pay for the unauthorized medical expenses.
The judgment of the Court of Civil Appeals is affirmed in part and reversed in part, and the cause is remanded for an order or proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and ADAMS, JJ., concur.
[*] [Reporter of decisions' note: Although the opinion cited is styled Defense Ordinance Corp. v. England and the appellate record indicates that style, the correct style probably should have been Defense Ordnance Corp. v. England. The secretary of state's records indicate the January 19, 1971 incorporation of a company in Etowah County named "Defense Ordnance Corporation." The secretary of state's records show no incorporation under the name of "Defense Ordinance Corporation."] | May 14, 1993 |
3152d99f-00a5-4418-b600-a222197bc9dd | Ex Parte State | 667 So. 2d 137 | 1920659 | Alabama | Alabama Supreme Court | 667 So. 2d 137 (1993)
Ex parte State of Alabama.
(In re Johnny Jesse NEWMAN
v.
STATE of Alabama).
1920659.
Supreme Court of Alabama.
May 21, 1993.
James H. Evans and Jeff Sessions, Attys. Gen., and Norbert H. Williams, Asst. Atty. Gen., for petitioner.
*138 Charles H. McDougle, Jr. of Ramsey, Baxley, McDougle & Collier, Dothan, for respondent.
HOUSTON, Justice.
Johnny Jesse Newman was convicted of capital murder and was sentenced to life imprisonment without the possibility of parole. On appeal, Newman raised 10 issues, one of which was whether the state exercised a peremptory challenge in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Court of Criminal Appeals, in a 3-2 decision, reversed the conviction, finding a Batson violation. We granted the state's petition for the writ of certiorari, to determine whether the Court of Criminal Appeals erred in holding that the state's reason for striking veniremember number 90 was not race-neutral.
In reversing, the Court of Criminal Appeals held that the state's strike of veniremember number 90 was "virtually indistinguishable from two of the strikes held to constitute reversible error in Walker v. State, 611 So. 2d 1133 (Ala.Crim.App.1992)." Newman v. State, 667 So. 2d 132, 133-134 (Ala. Crim.App.1992). In Walker, the Court of Criminal Appeals reversed the judgment because it found that the basis for striking the veniremembers was the state's "suspicion" that they were related to someone with a recorded criminal history, although the state asked no questions to confirm this suspicion, or the veniremembers' failure to answer on voir dire a question regarding whether they were related to someone who had been prosecuted for a felony, when in fact, others had also failed to answer. Id. at 1139-40.
The state argues that this case is "clearly distinguishable from Walker," because, in this case, it says, it had "more than a mere suspicion about juror number 90's relationship with someone with a recorded criminal history." According to the state, it knew "for a fact that [juror number 90] had relatives with criminal histories. No guesses, like in Walker, no surmises, like in Walker, and no speculation, like in Walker."
Newman maintains that the Court of Criminal Appeals correctly reversed his conviction because, he says, the state struck veniremember number 90 "without engaging in any meaningful voir dire in regard to the particular reasons given for striking her."
The record shows that the following occurred at the Batson hearing:
From the foregoing, and based on a review of the entire record, the petition for the writ of certiorari, the brief in support of the petition, the reply brief, and the applicable law, we agree with Judge Bowen's statement in his well-reasoned and well-researched dissent in this case that "under the facts of this case, the prosecutor's reason [for striking veniremember number 90 from the jury venire] was sufficient." 667 So. 2d at 135. (Emphasis in original.) Therefore, the judgment of the Court of Criminal Appeals should be reversed and the case remanded for further proceedings consistent with this opinion.
In light of Judge Bowen's dissent, any further discussion of the applicable law or of the application of that law to the facts of this case is unnecessary. We therefore adopt Judge Bowen's dissent as the opinion of this Court.
*139 REVERSED AND REMANDED.[*]
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL, KENNEDY, and INGRAM, JJ., concur.
ADAMS, J., dissents.
ADAMS, Justice (dissenting).
I respectfully dissent. The majority adopts the dissenting opinion in which two judges of the Court of Criminal Appeals attempted to distinguish this case from Walker v. State, 611 So. 2d 1133 (Ala.Crim.App.1992). In my judgment, the facts surrounding the peremptory challenge in this case cannot be distinguished in any relevant respect from those involved in challenges to veniremembers 35 and 126 in Walker. Walker correctly held that where veniremembers do not respond to a general voir dire question regarding familial relationships with alleged subjects of felony prosecutions, the State must, in order to rebut a prima facie case of discrimination, individually question the veniremember and cannot rely on hearsay statements regarding alleged relationships and prosecutions by law enforcement personnel or investigators. 611 So. 2d at 1140.
During voir dire in this case, veniremember number 90 "did not respond to the prosecutor's ... question of whether any of her family members or friends had been prosecuted for committing a felony. "Newman v. State, 667 So. 2d 132 (Ala.Crim.App. 1992) (emphasis added). The State's only explanation for its challenge of this veniremember is contained in the following statement:
The State did not individually question this veniremember regarding her relationship with those persons of the same name who were allegedly subjects of prosecution.
The majority of the Court of Criminal Appeals correctly observed that the State's explanation, which failed to differentiate between felony and misdemeanor prosecutions, created a "glaring inconsistency" with the State's voir dire, which was limited to questions regarding felony prosecutions. In addition, the fact that veniremember 90 did not respond during voir dire could be understood as evidence that she was not related to the individuals allegedly prosecuted. Under these facts, the State's failure to ask veniremembers any follow-up questions pertinent to "the particular reasons given for striking them," Walker, 611 So. 2d at 1140, that is, regarding a familial relationship to individuals alleged to be subjects of prosecution, fatally undermines its proffered explanation. See Ex parte Bird, 594 So. 2d 676 (Ala.1991); Ex parte Branch, 526 So. 2d 609 (Ala.1987). Consequently, I must respectfully dissent.
[*] Note from the reporter of decisions: Following the remand by the Alabama Supreme Court, the Court of Criminal Appeals on July 7, 1995, affirmed, without opinion, and that court on August 18, 1995, denied rehearing, without opinion. The Alabama Supreme Court denied certiorari review on November 17, 1995, without opinion (docket 1941778). | May 21, 1993 |
beb31203-8187-423e-bf02-779a6003134d | Broadus v. Essex Ins. Co. | 621 So. 2d 258 | 1910936 | Alabama | Alabama Supreme Court | 621 So. 2d 258 (1993)
Brad BROADUS, d/b/a Grand Bay Construction Company
v.
ESSEX INSURANCE COMPANY, et al.
1910936.
Supreme Court of Alabama.
May 14, 1993.
*259 Andrew T. Citrin and Richard Bounds of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.
William H. Hardie and Lawrence J. Seiter of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for Essex Ins. Co.
A. Danner Frazer, Jr. of Frazer, Greene, Philpot & Upchurch, Mobile, for Ins. House.
HOUSTON, Justice.
The plaintiff, Brad Broadus, d/b/a Grand Bay Construction Company ("Broadus"), appeals from a summary judgment for the defendants, The Insurance House and Essex Insurance Company ("Essex"). We affirm.
The following material facts are undisputed: Broadus contacted his insurance agent, Jim Van Antwerp, and requested that he procure certain coverage for Broadus's company. Van Antwerp, who owns an independent retail insurance agency and does business with many insurance companies and brokers, contacted The Insurance House. The Insurance House, an independent wholesale insurance broker that assists agents, such as Van Antwerp, in finding insurance companies that provide the kind of coverage needed by the agent's customers, then contacted Essex, which agreed to provide coverage for Broadus. The sole function of The Insurance House with regard to this transaction was to act as an intermediary between Van Antwerp and Essex. The Insurance House obtained information from Van Antwerp concerning the kind of coverage that Broadus wanted and relayed it to Essex. Essex then informed Van Antwerp, through The Insurance House, that it would issue a policy to Broadus on certain terms. Van Antwerp relayed that information to Broadus, who agreed to accept the coverage. Van Antwerp collected the premium, deducted his commission from it, and forwarded the remainder to The Insurance House. The Insurance House, which had the limited authority to bind the coverage under the terms set by Essex, deducted its commission from the amount that it received from Van Antwerp and sent the balance of the *260 premium to Essex. During the term of the policy, The Insurance House continued in its role as an intermediary between Van Antwerp and Essex, passing information back and forth. The Insurance House is not an insurance company and it had no direct contact with Broadus. Van Antwerp was not employed by The Insurance House as a soliciting agent; he served, instead, as an agent for Broadus.
After Essex denied a claim filed by Broadus, based on an exclusion contained in the policy, Broadus sued Van Antwerp; Van Antwerp's agency; The Insurance House; and Essex, seeking damages for breach of contract, fraud, and bad faith refusal to pay an insurance claim. The trial court entered a summary judgment for The Insurance House and Essex and certified that judgment as final, pursuant to Rule 54(b), Ala.R.Civ.P. Broadus's claims against Van Antwerp and his agency remain pending below.
The summary judgment was proper in this case if there was no genuine issue of material fact and The Insurance House and Essex were entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. The burden was on The Insurance House and Essex 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 that showing was made, then the burden shifted to Broadus 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 Broadus and must resolve all reasonable doubts against The Insurance House and Essex. 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. See Ala.Code 1975, § 12-21-12.
After carefully studying the record and the briefs in this case, we conclude that the summary judgment was proper. Broadus's "theory of the case" is basically this: The Insurance House, he says, exercised or reserved the right to exercise control over the manner in which Van Antwerp ran his agency, and therefore is vicariously liable under the doctrine of respondeat superior for any misrepresentations that Van Antwerp may have made to Broadus concerning the extent of coverage under the Essex policy.[1] In turn, the theory goes, Essex is liable under general agency law because, according to Broadus, The Insurance House dealt with Van Antwerp as Essex's general agent. The basic problem with this theory, as the trial court found, is that it has no evidentiary support. Whether Van Antwerp had an agency relationship with The Insurance House when he dealt with Broadus so that The Insurance House could be vicariously liable for Van Antwerp's actions depends on whether The Insurance House reserved the right to control the manner in which Van Antwerp ran his agency. Land & Associates, Inc. v. Simmons, 562 So. 2d 140 (Ala.1989). The record shows that The Insurance House had no right to, and did not, control Van Antwerp. Van Antwerp acted at all times as an independent insurance agent or broker on behalf of Broadus. The Insurance House acted as an independent wholesale insurance broker, passing information upon request between Van Antwerp and Essex. As we stated in Land & Associates, Inc. v. Simmons, supra, at 144, "the right to determine if an alleged agent is conforming to the requirements of a contract does not, in itself, establish control." Van Antwerp and The Insurance House merely cooperated with each other so as to secure insurance coverage for Broadus. By passing information between Essex and Van Antwerp and performing certain administrative duties in connection with the policy on behalf of Essex, The Insurance House did not create the kind of relationship with Van Antwerp that would subject it to liability under the doctrine of respondeat superior.
*261 When an independent agent or broker, such as Van Antwerp, fails to procure insurance coverage for his principal (here Broadus), the principal may sue either for a breach of contract or in tort. See Washington National Ins. Co. v. Strickland, 491 So. 2d 872 (Ala.1985). As previously noted, Broadus's claims against Van Antwerp remain pending below. However, based on the undisputed facts in the present case and because Van Antwerp and The Insurance House acted independently of each other, The Insurance House is not liable for fraud under the doctrine of respondeat superior. It follows, of course, that Essex cannot be liable under Broadus's theory of the case if The Insurance House is not liable. Therefore, we need not determine whether The Insurance House was a general agent for Essex. The judgment is due to be affirmed on the authority of Land & Associates, Inc. v. Simmons and Washington National Ins. Co. v. Strickland.
AFFIRMED.
MADDOX, ADAMS, STEAGALL and INGRAM, JJ., concur.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., dissent.
KENNEDY, Justice (dissenting).
I respectfully dissent, and, in explaining my reasons for dissenting, I think it helpful to discuss the facts of this case in additional detail.
The record indicates that in November 1986, Broadus approached Van Antwerp about procuring insurance coverage for Broadus's construction business. Broadus testified that he stressed in his conversations with Van Antwerp that he wanted "complete and total coverage" for "anything that might happen." According to Broadus, Van Antwerp indicated that he would obtain this type of coverage.
Van Antwerp contacted The Insurance House about locating coverage for Broadus. The Insurance House obtained premium "quotes." These quotes were relayed to Van Antwerp, who relayed them to Broadus. Ultimately, Broadus obtained limited coverage from Essex Insurance Company.
Van Antwerp testified that he never misled Broadus as to the extent of coverage with Essex and that Broadus wanted the cheapest coverage he could get.
In January 1989, while Broadus was engaged in erecting a communications tower, a construction accident resulted in approximately $18,200 damage to the tower.
Essex denied coverage, citing a policy exclusion for damage to property in Broadus's "care, custody and control."
Broadus sued Van Antwerp, The Insurance House, and Essex, averring in pertinent part, that Van Antwerp had misrepresented the extent of coverage with Essex, as an agent of The Insurance House, rendering the Insurance House vicariously liable under the doctrine of respondeat superior. He averred further that The Insurance House's liability rendered Essex liable also, because The Insurance House was, he claimed, a general agent of Essexhe claimed The Insurance House "was Essex." In this regard, Broadus correctly states on appeal that "a general agent `stands in the shoes' of the principal." Washington National Ins. Co. v. Strickland, 491 So. 2d 872, 874 (Ala.1985).
As stated by the majority, the trial court entered summary judgments in favor of Essex and the Insurance House.
A summary judgment is improper where there are genuine issues of material fact. Ala.R.Civ.P. 56; Berner v. Caldwell, 543 So. 2d 686 (Ala.1989). The burden of establishing the absence of a genuine issue of material fact is on the movant. Id. If the movant makes a prima facie showing that there is no genuine issue of material fact, and that the movant is entitled to a judgment as a matter of law, then the burden shifts to the nonmovant, who must rebut this showing by "substantial evidence" creating a genuine issue of material fact. Id. In determining whether a nonmovant has produced substantial evidence, the Court must view the evidence in a light most favorable to the nonmovant, resolving all reasonable doubts in the nonmovant's favor. *262 Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986).
In my view, Broadus presented, in rebuttal to the defendants' prima facie showing, substantial evidence in support of his claim that Van Antwerp was an agent of The Insurance House and substantial evidence that The Insurance House was a general agent of Essex.
As to whether Van Antwerp was an agent of The Insurance House, I note that "[t]he test to be applied in determining the existence of an agency relationship under the doctrine of respondeat superior is whether the alleged principal reserved a right of control over the manner of the alleged agent's performance," Carlton v. Alabama Dairy Queen, Inc., 529 So. 2d 921, 923 (Ala.1988), whether that right is "exercised or not." Joseph Land & Co. v. Gresham, 603 So. 2d 923 (Ala.1992).
Broadus argues that he presented substantial evidence that Van Antwerp was a soliciting agent of The Insurance House. A "soliciting agent" is an agent with limited authority to act for the principal. Land & Associates, Inc. v. Simmons, 562 So. 2d 140, 144 (Ala.1989). This Court has stated that "[s]ince a soliciting agent is regarded as the `servant' of the insurer `master,' the insurer has the full right of control over the agent's actions." Id., quoting Strickland, 491 So. 2d at 875.
In this regard, the record indicates that The Insurance House frequently directed Van Antwerp in his activities relating to Broadus. For example, Carol Freeman, of The Insurance House, instructed Van Antwerp to provide her with Broadus's correct payroll, to perform a loss history on Broadus, to supply her with financial audit information, and to verify the figures on payroll information already submitted. She also directed him to do the following: "Please have the enclosed application completed and signed by the insured on or before March 15, 1989. Please be sure to indicate a complete description of operations, including maximum heights." In another communication she wrote: "Please rush renewal applications to megive me a list of the jobs done this past year, including a description of the job, plus contract costs. Please get [it] to me ASAP...." Also, in a memo marked "IMPORTANT," The Insurance House wrote to Van Antwerp: "It is essential that the enclosed endorsement be signed by the insured no later that 6/87 to avoid cancellation of the policy."
Viewing the evidence most favorably to Broadus, one could reasonably infer that The Insurance House retained a right of control over the manner of Van Antwerp's performance. It is notable in this regard that the record indicates a pattern by Van Antwerp of acting only after receiving specific instructions or approval from The Insurance House.
In my view, one might also reasonably infer that The Insurance House was a general agent of Essex.
Strickland, 491 So. 2d at 874.
Van Antwerp testified that he had no direct dealings with Essex, but worked through The Insurance House. The evidence indicates that Essex empowered The Insurance House to prepare and to issue the Broadus policy. The evidence also indicates that The Insurance House, in Essex's stead, sought remittance for the coverage and also conducted all communications with Van Antwerp relating to the Essex policy. Van Antwerp testified that he never spoke with anyone from Essex.
The Court stated in American States Ins. Co. v. C.F. Halstead Developers, Inc., 588 So. 2d 870, 872-73 (Ala.1991), "An agent, by definition, is a `person authorized by another [principal] to act for or in place *263 of him.'" (Quoting Black's Law Dictionary 63 (6th ed. 1990)). It appears from the record that Essex so empowered The Insurance House in this case. The evidence certainly permits one to reasonably infer that The Insurance House had the "authority to transact all of the business of [Essex], of a particular kind." Strickland, 491 So. 2d at 874. Such authority is the authority of a general agent.
Also, I note Van Antwerp's testimony that the Insurance House was a "general agent" and documentation listing The Insurance House as the "general agent" of Essex. Although this evidence would properly be ruled inadmissible, no objection to its consideration in opposition to the summary judgment motion was raised in the trial court. Thus, any objection to the Court's consideration of it is waived. McMillian v. Wallis, 567 So. 2d 1199, 1205 (Ala.1990).
"The existence and scope of a principal-agent relationship [are] normally [questions] of fact to be determined by the jury." Continental Elec. Co. v. American Employers' Ins. Co., 518 So. 2d 83, 87 (Ala. 1987). In my view, this case presents such questions.
SHORES, J., concurs.
[1] Broadus does not argue that the summary judgment was improper with respect to his breach of contract and bad faith claims. Therefore, our review is limited to the only issue presented on appealwhether the summary judgment was proper as to the fraud claim. | May 14, 1993 |
2bbc2cbc-e531-4983-ac54-53359e51a992 | Ex Parte Wright | 625 So. 2d 1135 | 1920121 | Alabama | Alabama Supreme Court | 625 So. 2d 1135 (1993)
Ex parte Curtis WRIGHT, Jr.
(Re State v. Curtis Wright, Jr.)
1920121.
Supreme Court of Alabama.
May 21, 1993.
James E. Kimbrough, Jr., Mobile, for petitioner.
James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for respondent.
HORNSBY, Chief Justice.
We have granted Curtis Wright's petition for certiorari review of a judgment of the Court of Criminal Appeals affirming Wright's conviction of assault in the first degree for the shooting of Brian Facemire. We reverse and remand.
On July 4, 1990, shortly after a fireworks display at the Mobile Festival Center, Mobile, Alabama, Russell Paul Smith and Jarrod Lovelace were sitting in Smith's automobile in the Festival Center parking lot when two young men, later identified as Curtis Wright and E.M., ran by the car. Apparently, both young men put their hands on Smith's car and "pushed off" from the corner of it as they ran by. At the time, Smith, who did not know either of the two young men, was sitting in the passenger's seat of his car with the door open. Smith testified that he hollered to the young men: "Don't run across my car like that." Then, he said, the second young man, who was wearing solid black clothing, stopped, walked backed to Smith's car, and asked Smith if he was "trying to start something." Smith said that while he was repeating to that young man what he had said, the other young man, who was *1136 wearing green and black clothing, walked back to the car. Smith said the young man wearing green and black clothing hit him in the head and kicked him; then, he said, the young man wearing solid black clothing pulled a gun and held it in his face. At that point, Brian Facemire, who had witnessed these events from his car, which was a few feet away, stepped out of his car, began walking toward Smith's car, and hollered at the young men, saying: "Just go on before the paddy wagon comes." Then, one young man turned and shot Facemire in the chest. Facemire survived the shooting.
A Mobile County grand jury indicted Wright on a charge of assault in the first degree for the shooting of Facemire.[1] On May 30, 1991, his case was presented to a jury. Because the jury was unable to reach a verdict, the court declared a mistrial and scheduled a second trial for October 28, 1991. In that second trial, the jury found Wright guilty and the court sentenced him to 10 years in a state penitentiary. The Court of Criminal Appeals, by an unpublished memorandum, affirmed Wright's conviction. 617 So. 2d 713.
In both of Wright's trials, his defense to the assault charge was that it was E.M.not Wrightwho had shot Facemire. During Wright's first trial, Marcus Seals, a defense witness, testified that on July 4, 1990, the day of the shooting, Seals, Wright, E.M., and Ari Gordon rode to the Festival Center together. Seals testified that earlier that day he had seen E.M. with a .25 caliber chrome-colored gun. The bullet that injured Facemire came from a .25 caliber gun. Seals also stated that he did not witness the shooting, but that E.M. later told him that E.M. had shot Facemire. Seals's testimony was the only testimony directly supporting Wright's defense. Seals was not present to testify at the second trial.
At the second trial, Wright requested that Seals's testimony given at the first trial be read to the jury. The trial court refused this request; Wright argues that the trial court thereby erred.
Former testimony (sometime called "prior testimony") is hearsay evidence, but it is admissible when the personal attendance of a witness is not procurable and when the former testimony meets certain criteria. See Charles W. Gamble, McElroy's Alabama Evidence § 245.07(1) (4th ed. 1991), and cases cited therein. In this case, the trial court ruled that Wright's attorney failed to prove that he could not produce Seals's personal attendance at the second trial. See id. at § 245.07(8). Specifically, it said Wright's attorney did not establish that he had exercised due diligence to secure Seals's attendance at trial. See Nolen v. State, 469 So. 2d 1326, 1328 (Ala.Crim.App.1985).[2] However, the record indicates that the predicate testimony offered to prove Seals's unavailability *1137 may have been sufficient to establish that Seals was permanently or indefinitely absent from the state. See Williams v. Calloway, 281 Ala. 249, 251-52, 201 So. 2d 506, 508 (1967).
The question of sufficiency of the proof offered to establish the predicate of unavailability of a witness is addressed to the sound discretion of the trial judge. See Nolen, 469 So. 2d at 1289. This Court will not disturb rulings in matters resting in the discretion of the trial court unless that court has clearly abused its discretion. Ex parte Guerdon Industries, Inc., 373 So. 2d 322 (Ala. 1979). Further, this Court has stated 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).
Wright argues that the trial court abused its discretion by refusing to allow proffered predicate testimony regarding Seals's whereabouts. To lay a predicate for the admission of Seals's former testimony, Wright established that, at the time of the first trial, Seals was serving time in jail for reckless endangerment and for carrying a pistol without a permit. Before the second trial, the Mobile County sheriff attempted to serve a subpoena on Seals at his last known address, but returned the subpoena with the notation "moved, address unknown." Wright testified that he had heard that Seals was in New York, but that he was not really sure where Seals was. Further, Wright's attorney asked the court to hear testimony from Kayshawn Jones, a witness for the prosecution in both trials; Wright's attorney says Jones would have testified that Seals was in North Carolina. However, the court refused to allow Jones's testimony regarding her knowledge of Seals's location.
Despite the fact that Jones's testimony would have been outside the hearing of the jury, the court ruled that, because Jones had been seated in the courtroom since she had testified for the prosecution earlier in the trial, to allow her testimony would violate Rule 9.3(a), Ala.R.Crim.P. That rule provides:
The trial court had invoked Rule 9.3(a) on its own motion. So far as the record indicates, the parties' only notice that the court had invoked this rule was the fact that it had instructed the witnesses to leave the courtroom. However, the record indicates no instruction to the witnesses based on Rule 9.3(a); it contains only the court's statement, made when it refused to hear Jones's testimony, that the court had given such an instruction initially.
Without hearing Jones's testimony, the trial court could not have determined whether her testimony would have established either that Seals was permanently or indefinitely absent from the state, or that Wright's attorney used due diligence in attempting to secure Seals's presence at trial.[3] Thus, we conclude that by refusing to consider Jones's testimony, the trial court abused its discretion. Further, when we consider the substance of Seals's testimony in the first trial, compared with the evidence presented in the second trial, and the fact that in the first trial the jury could not reach a decision as to Wright's guilt, we must further conclude that the trial court's error prejudiced Wright's defense. Seals's testimony was the only evidence that would have corroborated Wright's testimony.
The case against Wright centered on the physical differences between Wright and E.M. on July 4, 1990. The record shows that on that date Wright was wearing black shorts and a black shirt and that E.M. was *1138 wearing a dark green shirt and cut-off blue jeans. The record shows, further, that on that date Wright was taller and larger than E.M. Facemire testified that the person who shot him was wearing dark clothing. Facemire stated: "That's the only thing I can remember because it was dark that night. If [the clothing had] been of a lighter color, I could have picked it out. But I knew it had to be within a black or dark blue or somewhere around in there." Further, Smith testified that the person who shot Facemire was wearing solid black clothing. However, Smith also testified that the person who hit him, the one he said was wearing green and black clothing, was taller and bigger that the person wearing solid black clothing. In contrast, Lovelace testified that it was the taller of the two who shot Facemire, but that he did not remember what either of the two young men was wearing. Likewise, David Rowlee, another person who witnessed the shooting from a nearby car, testified that it was the taller of the two young men who shot Facemire; however, Rowlee testified that he never saw the gun.
Because the trial court abused its discretion in refusing to consider Jones's testimony and because that abuse of discretion prejudiced Wright's defense, Wright's conviction is due to be reversed and the cause remanded for a new trial.
REVERSED AND REMANDED.
ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The majority holds that the learned trial judge abused his discretion in refusing to permit the defendant to use the testimony of a witness given at a prior trial because the defendant had failed to show to the satisfaction of the trial judge that the witness was unavailable.
I have read the original record of the colloquy between the trial judge and counsel for the defendant concerning the whereabouts of the witness, and I am convinced that the trial judge did not abuse his discretion in refusing to permit the prior testimony. If the absent witness's testimony was as critical to the defendant's case as he now claims, he should have taken more care to secure it; the record shows that he was not diligent in attempting to secure the witness's presence at his second trial. Clearly, the trial judge did not abuse his discretion in refusing to permit the hearsay evidence under all the facts and circumstances shown by the record.
[1] When the shooting occurred, Wright was 17 years old and E.M. was 16 years old. Both Wright and E.M. were arrested, transported to the Mobile County Youth Center, and charged with assault in the first degree. E.M. was tried as a juvenile and was placed in the custody of the Alabama Department of Youth Services. Wright was transferred to the Mobile County Circuit Court to stand trial as an adult.
[2] No Alabama case addresses the steps a criminal defendant must take to establish "due diligence" in seeking the presence of an unavailable witness. Alabama's recent criminal cases addressing the requirement of due diligence relate only to the prosecutor's attempts to introduce former testimony of an unavailable witness. We find only two jurisdictions that have discussed the burden on a criminal defendant seeking the presence of an unavailable witness. See People v. Linder, 5 Cal. 3d 342, 96 Cal. Rptr. 26, 486 P.2d 1226 (1971) (trial court should have considered the totality of the defendant's efforts to secure the presence of his witness at trial; it erred by excluding that witness's former testimony solely because the defendant made no attempt to subpoena the witness until the day before trial); Brooks v. State, 35 Md.App. 461, 371 A.2d 674, 678 (1977) (trial court did not err in refusing to allow the former testimony of a defense witness who was incarcerated in another state, because the defendant had failed to show that he had attempted to obtain that witness's presence through state procedures established for that purpose). Those cases point out that when the prosecution seeks to introduce former testimony of an unavailable witness against a criminal defendant, its burden in seeking the witness's presence is enhanced by the defendant's Sixth Amendment right of confrontation. See also Anderson v. State, 362 So. 2d 1296, 1301 (Ala. Crim.App. 1978). In contrast, a criminal defendant seeking to introduce former testimony need address only hearsay concerns.
[3] Because we chose to dispose of this case on the issue of predicate testimony, we need not consider here the obvious problem that would arise in a case like this where a prosecution witness violates the rule and then later the defendant is barred from offering testimony of that witness to the jury because of the violation. It may be unfair to penalize the defendant because the prosecution's witness has violated the rule. | May 21, 1993 |
ca47dc3e-1af8-485f-95ed-ab7be1bba9be | Diamond v. Aronov | 621 So. 2d 263 | 1911567, 1911956 | Alabama | Alabama Supreme Court | 621 So. 2d 263 (1993)
Sam L. DIAMOND
v.
Jake F. ARONOV and Owen W. Aronov.
1911567, 1911956.
Supreme Court of Alabama.
May 14, 1993.
*264 Tony G. Miller and John N. Bolus of Maynard, Cooper, Frierson & Gale, P.C., Birmingham, for appellant.
John M. Bolton III and Sarah W. Parrish of Robison & Belser, P.A., Montgomery, for appellees.
ADAMS, Justice.
The defendant, Sam Diamond, appeals from a summary judgment entered in favor of the plaintiffs, Jake F. Aronov and Owen W. Aronov, in an action seeking the defendant's proportionate share of a partnership debt. We affirm.
Diamond and the Aronovs entered into a general partnership, known as A & D Partners, in October 1983. In February 1984, the partnership acquired a leasehold interest in a parcel of land located in Montgomery, Alabama, and it borrowed money from Central Bank of the South to finance improvements on the land. The partnership executed a note, a leasehold mortgage, and a security agreement to Central Bank.
On June 15, 1987, the partnership, by and through each of its general partners, signed a promissory note in favor of Central Bank in the amount of $563,285.04, to refinance the loan. The promissory note was secured by the February 1984 leasehold mortgage and security agreement, which related to the real property, the equipment, and the fixtures located on the land. On July 16, 1987, each partner signed a continuing guaranty in favor of Central Bank. By that guaranty, the partners agreed to pay the amount of the note on demand, with interest, equal to the prime lending rate, payable monthly, beginning August 1, 1987. The note with Central Bank matured on April 17, 1990, and Central Bank contacted the parties and the partnership for payment. The plaintiffs Jake F. Aronov and Owen W. Aronovpaid the balance of the debt on August 16, 1990, and Central Bank assigned its interest in the debt to them.
On August 27, 1990, the Aronovs sued Diamond, seeking to recover from him his pro rata share of the partnership debt. On November 28, 1990, the defendant filed a motion to dismiss, alleging improper venue; the court denied that motion. The plaintiffs filed a motion for summary judgment, with briefs in support, on August 23, 1991. The defendant petitioned this Court for a writ of mandamus; this Court issued a writ of mandamus ordering a transfer of this action from Montgomery County to Jefferson County. See Ex parte Diamond, 596 So. 2d 423 (Ala.1992). On March 15, 1992, the defendant filed a motion in opposition to the plaintiffs' motion for summary judgment. The trial court, after a hearing, entered a summary judgment in favor of the plaintiffs in the amount of $169,526.01, on May 22, 1992.
On June 26, 1992, the defendant filed a motion to alter, amend, or vacate the judgment, or, in the alternative, to "reconsider," pursuant to Rule 59 and Rule 60(b)(1) and (6), A.R.Civ.P. As a Rule 59 motion, that motion was clearly untimely and therefore a nullity. The defendant filed a notice of appeal on July 6, 1992, from the summary judgment.[1] The defendant also filed with this court a motion to preserve the circuit court's jurisdiction over the Rule 60(b) motion. This Court granted that motion on July 29, 1992. See Rule 60(b).
*265 On August 3, 1992, the trial court denied the defendant's Rule 60(b) motion to vacate the judgment. The defendant filed another notice of appeal on September 11, 1992, from that denial.
We note initially, that a summary judgment is proper if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. In reviewing a summary judgment, this Court will apply the same standard applied by the trial court in granting the motioni.e., this Court will review the record in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Rotham v. Gamma Alpha Chapter of Pi Kappa Alpha Fraternity, 599 So. 2d 9 (Ala. 1992) (citing Fincher v. Robinson Brothers Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala. 1991)). In determining whether there was a genuine issue of material fact, 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 shifts to the nonmovantwho must demonstrate the existence of a genuine issue of material fact. Grider v. Grider, 555 So. 2d 104 (Ala.1989). The materials submitted in support of the summary judgment motion support the trial court's conclusion that the plaintiffs had made the required prima facie showing. This action was filed after June 11, 1987; therefore, the nonmovant, Diamond, had to carry his burden by presenting "substantial evidence" that created a genuine issue of material fact, § 12-21-12, Ala.Code 1975. That is, Diamond had the burden of presenting "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." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The defendant contends that the trial court erred in entering the summary judgment because, he says, meaningful discovery had not been completed. He says he was denied the right to develop lawful and legitimate defenses in opposition to the motion for summary judgment and that the summary judgment was, therefore, premature.
This Court stated in Salter v. Alfa Insurance Co., 561 So. 2d 1050, 1054 (Ala. 1990):
The record reflects that the defendant simultaneously filed 1) a motion to compel the plaintiffs to fully respond to his request for admissions and 2) a motion in opposition to the plaintiffs' summary judgment motion. However, the defendant failed to convince the trial court that the evidence was crucial to his case, and a review of the record suggests that the trial court correctly determined that it was not. Therefore, the trial court did not err in not delaying its ruling on the motion until discovery was completed; the summary judgment is affirmed.
The defendant further contends that the trial court erred in denying his Rule 60(b) motion for relief from the summary judgment.
This Court stated in Norfolk v. Wynn, 581 So. 2d 848, 850 (Ala.1991):
In his motion for relief from judgment, the defendant argued, for the first time, that a partner cannot maintain an action at law arising out of the partnership until there has been an equitable accounting of the partnership affairs. This Court stated in Ex parte Diamond, 596 So. 2d 423, 426 n. 1 (Ala.1992):
Until he filed his Rule 60(b) motion, Diamond did not raise the issue whether there must first be an equitable accounting of the partnership affairs in *267 order to maintain an action at law arising out of the partnership; he offered no justification for failing to raise that issue earlier. A trial judge has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so. Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366 (Ala.1988). Absent an abuse of discretion, we will affirm the trial judge's ruling in this regard. We cannot hold that the trial court abused its discretion in failing to consider that new argument; therefore, we affirm the denial of Diamond's Rule 60(b) motion for relief from judgment.
1911567SUMMARY JUDGMENT AFFIRMED.
1911956DENIAL OF RULE 60(b) MOTION AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
[1] We note that the 42d day of the appeal period allowed by Rule 4, Ala.R.App.P., would have been Friday, July 3. However, July 3, 1992, was a state holiday and the next business day was Monday, July 6. Thus, the appeal was timely. See Rule 26(a), Ala.R.App.P. | May 14, 1993 |
4183972b-f7b2-4f43-be03-62acc37db485 | Lindsey by Hodges v. Camelot Music | 628 So. 2d 314 | 1920613 | Alabama | Alabama Supreme Court | 628 So. 2d 314 (1993)
Jesse Andrew LINDSEY, a minor, By and Through his mother and next friend, Audrey Lindsey HODGES
v.
CAMELOT MUSIC, INC., et al.
1920613.
Supreme Court of Alabama.
June 4, 1993.
Rehearing Denied September 3, 1993.
Floyd C. Enfinger, Jr., Montrose, for appellant.
Christopher G. Hume III and James Rebarchak of Miller, Hamilton, Snider & Odom, Mobile, for appellees.
STEAGALL, Justice.
Jesse Andrew Lindsey, a minor, by and through his mother and next friend, Audrey Lindsey Hodges, sued Camelot Music, Inc. (hereinafter "Camelot"), and its agents and employees R. Wade Rigdon and Brian Gregory on claims of wrongful arrest, false imprisonment, and malicious prosecution for shoplifting. The trial court entered a summary judgment for Camelot, and Lindsey appeals.
A summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; Howell v. Cook, 576 So. 2d 227 (Ala.1991). Once the moving party has made 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. Cobb v. Southeast Toyota Distributors, Inc., 569 So. 2d 395 (Ala.1990). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the *315 exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So. 2d 870, 871 (Ala.1989); Cobb.
The record in this case reveals the following: Lindsey accompanied a friend, Neil Merian, into the Camelot Music store at Bel Air Mall in Huntsville, Alabama, on February 16, 1991. The store manager, Wade Rigdon, noticed them when they came in and monitored them during the approximately 20 minutes they remained on the premises. The boys browsed in the back of the store and then moved to the front, where they stopped at a rack of cassette tapes. Lindsey was standing in a position that blocked Rigdon's view of Merian. The boys then left the store, and Rigdon followed them through the mall. At the mall concourse, Rigdon and a Bel Air mall security guard, Al Mabry, stopped the boys and asked Merian to empty his pockets. While Merian was doing so, Mabry and Rigdon heard the sound of plastic rattling in Merian's jacket pocket. The men discovered one stolen cassette tape in his pocket and later found a second tape. Lindsey had not taken any tapes; however, Rigdon stated that he believed Lindsey tried to shield Merian and block Rigdon's view of him while he was taking the tapes. Lindsey was therefore arrested along with Merian, for aiding and abetting the theft. The charge of aiding and abetting was later dropped, and Lindsey filed this action.
Under Ala.Code 1975, § 13A-2-23, a person is legally accountable for the behavior of another constituting a criminal offense if, with intent to promote or assist the commission of the offense, 1) he procures, induces, or causes the other person to commit the offense; 2) he aids or abets the other person in committing the offense; or 3) having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make. Camelot based its summary judgment motion on its argument that there was probable cause to detain, arrest, and prosecute Lindsey for aiding and abetting Merian's theft.
Lindsey concedes that in regard to a malicious prosecution claim the question whether there was probable cause is a question of law for the trial court; however, he points out that in regard to a claim of false imprisonment probable cause is a jury issue. Frison v. Delchamps Store No. 11, 507 So. 2d 478 (Ala.1987). "False imprisonment" is defined as "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. Lindsey argues that there is a genuine issue of material fact as to whether Rigdon had probable cause to believe that he aided and abetted Merian's theft and to detain him.
At the hearing on the motion for summary judgment, Camelot presented deposition testimony from Rigdon, who stated that Lindsey and Merian were together the entire time they were in the music store and that he had had a very clear view of Merian when the boys moved from the back to the front of the store. Rigdon stated that Lindsey then moved behind Merian and blocked his view of Merian while Merian crouched down and concealed the tapes he had in his hand. Rigdon testified that Lindsey was looking directly at Merian as he crouched down. Camelot also presented the testimony of Mabry, who stated that when he stopped the boys at the mall concourse and heard the rattle of plastic in Merian's jacket pocket, Lindsey told Merian to "give them the tape."
To rebut this evidence, Lindsey offered his own testimony denying that he shielded Merian or saw him take the tapes. Lindsey also presented testimony from security guard Mabry, who stated that Lindsey, while being detained at the mall concourse, told him that he did not know that Merian had taken the tapes.
Probable cause is "such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest or strong suspicion that the person arrested is guilty." Ezell v. Southland Corp., 541 So. 2d 490 (Ala. 1989). The record shows that Camelot made a prima facie showing that Rigdon had probable cause to believe that Lindsey complied with Merian's theft and, in rebuttal, Lindsey offered only evidence of his own denials of guilt. It is well settled that a general denial *316 of guilt does not create a jury question on the issue of probable cause. Pearson v. Delchamps, Inc., 578 So. 2d 1086 (Ala.1991). Because Lindsey failed to meet his burden of proof, the trial court properly entered the summary judgment for Camelot.
The judgment is therefore affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES and ADAMS, JJ., concur. | June 4, 1993 |
68077ea0-97f3-4b6d-bb4e-45d295beb80e | TERMINIX INTERN. CO. v. Jackson | 628 So. 2d 357 | 1911842 | Alabama | Alabama Supreme Court | 628 So. 2d 357 (1993)
The TERMINIX INTERNATIONAL COMPANY LIMITED PARTNERSHIP and Allied-Bruce Terminix Companies, Inc., a corporation
v.
Mark JACKSON and Laurie Jackson.
1911842.
Supreme Court of Alabama.
August 13, 1993.
Rehearing Denied September 24, 1993.
*358 Robert E. Sasser and Dorothy Wells Littleton of Sasser & Littleton, P.C., Montgomery, for appellants.
Ronald W. Wise of Manasco & Wise, Montgomery, for appellees.
ALMON, Justice.
The defendants, Terminix International Company Limited Partnership ("Terminix International") and Allied Bruce Terminix Companies ("Terminix Service"), appeal from the trial court's order denying their motion to compel the plaintiffs, Mark and Laurie Jackson, to arbitrate the claims stated in certain counts in an action filed by the Jacksons. A single issue is presented: whether the contract between the partiesa termite bondcontains sufficient contacts with interstate commerce to bring it within the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
In March 1988, Mark and Laurie Jackson agreed to purchase a house in Montgomery, Alabama, from Tommy Geohagan. At the closing, Geohagan showed the Jacksons a Veterans' Administration ("V.A.") form that had been prepared by Terminix Service. This form indicated that Terminix Service had inspected the house and had observed existing termite damage; a graph attached to the form specifically described the nature and extent of the damage. At the same time, Geohagan assigned to the Jacksons his rights in a termite bond that he had previously acquired from Terminix Service and Terminix International.[1] This bond contained a clause providing that any dispute arising out of or relating to the bond would be settled by arbitration.
The Jacksons later discovered substantial termite damage to their house. They brought an action against Terminix Service and Terminix International, alleging that the defendants had defrauded them by misrepresenting the nature of the termite damage referenced on the V.A. form; the complaint also included a breach of contract count. Terminix Service and Terminix International subsequently moved to compel the Jacksons to arbitrate the breach of contract claim pursuant to the arbitration clause in the termite bond. The trial court denied the motion, and Terminix International and Terminix Service appeal from that order.[2]
*359 Predispute arbitration clauses are not specifically enforceable in Alabama. Ala. Code 1975, § 8-1-41. However, if an arbitration clause is contained in a contract that involves interstate commerce, then the Federal Arbitration Act, 9 U.S.C. § 1 et seq., preempts state law. Under the FAA, arbitration clauses are specifically enforceable. Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272 (Ala.1986); Ex parte Shamrock Food Service, Inc., 514 So. 2d 921 (Ala.1987).
Terminix International and Terminix Service argue that the termite bond need only have the slightest nexus with interstate commerce for the FAA to apply. They cite Costa & Head, Maxus v. Sciacca, 598 So. 2d 1376 (Ala.1992), and Ex parte Brice Building Co., 607 So. 2d 132 (Ala.1992), to support this proposition.[3] Terminix International and Terminix Service argue that the termite bond does have at least a slight nexus with interstate commerce, for the following reasons: Terminix International has no office in Alabama, but is a Delaware limited partnership with its principal office in Memphis, Tennessee; Terminix Service is an Arkansas corporation; and the bond, because it obligates both companies to re-treat the home and repair any damage that results from the infestation of termites, contemplates that at least some of the products used to perform these services will be obtained from out-of-state sources.
The Jacksons respond with the argument that the cases cited by the appellants concern construction contracts, which almost inevitably affect interstate commerce because of the presence of out-of-state suppliers and subcontractors. They argue that the narrower 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), should control this case.[4] In Warren, this Court held that in the context of a sale of consumer goods that occurred wholly within the state, the test was not whether the contract had a slight nexus with interstate commerce, but whether the parties to the contract contemplated, at the time they entered into the contract, substantial interstate activity. See Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382, 387 (2d Cir.), cert. denied, 368 U.S. 817, 82 S. Ct. 31, 7 L. Ed. 2d 24 (1961). See also Ex parte Williams, 555 So. 2d 146 (Ala.1989); Burke County Public Schools Board of Education v. Shaver Partnership, 303 N.C. 408, 279 S.E.2d 816, 822 (1981). The Jacksons assert that they believed the termite bond was a local contract when they entered into it, and that therefore the arbitration clause has no effect. The Jacksons alternatively argue that the contract does not have a slight nexus with interstate commerce even under the broader test.
This Court holds that the termite bond does not involve interstate commerce under the Warren standard. Under the Warren test, the FAA does not apply because there is no evidence that the Jacksons, when they entered into the termite bond, thought that it would involve substantial interstate activity. The performance did not involve interstate commerce to such a degree that a reasonable person would conclude that the parties must have contemplated substantial interstate activity when they entered into the contract. See Allied-Bruce Terminix Cos. v. Dobson, 628 So. 2d 354 (Ala.1993).
For the foregoing reasons, the trial court properly denied defendants' motion to compel arbitration of the breach of contract claim.
AFFIRMED.
HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., concurs in the result.
[1] Terminix Service was responsible for rendering the services on the bond; Terminix International was the guarantor on the bond.
[2] Although the trial court's order is not technically a final order, this court has decided, in light of the 1988 amendments to the FAA, which provide for an immediate appeal of a ruling on a motion to compel arbitration, to treat such orders as final for purposes of appeal. Ex parte Brice Building Co., 607 So. 2d 132 (Ala.1992); A.G. Edwards & Sons v. Clark, 558 So. 2d 358, 360 (Ala.1990).
[3] This Court recently overruled the cases applying the Costa & Head standard to the extent that they utilized the "slightest nexus" standard to determine the enforceability of arbitration agreements. Ex parte Jones, 628 So. 2d 316 (Ala.1993); Continental Grain Co. v. Beasley, 628 So. 2d 319 (Ala.1993).
[4] In Ex parte Jones and Continental Grain, supra fn. 3, this Court exclusively adopted the Warren standard for analyzing whether contracts have a sufficient involvement with interstate commerce to invoke the FAA. | August 13, 1993 |
2246de56-0079-4321-8722-515e89d09848 | Ex Parte Carroll | 627 So. 2d 874 | 1911745 | Alabama | Alabama Supreme Court | 627 So. 2d 874 (1993)
Ex parte Robert Leo CARROLL.
(Re Robert Leo Carroll v. State).
1911745.
Supreme Court of Alabama.
May 28, 1993.
Rehearing Denied September 3, 1993.
*875 William S. Poole, Jr., Demopolis, for petitioner.
James H. Evans, Atty. Gen., and Melissa G. Math and J. Randall McNeill, Asst. Attys. Gen., for respondent.
KENNEDY, Justice.
Robert Leo Carroll was convicted of murder made capital by § 13A-5-40(a)(13), Ala. Code 1975. Carroll was given a bifurcated trial, in accordance with § 13A-5-43. After the sentencing phase of the trial, the jury returned an advisory verdict recommending death. The trial court accepted the jury's recommendation and sentenced Carroll to death by electrocution.
The Court of Criminal Appeals affirmed the conviction but remanded the case to the trial court for written findings on the issue of mitigating circumstances. The court affirmed the sentence on return to the remand. Carroll v. State, 599 So. 2d 1253 (Ala.Cr.App. 1992) (on return to remand). The Court of Criminal Appeals in Carroll v. State, at 1259, had quoted the following portion of the trial court's statement of facts:
In reviewing a death penalty case, this Court will notice any plain error or defect in the proceeding under review, regardless of whether it was brought to the attention of the trial court. Rules 45A and 39(k), A.R.App.P. Ex parte Bankhead, 585 So. 2d 112 (Ala.1991). This Court will take appropriate appellate action whenever the error "has or probably has adversely affected the substantial right of the appellant." Rule 45A. "Plain error" arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceeding. United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). See also Ex parte Womack, 435 So. 2d 766 (Ala.1983), cert. denied, 464 U.S. 986, 104 S. Ct. 436, 78 L. Ed. 2d 367 (1983). We have thoroughly reviewed the record before us, considering the issues raised and looking for plain error. We will address the following three issues.
Did the Court of Criminal Appeals err in holding that the State proved beyond a reasonable doubt that Carroll had been convicted of another murder in the 20 years preceding this murder?
According to § 13A-5-40(a)(13), the following is a capital offense:
To prove the prior murder conviction, the State introduced a certified copy of an order of the Common Pleas Court of Montgomery County, Ohio. That order read:
A postscript to this order stated: "The defendant has been in custody since March 21, 1970."
Carroll objected to the use of this document as proof of the 20-year element of § 13A-5-40(a)(13), on the following grounds: 1) that the certified copy of the order is a sentencing memorandum document and not a judgment of conviction as required by Alabama law; and 2) that the sentencing memorandum document does not show, beyond a reasonable doubt, a conviction of another murder in the 20-year period preceding the crime charged here. Carroll contends that for proof of a prior conviction, Alabama law has traditionally required the introduction into evidence of a document showing the entry of a guilty plea and its acceptance by a court, a verdict of guilty by a jury and its acceptance by the court, or a judgment by the court.
Although the terms "judgment," "sentence," and "determination of guilt" are defined in Rule 26.1(a)(1), (2), and (3), A.R.Crim.P., respectively, the term "conviction" is not defined in Rule 26.1(a).
In this case, the certified copy of the Ohio trial court's order, which includes the sentence imposed, constitutes proof beyond a reasonable doubt that Carroll had been convicted of another murder in the 20-year period preceding this murder. The order reflects that Carroll had been in custody for some offense since March 21, 1970. Carroll was committed to the Lima State Hospital until he was restored to sanity and could stand trial. On April 12, 1972, the Common Pleas Court of Montgomery County found *877 Carroll competent to stand trial. After this determination, Carroll entered a guilty plea to a reduced charge of second degree murder, which was accepted by the court. Because the State proved that on June 28, 1972, Carroll had been convicted of murder, he was properly convicted of capital murder, pursuant to § 13A-5-40(a)(13), for the stabbing death of William Earl Sanders.
We agree with the following statement of the Court of Criminal Appeals:
Carroll, 599 So. 2d at 1266.
Did the Court of Criminal Appeals err in affirming the trial court's finding of no mitigating circumstances?
Carroll argues the existence of mitigating circumstances under subsections (2) and (6) of § 13A-5-51. Section 13A-5-51(2) provides as a mitigating circumstance that an offense "was committed while the defendant was under the influence of extreme mental or emotional disturbance." Section 13A-5-51(6) provides as a mitigating circumstance that "the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired."
Dr. Daniel Koch, a psychologist who examined Carroll one year after the second murder, testified for Carroll at the sentencing phase of the trial. Koch diagnosed Carroll as being schizophrenic. He based this evaluation on Carroll's I.Q. and on the results of a standardized personality test. Koch also stated that Carroll interpreted other people's statements literally. At some point in the confrontation between Carroll and Sanders, Sanders had said "Fuck you." Dr. Koch testified that Carroll took this literally, to mean "I am going to fuck you." Dr. Koch also testified that the statement was taken as a homosexual threat, which caused Carroll to react in an extremely drastic manner.
Carroll argues that the killing was committed while he was under the influence of "extreme mental or emotional disturbance," and that the court, therefore, should have found a mitigating circumstance, pursuant to § 13A-5-51(2). In 1970, Carroll was diagnosed as schizophrenic, following a psychological evaluation. On April 12, 1972, Carroll was found sane and competent to stand trial for the murder in Ohio and he was sentenced following a guilty plea. On November 7, 1990, one year after the murder in Alabama, Dr. Koch examined Carroll and diagnosed him as schizophrenic. However, Dr. Koch stated in his opinion on cross-examination that Carroll did not have a valid defense of insanity or diminished capacity. (R. 492.) No evidence at trial indicated that Carroll was "under the influence of extreme mental or emotional disturbance" at the time of the murder.
Carroll argues that he did not have the "capacity ... to appreciate the criminality of his conduct" at the time of the killing, and, therefore, that the court should have found a mitigating circumstance under § 13A-5-51(6). Dr. Koch testified that Carroll could distinguish right from wrong. Although he had suffered from schizophrenia many years before this murder and was diagnosed with the same disorder one year after this murder, Carroll failed to prove that the disorder "substantially impaired" his "capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." We must conclude that Carroll failed to establish that, at the time of this murder, his capacity to appreciate the criminality of his conduct was impaired to any degree.
In Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), the United *878 States Supreme Court held that, under the United States Constitution, a state's death penalty procedure must not preclude the consideration of relevant mitigating factors. Lockett provides that a state may not exclude evidence that the defendant claims to be mitigating. However, this does not mean that all evidence offered by the defendant as mitigating must be found to be mitigating and considered as such in the sentencing process. Id.
The testimony presented at trial indicated that Carroll acted intentionally and out of anger when he retrieved the sharpened instrument from his cell and returned to the exercise yard to stab Sanders in the heart. The evidence did not require a finding that Carroll acted out of fear of a homosexual assault. Therefore, the Court of Criminal Appeals did not err in this regard.
The Court of Criminal Appeals correctly held that the evidence supported the trial court's finding of no mitigating circumstances.
Did the Court of Criminal Appeals err in holding that the trial court had not erred in denying Carroll's motion for acquittal based on his claim that the State had failed to prove the elements of murder under § 13A-6-2(a)(1)?
Carroll argues that the evidence in this case fails to support the finding of an intentional murder. Under § 13A-6-2(a)(1), a person commits the crime of murder if "[w]ith intent to cause the death of another person, he causes the death of that person or of another person." According to Carroll, the evidence supports a finding that a mentally ill individual killed another person after being provoked by a homosexual threatbut, he says, it does not support the finding of an intentional killing. The question whether a defendant intentionally caused the death of another person is a question of fact for the jury. Carr v. State, 551 So. 2d 1169 (Ala.Cr. App.1989). Intent may be inferred from the use of a deadly weapon or from other attendant circumstances. Garrison v. State, 521 So. 2d 997 (Ala.Cr.App.1986); Fears v. State, 451 So. 2d 385 (Ala.Cr.App.1984). Furthermore, circumstantial evidence, in conjunction with other evidence, may be sufficient to prove intent. Id.
The evidence would well support a factual conclusion that Carroll intentionally killed Sanders over a spilled cup of ice. There was evidence that as Carroll approached Sanders with the weapon he said, "I'll show you what an accident is," and that he then stabbed Sanders in the heart.
Based upon the evidence and issues discussed in this opinion, our careful review of all other issues raised but not discussed herein, and our search and review of the entire record, we conclude that the judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur. | May 28, 1993 |
029d6a78-2089-4af9-8315-54a04bce600f | Oden v. Pepsi Cola Bottling Co. | 621 So. 2d 953 | 1910502, 1910503 | Alabama | Alabama Supreme Court | 621 So. 2d 953 (1993)
Jerry ODEN, as administrator of the Estate of Mark Jeremy Oden, deceased
v.
PEPSI COLA BOTTLING COMPANY OF DECATUR, INC.
Jerry ODEN, as administrator of the Estate of Mark Jeremy Oden, deceased
v.
The VENDO COMPANY.
1910502, 1910503.
Supreme Court of Alabama.
May 28, 1993.
*954 Lanny S. Vines and R. Bradford Wash of Emond & Vines, Birmingham, for Jerry Oden.
J. Glynn Tubb of Eyster, Key, Tubb, Weaver & Roth, Decatur, for Pepsi-Cola Bottling Co. of Decatur, Inc.
W. Stanley Rodgers and George E. Knox, Jr. of Lanier Ford Shaver & Payne P.C., Huntsville, for The Vendo Co.
HORNSBY, Chief Justice.
Jerry Oden, as administrator of the estate of his son Mark Jeremy Oden, appeals from summary judgments in favor of the defendants, Pepsi-Cola Bottling Company of Decatur, Inc. ("Pepsi"), and The Vendo Company ("Vendo"), in a products liability action alleging negligent, wanton, and defective design, labeling, and installation of a soft drink vending machine.[1] We affirm.
On October 18, 1988, Mark died from injuries he sustained when a soft drink vending machine fell on him. The machine was located outside Jack Hopper's general merchandise store in Eva, Alabama. It is undisputed that Mark and a friend were tilting the machine forward to steal drinks from it. To accomplish the theft, Mark's friend stood between the machine and the wall of the store and tilted the machine forward and Mark stood in front of the machine to steady it. Tilting the machine in this manner dislodges drink cans, and the cans drop out of the machine. Mark and his friend had used this tilting procedure successfully that same evening to steal drinks from several other vending machines located in front of the same store. However, Mark was unable to steady this particular machine. It fell on him and crushed him.
The vending machine that is the subject of this litigation was manufactured by Vendo and was sold to Pepsi in 1984. On April 26, 1989, Oden filed this action against Vendo and Pepsi, alleging that the vending machine was defective because it did not carry a warning that the machine would fall over when tilted, did not have an anti-theft device to prevent drink cans from falling out when the machine was tilted forward, and did not have brackets to anchor the vending machine to the ground or to a permanent fixture so as to prevent tilting. Oden also alleged that Vendo and Pepsi had negligently and wantonly failed to provide the above-mentioned safety devices, with knowledge that it was possible to steal drinks from these machines by tilting them forward, and with knowledge that some individuals who were stealing drinks in this manner had been seriously injured or killed.
"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) Ala. R.Civ.P. When the movant has carried the burden of making a prima facie showing, by admissible evidence, that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the party opposing the summary judgment motion has the burden of presenting substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.
Because the parties do not dispute the fact that Mark was stealing drinks from the vending machine when it fell on him, we conclude that the judgment in favor of Vendo and Pepsi was proper. In Hinkle v. Railway Express Agency, 242 Ala. 374, 6 So. 2d 417 (1942), this Court stated: "A person cannot maintain a cause *955 of action if, in order to establish it, he must rely in whole or part on an illegal or immoral act or transaction to which he is a party." 242 Ala. at 379, 6 So. 2d at 421. We interpret the rule in Hinkle to bar any action seeking damages based on injuries that were a direct result of the injured party's knowing and intentional participation in a crime involving moral turpitude.
Many other jurisdictions apply a similar rule. See Amato v. United States, 549 F. Supp. 863, 867 (D.N.J.1982), aff'd without opinion, 729 F.2d 1445 (3d Cir.1984) (bank robber, severely injured by gunfire during a bank robbery, could not recover from FBI on theory that it had acted negligently when, with prior notice of his plan to rob the bank, it failed to apprehend him for the lesser crime of conspiracy); Lord v. Fogcutter Bar, 813 P.2d 660, 662 (Alaska 1991) (intoxicated man who left a bar with a woman and was later convicted of raping her could not recover from bar and bartender on theory that the bartender was criminally negligent in continuing to serve him after he had become intoxicated); Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1239 (Alaska 1983) (man convicted of intentionally shooting a third person could not recover from manufacturer and seller of shotgun on theory that the shotgun was defectively designed); Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981) (wife convicted of murdering her husband could not recover from her psychiatrist on theory that the psychiatrist had negligently failed to prevent her from shooting her husband); Barker v. Kallash, 63 N.Y.2d 19, 24-26, 479 N.Y.S.2d 201, 203, 206, 468 N.E.2d 39, 41-42 (1984) (parents of boy injured while constructing a pipe bomb, in violation of statute, using gun powder extracted from firecrackers, could not recover from the boy who had sold him the firecrackers in violation of state law); Glazier v. Lee, 171 Mich.App. 216, 429 N.W.2d 857, 860 (1988) (man who murdered his girlfriend could not recover from his psychiatrist on theory that the psychiatrist had negligently failed to prevent him from shooting his girlfriend).
This rule promotes the desirable public policy objective of preventing those who knowingly and intentionally engage in an illegal or immoral act involving moral turpitude from imposing liability on others for the consequences of their own behavior. Even so, such a rule derives principally not from consideration for the defendant, "but from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government." Bonnier v. Chicago, B. & Q. R.R., 351 Ill.App. 34, 51, 113 N.E.2d 615, 622 (1953), rev'd on other grounds, 2 Ill. 2d 606, 119 N.E.2d 254, cert. denied, 348 U.S. 830, 75 S. Ct. 53, 99 L. Ed. 655 (1954) (citations omitted).
Our interpretation of Hinkle does not foreclose a trespasser's action against a landowner who willfully or wantonly injures him,[2] unless the injuries incurred are a direct result of an injured party's knowing and intentional participation in a crime of moral turpitude. That is, our application of the rule in Hinkle would bar an action by a trespasser injured while attempting to enter an occupied dwelling for the purpose of inflicting bodily injury on the occupant of the dwelling.
For the foregoing reasons, the judgments in favor of Vendo and Pepsi are due to be affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
KENNEDY and INGRAM, JJ., concur in the result in part and dissent in part, with separate opinions.
KENNEDY, Justice (concurring in the result in part; dissenting in part).
Although I disagree with its reasoning, I agree with the majority that Vendo was *956 entitled to a judgment on Oden's negligence and wantonness claims. As to all other claims raised I respectfully dissent.
In the interest of brevity, I address my comments only to the resolution of those claims from which I dissent, the AEMLD claims against Vendo and Pepsi and the negligence and wantonness claims against Pepsi.
Mark Oden was a 14-year-old, who, along with a friend, was attempting to tilt a soft drink machine when the machine toppled and crushed Mark to death.
It is undisputed that approximately one year before Mark's death, Pepsi had been sent by Vendo, through Pepsi U.S.A., free labels warning about the risks of tilting the Vendo machines and detailed information on the installation of anchor brackets to help prevent such tilting. In the materials sent to Pepsi, Vendo had stated:
In addition to enclosing free warning labels, Vendo included a postage-paid postcard for ordering more free warning labels.
The warning labels stated: "DO NOT TIP OR ROCK THIS VENDING MACHINE." Below this statement was a drawing of a vending machine depicted as falling toward a human figure. The figure had lightning-like lines coming from its head, as if to indicate distress or pain. Immediately below the drawing was: "TIPPING OR ROCKING MAY CAUSE SERIOUS INJURY OR DEATH."
It is undisputed that Pepsi ignored the Vendo materials and took no action on Vendo's concerns. For example, Pepsi did not attach any of the free labels to its Vendo machines and did not seek to attach any anchor brackets to them.
Pepsi and Vendo argue that, based on public policy grounds, Oden cannot maintain this action because Mark was engaged in illegal activity at the time of his death. They cite Hinkle v. Railway Express Agency, 242 Ala. 374, 6 So. 2d 417 (1942).
Hinkle states a rule that would bar a plaintiff from maintaining an action where the plaintiff's claims cannot be established unless the plaintiff relies on proof of an illegal act that the plaintiff participated in: "A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party." 242 Ala. at 378, 6 So. 2d at 417.
Hinkle would apply, for example, where a criminal/plaintiff sues a psychiatrist or psychologist for failing to give adequate treatment, which, the criminal asserts, would have resulted in preventing the crime for which the criminal is being punished. See, e.g., Glazier v. Lee, 171 Mich. App. 216, 429 N.W.2d 857 (1988); Cole v. Taylor, 301 N.W.2d 766 (Iowa 1981). In such an instance, the plaintiff's claim is based on an illegal act in which the plaintiff knowingly participated. The alleged "injury" is the crime itself, so to establish the element of damages, the plaintiff "must rely" on, i.e., must show, the facts of the crime.
As a matter of sound public policy, Hinkle would bar that type of action. Otherwise, the criminal would be allowed to use the courts to be compensated for breaking the law.
In the Hinkle case itself, the plaintiff farmer had accepted delivery of out-of-state plants that did not bear inspection tags. The farmer's acceptance (and the shipper's delivery) was illegal under a statute that made it unlawful to "deliver" such uninspected plants. The farmer's land was quarantined by the State and the plants were destroyed. The farmer sued the defendant shipper of the plants, complaining that the shipper had delivered uninspected plants. The Court held that the farmer's action could not be maintained because the basis of the action was unlawful activity that the farmer had been a part of; to *957 establish his claim, the plaintiff had to show a crime he participated in.
To recap, the rule from Hinkle would bar an action where an essential part of the claim is an illegal act the claimant participated in; where "if, in order to establish" his or her claim, the claimant "must rely in whole or part on an illegal ... act" he or she participated in. (Emphasis added).
Given the language of the Hinkle rule, the operative inquiry under these facts is: "Must" Oden "rely" on Mark's attempted theft of a drink from the Vendo machine, i.e, his attempt to steal, in "establishing" Oden's claims.
It bears emphasis that this inquiry in no way relates to whether Mark's behavior has a bearing on any of the defendants' claims. The question to be asked relates to whether Oden could prove his claims without any reference to why Mark was tilting the Vendo machine.
Clearly, that Mark was tilting the Vendo machine in the hope of stealing some soft drinks has nothing to do with Oden's ability to "establish" his claims; Oden in no way "must rely" on Mark's intentions in tipping the machine to prove his case. Stated differently, why Mark was tilting the machine has no bearing on Oden's ability to prove his claims, although Mark's judgment in tilting the machine may have a bearing on the defendants' contributory negligence claims.
It is apparent that Mark's activity relative to his injury, however strongly I disapprove of his behavior, is not a bar to maintaining this action. Furthermore, however strongly I disapprove of this type of behavior, I am unwilling to weaken the applicability of the Hinkle rule in an effort to mold it to fit this case.
Relying on the language of the Hinkle rule, the majority concludes, without explanation, that 1) the rule applies only to "crimes of moral turpitude" and 2) that the rule applies only where the "injuries incurred are a direct result of an injured party's ... participation in a crime of moral turpitude." 621 So. 2d at 955.
I have no idea how the majority arrived at these conclusions, because it does not elaborate, and I can find no support for them. Accordingly, I am at a loss to state much more than that these conclusions bear no relationship to the simple rule stated in Hinkle. The rule states: "A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or part on an illegal or immoral act or transaction to which he is a party." 242 Ala. at 378, 6 So. 2d at 417. Note that this is an absolute bar without any limitation to "crimes of moral turpitude" and with no limitation to situations where the claimant's injuries were a "direct result of an injured party's ... participation in a crime of moral turpitude."
The majority's interpretation of the Hinkle rule has the effect of greatly limiting its applicability. For example, the majority nullifies it in the instance of negligence claims, by rendering it a mere restatement of contributory negligence. The majority does so by making Hinkle apply only where the claimant's injuries were a "direct result" of his or her illegal action. The actual language of Hinklethat a lawsuit is barred "if, in order to establish it" the claimant "must rely" on his or her "illegal or immoral act"does not require any proof that the claimant caused his or her own injury. Under Hinkle, a negligence claim cannot be maintained, irrespective of any contributory negligence, "if, in order to establish it, [the claimant] must rely in whole or in part on an illegal or immoral act." Thus, it seems to me that if the majority were concerned "that those who transgress the moral or criminal code shall not receive aid from the judicial branch," 621 So. 2d at 955, it would not diminish Hinkle's field of operation by making it applicable only upon a showing that the claimant's injuries were the "direct result" of his or her wrongful behavior.
Similarly, the majority increases the likelihood "that those who transgress the moral or criminal code" will "receive aid from the judicial branch," by limiting the applicability of the rule to "crimes of moral turpitude."
*958 Given how I would resolve the Hinkle issue, I also think the majority should have examined the contributory negligence issue raised by Pepsi. In this regard, the first question that should be addressed is whether Mark was of sufficient maturity that our standards of contributory negligence would apply to his behavior. Pepsi argues that the trial court could have properly found that Mark was of sufficient maturity.
In Fletcher v. Hale, 548 So. 2d 135, 138 (Ala.1989), the Court quoted Justice Bloodworth's opinion in King v. South, 352 So. 2d 1346, 1347 (Ala.1977):
(Citations omitted.)
Several factors must be examined in determining the child's level of "discretion, intelligence, and sensitivity to danger":
Jones v. Power Cleaning Contractors, 551 So. 2d 996, 999 (Ala.1989) (citation omitted).
The record offers little information on which to assess these factors. Assuming, arguendo, that the trial court, applying the factors listed above, properly found that Mark was of sufficient maturity to be capable of contributory negligence, then it should have found him contributorily negligent if he "had knowledge of the danger and appreciated the danger under the circumstances and, yet, put himself `in the way of danger.'" Jones, 551 So. 2d at 999 (quoting Wilson v. Alabama Power Co., 495 So. 2d 48, 49 (Ala.1986)). To be contributorily negligent as a matter of law, Mark "must have acted in [such a manner] that reasonable minds could not disagree as to his negligence." Jones, 551 So. 2d at 1000.
Here, conflicting inferences might be reasonably drawn from the evidence on the question whether Mark appreciated the danger of tilting the machine. For example, one might infer from the weight and size of the Vendo machine (over 700 pounds), that Mark must have recognized the danger involved in his actions. At the same time, one might also reasonably infer from Mark's previous success in tipping a similar vending machine that he did not recognize the danger of tilting the Vendo machine.
Was 14-year-old Mark heedless because he did not understand the serious danger involved? If so, he could not have been contributorily negligent. The Court has stated that, to find contributory negligence as a matter of law, "it must be demonstrated that the plaintiff's appreciation of the danger was a conscious appreciation at the moment the incident occurred," and that "[m]ere `heedlessness' is insufficient to warrant a finding of contributory negligence as a matter of law." Empiregas, Inc., of Belle Mina v. Suggs, 567 So. 2d 271, 273 (Ala.1990), (quoting Central Alabama Electric Coop. v. Tapley, 546 So. 2d 371, 381 (Ala.1989)).
Thus, under these rules, whether Mark was more than merely "heedless" is clearly a question for the jury. "Unless the evidence submitted on a summary judgment motion is wholly without adverse inferences or is free from any doubt, summary judgment must not be entered, but the issues must be submitted to the jury." Gossett v. Twin County Cable TV, Inc., 594 So. 2d 635, 640 (Ala.1992).
Finally, as to Oden's AEMLD claims against Pepsi and Vendo, an issue is raised as to whether they were entitled to summary judgments based on the defense of *959 product misuse.[3] See generally, Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 448 (Ala.1982) (discussing the defense of product misuse).
This Court has stated that product "misuse" is a use of the product that is not reasonably foreseeable to the defendant. Kelly v. M. Trigg Enterprises, Inc. 605 So. 2d 1185 (Ala.1992); Dennis v. American Honda Motor Co., 585 So. 2d 1336 (Ala. 1991). The burden of showing misuse is on the defendant. Id.
Vendo's arguments on this issue are apparently based on the incorrect premise that it did not have a burden of proof on its motion for summary judgment as to the misuse defense. Vendo stresses for example, that Oden fails to show "that Vendo [at the time it sold the machines to Pepsi] knew of the possibility of injuries caused by tilting or rocking machines or that stabilizing brackets were even available at the time of manufacture." However, Vendo fails to discuss whether it offered any evidence on these questions.
Pepsi argues that it is "obvious" from the record that Mark was misusing the vending machine, stating that "when the machine is used as intended, the user simply drops his money in the coin drop and a drink is dispensed." Certainly, to do otherwise may be construed as a "misuse" in ordinary parlance. However, the Court examines the legal definition of "misuse," which hinges on foreseeability.
As to foreseeability, the record indicates that Vendo knew that its machines were being tipped and that it advised Pepsi of this fact, as well as of the dangers of tipping. Oden's expert offered testimony that Mark's use was foreseeable (as was, he said, the hazard posed by the vending machine).
Accordingly, I would hold that the defendants were not entitled to a summary judgment on the defense of misuse.[4]
In sum, I would affirm the judgment of the trial court as to Oden's negligence and wantonness claims against Vendo. As to the AEMLD claims against Vendo and Pepsi, and as to the wantonness and negligence claims against Pepsi, I would reverse the judgment of the trial court and remand these claims for trial, because a jury should determine them.
INGRAM, Justice (concurring in the result in part; dissenting in part).
I respectfully dissent from the majority's holding that the summary judgment was proper on the wantonness claim against Pepsi Bottling, and I concur in the result as to the remainder of the opinion.
The majority in this case holds that Oden cannot recover against Pepsi or Vendo because Mark's death was "a direct result of [his] knowing and intentional participation in a crime involving moral turpitude." 621 So. 2d at 955. The majority also states that the absolute bar based upon the plaintiff's own criminal activity "promotes the desirable public policy objective of preventing those who knowingly and intentionally engage in an illegal or immoral act involving moral turpitude from imposing liability on others for the consequences of their own behavior" and that "such a rule derives principally not from consideration for the defendant, `but from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.'" 621 So. 2d at 955.
*960 Under the specific facts of this case, I fail to see how allowing Oden to maintain an action for Pepsi's alleged wanton conduct would constitute "aid" to Mark. More importantly, the majority opinion fails to recognize that "punishment of wrongdoers is the dominant social perception of the tort system." Martin A. Kotler, Utility, Autonomy and Motive: A Descriptive Model of the Development of Tort Doctrine, 58 Cinn.L.Rev. 1231, 1233 (1990). In recognition of this purpose, I believe that an exception, discussed in greater detail below, to this doctrine should be made in cases where a person has suffered serious physical injury or has been killed because of another's willful or wanton conduct. I believe that the competing public policy purposes that created the doctrine would be better served by applying other established legal principles on a case-by-case basis as to that class of cases where a person has suffered serious physical injury or has been killed.
The bar against maintaining an action in which the plaintiff was required to prove his own criminal conduct, or the criminal conduct of the one through whom he claims, in order to establish his cause of action arose from two basic legal tenets: (1) a person should not be allowed to profit from his own wrongful conduct; and (2) criminal activity is unforeseeable, and the law should not require a reasonable person, such as the defendant, to prepare for the possibility.
The facts of this case (a 14-year-old boy is crushed to death while trying to steal a few canned drinks) make it obvious that the one who violated the law is not going to "profit" from this action and that the judicial branch of government is certainly not "aiding" him in his criminal conduct. Therefore, the first tenet is not implicated by the facts of this case.
As to the second tenet, criminal activity was considered generally unforeseeable by a "reasonable man"; therefore, the "reasonable man" ordinarily could not prepare to avoid the consequences of another man's criminal acts. However, in other areas of the tort law, when the facts of the case indicate that criminal activity is foreseeable and, indeed, is expected, the "reasonable man" may be required to prepare to avoid the consequences of these criminal acts. For example, this Court has held that a plaintiff injured by a third party's criminal acts may recover from the defendant if the criminal act was foreseeable. See Vines v. Plantation Motor Lodge, 336 So. 2d 1338 (Ala.1976).
Also, in the area of premises liability, this second tenet, and the doctrine itself, have been implicitly, though not expressly, abrogated. See Ryals v. United States Steel Corp., 562 So. 2d 192 (Ala.1990); Motes v. Matthews, 497 So. 2d 1121 (Ala. 1986). The general rule is that an occupier of land owes a duty to trespassers not to recklessly, willfully, or wantonly injure them. Ryals, 562 So. 2d at 194; Thompson v. Champion International Corp., 500 So. 2d 1048 (Ala.1986). The very idea that an occupier of land could owe a duty to someone unlawfully upon his land seems to crack the absolute bar the doctrine supports. Looking at the scope of the duty a landowner owes to a trespasser, one sees that the levels of culpable conductwantonness and wilfulnesssubsume two distinct characteristics of the occupier's conduct: (1) that he possessed a level of certitude or actual knowledge about the trespasser's presence, albeit an unlawful presence, and the trespasser's potential or actual peril (more than simple foreseeability); and (2) that he consciously disregarded the trespasser's peril and/or actually intended to harm the trespasser (deliberate conduct intended or expected to result in injury). For example, this Court has held that the occupier's liability to a trespasser for injuries incurred as a result of a trap or a pitfall is rested upon the theory that the occupier was expecting the trespasser and formulated some method by which to harm him. Moseley v. Alabama Power Co., 246 Ala. 416, 419, 21 So. 2d 305 (1945) ("[T]hat the owner has expected the trespasser and prepared an injury is no more justified than if he had held a gun and fired it."). The duty a landowner owes a trespasser *961 also makes special exceptions for children[5] and allows recovery by an adult trespasser who has been injured while committing a crime on the property.[6]
In this case, Oden presented substantial evidence that Pepsi knew that the vending machines were being tipped for the purpose of stealing drinks; that Pepsi also knew that such criminal activity had resulted in serious injuries and death; that Vendo offered to send Pepsi, free of charge, labels warning of the danger of tipping the vending machines; that Vendo also offered to send Pepsi, at cost, anchors to secure the vending machines and prevent their tipping; and that Pepsi refused to take any action to forestall the known dangers created by the vending machines. If a jury finds these things to be the facts, then Pepsi should not go unpunished for its wanton disregard of the danger posed by its vending machines.
For this reason, I would create an exception to the absolute bar in cases where (1) the plaintiff can show that the defendant expected or knew that the plaintiff would engage in such criminal activity even at the risk of serious physical injury or death i.e., where criminal conduct was more than merely foreseeableand (2) the plaintiff can show that the defendant acted wilfully or wantonly in injuring the plaintiffi.e., where the defendant deliberately acted, or deliberately failed to act, with knowledge that such action or inaction was likely to result, or would result, in death or serious injury to the plaintiff. In cases that would fall within my proposed exception, the ultimate liability of the defendant would be determined based upon an application of established principles of law to the facts of each case. Such a system would protect the public policies behind the absolute bar without allowing one who acts wantonly or wilfully to injure another to "profit" from such action merely because his action or failure to act injured someone who was tipping his machine to steal drinks, instead of one who was attempting to retrieve lost coins or a drink can that was stuck in the machine.
For the above-stated reasons, I respectfully dissent from the affirmance of the summary judgment in favor of Pepsi on the wantonness claim; I concur in the result as to the affirmance of the judgment as to the remaining claims against Pepsi and as to all claims against Vendo.
[1] Section 6-5-391, Ala.Code 1975, contemplates that in an action alleging the wrongful death of a minor the parent will sue as the parent. However, Mr. Oden's right to sue is not affected by the fact that he sued instead as administrator of his minor son's estate. See, e.g., Benson v. Robinson, 223 Ala. 85, 134 So. 799 (1931); McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291 (1936); and Daniel Constr. Co. v. Pierce, 270 Ala. 522, 120 So. 2d 381 (1959).
[2] In Ryals v. United States Steel Corp., 562 So. 2d 192 (Ala.1990), we held that the duty owed by a landowner to an adult trespasser who enters the premises to engage in theft is different from the ordinary duty owed by a landowner to a trespasser. The landowner's duty to one who trespasses with intent to steal is a duty to refrain from intentionally injuring him. Id. at 194.
[3] Vendo also argues that it was entitled to a summary judgment on Oden's AEMLD claim because one element of an AEMLD claim is a showing that the defendant produced an unreasonably dangerous product and, Vendo says, Oden produced no evidence on that element. This argument is without merit, given testimony by Oden's expert indicating that the machine was defective and unreasonably dangerous, and thus, in the interest of brevity, I do not extensively discuss this contention.
For a discussion of the elements of an AEMLD claim as established in Casrell v. Altec Indus., Inc., 335 So. 2d 128, 132-33 (Ala.1976), and in Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976), see Yamaha Motor Co. v. Thornton, 579 So. 2d 619, 621 (Ala.1991).
[4] Also, discussion of Vendo's argument that it was entitled to a judgment because Mark, as a person who "used" the machine by tipping it, was not a foreseeable plaintiff, is effectively pretermitted.
[5] A possessor of land owes a duty to exercise reasonable care to eliminate an artificial condition on land that poses a danger to children. Fletcher v. Hale, 548 So. 2d 135 (Ala.1989); Lyle v. Bouler, 547 So. 2d 506 (Ala.1989).
[6] Ryals v. United States Steel Corp., 562 So. 2d at 194, states that "the duty owed by a landowner to an adult trespasser who comes upon the land and is injured while committing a crime is the duty not tointentionally injure such a trespasser." The Court added a caveat that this statement of duty did not affect the "no duty" rule the rule that a landowner owes no duty to a trespasser attempting to enter an occupied dwelling with the purpose of committing a crime therein or inflicting bodily injury on an occupant of the dwelling. Id. at n. 3. | May 28, 1993 |
aa865da0-4233-4a07-8ec3-4c2a04793b69 | King v. Colbert County | 620 So. 2d 623 | 1920102 | Alabama | Alabama Supreme Court | 620 So. 2d 623 (1993)
Gary KING,
v.
COLBERT COUNTY, et al.
1920102.
Supreme Court of Alabama.
May 7, 1993.
*624 J. Steve Clem of Lucas, Alvis & Kirby, P.C., Birmingham, for appellant.
Braxton W. Ashe and Benjamin H. Albritton of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees.
INGRAM, Justice.
Gary King appeals from a summary judgment entered in favor of the defendants, Colbert County, the Colbert County Sheriff's Department, and John L. Aldridge, individually and in his capacity as sheriff of Colbert County.
The evidence, viewed most favorably for King, suggests: On January 15, 1992, Gary King was incarcerated in the Colbert County Jail. A fellow prisoner in King's cell stepped on a metal toilet to screw a light bulb into an overhead fixture. Because the outlet was faulty, the prisoner was electrocuted. While attempting to rescue the prisoner, King was injured. He received a severe electrical shock and suffered cuts, bruises, and abrasions. As a result of his injuries, King was hospitalized for several days.
King sued, alleging that his injuries were caused by negligent maintenance and wantonness on the part of the defendants. The trial court entered a summary judgment in favor of all of the defendants.
A summary judgment is proper when the motion and the materials submitted *625 in support thereof "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. The party moving for a summary judgment initially must make a prima facie showing that there are no genuine issues of material fact. Lee v. City of Gadsden, 592 So. 2d 1036 (Ala.1992). If this burden is met, the nonmovant may rebut the prima facie showing with "substantial evidence." 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, 592 So. 2d at 1038.
The sheriff of Colbert County is a constitutionally established executive officer of the State of Alabama (Ala. Const. 1901, Art. V, § 112, § 138) and is not considered an employee of the county for the purposes of imposing liability upon the county. Parker v. Amerson, 519 So. 2d 442 (Ala.1987). The sheriff's authority over the jail is totally independent of the Colbert County Commission. Ala.Code 1975, § 14-6-1. Therefore, even if Aldridge can be held liable for his conduct as sheriff of Colbert County, Colbert County itself cannot be held vicariously liable for his actions or inaction.
King principally argues, however, that Colbert County had a statutory duty to maintain the jail in good repair. Ala.Code 1975, § 11-14-10 provides: "The county commission shall erect courthouses, jails and hospitals and other necessary county buildings, and such county commission shall have authority to levy a special tax for that purpose. Each county within the state shall be required to maintain a jail within their county." Under § 14-6-104, the county is obligated to pay any expenses for the maintenance of the jail. While legal custody and charge of the jail is vested in the sheriff, § 14-6-1, the chairman of the county commission is authorized to enter and inspect the jail once each week. § 11-14-22.
Interpreting the statute that is now § 11-14-10, this Court stated that the phrase "expense incident to the ... maintenance... of each county jail" refers to "maintenance of the building and its equipment." Holcombe v. Mobile County, 229 Ala. 77, 78, 155 So. 640, 640 (1934). In Keeton v. Fayette County, 558 So. 2d 884, 886 (Ala.1989), we held that, "by using the phrase `maintain a jail' in § 11-14-10, the Legislature intended to require the county commission to keep a jail and all equipment therein in a state of repair and to preserve it from failure or decline."
In his affidavit in support of Colbert County's motion for summary judgment, Charles H. Thompson, the Colbert County administrator, stated,
Because we hold that § 11-14-10 places an affirmative duty upon the County to maintain the jail and keep it in a state of repair, we conclude that the court erred in granting Colbert County's motion for a summary judgment. Colbert County's assertion that it did not actively cause a condition of disrepair cannot, independently of other evidence, save the County from liability.
Colbert County had a legal duty to keep the jail in a reasonably safe state of repair. In order to prevail at trial, however, *626 King must also prove that the County breached that duty and that its breach was the proximate cause of King's injury. Considering Colbert County's motion for summary judgment and the brief and affidavits submitted in support thereof, we conclude that Colbert County failed to make a prima facie showing that there was no genuine issue of material fact with regard to these other elements. Therefore, the burden did not shift to King to present substantial evidence in support of his claims against the county.[1]Ex parte Head, 572 So. 2d 1276 (Ala.1990). Accordingly, the summary judgment is reversed as to Colbert County, with regard to both the negligence claim and the wantonness claim. Rule 56(c)(3); Bird v. Auto Owners Ins. Co., 572 So. 2d 394 (Ala.1990).
An action against a sheriff is "essentially a suit against the state." Montiel v. Holcombe, 240 Ala. 352, 354, 199 So. 245, 245 (1940). "[T]he State of Alabama shall never be made a defendant in any court of law or equity." Ala. Const.1901, Art. I, § 14. Accordingly, we have held:
Boshell v. Walker County Sheriff, 598 So. 2d 843, 844 (Ala.1992). King's claims against Aldridge do not fall within any of these exceptions. Accordingly, the summary judgment is affirmed as to Aldridge, as sheriff of Colbert County.
Any acts Aldridge did or failed to do with regard to the Colbert County jail were done or omitted in his official capacity as sheriff of Colbert County rather than as an individual. Therefore, the summary judgment is also affirmed as to Aldridge, individually.
In addition to Colbert County and Sheriff Aldridge, King's complaint named the "Colbert County Sheriff's Department" as a defendant. The Colbert County Sheriff's Department is not a legal entity. Therefore, one cannot maintain an action against it. See, White v. Birchfield, 582 So. 2d 1085 (Ala.1991).
The summary judgment is reversed as to King's claims against Colbert County; it is affirmed as to the claims against John L. Aldridge, individually and as sheriff of Colbert County; 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, ADAMS and STEAGALL, JJ., concur.
[1] Because the issue is not properly before us in this case, we express no opinion on whether King presented substantial evidence of each of the elements of his negligence and wantonness claims against the county. | May 7, 1993 |
38322be2-8f9a-4279-9638-7c5aa6b5bf1e | Allen v. Delchamps, Inc. | 624 So. 2d 1065 | 1920236 | Alabama | Alabama Supreme Court | 624 So. 2d 1065 (1993)
Jeffrey F. ALLEN and Beverly Allen
v.
DELCHAMPS, INC.
1920236.
Supreme Court of Alabama.
September 10, 1993.
*1066 Richard E. Davis and Sandy G. Robinson of Helmsing, Lyons, Sims & Leach, P.C., Mobile, for appellants.
Davis Carr and James W. Lampkin II of Pierce, Carr & Alford, P.C., Mobile, for appellee.
MADDOX, Justice.
The issue in this case is whether the trial court erred in entering a summary judgment in favor of the defendantthe operator of a grocery storeon the plaintiffs' claim that the defendant was liable for injuries that the plaintiffs allege were caused by ingesting celery hearts that had been treated with sodium bisulfite before one of the plaintiffs purchased them from the defendant's store.
Delchamps, Inc., the defendant, operates grocery stores in Baldwin County, Alabama, along with many other stores around the country. Delchamps routinely inspects produce for freshness and quality at its warehouse. Delchamps also requires its suppliers to certify that they are complying with pesticide and insecticide regulations. Delchamps also specifically instructs its suppliers not to use the insecticide Alar.
On July 14, 1990, the plaintiff, Beverly Allen, purchased from a Delchamps grocery store in Baldwin County two bags of celery hearts that had been prepackaged in cellophane wrapping by Delchamps's supplier. Delchamps had inspected samples of the celery at its warehouse for freshness and quality.
On the afternoon of July 14, Mrs. Allen washed and ate a piece of the raw celery. Mrs. Allen suffers from asthma, and she had an immediate anaphylactic reaction. Three days later, her husband, the plaintiff Jeffrey F. Allen, took the two bags of celery, one opened and one unopened, to a testing laboratory in order to determine the cause of Mrs. Allen's reaction to the celery. The laboratory concluded that 1.2 parts per million of sodium bisulfite were on the celery in the unopened bag and 0.5 part per million of sodium bisulfite was on the celery in the opened package from which Mrs. Allen had eaten.
Dr. William N. Sokol examined Mrs. Allen and concluded that Mrs. Allen is an asthmatic who is sensitive to metabisulfites. There was evidence presented that approximately 1.2 percent of the world population are asthmatics, that approximately 8 percent of asthmatics are sensitive to sulfites, and that approximately.096 percent of the world population are asthmatics who are sensitive to sulfites. In the instant case, both parties concede that about 1.2 percent of the population are asthmatics and that 8 percent of those are sulfite sensitive. Applying these percentages to the latest federal census figures, more than 200,000 people nationwide and more than 3800 people statewide would be sulfite-sensitive asthmatics.[1]
In November 1990, Mrs. Allen sued Delchamps, Inc., and several other defendants, asserting causes of action based on negligence and wantonness, the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), and breach of the implied warranty of merchantability under Ala.Code 1975, § 7-2-314. Mr. Allen also sued, claiming a loss of consortium. Delchamps moved for *1067 summary judgment, and the trial court granted the motion as to all of the plaintiffs' claims. The court then certified the summary judgment as final pursuant to Rule 54(b), Ala.R.Civ.P.
The standard of review applicable to a defendant's summary judgment motion is well established. Rule 56(c), Ala.R.Civ.P., provides that summary judgment is proper when the movant makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, unless the nonmovant rebuts that showing by substantial evidence creating a genuine issue of material fact. See § 12-21-12, Ala.Code 1975; Cain v. Sheraton Perimeter Park S. Hotel, 592 So. 2d 218, 219-20 (Ala.1991).
With regard to the plaintiffs' negligence and wantonness claims, we note that the standard of care for retail grocers selling prepackaged closed containers of food was established in Kirkland v. Great Atlantic & Pacific Tea Co., 233 Ala. 404, 171 So. 735 (1936). In upholding the dismissal of an action against a retailer who had sold a prepackaged sack of flour containing a poison that injured the plaintiff, this Court said:
Id., at 406, 171 So. at 737. This Court also said in Kirkland that a retailer of prepackaged closed containers of food should not be held liable if he purchased from a reputable manufacturer or dealer and the imperfections were not readily ascertainable. Id. This case, however, involves fresh produce contained in perforated clear plastic bags closed by a plastic twist-tie or tape. The defendant did in fact open samples of the celery to inspect it for freshness and quality.
Furthermore, the plaintiffs assert a claim of negligence per se based upon the defendant's alleged violation of the federal Food, Drug & Cosmetic Act (F.D.C.A.) and FDA regulations promulgated thereunder indicating that sodium bisulfite is not safe when "used on fruits or vegetables intended to be served raw to consumers or sold raw to consumers or to be presented to consumers as fresh" and prohibiting its use in this manner. 21 C.F.R. § 182.3739. See 21 U.S.C. §§ 331(b), 342(a)(2)(C), 348 (prohibiting "[t]he adulteration or misbranding of any food, drug, device, or cosmetic in interstate commerce" and stating that "[a] food shall be deemed adulterated ... if it is, or it bears or contains, any food additive which is unsafe within the meaning of [21 U.S.C. § 348]"). Fox v. Bartholf, 374 So. 2d 294, 295-96 (Ala. 1979), establishes the requirements for a case of negligence per se:
There is substantial evidence that would allow a reasonable person to find that these requirements were met in this case. The FDA stated in adopting the sulfite regulations that "addressing the potential hazards to sulfite-sensitive individuals" was its primary concern and that "the purpose of this regulation is to respond to a serious health concern." 51 Fed.Reg. 25021, 25022 (1986). Expert medical testimony indicated that Mrs. Allen is a sulfite-sensitive individual and that the amount of sodium bisulfite on the celery would be sufficient to cause a reaction. That evidence is sufficient to raise a genuine issue of material fact as to whether the statute was violated and whether the violation, if any, proximately caused the injury. Thus, the summary judgment is improper as to the negligence and wantonness claim.
Delchamps asserts that the summary judgment was proper because, it says, no private right of action exists under the *1068 F.D.C.A., 21 U.S.C. § 301 et seq. (1988). Delchamps is correct that there is no private cause of action for civil damages under the F.D.C.A. Pacific Trading Co. v. Wilson & Co., 547 F.2d 367 (7th Cir.1976). See also, 21 U.S.C. § 337 (1988) ("All such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States."). However, the plaintiffs in this case are not suing directly under the F.D.C.A. or its accompanying regulations. Rather, they are relying on the regulations to establish a duty or standard of care. See Grove Fresh Distributors, Inc. v. Flavor Fresh Foods, Inc., 720 F. Supp. 714, 716 (N.D.Ill.1989) ("Although courts have held that there is no private cause of action under the FDCA, Grove Fresh has not brought suit directly under the FDCA or its accompanying regulations. Grove Fresh relies on the FDA regulation merely to establish the standard or duty which defendants allegedly failed to meet. Nothing prohibits Grove Fresh from using the FDCA or its accompanying regulations in that fashion."). See also Lowe v. General Motors Corp., 624 F.2d 1373, 1380 (5th Cir.1980) (holding that in Alabama violation of the National Traffic and Motor Vehicle Safety Act is evidence of negligence per se). Therefore, the summary judgment cannot be supported on the basis that the F.D.C.A. provides no private cause of action for damages.
In regard to their AEMLD claim, the plaintiffs must prove that Mrs. Allen "suffered injury or damages to [herself] or [her] property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer." Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976). Similarly, the plaintiffs' implied warranty of merchantability claim requires that the plaintiffs show that the goods were unmerchantable or unfit for the ordinary purposes for which they are used. Ala.Code 1975, § 7-2-314. These two standards "go hand-in-hand," at least as applied to food products, "for it is apparent that a food product is defective or unreasonably dangerous if it is unmerchantable or unfit for human consumption." Cain v. Sheraton Perimeter Park S. Hotel, 592 So. 2d 218, 220 (Ala.1991) (quoting Ex parte Morrison's Cafeteria of Montgomery, Inc., 431 So. 2d 975, 977 (Ala.1983)).
This Court has adopted the "reasonable expectations" test for determining if food is unmerchantable or unreasonably dangerous. Cain, 592 So. 2d at 221; Morrison's, 431 So. 2d at 978. Under this test, the pivotal issue is what is reasonably expected by the consumer in the food as served, and the "[n]aturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served." Morrison's, 431 So. 2d at 978 (quoting Zabner v. Howard Johnson's, Inc., 201 So. 2d 824, 826 (Fla.Dist.Ct.App.1967)). Because the terms "defect," "unreasonably dangerous," and "merchantable" all focus on the expectations of the consumer, this Court has found the reasonable expectations test to be compatible with both the AEMLD and the implied warranty of merchantability. Cain, 592 So. 2d at 221. "Generally, the question of what a consumer is reasonably justified to expect to find in his food is a question for the jury, unless the court finds, as a matter of law, that the consumer would reasonably expect to find the item in his food." Id. In adopting the federal regulations prohibiting sodium bisulfite on raw produce, the FDA stated:
51 Fed.Reg. 25021, 25022 (1989). Whether sulfite preservatives on fresh produce are within the reasonable expectations of a consumer is a question for a jury. See Cain, 592 So. 2d at 221, where this Court held that "the reasonable expectation of a consumer is usually a question for the jury."
Delchamps asserts that this case is different from Cain because in Cain the summary judgment on the AEMLD claim was based *1069 on the trial court's finding that the AEMLD did not apply, whereas in this case, Delchamps says, the summary judgment on the AEMLD claim was based on evidence establishing a lack of causal relation. To establish the defense of a lack of causal relation, the defendant may show "that there is no causal relation in fact between his activities in connection with handling the product and its defective condition." Atkins v. American Motors Corp., 335 So. 2d 134, 143 (Ala.1976). One way to establish this lack of a causal relation is for the defendant to show:
Id.
While Delchamps showed that it is in the business of distributing finished products, that it received a product already in a defective condition, and that it did not contribute to the defective condition, it, nevertheless, did not show conclusively that it did not possess an "opportunity to inspect the product which was superior to the knowledge or opportunity of the consumer." Id. The plaintiffs showed that Delchamps did inspect for freshness and quality and did have procedures for requiring its suppliers to certify compliance with other regulations regarding insecticides and pesticides. Whether Delchamps's opportunity to discover or to know of the defect is superior to that of the consumer is a genuine issue of material fact; therefore, the court erroneously entered the summary judgment as to the AEMLD claim. Delchamps is entitled to present evidence and to argue that there was no causal relation between what it did or failed to do and Mrs. Allen's injuries, but it must do so to the factfinder.
Delchamps asserts that Mrs. Allen is a member of a very small or insignificant number of people who could be affected by sodium bisulfite and, therefore, that it cannot be held liable for breach of the implied warranty of merchantability. In Griggs v. Combe, Inc., 456 So. 2d 790, 793 (Ala.1984), this Court held that the manufacturer of a drug would not be held liable "[i]f the injured person was one who could be described as ultrasensitive, who suffered an allergic reaction which would be suffered by a very small or insignificant number of people." Id. (Quoting 3 Bender's Uniform Commercial Code Service § 7.01[4] (1984)). In Griggs, the evidence indicated no known case in which the drug in question had ever caused an allergic reaction in anyone else. Griggs, 456 So. 2d at 791. In this case, however, the facts are very different. In fact, the FDA considered the number of sulfite-sensitive people to be significant enough to promulgate regulations banning its use on fresh produce. 51 Fed.Reg. 25021-26 (1986). The facts in Griggs, therefore, are significantly different, and the Griggs principle is not applicable to the facts of this case. The summary judgment on the implied warranty of merchantability claim, therefore, was improper.
Based on the foregoing, we reverse the summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] 0.012 (percentage of asthmatics in population) × 0.08 (percentage of asthmatics who are sulfite sensitive) = 0.00096 (percentage of sulfite-sensitive asthmatics in the population). 0.00096 (percentage of sulfite-sensitive asthmatics in the population) × 248,709,873 (population of the United States) = 238,761 (number of sulfite-sensitive asthmatics in the United States). 0.00096 (percentage of sulfite-sensitive asthmatics in the population) × 4,040,587 (population of Alabama) = 3879 (number of sulfite-sensitive asthmatics in Alabama). Population figures taken from Bureau of the Census, U.S. Dep't of Commerce, 1990 CPH-1-1, 1990 Census of Population and Housing: Summary Population and Housing Characteristics United States 1. | September 10, 1993 |
5ee7c761-8e16-4398-bf36-6573869d10ab | Pittman v. Mast Advertising Pub., Inc. | 619 So. 2d 1377 | 1911615 | Alabama | Alabama Supreme Court | 619 So. 2d 1377 (1993)
Jim PITTMAN
v.
MAST ADVERTISING PUBLISHING, INC.
1911615.
Supreme Court of Alabama.
April 30, 1993.
John W. Parker, Mobile, for appellant.
Roderick P. Stout, Stout & Rossler, P.C., Mobile, for appellee.
MADDOX, Justice.
This case presents one legal question: Can a pharmacist, who is president of a corporation that is wholly owned by his wife, maintain a damages action in tort for the negligent failure of an advertising company to list an advertisement for the corporation in a local telephone directory? We hold that he cannot, and we affirm the trial court's partial summary judgment in favor of the advertising company. We distinguish Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala.1985), and Underwood v. South Central Bell Telephone Co., 590 So. 2d 170 (Ala.1991), relied upon by the plaintiff pharmacist in support of his claim.
In 1990, Jim and Mary Pittman formed Modern Drug of Bayou La Batre, Inc., to operate a drug store. The Pittmans serve as directors and officers of Modern Drug. Mrs. Pittman is the sole stockholder. Mr. Pittman works for Modern Drug as a pharmacist, and he supervises the daily operation of the business.
*1378 As reflected by a written agreement that Mr. Pittman signed, Modern Drug applied for an advertisement in the 1991 Bayou La Batre telephone directory, published by Mast Advertising Publishing, Inc. Mr. Pittman paid for the advertisement on Modern Drug's behalf.
The 1991 Bayou La Batre telephone directory contained no listing or advertisement for Modern Drug. Consequently, Modern Drug and Mr. Pittman sued Mast Advertising. In the complaint, as amended, Modern Drug alleged breach of contract, and Mr. Pittman alleged negligent failure to perform the contract and sought damages for "severe inconvenience, anxiety, pain and suffering, and mental anguish." C.R. 33. Mast Advertising answered and later moved for a summary judgment as to Mr. Pittman's claims. The trial court entered a partial summary judgment for Mast Advertising and against Mr. Pittman and made it final pursuant to Rule 54(b), Ala.R.Civ.P. Mr. Pittman 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)(3), Ala.R.Civ.P. As the moving party, Mast Advertising had the burden of making a prima facie showing that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law, but if it made such a showing, then the burden shifted to Mr. Pittman to present substantial evidence creating a genuine issue of material fact, in order to defeat the motion for summary judgment. Hoover v. Tuttle, 611 So. 2d 290, 291 (Ala.1992); see 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).
In support of its motion, Mast Advertising offered the pleadings, Mr. Pittman's deposition testimony, and Modern Drug's articles of incorporation and certificate of incorporation. These materials show, without dispute, that Mr. Pittman was a director and the president of, but not a stockholder in, Modern Drug; that he signed the listing agreement as an agent of Modern Drug, although Mast Advertising's representative listed him on the application as Modern Drug's owner; and that he did not apply for an individual listing. This evidence reveals that Mr. Pittman was not a party to any agreement between Modern Drug and Mast Advertising.[1]
In support of his argument that the summary judgment was improper, Mr. Pittman relies primarily on Morgan v. South Central Bell Telephone Co., 466 So. 2d 107 (Ala.1985), wherein this Court held that two periodontists who had paid for listings in a telephone directory could recover damages for mental anguish in a negligence action against a telephone company and the agency that had solicited the listing when one of their names was omitted. 466 So. 2d at 114. In so holding, this Court noted:
Id. (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 92, at 655 (5th ed. 1984)).
*1379 The particular facts of Morgan demonstrated that the defendants should have reasonably foreseen that their misperformance of the contract would cause the plaintiffs to suffer mental anguish. At the time the plaintiffs opened their office, a listing in the Yellow Pages was the only permanent form of advertising permitted by the State Board of Dental Examiners. The plaintiffs notified the defendants that the name of one of the plaintiffs had been omitted from the 1978 directory. Nevertheless, despite complaints from the plaintiffs and verification of information by the defendants, the error was not corrected in either of three subsequent directories. This Court concluded that the imposition of tort liability was appropriate even though the relationship between the parties was primarily contractual, because the defendants, knowing that the plaintiffs depended on the listing as their only form of advertisement, performed the contract in such a negligent manner that the name of one of the plaintiffs was omitted four times in succession. 466 So. 2d at 114.
Similarly, in Underwood v. South Central Bell Telephone Co., 590 So. 2d 170 (Ala.1991), this Court reversed a summary judgment in favor of the defendants, a telephone company and the agency that sold advertising in the Yellow Pages, on a roofing company's claim that the defendants had negligently omitted an advertisement. The plaintiffs, individual owners of the roofing company, were relying on the Yellow Pages as a main source of advertising and had been assured before the publication deadline that their application was complete and that the advertisement would be published. Moreover, one of the defendants, South Central Bell, recognized its responsibility to furnish a telephone directory to its subscribers and in fact promoted its Yellow Pages as a unique form of advertising for consumers in need of services. Based on these facts and relying on Morgan, this Court concluded that there was a genuine issue of material fact as to whether the defendants' actions were sufficient to create a duty in tort. 590 So. 2d at 176. This Court addressed only the negligence claims of the plaintiff. Id. at 172 n. 3.
Subject to certain exceptions, the general rule is that "where the charge of negligence is based upon a breach of duty arising out of contractual relations, no cause of action arises in favor of one not in privity to such contract." Weston v. National Manufacturers & Stores Corp., 253 Ala. 503, 508, 45 So. 2d 459, 463 (1950) (citations omitted); see also Federal Mogul Corp. v. Universal Construction Co., 376 So. 2d 716, 724 (Ala.Civ.App.), cert. denied, 376 So. 2d 726 (Ala.1979). The amended complaint clearly shows that Mr. Pittman's negligence claim is based on Mast Advertising's "fail[ure] to perform duties pursuant to the said contract." Here, the undisputed evidence shows that Mr. Pittman was not a party to any contract.
Based upon the evidence, we think this case is distinguishable from both Morgan and Underwood. Unlike Morgan, this case involves only one omission from a directory. Also, although Mrs. Pittman had recently bought Modern Drug from the previous owner, it was not a new business, which, arguably, would at least initially be more dependent upon advertising. Unlike Underwood, there is no evidence in this case that Mast Advertising made any further assurances regarding publication or that it promoted the Yellow Pages medium of advertising as unique. Unlike both of those other cases, there is no evidence in this case indicating that Modern Drug depended on the telephone directory listing as its exclusive, or even its main, form of advertising, or, if it did, that Mast Advertising was aware of that fact.
These distinctions are significant because they demonstrate that in both Morgan and Underwood, mental anguish and other extracontractual damages were reasonably foreseeable, and that the defendants in those cases had duties independent of the contracts, because their conduct in undertaking to perform the contracts involved affirmative acts, see Berkel & Co. Contractors v. Providence Hospital, 454 So. 2d 496, 502 (Ala.1984), and cases cited therein. In contrast, the allegations in this case are based solely on the failure to publish an advertisement. That the defendant might commit such conduct, without more, would *1380 not make it reasonably foreseeable that Mr. Pittman would suffer the injury or harm he alleged; therefore, Mast Advertising did not have a duty independent of its agreement with Modern Drug.
Mr. Pittman also cites Utah Foam Products, Inc. v. Polytec, Inc., 584 So. 2d 1345 (Ala.1991), as authority for his claim of standing to maintain a negligence action. This argument misconstrues the holding in Utah Foam Products, in which this Court held that an individual stockholder, officer, and employee of a corporation had standing to maintain a counterclaim for damages based on torts allegedly committed against the corporation. 584 So. 2d at 1354. As we construe Utah Foam Products, this Court did not hold that the individual counterplaintiff had an independent right to sue to recover damages based on claims that derived from the corporation; therefore, Utah Foam Products does not stand for the proposition that a corporation's employee can, as a matter of course, maintain an action against a party to an agreement with the corporation based on negligent failure to perform that agreement. There is an exception, of course, when the defendant invades a legal duty that is independent or concurrent with the contract, Berkel, 454 So. 2d at 501 (quoting Federal Mogul Corp., 376 So.2d at 724), but, as discussed above, this case does not fall under that exception.
Because the harm or injury that Mr. Pittman alleges was not reasonably foreseeable when the listing was omitted, Mast Advertising did not owe a duty to Mr. Pittman; consequently, we affirm the partial summary judgment in favor of Mast Advertising and against Mr. Pittman. In affirming the partial summary judgment, we should not be understood as expressing any view on the corporation's claim, which is still pending in the trial court.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The record shows that, in opposition to the motion for summary judgment, Mr. Pittman did not file any affidavits or other evidence, as provided by Rule 56(e), Ala.R.Civ.P., but instead argued that Mast Advertising owed him a duty under tort law because, he claimed, it was reasonably foreseeable that the omission from the telephone directory would cause him to suffer the injury or harm alleged in the complaint. | April 30, 1993 |
7d970f9c-bbb0-426b-9589-1b39c4ff03d3 | Middaugh v. City of Montgomery | 621 So. 2d 275 | 1911773 | Alabama | Alabama Supreme Court | 621 So. 2d 275 (1993)
Ralph D. MIDDAUGH, et al.
v.
CITY OF MONTGOMERY, et al.
1911773.
Supreme Court of Alabama.
May 14, 1993.
*277 Jeffery A. Foshee and Daniel R. Farnell, Jr. of Foshee & Associates, Montgomery, for appellants.
William R. Chandler of Nix & Holtsford, Montgomery, for City of Montgomery and Montgomery City Council.
T. Kent Garrett and N. Wayne Simms, Jr. of Rushton, Stakely, Johnston, & Garrett, P.A., Montgomery, for Whatley Contract Carriers, Walter McGhee and Joseph Whatley.
J. Fred Wood and Vicki V. Norris of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, William A. Shashy of Steiner, Crum & Baker, Montgomery, for appellees.
STEAGALL, Justice.
Ralph D. Middaugh and Frances D. Middaugh, as the parents of two minors, Cynthia Ann Middaugh (deceased) and Ralph D. Middaugh, Jr., sued the City of Montgomery; the Montgomery City Council; the Montgomery County Commission; the State of Alabama Highway Department; the State of Alabama Department of Public Safety; Twin Lakes Community, Inc.; H. Houghton Smith; CSX Transportation, Inc.; AAA Signs, Inc; Walter H. McGhee; Joseph L. Whatley; and Whatley Contract Carriers, Inc., alleging that wanton, willful, reckless, and/or negligent conduct on the part of the defendants caused an automobile accident that resulted in Cynthia Ann Middaugh's death and bodily injury to Ralph D. Middaugh, Jr. The trial court entered summary judgments for the defendants, and the Middaughs appeal.[1]
A summary judgment is proper if there is 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. The movant bears the burden of initially showing these two prongs of the rule, but upon such a showing the burden shifts to the nonmovant to rebut the showing with substantial evidence creating a genuine issue of material fact. Maharry v. City of Gadsden, 587 So. 2d 966 (Ala.1991). Substantial evidence is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." *278 West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
In this case, the undisputed facts are as follows: On the evening of August 22, 1990, Ralph Jr., Cynthia, and two others were passengers of a car driven by Stephen Meadows. Meadows had been drinking alcoholic beverages that evening. Meadows drove the car out of the Twin Lakes Community in Montgomery, going east on Twin Lakes Parkway toward U.S. Highway 31. There is a stop sign at that intersection requiring east-bound motorists on Twin Lakes Parkway to stop before entering the highway. Meadows did not observe the stop sign and drove into the intersection into the path of an oncoming tractor-trailer driven by Walter H. McGhee; the truck struck the middle of Meadows's car. Ralph Jr. sustained serious injuries and all other persons in the car were killed.
On the motions for summary judgment, the defendants argued that the accident was caused by Meadows's intoxication and failure to heed the stop sign. The defendants presented deposition testimony from Laura Shevlin, a forensic scientist with the Alabama Department of Forensic Sciences, who examined the bodies of the accident victims and who determined that Meadows had a blood alcohol level of 0.209% at the time of the crash. Shevlin, who was not a paid expert for the defendants, testified that this was more than double the legal percentage for intoxication and that this level of alcohol would have inhibited Meadows's ability to obey the stop sign and to appreciate the danger involved in not obeying it. The defendants also presented the police report regarding the accident, in which investigating officer Guy Rush stated that the "driver, being under an influence of an alcoholic beverage, failed to yield the right-of-way to the Freightliner tractor-trailer truck, [and] entered the intersection causing the tractor-trailer truck to collide with [the Chevrolet Cavalier automobile driven by Meadows], period." This testimony was corroborated by the affidavit of another officer who investigated the accident. The defendants also presented the affidavit of the lone eyewitness, who stated that Meadows "ran" the stop sign and drove the car directly into the path of McGhee's truck. The eyewitness stated that McGhee was not traveling at an excessive speed and that he could have done nothing to avoid hitting Meadows's vehicle, because Meadows did not observe the stop sign.
The Middaughs offered no evidence to rebut the evidence that Meadows failed to heed the stop sign and drove his car directly into the path of McGhee's truck. In response to the evidence of Meadows's intoxication, the Middaughs offered the deposition testimony of Ralph Jr., who stated that Meadows had been a regular drinker since childhood and that a blood alcohol level of .209% would not impair his ability to drive a car because he was accustomed to such a blood alcohol level. The Middaughs did introduce expert testimony to indicate that McGhee could have been driving at a speed five to seven miles per hour higher than the legal speed limit of 55 miles per hour and that the accident could have been avoided if he had been traveling at the legal speed limit. The Middaughs also sought to establish that a lighted advertising sign placed at the entrance of Twin Lakes Parkway was a dangerous obstruction because, they contended, it had bright, flashing bulbs that prevented Meadows from seeing McGhee and thereby avoiding the accident. The defendants rebutted this allegation with affidavits of the two investigating police officers, who stated that the advertising sign posted outside the Twin Lakes Community entrance was not lighted on the evening of the accident. The defendants also presented the deposition testimony of Ralph Jr., who stated that he was lying down in the back seat of the car at the time of the accident. Ralph Jr. was thus unable to say whether the sign was lighted or whether Meadows ever stopped even to look in the direction of the sign before driving into McGhee's path.
The Middaughs argue that the trial court improperly admitted the affidavits and deposition offered by the defendants and that various procedural errors justify reversal of the summary judgments. The Middaughs first argue that the trial court *279 failed to allow a full 10 days' notice period between the filing of the motions for summary judgment and the hearing on these motions.
The record shows that the defendant CSX Transportation filed a motion for summary judgment on June 3, 1992. On June 9, the trial court conducted a conference call with counsel for the Middaughs and for several of the defendants. During the conference call, the trial court ordered any other defendants who were so inclined, to file motions for summary judgment on or before June 12, 1992, and the court scheduled the hearing on the motions for June 22, 1992. The various defendants, except AAA Signs, filed summary judgment motions by June 12 and served supporting affidavits and other evidence up until June 19.
Rule 56(c) provides that a motion for summary judgment "shall be served at least 10 days before the time fixed for hearing. The adverse party prior to the day of hearing may serve opposing affidavits." However, the mere failure to strictly comply with this provision does not necessarily warrant a reversal; the requirements of Rule 56(c) are procedural in nature, and the trial court is afforded a wide range of discretion in applying them. Kelly v. Harrison, 547 So. 2d 443 (Ala.1989). Here, the trial court informed the Middaughs' counsel on June 9 of the June 22 hearing, thus affording him more than the minimum 10 days' notice of the hearing; the record reveals no abuse of discretion on this point.
The Middaughs next argue that even if there was a full 10 days' notice of the hearing, the trial court erred in failing to grant their June 12 motion for a continuance. In their motion, the Middaughs sought a continuance until the defendants 1) supplied a more definite statement of the reasons why summary judgments should be entered and 2) responded to pending motions for discovery.
If a party seeks additional time to submit substantial matters in opposition to a summary judgment motion, the trial court's denial of the minimum time prescribed by the rule would be arbitrary and, thus, an abuse of discretion. Kelly v. Harrison. Here, the record shows that the case was filed on August 20, 1991, and that the Middaughs' counsel conducted 14 depositions thereafter. Despite extensive discovery, the Middaughs' counsel admitted at the summary judgment hearing that there was no way he could rebut the defendants' evidence that Meadows ran the stop sign and thereby caused the accident. We do not find that the trial court abused its discretion in denying the continuance, when additional time would not have enabled counsel to provide substantial evidence to rebut the prima facie showing; accordingly, there is no error as to this issue.
The Middaughs next argue that the trial court improperly allowed the defendants to file affidavits up to three days before the hearing on June 22, 1992, and even after the hearing. Rule 6(d), A.R.Civ. P., allows the trial court discretion to permit the service of affidavits that might otherwise be untimely, and its decision to accept such affidavits will not be reversed absent an abuse of discretion. Nolen v. Peterson, 544 So. 2d 863 (Ala.1989). Here, no such abuse of discretion is evident. Although the record, at first glance, seems to indicate that certain depositions were not filed with the court until June 23, a closer examination reveals that the evidence was actually filed on June 19 and that the June 23 filing was merely repetitive. The record further shows that the other evidence in support of the defendants' motion was filed on or before June 19 and was properly before the court at the hearing on the summary judgment motions; accordingly, we find no reversible error as to this issue.
The Middaughs next argue that the trial court improperly admitted oral testimony at the hearing. Although Rule 56(c), A.R.Civ.P., contemplates that evidence presented at a summary judgment hearing will be written, Rule 43(e) permits the trial court discretion to hear oral testimony at a hearing on a motion. The record shows that the trial court heard limited oral statements from a single witness, solely in regard *280 to whether AAA Signs owned the advertising sign positioned outside the Twin Lakes community. AAA Signs was not even before the court on a motion for summary judgment on June 22; thus, there is no indication that the oral testimony unfairly prejudiced the Middaughs as to any relevant issue before the court that day. We therefore find no reversible error in admitting the oral testimony.
The Middaughs next argue that the trial court erred in disallowing certain affidavits offered in opposition to the motions for summary judgment. The record shows that most of the affidavits were from individuals who had driven past the intersection in the months before the accident and who averred that the advertising sign was an obstruction. This Court has previously held that any testimony concerning the condition of property either before or after an accident should be corroborated by proof that the condition had not changed during the interval. Leeth v. Roberts, 295 Ala. 27, 322 So. 2d 679 (1975). Similarity of circumstances is a necessary predicate when the existence of an object or condition at a given time is in issue or is the gravamen of the action or defense. Leeth. Here, the affidavits offered by the Middaughs do not contain this necessary predicate. Moreover, the affidavits do not contain evidence to show that Meadows ever even looked in the direction of the advertising sign before he ran the stop sign and drove into the path of McGhee's truck. It was within the trial court's discretion to admit or deny these affidavits, Nolan v. Peterson; considering all the circumstances, we find no error in the trial court's exclusion of these affidavits.
The Middaughs next allege several errors in admitting Shevlin's deposition testimony at the hearing. They argue that they were improperly denied the opportunity to cross-examine Shevlin when she gave her deposition, that Shevlin was not qualified to render an opinion because she did not perform an autopsy on Meadows, and that the trial court improperly relied upon her deposition testimony in entering its judgments.
The record is replete with evidence to establish Shevlin's expertise in the field of forensic science. The record also shows that Shevlin was not a paid expert witness for the defendants; rather, she testified as an employee of the Alabama Department of Forensic Sciences. The defendants deposed her on March 27, 1992, and she testified as to Meadows's blood alcohol level at the time of the accident and as to the effect that his blood alcohol level would have had on his driving abilities. Shevlin testified that she did not perform an autopsy upon Meadows, but drew samples of his blood and body fluids, which she said were tested for alcohol according to the accepted procedures of her field. The defendants terminated the deposition before counsel for the Middaughs had cross-examined her; however, the Middaughs' counsel did not object, nor did he seek to reschedule a deposition for cross-examination during the next three months before the summary judgment hearing. Moreover, the trial court specifically stated at the hearing that it did not consider the Shevlin testimony to be outcome-determinative, but merely corroborative and useful to explain why Meadows ran the stop sign. In view of these facts, we find no error in admitting the Shevlin deposition at the hearing.
The last issue raised is whether the plaintiffs presented substantial evidence to rebut the defendants' showing that the accident was proximately cause by Meadows's failure to heed the stop sign. The Middaughs introduced expert testimony at trial to indicate that McGhee could have been traveling five to seven miles per hour over the speed limit of 55 miles per hour and that the accident could have been avoided if he had been traveling within the limit. The overwhelming weight of the evidence, however, shows that Meadows had been drinking alcoholic beverages before he drove that evening, that he was intoxicated at the time he drove, and that he failed to heed a stop sign and drove into the path of McGhee's vehicle. The Middaughs attempted to show that the advertising sign placed at the entrance to the Twin Lakes subdivision obstructed Meadows's *281 view of McGhee's truck and thus caused the collision; however, there was no evidence that Meadows ever saw the sign or looked toward it as he drove past the stop sign and into the path of the truck. After reviewing the voluminous record in full, we must conclude that the Middaughs failed to present substantial evidence to rebut the prima facie showing that the accident was caused solely by Meadows's failure to observe the stop sign.
The summary judgments were therefore proper and they are hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur.
[1] AAA Signs, Inc., was not a party to the hearing on the motions for summary judgment and is not a party to this appeal. The court made the summary judgments for the other parties final pursuant to Rule 54(b), A.R.Civ.P. | May 14, 1993 |
306932fc-82cb-449e-be80-bc29a1e3a3a5 | Nettles v. Matthews | 627 So. 2d 870 | 1911640 | Alabama | Alabama Supreme Court | 627 So. 2d 870 (1993)
Henry Theodore NETTLES, et al.
v.
Wyman A. MATTHEWS, et al.
1911640.
Supreme Court of Alabama.
May 14, 1993.
Rehearing Denied October 1, 1993.
*871 John F. Dillon IV of Dillon & Kelley and G. Daniel Brown, Alexander City, for appellants.
James K. Haygood, Jr. of Haygood, Cleveland & Pierce, Auburn, for appellees.
ADAMS, Justice.
The defendants appeal from a summary judgment entered in favor of the plaintiffs, Wyman A. and Margaret Matthews and Dolly C. Etheridge. We reverse and remand.
In 1967, Lonnie E. Carter and his wife, Grace Nettles Carter, were issued a warranty deed conveying property "for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion." In other words, the Carters owned the property in joint tenancy with right of survivorship. On September 18, 1970, Lonnie Carter attempted to convey his interest in the property to his wife in fee simple. She did not sign the deed as a joint grantor.
Lonnie and Grace Carter are now dead, Grace Carter having predeceased Lonnie Carter. The Matthewses, who purchased the property from Dorothy Etheridge, the only heir of Lonnie Carter, have sued the Nettleses, the heirs of Grace Carter, in order to clear the title. The sole issue here (as stated by the appellees) is:
The original deed creating the joint tenancy with right of survivorship was executed in 1967; thus it was subject to Bernhard v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965), wherein this Court held that a joint tenancy with right of survivorship was indestructible without the consent of both tenants.
In Bernhard, an estranged husband and wife held property in joint tenancy with right of survivorship. The husband filed a bill seeking the sale of the property; the trial judge ordered the sale. Mrs. Bernhard appealed, objecting to the sale because it was without her consent. The Bernhard Court stated:
Bernhard, 278 Ala. at 242, 177 So. 2d at 566. In other words, one joint tenant was attempting to dissolve the joint tenancy with right of survivorship by effecting a sale of the land to a third party over the objection of the other joint tenant. The Court held that both joint tenants had to agree in order to sever the joint tenancy. Id.
Later, in Nunn v. Keith, 289 Ala. 518, 268 So. 2d 792 (1972), this Court overruled Bernhard. In Nunn, a husband and wife executed a deed creating a joint tenancy with right of survivorship between themselves and their grandson. The wife died, thereby leaving her husband and grandson as the remaining joint tenants. The husband remarried and, without the agreement of the grandson, executed a warranty deed conveying the land to himself and his new wife. That deed purported to create a joint tenancy with right of survivorship as to a one-half interest in the property. This Court held that the execution of the deed involving the new wife destroyed the joint tenancy with right of survivorship between Nunn and his grandson. Thereafter, the grandson was a tenant in common, owning a one-half interest in the property, while Nunn and his new wife owned their one-half interest as joint tenants with right of survivorship. Nunn, 289 Ala. at 524, 268 So. 2d at 797.
Although Nunn was applied prospectively in Bringhurst v. Hardin, 387 So. 2d 186 (Ala. 1980), Nunn was also held to apply to deeds created before the decision in Bernhard. Thus, what has been called the "Bernhard *872 window" was created. The Bernhard rule was to continue to apply to deeds creating joint tenancies with right of survivorship executed between the release of the Bernhard decision and the overruling of that decision by Nunn. The deed in this case was created within the "Bernhard window."
Although neither Bernhard nor Nunn dealt with the question of what constitutes consent on the part of the grantors where a third party is concerned, consent manifests itself in the signing of the deed by both joint tenants. The facts of the case before us are different from those of either Nunn or Bernhard because, in this case, there is no third party involved. Lonnie Carter, one of the joint tenants, attempted to convey his interest in the property in question to the other joint tenant, Grace Carter. She did not sign the deed, nor did she object, as did the wife in Bernhard. In fact, Grace Carter, as grantee, was the beneficiary of the action taken by Lonnie Carter, and, absent evidence tending to indicate otherwise, we find that in receiving the property from her husband, she, as grantee, impliedly agreed to the transfer.
We turn now to the case of Isom v. Bledsoe, 488 So. 2d 1356 (Ala.1986), which implies a different result in a fact situation such as the one before us. In Isom, a husband and wife had held property jointly with the right of survivorship. The wife subsequently deeded her interest to her husband. He took no part in the transaction. Later, she sued his heirs, contending that her unilateral attempt to transfer her interest in the property was invalid. This Court held that the Isom deed creating the joint tenancy with right of survivorship was subject to the decision in Bringhurst v. Hardin, 387 So. 2d 186 (Ala. 1980):
Isom supra, at 1357.
Isom, involved a pre-Bernhard deed; therefore, according to Bringhurst, the joint tenancy with right of survivorship was subject to destruction by a unilateral act. This Court implied that it would reach a different result if the deed creating the joint tenancy had fallen within the "Bernhard window." The question of what constituted "consent" in a fact situation such as the one before us was not addressed. Because we find implied consent where the grantee is one of the joint tenant grantors, insofar as Isom implies a different result it is hereby overruled.
For the foregoing reasons, the judgment of the trial court is hereby reversed and the cause remanded.
REVERSED AND REMANDED.
SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
ALMON, J., concurs specially.
MADDOX, J., dissents.
ALMON, Justice (concurring specially).
I concur to reverse the summary judgment for the plaintiffs, but for reasons different from those stated in the majority opinion. I think the deed from the husband, Lonnie Carter, to his wife, Grace Carter, extinguished the joint tenancy with right of survivorship because it merged all of the interests in Grace Carter. I have reread the Nunn v. Keith line of cases, and I agree with Justice Adams that, under the holdings of Jackson v. Fillmore, 367 So. 2d 948 (Ala. 1979), and Bringhurst v. Hardin, 387 So. 2d 186 (Ala.1980), the indestructability rule of Bernhard v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965), is to be applied to joint tenancies created after Bernhard was decided *873 in 1965 and before it was overruled by Nunn in 1972.[1] However, Bernhard does not address the effect of a deed from one joint tenant to the other, and a case following Bernhard, and prior to Nunn, recognized the efficacy of such a deed.
In Shrout v. Seale, 287 Ala. 215, 250 So. 2d 592 (1971), Mr. and Mrs. Seale owned property jointly with right of survivorship.[2] In 1964, a judgment against Mr. Seale was recorded in the probate office. In 1966, Mr. Seale executed a warranty deed conveying his interest in the subject property to Mrs. Seale. In 1968, the sheriff levied on the property and sold it to Shrout. The Court held that, under the deed creating the joint tenancy, Mr. Seale "owned two different interests in the property, to wit: an undivided half interest for his life and a contingent remainder in the whole. Bernhard v. Bernhard, supra." 287 Ala. at 217, 250 So. 2d at 593. The Court held that, because a life estate in an undivided one-half interest in property is subject to execution, the recording of the judgment created a lien on Mr. Seale's life interest, which then passed to Shrout when she purchased at execution. The Court also held that, because "[a] contingent remainder is not subject to levy and sale under execution," id., Mr. Seale's contingent remainder "was not subject to the judgment lien." 287 Ala. at 218, 250 So. 2d at 594.
287 Ala. at 218, 250 So. 2d at 594 (emphasis added).
Therefore, I would hold simply that Lonnie Carter's 1970 deed to his wife Grace extinguished his interest in the property and that she held it thereafter in fee simple. I note that Isom v. Bledsoe, 488 So. 2d 1356 (Ala. 1986), is consistent with this result. Isom follows the Bringhurst rule that a pre-1965 joint tenancy is not governed by Bernhard, and on that basis holds that a joint tenancy created in 1964 was severed by the wife's deed to the husband in 1969. In my view, Isom could equally well have been decided, to the same result, on the basis of the Shrout rule. I see no need to condition the holding in this case on the question whether Grace Carter consented to receive the deed from her husband. In a proper case a purported recipient could, of course, object that he or she did not consent to receive the property, but there is no indication Grace objected to the transfer, so I do not see the need even to raise the question.
MADDOX, Justice (dissenting).
I dissent in this case for the same reasons stated in my dissenting opinion in Jackson v. Fillmore, 367 So. 2d 948, 952 (Ala.1979):
[1] Jackson could be read as applying Bernhard to post-1965 deeds only if there is evidence that the parties specifically relied on Bernhard in creating the joint tenancy or in handling the property, but we do not need to reach that question here.
[2] The joint tenancy was created long before Bernhard, but the Court was not concerned with that question because Bernhard was the law when Shrout was decided. That is, there was no thought that the tenancy might have been destructible because it was created before Bernhard, as the Court would later hold under the Nunn/Jackson/Bringhurst rulings. | May 14, 1993 |
c755f7fb-b6f2-4a22-86eb-5385c8c7ebfe | City Realty, Inc. v. Continental Cas. Co. | 623 So. 2d 1039 | 1911427, 1911599, 1911687 | Alabama | Alabama Supreme Court | 623 So. 2d 1039 (1993)
CITY REALTY, INC., and Martha Cochran
v.
CONTINENTAL CASUALTY COMPANY.
CITY REALTY, INC. and Martha Cochran
v.
Morris Wayne FORBUS and Mary C. Forbus.
Morris Wayne FORBUS and Mary C. Forbus
v.
CITY REALTY, INC., and Martha Cochran.
1911427, 1911599 and 1911687.
Supreme Court of Alabama.
May 28, 1993.
Rehearing Denied July 16, 1993.
*1040 Euel A. Screws, Jr. of Copeland, Franco, Screws & Gill, P.A., Montgomery, and Tom Radney of Tom Radney & Associates, P.A., Alexander City, for City Realty, Inc. and Martha Cochran, in case 1911427.
John M. Laney, Jr. and Deborah Alley Smith of Rives & Peterson, Birmingham, and Larkin Radney of Barnes & Radney, P.C., Alexander City, for appellants, cross-appellees *1041 City Realty, Inc. and Martha Cochran, in cases 1911599 and 1911687.
Steven F. Schmitt of Schmitt & Harper, a professional corp., Tallassee, and Lee Sims of Oliver and Sims, Dadeville, for appellees, cross-appellants Morriss Wayne Forbus and Mary Forbus.
KENNEDY, Justice.
A jury awarded the plaintiffs, Morris Wayne ("Wayne") Forbus and Mary C. Forbus, $300,000 on fraud claims against the defendants, City Realty Company, Inc., and Martha Cochran.
Underlying this case are the Forbuses' attempts to purchase property "listed" for sale by the president/manager of City Realty, Martha Cochran. Ultimately, Cochran, along with her husband and son, bought the property. The Forbuses sued Cochran and City Realty, averring that Cochran had engaged in fraudulent behavior in order to obtain the property, and, the Forbuses alleged, to prevent them from purchasing the property.
In a separate lawsuit, City Realty's "errors and omissions" insurer, Continental Casualty Company (referred to hereinafter as "CNA") had sued the Forbuses and City Realty for a judgment declaring the extent of City Realty's insurance coverage in the event the Forbuses prevailed at trial. CNA argued that City Realty was not covered for the type of behavior alleged by the Forbuses. CNA obtained a summary judgment in its favor and from this judgment City Realty appeals (case 1911427).
Thus, these three appeals involve two related cases, one in which the Forbuses sued City Realty and Martha Cochran based on theories of fraud, and one in which City Realty's insurer sued the Forbuses and City Realty, arguing that it had no contractual obligation to pay any judgment that the Forbuses might obtain.
After the Forbus trial, the court held the jury verdict in favor of the Forbuses to be excessive by $45,000. The Forbuses appeal from the trial court's order of remittitur (case 1911687).
Also, the trial court denied City Realty and Cochran's motion for a j.n.o.v. They appeal from that denial (case 1911599) (in addition to appealing from the judgment in favor of City Realty's insurer, which left City Realty without coverage for the award).
In the spring of 1990, City Realty and Mrs. Eunice Mae Blair were parties to a "listing agreement" for the sale of a house and adjoining acreage owned by Mrs. Blair. In late May 1990, an acquaintance of Mrs. Blair, Russell Lawhorn, expressed an interest in buying the property. According to Mrs. Blair, her willingness to sell for $90,000 was conveyed to Lawhorn through her listing agent, Cochran. She testified that Lawhorn, however, did not agree to purchase her property. In contrast, Cochran testified that Lawhorn offered to purchase the property for $90,000 and that Mrs. Blair agreed to this price in Cochran's presence.
It is undisputed that Cochran did not undertake to prepare for a closing on a purported Lawhorn sale, nor was there ever any written contract for a sale to Lawhorn.
Approximately a month later, Wayne Forbus attempted to make an offer on the Blair property through City Realty agent Amanda Scoggins. Scoggins testified that client offers have to be submitted to the seller through the listing agent; here, that was Cochran.[1] Scoggins stated, "I called Martha [Cochran] and told her I had an [oral] offer on the Blair house of $85,000 [from the Forbuses] and did I need to [do a written proposed] contract." According to Scoggins, Cochran said "[N]o, I've got a contract pending." At trial, Cochran denied suggesting that Scoggins not put the Forbus offer in writing, but conceded that she did tell Scoggins that a contract was "pending," meaning, she testified, her purported understanding that Lawhorn was buying the property. It is undisputed that there was no written contract for sale on the property "pending" a closing.
*1042 The Forbuses allege that Cochran discouraged a Blair-to-Forbus sale by suggesting that Scoggins not tender a written offer on the Blair property.
Unknown to the Forbuses, their interest in purchasing the Blair property for $85,000 was not related to Mrs. Blair. Mrs. Blair testified, without objection, that had she known the Forbuses were willing to pay $85,000 she would have been willing to sell them the property for that amount.
On June 25, 1990, Cochran received word through Mrs. Blair's daughter that Mrs. Blair was very anxious to sell. According to Cochran, she contacted Lawhorn, who told Cochran that he would not buy the property.
Cochran then telephoned Scoggins, and, according to Scoggins, told her to "get in touch with your people [the Forbuses]," and told her, "Mrs. Blair is awfully desperate to sell; she's anxious to sell. It's just urgent...." Scoggins stated that she told Cochran that she would get in touch with the Forbuses about making another offer. Scoggins then called Mary Forbus, who was, according to Scoggins, "excited" but wanted to see the property again and could not do so until the next day, June 26. Scoggins did not notify Cochran of this fact.
That evening, Cochran spoke by telephone with Mrs. Blair's daughter. Cochran testified that Mrs. Blair's daughter told her that she had previously received from Mary Forbus a note in which Mary Forbus offered to buy the Blair property for $70,000.[2] According to Cochran, Mrs. Blair's daughter had concluded that the Forbuses would not offer more than $70,000. Cochran did not disclose the Forbuses' willingness to offer $85,000. Instead, Cochran stated that she herself was willing to purchase the property for $70,000.
The next afternoon, June 26, Amanda Scoggins went to City Realty to pick up the agency's key to the Blair house, so that she and Mary Forbus could look at it, as they had planned. Mary Forbus waited outside. Cochran, who was in the City Realty offices at the time, testified that she told Scoggins the property was sold.
The property was not, in fact, sold. Also, although Cochran testified at trial that "an agreement had been reached," it is undisputed that there was no written contract for sale at that time. This "agreement" apparently refers to either an oral understanding between Cochran and Mrs. Blair's daughter, or a written offer by Cochran that Mrs. Blair had not then accepted.
Cochran told Scoggins that she, her husband, and her son had bought the property for $70,000. Scoggins testified:
As instructed, Scoggins told Mary Forbus that the property was sold. Scoggins also testified that she untruthfully told Mary that she did not know the sale price. According to Scoggins, upon hearing the news of the sale Mary "was in tears.... Mary just cried."
The next day, June 27, Cochran and her husband travelled to Georgia to meet Mrs. Blair to execute a contract for sale, back-dated to June 25, i.e., dated the day before Cochran told Scoggins the property was sold. At the same meeting the sale was closed, with Mrs. Blair unaware of the Forbuses' interest in purchasing the property for $85,000.
On June 28, Mary Forbus went to City Realty to confront Cochran. By this time, Mary had learned of the $70,000 sale price. She testified:
According to Mary Forbus, she told Cochran that Cochran should remedy the situation by selling the Blair house to the Forbuses for what Cochran paid for it. Mary Forbus testified that Cochran promised to get back in touch with the Forbuses on the subject and indicated that she was leaving for Europe and did not then have time to discuss it further.
The Forbuses did not hear back from Cochran. Later they sued Cochran and City Realty, alleging several fraud theories. The Forbuses sought both compensatory and punitive damages.
Thereafter, City Realty's "errors and omissions" insurer, CNA, brought a declaratory judgment action against the Forbuses and City Realty. CNA sought to determine whether its policy with City Realty would cover the acts alleged by the Forbuses. CNA asserted that City Realty did not have coverage for "expected or intended" acts.
In the Forbus fraud trial, a jury awarded the Forbuses $300,000 in unspecified damages. The case had been submitted to the jury after Cochran and City Realty moved for and were denied a directed verdict.
"Motions for directed verdict and j.n.o.v. both test the sufficiency of the evidence and are reviewed under the same standard." Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala.1990). To withstand a defendant's motion for directed verdict, i.e., in order for a plaintiff's claims to be submitted to a jury, the plaintiff must have presented "substantial evidence" in support of each element of his or her claims. General Motors Acceptance Corp. v. Covington, 586 So. 2d 178, 181 (Ala.1991). 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 critical element of a fraud claim is that the plaintiff's damage or loss was a "proximate result of the alleged misrepresentation." Green Tree Acceptance, 565 So. 2d at 42. City Realty and Cochran argue that there was no substantial evidence that the Forbuses were damaged as a proximate result of Cochran's actions, because, they say, the Forbuses had had the opportunity to buy the Blair property on June 25 and had lost that opportunity through their own failure to act. Accordingly, say Cochran and City Realty, the trial court erred in denying their motion for a directed verdict at trial and later in denying them a j.n.o.v.
In simple terms, the evidence indicates that Cochran bought her client's property at approximately $20,000 below market value, and $15,000 below the price the clients of another agent were willing to pay. The evidence further discloses that at the time of the Forbuses' $85,000 offer, there was no contract for sale pending.[3] Cochran admits that she told Scoggins she had a "contract pending."
Cochran admitted that on June 26, when Mary Forbus met with Scoggins to look at the house again, Cochran told Scoggins that the house was "sold"; she told her this when *1044 Scoggins came by City Realty for the Blair house key. The evidence is unrefuted that the property was not in fact "sold" at that time.
It is also unrefuted that the Forbuses failed to make an offer on June 25, as Cochran and City Realty assert (in arguing that the Forbuses missed their "last chance" to buy the property). However, to suggest that this fact is significant is to overlook the fact that the Forbuses actually could have made an offer up to June 27, but understood differently because their agent, Scoggins, had been told by Cochran on June 26 that the Blair property was "sold." The property was not actually sold until June 27, nor was there any contract for sale until that date. On June 27 Cochran first presented Mrs. Blair with her offer in the form of a proposed contract for sale (which was back-dated to June 25), for Mrs. Blair to execute as the contract of the parties.
Stated differently, the evidence indicates that the Forbuses' purported "missed opportunity" on June 25 was not actually a "last chance"; thus, their missing that opportunity did not result in loss to them through their own fault, as the defendants contend. There is considerable evidence that the Forbuses actually missed their "last chance" to buy the Blair property because Scoggins, at Cochran's direction, told Mary Forbus on June 26 that the Blair property was "sold." In truth, the Forbuses could have acted on June 26 had they not believed the property had been sold.
Equally important, the evidence indicates that had it not been for the Cochran's failure to advise Mrs. Blair of the Forbuses' willingness to pay $85,000 when that willingness was first related to her by Scoggins, the Forbuses would not have been in an "urgent" situation on June 25. Mrs. Blair testified, without objection, that she would have accepted an $85,000 offer had it been relayed to her by Cochran.
Based on the foregoing, we are unpersuaded by Cochran and City Realty's argument that the Forbuses caused their own loss of the Blair property through their inaction on June 25.[4]
We now turn to the correctness of the damages awarded. Before we can address the arguments of the parties in this respect, however, we must examine a problem that also confronted the trial court. The jury's verdict was an undesignated award of $300,000. We do not know precisely the elements of that award.
The jury's verdict was consistent with the form the trial court directed it to use. This form gave the jury only two options, to find an amount for the plaintiff or to find for the defendant. This form was defective in that it did not permit the jury to state a finding for both the plaintiff and the defendant, e.g., for *1045 the plaintiff as to compensatory damages, and for the defendant as to punitive damages, and it was defective as unresponsive to the issues at trial. For example, absent some specific jury determination as to punitive damages, the matter of Cochran's culpability remains unresolved.
Rule 49, Ala.R.Civ.P., "leaves it completely in the discretion of the court whether to direct a jury to return a general verdict, a general verdict accompanied by answers to interrogatories, or special verdicts." Committee Comments to Rule 49. Whatever form the verdict takes, however, it must respond to the dispositive factual questions posed by the issues at trial. "The law does not require any particular form in which a verdict must be rendered so long as it responds substantially to the issues raised." Whitmore v. First City Nat'l Bank of Oxford, 369 So. 2d 517, 521 (Ala.1979).
Because of the inherent flaws in the jury verdict form, which limited the jury's response, there is no way for this Court to know what part of the award was for compensatory damages and what part, if any, was for punitive damages.
Confronted with this problem, the trial court held that the jury could not have properly found compensatory damages in excess of $5,000. Then, based on that determination, it concluded that all other damages awarded by the jury must have been punitive damages. The trial court then found that $295,000 in punitive damages ($300,000 minus $5,000 compensatory damages) was excessive.
The Forbuses argue that it was "pure speculation" for the trial court "to designate what portion of the verdict was compensatory and what portion was punitive." We agree. Who can say with certainty that the jury did not award, for example, $300,000 in compensatory damages, meaning, under the trial court's reasoning, that a remittitur of $295,000 would have been in order. We do not suggest that this was the case. To the contrary, we suggest that any such calculations are speculative and improper. "[A] court's right to amend a jury verdict after discharge of the jury is limited to matters of form or clerical errors that are apparent from the record...." Alabama Farm Bureau Mut. Cas. Ins. Co. v. Williams, 530 So. 2d 1371, 1377 (Ala.1988). A court's authority to amend a verdict after the jury has been discharged cannot extend to matters of substance that a jury must determine. Id.; Alexiou v. Christu, 285 Ala. 346, 232 So. 2d 595 (1970).
Therefore, we hold that the trial court erred in its post-trial order. The trial court improperly apportioned the jury award into punitive and compensatory damages, and, based on that improper action, erred in ordering a remittitur of punitive damages. We reinstate the jury's verdict.
Having reinstated the jury's verdict, we must consider how we are to review it. How can we consider whether the amount of the jury award is excessive when we cannot know what that amount represents?
The Forbuses argue that the $300,000 verdict would be supported in any event, claiming that the award was supported by proof on the question of compensatory damages alone. If the jury verdict of $300,000 would have been supported by the evidence in any event, then our inability to review it in terms of specific punitive damages or compensatory damages would be of no meaningful consequence. So too, it would be harmless error that the trial court failed to comply with Ala.Code 1975, § 6-11-1 (Supp.1988), which provides:
Although we would hold that some $300,000 combinations of compensatory damages and punitive damages would be supported by the evidence in this case, we would hold, for example, that an award of $300,000 compensatory *1046 damageswhich the jury might have intended as its awardwould not be supported by the evidence. We reject the Forbuses' arguments to the contrary.
Obviously, in this situation a remand for further proceedings would seem the answer. However, to justify a remand, should there not have been an objection to the court's action regarding the verdict form? Not only was there no such objection in this case, it appears that the Forbuses, Cochran, and City Realty agreed to the form of the verdict. Perhaps for tactical reasons,[6] these parties agreed with the trial court that it solicit a verdict either wholly in favor of the plaintiff, with a lump sum award, or wholly in favor of the defendants:
The parties then started discussing other matters with the court.
In Green Tree Acceptance, 565 So. 2d at 38, we discussed the situation of unitemized verdicts and § 6-11-1. On appeal, the defendant in that case argued that the trial court's failure to use verdict forms itemizing compensatory and punitive damages, consistent with § 6-11-1, required a new trial. The defendant had not properly raised this issue in the trial court. We stated: "This Court will not put a trial court in error for failure to rule on a matter that, according to the record, was neither presented to nor decided by it." Id. at 46. We declined to remand the case on that ground for a new trial.
Here, no one objected to the verdict form and, in any event, we cannot properly remand this case for another jury to determine matters that were not determined in the first instance because of a situation the parties in the Forbus case agreed to. The economic and judicial resources of this state should not be so burdened.
In sum, we hold that the trial court erred in apportioning the verdict of $300,000 into compensatory and punitive damages. We do not disturb the $300,000 verdict. We cannot say whether it is right or wrong; we do not know what it represents, and it could be either right or wrong, i.e., either appropriate or excessive. We decline to remand this case for further determinations that would shed light on this issue, because the parties did not object to the undesignated verdict at trial. Thus, in case 1911687 we reverse the trial court's order of remittitur, and in case 1911599 we affirm the trial court's denial of a j.n.o.v.
In CNA's declaratory action, the trial court entered a summary judgment in favor of CNA, determining that Cochran and City Realty were not covered under the CNA policy for the $300,000 verdict. On appeal, Cochran and City Realty argue that the trial court misapplied the law to the facts. They say: "The issue here, unlike CNA would have this Court believe, is not whether City Realty's conduct was intentional [`expected or intended,' triggering an exclusion in coverage], but rather, whether City Realty intended the injury that their conduct allegedly caused." City Realty and Cochran quote United States Fidelity & Guar. Co. v. Armstrong, 479 So. 2d 1164, 1167 (Ala.1985), as that case interprets policy language excluding "expected or intended injury": "The insured *1047 must have possessed specific intent to inflict the damage to activate this policy exclusion." City Realty and Cochran say that the trial court misunderstood this standard and, in the absence of any evidence that Cochran acted with specific intent to cause damage or harm to the Forbuses, wrongly entered a judgment for CNA.
We are unpersuaded by Cochran and City Realty's arguments in this regard. There is evidence to indicate that Cochran acted with intent to inflict the harm on the Forbuses. However, we agree that the summary judgment was improper.
The summary judgment was based on the evidence from the Forbus trial. There were genuine issues of material fact at trial; the culpability of Cochran was an issue of material fact at trial, and it is an issue of considerable dispute here. Furthermore, a determination of Cochran's degree of culpability was not indicated by the jury's verdict.
A proper entry of summary judgment presupposes that there is "no genuine issue of material fact." Ala.R.Civ.P. 56(c). The evidence before the trial court on the summary judgment motion, that from the Forbus trial, created genuine issues of material fact. The summary judgment was improper, and the parties' arguments with respect to the ore tenus rule, a rule related to the adjudication of disputed facts, has no bearing. Therefore, in case 1911427 we reverse the summary judgment and remand for further proceedings consistent with this opinion.
1911687 REVERSED.
1911599 AFFIRMED.
1911427 REVERSED AND REMANDED.
In case 1911687, SHORES and ADAMS, JJ., concur; MADDOX, HOUSTON and INGRAM, JJ., concur in the result.
In case 1911599, MADDOX, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
In case 1911427, MADDOX, SHORES, ADAMS and HOUSTON, JJ., concur; INGRAM, J., dissents.
[1] In addition to being Mrs. Blair's listing agent, Cochran was also Scoggins's superior at City Realty.
[2] This $70,000 offer was apparently made before the Forbuses had decided to offer $85,000 through Scoggins.
[3] Accepting Cochran's testimony as true, one would conclude there was at most an oral understanding that Lawhorn would buy the property. An agreement to purchase land is "void unless such agreement ... is in writing." Ala.Code 1975, § 8-9-2.
[4] As to the inferences of the evidence as to why Cochran did not initially relate the Forbuses' interest in purchasing the property for $85,000, the Forbuses state:
"Evidently, Cochran had `hopes' that interest shown by a Mr. Russell Lawhorn in late may 1990 might result in some future sale. Cochran realized that since Lawhorn was her `prospect,' then she stood to receive the entire real estate commission.
"Unexpectedly though, the Forbuses made a substantial offer of $85,000, during the first week of June 1990.... If the Forbuses' offer was communicated to [Mrs.] Blair and she accepted it then Cochran would have to `share' a portion of her commission with Amanda Scoggins."
What the Forbuses refer to is that generally a listing agent must share with the selling agent a portion of the total commission paid. When the listing agent sells the property he or she has listed, i.e., when the listing agent is also the selling agent, this greatly increases his or her share of the commission. He or she then receives both a listing agent's share and a selling agent's share.
We need not determine whether the evidence at trial reasonably suggests the motive advanced by the Forbuses for Cochran's initial failure to disclose their interest in purchasing the Blair property for $85,000. However, we note the perilous position a listing agent assumes in a situation where he or she is seen to have discouraged a seller he or she represents, from accepting another agent's offer, while promoting a less advantageous offer that the listing agent has obtained. We agree with the Forbuses that there is an inference of improper motivation in such a situation. It appears in that situation that the listing agent is attempting to increase his or her commission to the detriment of the seller, the thwarted potential buyer, and that buyer's agent.
[5] Another unrelated provision of § 6-11-1 has been declared unconstitutional. See Clark v. Container Corp. of America, Inc., 589 So. 2d 184, 198 (Ala.1991).
[6] For example, it is argued that whether Cochran and City Realty are insured for the Forbus award turns on whether the jury found intentional fraud. The type of fraud that the jury found was not indicated in its verdict, a fact that Cochran and City Realty use to buttress their argument in the CNA declaratory judgment appeal that they are covered under their CNA policy. | May 28, 1993 |
9e960231-595e-4c6b-8322-34ea547ae25b | TERMINAL RY. OF ALABAMA STATE DOCKS DEPARTMENT v. Mason | 620 So. 2d 637 | 1911697 | Alabama | Alabama Supreme Court | 620 So. 2d 637 (1993)
TERMINAL RAILWAY OF the ALABAMA STATE DOCKS DEPARTMENT
v.
Jerry C. MASON.
1911697.
Supreme Court of Alabama.
May 7, 1993.
*638 Walter M. Cook, Jr., Charles L. Miller, Jr. and William E. Shreve, Jr. of Lyons, Pipes & Cook, P.C., Mobile, for appellant.
James E. Atchison and Mona A. Vivar of Trimmier, Atchison and Hayley, P.C., Mobile, for appellee.
INGRAM, Justice.
Jerry C. Mason sued Terminal Railway of the Alabama State Docks Department under provisions of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (1988), alleging that he was injured while working within the line and scope of his employment with Terminal Railway. Terminal Railway moved to dismiss the action on the ground that Mason's claim was barred by the three-year FELA statute of limitations, 45 U.S.C. § 56. The trial court denied the motion, and this Court granted Terminal Railway permission to appeal. See Ala.R.App.P. 5.
For purposes of this appeal, the pertinent facts are as follows: On January 14, 1988, Mason was injured on the job while he was an employee of Terminal Railway. On January 8, 1991, he filed an FELA action in the United States District Court for the Southern District of Alabama. The district court dismissed his action with prejudice on April 18, 1991, holding that Mason's claim was barred by the doctrine of sovereign immunity. Mason appealed that dismissal to the Eleventh Circuit Court of Appeals.
While his appeal was pending in the Eleventh Circuit, the United States Supreme Court decided Hilton v. South Carolina Public Railways Commission, ___ U.S. ___, 112 S. Ct. 560, 116 L. Ed. 2d 560 (1991). The Supreme Court held that Congress, in enacting the FELA, had intended to create a cause of action against state-owned railroads and the Supreme Court held that such a cause of action, if brought in a state court, would not be barred by the constitutional sovereign immunity created by the Eleventh Amendment to the United States Constitution. Id. at ___, 112 S. Ct. at 565. On March 12, 1992, the Eleventh Circuit affirmed the district court's dismissal of Mason's action.
Shortly after the Hilton decision was released and shortly after the Eleventh Circuit affirmed the dismissal of Mason's FELA action, this Court, on March 27, 1992, decided Coleman v. Alabama State Docks Terminal Railway, 596 So. 2d 912 (Ala.1992). In Coleman, this Court held that FELA claims against Terminal Railway may be brought in state court and are not barred by the sovereign immunity created under § 14 of the Alabama Constitution of 1901. 596 So. 2d at 913. On March 31, 1992, before the time to appeal the Eleventh Circuit's judgment had expired, Mason filed his FELA action in state court.
Terminal Railway filed a motion to dismiss the state court action on the ground that Mason's claim, arising over four years before he filed his action in the state court, was barred by the three-year FELA statute of limitations. The trial court denied the motion to dismiss, and Terminal Railway, with permission from this Court in accordance with Ala.R.App.P. 5, appealed.
An action under FELA must be commenced "within three years from the day the cause of action accrued." 45 U.S.C. § 56. An FELA cause of action accrues at the time of the injury. Mason was injured on January 18, 1988; therefore, Terminal Railway claims that this action, filed in the state court more than four years later, is time barred.
Mason contends that the running of the statutory limitation period was tolled while his claim was pending in the federal courts, and that because he filed his action in the state court before the Eleventh Circuit's judgment became final, his state FELA action was timely filed. Quoting Burnett v. New York Central R.R., 380 U.S. 424, 427, 85 S. Ct. 1050, 1054, 13 L. Ed. 2d 941 (1965), Mason argues that his commencement of the federal action should toll the running of the statutory period of limitation because, he says, "the FELA limitation period is not totally inflexible, [and,] under appropriate circumstances, it may be extended beyond three years." In Burnett, the United States Supreme Court held that the running of the FELA limitation period was tolled during the pendency of the state *639 court action because the state court had jurisdiction, the parties were properly served, and the state court action was dismissed for lack of proper venue. 380 U.S. at 434-35, 85 S. Ct. at 1058. Terminal Railway argues that the holding of Burnett is limited to the facts of that case and, therefore, that the running of the FELA limitation period is tolled during the pendency of an action only when that action is filed in a state court with jurisdiction, the parties are properly served, and the action is subsequently dismissed for lack of proper venue.
The issue in this case is whether the running of the FELA limitation period is tolled while an FELA action is pending in a federal court against a state-owned railroad and the action is subsequently dismissed based upon the state's immunity under the Eleventh Amendment. FELA actions are to be decided based on federal law. Burlington Northern R.R. v. Warren, 574 So. 2d 758 (Ala.1990). However, we note that the issue in this case is one of first impression in federal, as well as state, courts; therefore, we will decide this issue as we predict the federal courts would have decided it. See, e.g., Safeco Ins. Co. of America v. Wetherill, 622 F.2d 685 (3d Cir.1980) (federal court "predicts" course of state law on issue of first impression regarding state law).
The rationale supporting the Burnett decision provides significant guidance to this Court in resolving the issue before us. As discussed above, Burnett held that the running of the limitation period on an FELA action was tolled while that action was pending in a state court with jurisdiction but without proper venue, and when the parties had been properly served. Burnett, 380 U.S. at 427, 85 S. Ct. at 1054. The Burnett Court also held that the "basic inquiry" in deciding whether the running of the limitation period was tolled was "whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances." Id. The Supreme Court further explained:
380 U.S. at 427-28, 85 S. Ct. at 1054.
The Burnett Court also stated that "the humanitarian purpose of the FELA makes clear that Congress would not wish a plaintiff deprived of his rights when no policy underlying a statute of limitations is served in doing so." 380 U.S. at 434, 85 S. Ct. at 1058.
Justice Douglas, concurring specially in Burnett, relied on Herb v. Pitcairn, 325 U.S. 77, 65 S. Ct. 954, 89 L. Ed. 1483 (1945), *640 and stated that the cause of action was timely commenced within the meaning of 45 U.S.C. § 56 because "[the] process [had] been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of new initial process." 380 U.S. at 436, 85 S. Ct. at 1059 (Douglas, J., concurring) (quoting Herb, 325 U.S. at 79, 65 S.Ct. at 955) (emphasis in original); see also Burnett, 380 U.S. at 426, 85 S. Ct. at 1053.
Applying the above rationale, we hold that the running of the statutory period of limitation was tolled while Mason's action was pending in the federal courts; thus, the subsequent filing in the state court was timely. First, we hold that the federal court had "jurisdiction" over the action, despite the subsequent dismissal based on the Eleventh Amendment. "[T]he Eleventh Amendment's status as a jurisdictional bar is not so broad as to preclude a state's consent to suit." 13 Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3524, at 167 (1988). Because a state may waive its constitutional sovereign immunity, we hold that the federal court was a "court with jurisdiction" for purposes of determining whether the running of the limitation period was tolled while the federal action was pending.
Second, we note that Terminal Railway received notice of Mason's FELA claims through proper service of process. The notice was timely and it adequately informed Terminal Railway of Mason's claims. We hold that that "process [was] adequate to bring in the parties and to start the case on a course of judicial handling which [might have led] to final judgment without issuance of [a] new initial process." See Burnett, 380 U.S. at 436, 85 S. Ct. at 1059.
Third, despite the fact that Mason filed his FELA claim in a forum in which Terminal Railway could absolutely defeat his claim by asserting its constitutional sovereign immunity, we find no evidence that allowing the running of the limitation period to be tolled while Mason's action was pending in the federal court prejudices Terminal Railway. "[Terminal Railway] could not have relied upon the policy of repose embodied in the limitation statute, for it was aware that [Mason] was actively pursuing his FELA remedy." See Burnett, 380 U.S. at 429-30, 85 S. Ct. at 1055.
Therefore, we hold that "the basic congressional purposes in enacting this humane and remedial Act [FELA], as well as those policies embodied in the Act's limitation provision," are effectuated by tolling the running of the limitation period while Mason's FELA claim was pending in the federal courts. See Burnett, 380 U.S. at 427-28, 85 S. Ct. at 1054. The denial of Terminal Railway's motion to dismiss is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 7, 1993 |
1431ce9a-e8cf-4136-80be-74c11275e6e5 | Horizons 2000, Inc. v. Smith | 620 So. 2d 606 | 1911514 | Alabama | Alabama Supreme Court | 620 So. 2d 606 (1993)
HORIZONS 2000, INC.
v.
Grady SMITH and Virginia Smith.
1911514.
Supreme Court of Alabama.
April 30, 1993.
Judy Harrison Barganier, Montgomery, for appellant.
Louis C. Rutland, Union Springs, for appellees.
KENNEDY, Justice.
The defendant, Horizons 2000, Inc. ("Horizons"), appeals from the denial of a Rule 60(b)(4), Ala.R.Civ.P. motion for relief from a judgment in favor of the plaintiffs, Grady and Virginia Smith.
Horizons is a group of approximately 150 European investors, organized as a corporation under the laws of Delaware. In January 1985, Grady and Virginia Smith executed a lease agreement with Horizons, leasing to Horizons land in Bullock County for growing pecans. Horizons had previously leased other property in Bullock County for the same purpose. Horizons had utilized the services of Gus Tompkins, of Fitzpatrick, to perform various odd jobs for it relative to that other property. According to Tompkins's testimony, he had agreed to do some "contract work" for Horizons about a year before the Smith lease; he said he had agreed to "clean up the groves ... and do some spraying."
The record does not indicate when, but at some point thereafter, the vice-president of Horizons, Henry Chmielewski, started sending work requests to Tompkins from England. For his services, Tompkins was paid by the job, with a fixed fee per job, negotiated on a job-by-job basis. Tompkins provided any fuel necessary on these jobs, but had use of Horizons equipment, which he stored at his home.
Also, at some point Tompkins permitted property tax assessments for Horizons on *607 its Bullock County holdings to be directed to Tompkins, who presumably forwarded the assessments to Horizons in England.
On October 2, 1991, the Smiths sued Horizons, alleging breach of the lease agreement. On October 5, 1991 a summons and the Smiths' complaint against Horizons were served by personal service on Tompkins. According to the Smiths, Tompkins took the complaint to their attorney and requested that their attorney fax it to Horizons in England. In fact, Horizons did not learn of the lawsuit until many weeks later, after a default judgment had been entered against it in November 1991. The record is unclear as to how the fax request was handled. However, it is undisputed that, except for the service on Tompkins in October 1991, Horizons had no actual or constructive notice of the lawsuit until December 1991.
After learning of the default judgment, Horizons moved, pursuant to Rule 60(b)(4), to have the judgment set aside as void. Horizons argued that it had never been served with a notice of the action and that the trial court had rendered a judgment without personal jurisdiction.
One of the requisites of personal jurisdiction over a defendant is "perfected service of process giving notice to the defendant of the suit being brought." Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala.1983). "When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally." Id. A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala.1989).
The Smiths say that the corporation was served by the personal service on Tompkins. Personal service on a corporation, "either domestic or foreign," can be had "by serving the agent authorized by appointment or by law to receive service of process." Ala.R.Civ.P. 4(c)(6). It is undisputed that Tompkins had no express authorization to receive service of process on behalf of Horizons. The issue here, as it was in the trial court, is whether service on Tompkins was adequate to constitute service on Horizons; specifically, the Smiths argue that Tompkins was the authorized agent of Horizons, because, they say, Tompkins was "controlled" by Horizons.
In considering the Rule 60(b) motion, the trial court heard ore tenus evidence regarding service of process, and implicit in its denial of the motion was the conclusion that Tompkins was the authorized agent of Horizons for service of process. "When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside." Insurance Mgt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala.1991).
This Court has, at least once before, discussed a situation where, by virtue of one party's dominion over another, the status of "authorized agent" is imputed to that second party. In Volkswagenwerk, 443 So. 2d at 884, we stated that where a subsidiary is merely an alter ego of a parent corporation, the subsidiary can be deemed an agent for service of process on the parent corporation. However, we indicated that the plaintiff, to show service, must present "proof of a high degree of control" by the parent corporation over the subsidiary. Id. at 884. We cited Professional Investors Life Ins. Co. v. Roussel, 445 F. Supp. 687, 698 (D.Kan.1978), for the following proposition:
443 So. 2d at 884.
Applying the rule of Volkswagenwerk to the present case, we hold that the trial court erred.[1] It is fairly debatable whether *608 Tompkins was "controlled" in a respondeat superior sense, as the Smiths say he was, or whether he was an independent contractor for Horizons, as Horizons says he was. However, Volkswagenwerk indicates that the plaintiff must show that the defendant exercised a "high degree of control" over the alleged agent in order for the court to imply the authority to be an agent for service of process; certainly, Volkswagenwerk would require much more control than would suffice to support an imposition of liability under the doctrine of respondeat superior. Although there may be some evidence of slight "control" in this case, the plaintiffs presented no evidence that Horizons had the "high degree of control" over Tompkins necessary to support a finding that he had authority to accept service of process for Horizons.
We hold that the judgment against Horizons was entered in the absence of personal jurisdiction and that it is therefore void. The trial court should have granted the Rule 60(b) motion.
REVERSED AND REMANDED.
HORNSBY, C.J., and HOUSTON, STEAGALL and INGRAM, JJ., concur.
MADDOX, SHORES and ADAMS, JJ., dissent.
MADDOX, Justice (dissenting).
I would affirm the judgment of the trial court because I firmly believe that the service of process in this case was sufficient to give that court jurisdiction over the defendant foreign corporation and that that court's exercise of its discretion to refuse to set aside the default judgment should not be overturned.
It seems apparent to me that the defendant Horizons 2000, Inc., a corporation organized under the laws of the State of Delaware and composed of a group of approximately 150 European investors, had sufficient contacts with the State of Alabama to give an Alabama court personal jurisdiction of it. Further, in view of the particular status of the person who was served with process in this case, I believe that the service was sufficient.
The facts leading me to this conclusion are as follows: Horizon leased land from the plaintiffs for the growing of pecans. Gus Tompkins was retained by Horizons to perform various odd jobs, such as maintaining the groves and spraying the leased property. At some point, Horizons began faxing work requests to Tompkins from England. For his services, Tompkins was paid by the job, with a negotiated fixed fee per job. Tompkins provided fuel necessary on these jobs, but he had the use of equipment belonging to Horizons. This equipment was stored at his home. Tompkins also received the property tax assessments on the property, which he presumably forwarded to Horizons in England. Tompkins was also authorized to sign checks for Horizons. Based on these facts, the trial court concluded, as do I, that Tompkins was more than just a farmhand and that he significantly acted for and on behalf of the corporation, as the corporation's agent, and that the corporation did sufficient acts to indicate its reserved right of control.[2]
According to the plaintiffs, Tompkins took the complaint to the attorney for the plaintiffs and requested that the plaintiffs' attorney send a facsimile of the complaint to Horizons in England. Even though Horizons did not learn of the lawsuit until after a default judgment had been entered against it, and although it is not clear how the facsimile request was handled, it is undisputed that except for the alleged service on Horizons through Tompkins in October 1991, Horizons did not otherwise *609 have actual or constructive notice of the lawsuit until December 1991. However, there is no suggestion made that the attorney for the plaintiffs agreed to send the pleadings to Horizons, or that the attorney made to Tompkins any misrepresentations that he relied upon to the detriment of Horizons.
The majority holds that the service of process was insufficient to give Horizons notice, because Horizons did not exercise such a "high degree of control" as to make Tompkins an agent of Horizons for service of process. I believe that the plaintiffs proved to the satisfaction of the trial judge that Horizons exercised such control and dominion over Tompkins that the court could find that he was an agent of Horizons upon whom service of process could be made.
Based on the foregoing, I must disagree with the result reached by the majority. I believe in vesting in the trial judge a broad discretion to determine whether the processes emanating out of the court are being evaded or ignored. The trial judge has passed judgment on this issue and I would affirm his judgment. Consequently, I must respectfully dissent.
[1] In so stating, we assume, arguendo, that the law would in this context impute "authorized agent" status. Horizons very briefly alludes to this issue in a footnote to its argument on appeal. Given the lack of discussion or analysis of this question by the parties, we do not address it here.
[2] Horizons argues that Tompkins was an independent contractor. I believe that there is a substantial question presented on the issue whether Tompkins was an "agent" or an "independent contractor." If Tompkins, for example, had allegedly caused injury to someone in connection with his duties, I believe that it would be a jury question whether Tompkins was an agent of Horizons. See, Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So. 2d 638 (1970). | April 30, 1993 |
097c4399-03b0-4e0f-8fe7-3fcf545f399f | Bell v. Lowery | 619 So. 2d 1380 | 1911620 | Alabama | Alabama Supreme Court | 619 So. 2d 1380 (1993)
Mose BELL, Jr.
v.
Ray LOWERY.
1911620.
Supreme Court of Alabama.
April 30, 1993.
*1381 J. Gusty Yearout and Don L. Hall of Yearout, Myers & Traylor, P.C., Birmingham, for appellant.
R. Larry Bradford of Lloyd, Bradford, Schreiber & Gray, P.C., Birmingham, for appellee.
ADAMS, Justice.
Mose Bell, Jr., sued Ray Lowery, alleging that Lowery had negligently maintained certain premises owned by him and that as a result of the negligent maintenance Bell's 14-year-old son Kerry Bell had drowned in a lake on those premises. He contends that because Lowery had failed to enclose the property with a fence, and because Lowery knew that children and adults fished and swam in the 17-acre lake, he had negligently failed to prevent persons from trespassing onto his property. Kerry Bell and several of his friends were swimming in the lake when Kerry drowned. Bell appeals from a judgment based on a jury verdict awarding him $15,000.
Initially, Bell argues that the trial court erred in refusing to quash the jury panel following his challenge of the defendant's use of peremptory strikes. The trial court determined that, because the defendant had stricken five of the six blacks on the jury venire, Bell had made a prima facie case of discrimination. Upon the plaintiff's showing of a prima facie case of discrimination, the burden shifted to the defendant to provide race-neutral reasons for his strikes of the five blacks. See Ex parte Bird, 594 So. 2d 676, 680 (Ala.1991), citing Ex parte Branch, 526 So. 2d 609 (Ala.1987); Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
The record does not contain the initial questions propounded to the jury venire by the parties and, therefore, this Court has before it very little on which to review the claim of discrimination. Only the hearing following the Batson challenge is in the record before this Court. That hearing, at which the defendant offered the following reasons for his strikes, covered five pages of the record:
(R. 10-14.)
This Court has written regarding Batson challenges to peremptory strikes:
Ex parte Thomas, 601 So. 2d 56, 58 (Ala. 1992). (Citations omitted.)
We have reviewed the record very carefully and, although the question may be a close one, based on the limited record before us we must defer to the trial judge's ruling. We conclude that his refusal to quash the jury panel was not clearly erroneous. See Ex parte Lynn, 543 So. 2d 709, 712 (Ala.1988).
As to Bell's second contentionthat the trial court erred in instructing the jury with regard to contributory negligence on the part of Kerry Bellwe find that any error, if any, was harmless. The jury returned a verdict for the plaintiff. Thus, the jury determined that Kerry Bell had not been contributorily negligent.
AFFIRMED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | April 30, 1993 |
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