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aea13b63-d660-4737-9933-e1ea9788eb4b | Duncan v. Rossuck | 621 So. 2d 1313 | 1920309 | Alabama | Alabama Supreme Court | 621 So. 2d 1313 (1993)
Curtis O. DUNCAN and Joyce R. Duncan
v.
Sidney ROSSUCK, et al.
1920309.
Supreme Court of Alabama.
June 4, 1993.
Robert B. Tuten, Huntsville, for appellants.
Charles R. Hare, Jr. of Gullahorn & Hare, P.C., Albertville, for appellees.
*1314 STEAGALL, Justice.
Sidney Rossuck, Lorraine Rossuck, Todd W. Rossuck, Brett G. Rossuck, and Judd F. Rossuck sued Curtis O. Duncan and Joyce R. Duncan, alleging that the Duncans had breached a contract to purchase real estate from the Rossucks. The Duncans counterclaimed, alleging that the Rossucks had breached the contract. Following an ore tenus proceeding, the trial court entered a judgment for the Rossucks, awarding damages of $16,500 and $6,600 in attorney fees. The Duncans appeal.
Because this was an ore tenus case, the trial court's findings of fact are favored with a presumption of correctness and its judgment based upon those findings will not be disturbed on appeal unless it is shown to be plainly and palpably wrong. Cobbs v. Fred Burgos Constr. Co., 477 So. 2d 335 (Ala.1985).
The record reveals that the Duncans signed a contract to buy a converted house from the Rossucks for $148,000. The contract stated, in pertinent part:
When the parties signed the contract, the Rossucks advised the Duncans that the term "suitable financing" meant that they must do their best to obtain the financing to purchase the real estate. The closing date was set for August 15, 1990. The Duncans thereafter sought financing at seven institutions, although they applied in writing only to the Bank of Albertville. Because of the Duncans' difficulty in arranging financing, the Rossucks agreed to extend the closing date for 10 days and also arranged for the Duncans to assume an existing mortgage on the property in the approximate amount of $79,349. The Bank of Albertville initially agreed to lend the Duncans the remainder of the purchase price, provided that they pledge additional property as security for the loan. The Duncans were unwilling to comply with this condition; thus, the bank refused the loan. The Rossucks then sent a letter to the Duncans, offering to lend them the needed amount "upon the same or more favorable terms as requested of Bank Of Albertville." The Duncans would not agree to this loan; the Rossucks then sued, alleging that the Duncans had refused to diligently obtain financing as required by the purchase contract.
The Duncans first argue that the parties did not have a meeting of the minds as to the meaning of the term "suitable financing" and that the contract is therefore based on ambiguous terms and should be held void.
Whether a contract is ambiguous is a question of law for the trial court to determine. MacDonald v. U.S. Die Casting & Development Co., 585 So. 2d 853 (Ala.1991). In its order, the trial court did not find any ambiguity in the term "suitable financing." The record shows that when the Duncans sought financing from the Bank of Albertville, they specified their own terms in the written application and thus tailored their application to reflect what they considered to be a "suitable" loan. In its order, the trial court found that the Rossucks had offered financing to the Duncans according to terms that were identical to, or even better than, the Duncans' own terms set out in the Bank of Albertville loan application. The evidence contained in the record supports the trial court's conclusion that the term "suitable financing" was not ambiguous.
The Duncans next argue that, because the "suitable financing" provision was a contingency that did not come to fruition, their duty to perform under the contract never arose.
This Court has previously held that a contract provision making the contract subject to the procurement of a loan to finance the purchase price is a valid condition precedent to performance; however, the purchasers have the implied duty to attempt to obtain financing through a reasonable good faith effort. Schottland v. *1315 Lucas, 396 So. 2d 72 (Ala.1981). In this case, this duty was an express part of the contract. Whether a party has substantially performed a promise under a contract is a question of fact to be determined by the circumstances of each case. Cobbs v. Fred Burgos Constr. Co., supra.
In its order, the trial court specifically found that the suitable financing provision was a valid condition precedent to performance under the contract; however, the court found that the Rossucks offered such financing to the Duncans, and that the Duncans refused the financing solely because they wished to be relieved from performing under a contract that they had become disenchanted with. The Duncans' own testimony contained in the record fully supports the trial court's findings; thus, we find no merit in the buyers' argument on this point.
The Duncans next argue that their duty to perform under the contract ended on August 15, 1990, the original closing date set out in the contract, and that they were thus not obligated to accept the loan offered by the Rossucks in a letter dated August 25, 1990.
The purchase contract contains the following provision:
This provision notwithstanding, under Alabama law a written agreement may be modified by a subsequent oral agreement of the parties, unless some statutory provision provides otherwise. Hall v. Integon Life Insurance Co., 454 So. 2d 1338 (Ala. 1985). This is so even where the contract contains a requirement that all modifications be in writing. Commercial Contractors, Inc. v. United States & Guaranty Co., 524 F.2d 944 (5th Cir.1975) (applying Alabama law). Moreover, it is a general rule of equity that when time is not of the essence in a contract, a failure to perform in the time specified does not serve to terminate the rights of the parties. Sims v. City of Birmingham, 254 Ala. 598, 49 So. 2d 302 (1950). An oral agreement to extend the time for performing a previous agreement merely supplements, rather than changes, the terms and obligations of the agreement. Cater v. Haralson, 362 So. 2d 242 (Ala.Civ.App.), cert. denied, 362 So. 2d 244 (Ala.1978).
The contract contained no provision making time of the essence, and it is uncontroverted that the Duncans fully agreed to an extension of the closing date to allow themselves more time to search for financing. Thus, the trial court properly determined that the Duncans' duty to perform under the contract did not end until the expiration of the extended closing period.
The Duncans' final argument is that the trial court's damages award was arbitrary and not supported by the evidence. The contract provides:
The measure of damages for the breach of a contract involving the sale of land is the difference between the contract price and the market value of the land on *1316 the date of the breach. Brett v. Wall, 530 So. 2d 797 (Ala.1988). Here, the record contains undisputed testimony from a qualified appraiser that in April 1992 he appraised the real estate and assessed its fair market value at $130,000. He further expressed the opinion that, based on the commercial real estate market conditions between August 1990the date of breachand April 1992 and assuming no substantial improvement or deterioration, the value of the property would have been approximately the same in August 1990 as in April 1992. Subtracting the $130,000 fair market value from the purchase price of $148,000 leaves a total of $18,000, slightly more than the trial court's award of $16,500. The evidence also supports the amount of attorney fees awarded; accordingly, we find no reversible error in the trial court's award.
The trial court's judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES and ADAMS, JJ., concur. | June 4, 1993 |
70ae1cfa-0c43-48a2-8999-ddd410ccf8b3 | Thomas v. Lynn | 620 So. 2d 615 | 1920108 | Alabama | Alabama Supreme Court | 620 So. 2d 615 (1993)
Michael E. THOMAS and Tammie Thomas
v.
Sid LYNN, et al.
1920108.
Supreme Court of Alabama.
April 30, 1993.
Gregory P. Thomas, Dothan, for appellants.
Edward M. Price, Jr. of Farmer, Price, Hornsby & Weatherford, Dothan, for Sid Lynn and Wauneta Lynn.
William M. Jackson, Dothan, for Dorothy Carmichael, Sherry Radford, and Forsythe Farm and Realty, Inc.
PER CURIAM.
The plaintiffs appeal from a judgment dismissing their fraud action against all five defendants. We affirm in part, reverse in part, and remand.
Michael and Tammie Thomas had filed an earlier fraud action against Sid Lynn and his wife, Wauneta Lynn, from whom the Thomases had purchased a mobile home and the land on which it was located. The *616 trial court entered a summary judgment for the Lynns in that earlier action. The Thomases did not appeal.
The Thomases filed a second complaint alleging fraud in the sale of the land and the mobile home. The second complaint sought greater damages than the first had sought, and it named as defendants Forsythe Farm and Realty, Inc.; Forsythe employees Dorothy Carmichael and Sherry Radford, who had handled the sale of the Lynn property to the Thomases; and the Lynns. It alleged that the Lynns, as "principals," were liable for the fraud committed by their "agents," the realty company and its employees.
The trial court granted the defendants' motions to dismiss, holding that, as to all five defendants, the Thomases' action was barred by the doctrine of res judicata. The Thomases appeal from the judgment of dismissal.
Clearly, with regard to the Lynns, these facts provide a classic example of a cause of action that is barred by the doctrine of res judicata: There is (1) a prior judgment rendered by a court of competent jurisdiction (2) on the merits. As to the Lynns, (3) the parties to both actions are identical, and (4) the same cause of action is alleged in both actions. Garris v. South Alabama Production Credit Ass'n, 537 So. 2d 911 (Ala.1989).
The Thomases argue that their second complaint alleges a cause of action against the Lynns that is different from the "active fraud" complained of in the first actionthat is, that the Lynns are liable as principals for fraud committed by the realty company and its employees, who, the Thomases contend, were the Lynns' agents. Therefore, argue the Thomases, the fourth element of the doctrine of res judicata is not present and the doctrine does not bar the second action against the Lynns. We disagree.
Whether the same cause of action is alleged in the original lawsuit and the subsequent lawsuit depends upon whether the issues in the two causes of action are the same and whether the same evidence would support a recovery in both lawsuits. Dominex, Inc. v. Key, 456 So. 2d 1047 (Ala.1984). "Regardless of the form of the action, the issue is the same when it is supported in both actions by substantially the same evidence. If it be so supported, a judgment in one action is conclusive upon the same issue in any suit, even if the cause of action is different." Garris, supra, at 537 So. 2d 914 (emphasis supplied).
Here, there is no question that a recovery by the Thomases against the Lynns, whether the Lynns were acting directly and personally as the defrauding parties or were acting as principals directing the fraud through agents, would depend upon substantially the same evidence. The Thomases' allegations in the second action could have been litigated in the first action and would have been decided based on the same evidence as that to be offered in the first action. The doctrine of res judicata bars the Thomases' second action against the Lynns. Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala.1978). See, also, Garris, supra. Therefore, as to the Lynns, we affirm the dismissal.
We reach a different conclusion, however, as to the remaining defendants Forsythe Farm and Realty, Inc.; Carmichael; and Radford. In the previous action, the Thomases named as defendants only the Lynns, who were the previous owners of the land and the mobile home. The allegations of fraud contained in the Thomases' first complaint were directed solely against the Lynns, and the judgment entered in the first action was entered solely in favor of the Lynns. None of the remaining defendants were named in, nor did they participate in any way in, the first action.
The interests of Forsythe, Carmichael, and Radford were not represented (nor even referred to) by the Lynns in the previous action; therefore, the judgment for the Lynns in the first action was not based upon "substantially the same evidence" as would be necessary to support a judgment against Forsythe, Carmichael, and Radford. But more fundamentally, these parties were not parties to, nor were they in *617 privity with the parties to, the previous action. Wheeler v. First Alabama Bank of Birmingham, supra.
Forsythe, Carmichael, and Radford strongly contend that certain language in Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990), compels an affirmance of the judgment of dismissal. The language they rely upon relates to the "party identity" element of res judicata:
566 So. 2d at 725-26.
The critical language in question here is "[T]he `party identity criterion of res judicata does not require complete identity, but only that the party against whom res judicata is asserted was either a party or in privity with a party to the prior action....'"
These three appellees would have this Court apply that abstract language literally and hold that, because the plaintiffs are the same in both actions, the "party identity criterion" has been met and thus that the appellees' res judicata defense was properly sustained. Indeed, the last sentence of the above-quoted portion from Dairyland seems to support this conclusion.
The explanation for this apparent conflict is quite simple: In each of the cases using this "identity of the parties" language, the identity with respect to the party asserting the res judicata defense was not in issue.[1] To apply this "party identity" language from Dairyland in the context of the present case would be totally inconsistent with the classical statement of the res judicata doctrine, as expressed in the first sentence of the paragraph quoted from Dairyland (particularly "(3) with substantial identity of the parties").
The doctrine of res judicata (or its allied doctrine of estoppel by judgment) was incorrectly applied by the trial court to bar the Thomases' claims against Forsythe, Carmichael, and Radford; therefore, that portion of the judgment dismissing the Thomases' complaint against Forsythe Farm and Realty, Inc.; Dorothy Carmichael; and Sherry Radford, is reversed; and the cause is remanded for proceedings consistent with this Court's opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON and KENNEDY, JJ., concur.
MADDOX, J., concurs in the result.
MADDOX, Justice (concurring in the result).
I concur in the result reached in this case, not because the case upon which appellees *618 rely, Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990), is distinguishable, but because I believe that the result reached is consistent with my view of the law relating to the "identity of parties" element of the principle of res judicata that I expressed in a dissenting opinion in Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So. 2d 764 (Ala.1981). In that case, real estate franchisees brought an action in a state court, challenging, on state law grounds, advertising regulations of the Alabama Real Estate Commission. Other real estate franchisees of Century 21 had previously filed a similar action in the federal district court in Mobile. This Court held that the state action was barred by the doctrine of res judicata, because "both the federal and state claims arose from a common nucleus of operative fact; and [because] the parties to both causes were substantially identical." 401 So. 2d at 770. As I pointed out earlier, I dissented in that case, because I did not believe that the doctrine of res judicata should have applied there. It is on that basis that I concur in the result here, but I must state that I think the appellees are right when they say Dairyland supports the trial court's order, because the language in Dairyland is merely a restatement of language from Century 21 that I thought was erroneous.
The majority, responding to the appellees' argument that Dairyland is dispositive of the res judicata issue, states: "appellees would have this Court apply that abstract language literally and hold that, because the plaintiffs are the same in both actions, the `party identity criterion' has been met and thus the appellees' res judicata defense was properly sustained." 620 So. 2d at 617. The majority recognizes the Dairyland test, and, in the opinion, the majority admits that "[i]ndeed, the last sentence of the above-quoted portion from Dairyland seems to support this conclusion." 620 So. 2d at 617. The majority attempts to distinguish Dairyland, and, in a footnote to its opinion, says:
620 So. 2d at 617 n. 1.
What the majority does not say is that the holding in Whisman v. Alabama Power Co., 512 So. 2d 78 (Ala.1987), was based, in part, upon the following language from Century 21:
401 So. 2d at 770. Although I think the rule of law relating to the "identity of the parties" element of res judicata set out in Dairyland does support the appellees' argument, and that Dairyland is not distinguishable, I believe the best way to put at rest this issue is to decide that the rule of law initially set out in Century 21 was incorrect and that the successor cases of Whisman and Dairyland were likewise incorrectly *619 decided and that each should be overruled.[2]
[1] The critical language from Dairyland, as indicated therein, was quoted from Whisman v. Alabama Power Co., 512 So. 2d 78 (Ala.1987), which cited Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala.1978), which cited Geer Brothers, Inc. v. Crump, 349 So. 2d 577 (Ala.1977), which cited Suggs v. Alabama Power Co., 271 Ala. 168, 123 So. 2d 4 (1960). It is clear from the text of each of these cases that the party who asserted the res judicata defense was also a party to the prior action.
[2] I concurred in Dairyland only because it appeared to me that the rule set out in Century 21 regarding the identity-of-parties criterion was the law. I had dissented in Century 21, and also in Whisman v. Alabama Power Co., 512 So. 2d 78 (Ala.1987), which is cited in Dairyland. Having dissented twice, I thought that the law expressed in those opinions, even though erroneous, was going to be applied. Because the Court, in this opinion, reaches the result that I thought should have been reached in Century 21 and in Whisman, I concur in the judgment. | April 30, 1993 |
d1664133-05cb-497d-90d2-3a9fe68cad66 | Long v. INDUSTRIAL DEVELOPMENT BD. | 619 So. 2d 1387 | 1911891 | Alabama | Alabama Supreme Court | 619 So. 2d 1387 (1993)
Junius LONG, d/b/a Long Industrial Service, Inc.
v.
INDUSTRIAL DEVELOPMENT BOARD OF the TOWN OF VINCENT, et al.
1911891.
Supreme Court of Alabama.
May 7, 1993.
E. Paul Jones, Alexander City, for appellant.
Wanda D. Devereaux and Kathleen A. Brown of Devereaux & Associates, Montgomery; and Hewitt L. Conwill of Conwill & Justice, Columbiana, for Indust. Development Bd. of Town of Vincent, Alabama, and First Alabama Bank.
G. Daniel Brown, Alexander City, and D. Lee Roberts, Jr. of Smith, Currie & Hancock, Atlanta, GA, for H.L. Fuller Const. Co., Inc.
INGRAM, Justice.
Junius Long filed the present lawsuit against the Industrial Development Board of the Town of Vincent and H.L. Fuller Construction Company, Inc. (hereinafter "Fuller"), for the enforcement of a lien. In November 1989, the trial court granted Fuller's motion to compel arbitration and for a stay of the proceedings, pursuant to an arbitration agreement between the parties. The case was removed from the active docket and placed on the administrative docket. Long did not take the necessary steps to comply with the order to arbitrate the dispute, and in May 1992, Fuller filed a motion with the trial court to enforce its November 1989 order compelling *1388 arbitration. In July 1992, the trial court granted Fuller's motion. Long filed a notice of appeal with this Court, contending that the July 1992 order compelling arbitration was in error. He argues in his brief that this appeal was taken pursuant to 9 U.S.C. § 16.
In cases where the Federal Arbitration Act is applicable, 9 U.S.C. § 16 allows an appeal from a denial of a motion to compel arbitration. A.G. Edwards & Sons, Inc. v. Clark, 558 So. 2d 358 (Ala.1990). However, it does not allow an appeal from a grant of a motion to compel arbitration. A.G. Edwards. Rather, a petition for a writ of mandamus is the proper means to test a trial court's granting of a motion to arbitrate or the granting of a stay pending arbitration. Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So. 2d 332 (Ala.1991); Ex parte Alexander, 558 So. 2d 364 (Ala.1990).
The trial court granted Fuller's motion to compel arbitration in November 1989. The proper method of review of that decision would have been a petition for a writ of mandamus. Long had a remedy but failed to seek it; this appeal is due to be dismissed.
APPEAL DISMISSED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 7, 1993 |
52786aef-d1a1-4859-8f9a-144547894e85 | Sooudi v. Century Plaza Co. | 622 So. 2d 1275 | 1911781 | Alabama | Alabama Supreme Court | 622 So. 2d 1275 (1993)
Iradj SOOUDI
v.
CENTURY PLAZA COMPANY.
1911781.
Supreme Court of Alabama.
May 14, 1993.
Rehearing Denied June 25, 1993.
*1276 Susan S. Wagner of Berkowitz, Lefkovits, Isom & Kushner and Ruth S. Capra, Birmingham, for appellant.
Robert S. Given and Christopher W. Weller of Burr & Forman and Stephanie R. White of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellee.
STEAGALL, Justice.
Century Plaza Company sued Iradj Sooudi and G.G.I. Enterprises, Inc., seeking rent and other charges pursuant to a lease between the parties. Sooudi answered and counterclaimed, alleging promissory fraud; G.G.I. Enterprises neither answered nor otherwise appeared in the action. The trial court entered a summary judgment for Century Plaza and against Sooudi, awarding damages of $73,371.63. Sooudi filed a motion to amend the judgment, which the trial court denied; however, in response to an additional affidavit filed by Century Plaza's accountant, the trial court reduced the amount of the judgment against Sooudi to $46,931.06 to reflect the correction of an accounting error. The trial court thereafter entered a default judgment against G.G.I. Enterprises in the amount of $46,931.06. Sooudi appeals.[1]
Century Plaza owns the Century Plaza shopping mall located in Birmingham, Alabama. In November 1986, Century Plaza leased space in the mall's "food court" to G.G.I. Enterprises for the operation of a "Golden Greek" restaurant. The lease had a 10-year term commencing in February 1987; however, a rider to the lease contained a "Performance Clause," which provided:
"C. The intent of this Food Court is to provide high volume fast food services for the shoppers at Century Plaza. To that end, if Tenant does not reach a *1277 gross sales volume at the end of the third lease year which is sufficient to require tenant to pay Landlord percentage rentals, Landlord and Tenant shall each have the option for a period of 120 days after the end of the third lease year to terminate this lease on 30 days' written notice without further obligation by either party to this Lease. This option shall then be in effect at the end of each subsequent year in the same manner....
The gross sales volume sufficient to require G.G.I. Enterprises to pay percentage rentals was $325,000 for the first seven years and $367,000 for the last three years of the lease.
G.G.I. Enterprises subsequently assigned its lessee's interest to Sooudi, as its franchisee. Sooudi agreed to perform all terms, covenants, and conditions of the lease, including paying the rent, the utility charges, merchant association dues, and real estate taxes. Pursuant to the assignment, Sooudi opened a Golden Greek restaurant in the mall's food court in February 1987.
The evidence indicated that soon thereafter, he realized the food court had little customer traffic and thus attracted few customers. During 1987 and 1988, G.G.I. Enterprises and Sooudi complained to Century Plaza officers about this lack of traffic, which, they said they believed, prevented the restaurant from meeting the level of sales set out in the performance clause of the agreement. In response, Century Plaza twice reduced the amount of rent under the lease, specifically reserving the right to require Sooudi to relocate the restaurant within the mall.
In late 1988, Sooudi learned that the Century Plaza mall would undergo renovations and that the food court would be relocated to another area of the mall. In April 1989, G.G.I. Enterprises terminated the lease, based on the restaurant's failure to generate the volume of business anticipated under the performance clause. Nevertheless, Sooudi remained in possession of the restaurant premises until February 1990.
In his pleadings, Sooudi alleged that Century Plaza represented to him that the Golden Greek restaurant would have a place in the new food court if it increased its sales and that he relied on this representation in continuing to operate the business after G.G.I. Enterprises had terminated the lease. Sooudi alleged that he did not close the business until after Century Plaza had informed him he had not met the requirements of the performance clause and was thus not a candidate for the new food court. He further alleged that Century Plaza prevented him from returning to reclaim the equipment and inventory that remained on the premises.
In its motion for summary judgment, Century Plaza presented affidavit testimony from the general manager of the mall, who stated that Golden Greek closed before the renovations of the food court were complete. He further averred that Sooudi would have been offered the opportunity to relocate the restaurant into the new food court if it had remained open until the area was ready and if the restaurant had met the minimum volume of sales required. Century Plaza also presented evidence that Sooudi failed to make lease payments during the period between January 1, 1989, and February 1, 1990, and that the deficiency amounted to $38,819.06, and that it had incurred $8,112 in attorney fees in an effort to collect the rent.
To oppose Century Plaza's motion for summary judgment, Sooudi presented his own affidavit, in which he restated that Century Plaza had continuously led him to believe that his restaurant would be included in the renovation. Sooudi stated that Century Plaza did not want the restaurant to close until the renovation was complete and, therefore, did not press for rent during the 1989-90 rental period. Sooudi said he retained ownership of the failing restaurant, with reduced rent, until mid-February *1278 1992. Sooudi also stated that he attempted to sell his franchise interest in 1989, but that the manager of the mall told the potential customer not to consider buying it because "the fate of the food court was in question."
The elements of promissory fraud are (1) a misrepresentation (2) of a material existing fact (3) upon which the plaintiff justifiably relied and (4) which proximately caused damage to the plaintiff. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990). A representation regarding acts or events to take place in the future constitutes fraud only if, at the time the statement is made, the party making the statement intends to deceive. Hanners.
Other than the statements made in his own affidavit, however, Sooudi presented no evidence to show that Century Plaza misled him and thereby caused him to believe that his restaurant would be included in the new food court. In his pleadings, Sooudi alleged that Century Plaza promised him that Golden Greek would be included if its sales increased, and Century Plaza did not dispute that it made this conditional promise. Sooudi presented no substantial evidence to show that Century Plaza did not intend to keep its promise if he had met the condition, which he undisputedly did not meet. Likewise, Sooudi presented no evidence other than his own statements to prove that Century Plaza hampered his attempts to sell the business; he offered no statement from the potential customer or the Century Plaza mall manager to corroborate his assertions. To support his claim that Century Plaza wrongfully seized his equipment and inventory from the restaurant, Sooudi presented a letter from SouthTrust Bank; that letter, however, shows only that he borrowed $93,700 from the bank "for the purpose of purchasing a business." There is no evidence to show what portion of the loan proceeds was applied to the purchase of equipment and inventory or to show the depreciated value of the equipment and inventory. Sooudi did not even present a list of the equipment that he bought or any other evidence to indicate what items he left behind at the restaurant.
It is well established that if the party moving for a summary judgment makes a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law, then the burden of proof shifts to the nonmovant, who must produce "substantial evidence" that creates a genuine issue of material fact or shows that the movant is not entitled to a judgment as a matter of law. Brigman v. Dejute, 593 So. 2d 51 (Ala.1991). Under Rule 56(e), A.R.Civ.P., evidence offered in response to a motion for summary judgment, in the form of affidavits or otherwise, must be more than a mere verification of the allegations contained in the pleadings and must present facts that would be admissible into evidence. Schroeder v. Vellianitis, 570 So. 2d 1220 (Ala.1990). Affidavits must contain statements based upon the personal knowledge of the affiant, and mere speculation and statements of subjective beliefs are not the equivalent of personal knowledge. Black v. Reynolds, 528 So. 2d 848 (Ala.1988). Affidavits making vague, general assertions do not fulfill the requirements of Rule 56(e). Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala. 1989).
In this case, Sooudi presented little more than his own subjective affidavit and general pleadings to support his claims. This is not substantial evidence of the elements of promissory fraud; thus, the court properly determined that Sooudi failed to meet the burden of proof necessary to defeat Century Plaza's properly supported motion for summary judgment. The trial court's judgment is therefore affirmed.
[1] G.G.I. Enterprises, Inc., is not a party to this appeal. | May 14, 1993 |
cd886da1-0ba5-43f3-b83b-a4678332875b | Ex Parte Spears | 621 So. 2d 1255 | 1920129 | Alabama | Alabama Supreme Court | 621 So. 2d 1255 (1993)
Ex parte Thomas Wayne SPEARS.
(In re State of Alabama v. Thomas Wayne Spears).
1920129.
Supreme Court of Alabama.
April 30, 1993.
Rehearing Denied June 4, 1993.
James E. Kimbrough, Jr., Mobile, and Stuart C. DuBose, Jackson, for petitioner.
James H. Evans, Atty. Gen., and Robert C. Ward, Jr., Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
Thomas Wayne Spears petitions for a writ of mandamus directing District Judge D.P. Scurlock III, sitting by designation as a circuit judge in the First Judicial Circuit, to grant Spears's motion for a new trial, under Rule 15.4, Ala.R.Crim.P., on his plea of double jeopardy. The writ is denied.
*1256 Spears was indicted for murder. Shortly after his trial began, one of the prosecuting attorneys made a comment to a reporter, in violation of a "gag order" restricting public comment concerning the case. That order had been imposed on the attorneys by presiding Circuit Judge Hardie Kimbrough. The violation of this order prompted Judge Kimbrough to grant Spears's motion for a mistrial and to recuse himself from further proceedings connected with the case.[1] The case was subsequently assigned to Judge Scurlock. Spears thereafter moved to dismiss the indictment on the ground that a retrial would violate his constitutional right not to be placed in jeopardy twice for the same offense. Relying on Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), Spears alleged that the prosecutor had intended to provoke a mistrial when he violated Judge Kimbrough's "gag order," and he requested a jury trial on the question of the prosecutor's intent. The court empaneled a jury to consider that question, pursuant to Rule 15.4; however, Judge Scurlock directed a verdict for the state at the close of Spears's case, holding that there was insufficient evidence to submit the question of the prosecutor's intent to the jury.
The court denied Spears's motion for a new trial. Spears petitioned the Court of Criminal Appeals for a writ of mandamus directing Judge Scurlock to grant his motion; that court on October 16, 1992, denied the petition without opinion. 614 So. 2d 1069. He then sought mandamus review in this Court. See Rule 21, A.R.App.P.
"Originally, the function of the writ [of mandamus] was to compel judicial action but not to correct errors or direct what particular judgment or decree should be rendered." Ex parte Weissinger, 247 Ala. 113, 118, 22 So. 2d 510, 515 (1945). However, as Justice Simpson noted in Ex parte Weissinger:
247 Ala. at 118-19; 22 So. 2d at 515.
It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued. Ex parte Fowler, 574 So. 2d 745 (Ala.1990). However, this Court, exercising its discretion, has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent "undue injury." See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912 (Ala.1991) (mandamus proper to review discovery rulings); Ex parte Insurance Co. of North America, 523 So. 2d 1064 (Ala.1988) (mandamus proper to enforce a trial court's compliance with this Court's mandate); Ex parte Rush, 419 So. 2d 1388 (Ala.1982) (mandamus proper to enforce a statutory or constitutional right to a jury trial); Ex parte Weissinger, supra (mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So. 2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So. 2d 432 (1955), and the cases cited therein. The rationale underlying the recognition of these exceptions has not always been crystal clear. For example, the remedy by appeal that will make mandamus review unavailable was described by this Court in one case as "one competent to afford relief *1257 on the very subject matter in question, and which is equally convenient, beneficial, and effectual." See East v. Todd, 284 Ala. 495, 499, 226 So. 2d 153, 156 (1969). Matters of expense and public interest have also been considered important factors in some cases. See, e.g., Ex parte Weissinger, supra. On the other hand, in Ex parte Moss, 278 Ala. 628, 179 So. 2d 753 (1965); and Ex parte Brooks, supra, this Court stated that expense and inconvenience were not controlling in determining whether a party had an adequate remedy by appeal.
In this case we need not survey the law of mandamus so as to search out and reconcile inconsistencies that may exist. Suffice it to say that it was never generally contemplated that questions arising during the progress of a trial, ultimately reviewable on appeal, should be determined by an appellate court on petition for a writ of mandamus, in advance of a final judgment. Ex parte Taylor, 236 Ala. 219, 181 So. 760 (1938). In Ex parte Nice, 407 So. 2d 874 (Ala.1981), this Court indicated that only the rarest of circumstances merits an intervention in a criminal case by mandamus. However, because this court has "permitted a liberal enlargement of the use of the writ" by recognizing, on occasion, certain exceptions to the general rule, we have examined the present case to see if it fits within any of those exceptions. We conclude that it does not.[2]
Spears is attempting by his petition to obtain appellate review of an interlocutory order rejecting his plea of double jeopardy. He is not seeking an order directing the trial judge to recognize a statutory or constitutional right to a trial by jury, so as to bring this case within the exception recognized in Ex parte Rush, supra. The record does not indicate that Spears is incarcerated; thus, he does not invoke the exception recognized in Smith v. State, 447 So. 2d 1334 (Ala.1984). In Smith, this Court held that the Court of Criminal Appeals had properly issued a writ of mandamus directing the trial judge to correct an erroneous sentence even though the defendant had appealed his case, where the defendant had been improperly sentenced to 45 years of imprisonment and, because of the length of his sentence, was not entitled to apply for bail pending his appeal. But see Ex parte Busby, 276 Ala. 680, 166 So. 2d 408 (1964), where the petitioner, an inmate, was denied mandamus review on the ground that he could have appealed the trial court's denial, without a hearing, of his petition for a writ of error coram nobis. Neither does this case involve a judicial usurpation of power or a gross disruption in the administration of criminal justice. See Ex parte Nice, supra. To the contrary, this case is materially indistinguishable from Ex parte Fowler, supra, in which the defendant in a criminal case sought a writ of mandamus directing the trial judge to grant her motion for a change of venue on the ground of prejudicial pretrial publicity, and Ex parte Pickett, 46 Ala.App. 227, 239 So. 2d 900 (1970), in which the defendant sought a writ of mandamus directing the trial judge to vacate his order denying two pretrial motions to suppress evidence. In each of those cases, the defendant claimed to have received *1258 an adverse pretrial ruling and, although an erroneous ruling by the trial judge would have resulted in an expensive and unnecessary trial, mandamus review was denied on the ground that the petitioner had an adequate remedy by appeal from a final judgment.
After carefully reviewing Spears's petition, his brief in support of the petition, and the state's brief in response, we conclude that Justice Mayfield's comments in Brittain v. Jenkins, supra, are equally appropriate in the present case:
263 Ala. at 684-85, 83 So. 2d at 433-34.
The tendency of this Court in the past has been to enlarge the scope of the extraordinary writ of mandamus by recognizing certain exceptions to the general rule that orders ultimately reviewable on appeal from a final judgment are not subject to mandamus review. However, we should not continue to decide cases in a piecemeal fashion. For this reason, mandamus review will generally be restricted in the future to those cases where one of the recognized exceptions applies, or to those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment.
If Spears is retried and convicted for the offense stated in the indictment, he can appeal his conviction to the Court of Criminal Appeals and, if he is not satisfied with the judgment of that court, he can petition this Court for certiorari review pursuant to Rule 39, A.R.App.P. These remedies are adequate; therefore, a petition for a writ of mandamus is not an appropriate means of reviewing the trial judge's order in this case.
WRIT DENIED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
*1259 ALMON, J., concurs in the result.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The majority concludes that Thomas Wayne Spears is not entitled to a writ of mandamus to review the order of the trial judge denying his motion for a new trial, under Rule 15.4, Ala.R.Cr.P., on the question whether the indictment should be dismissed on double jeopardy grounds.
I believe that the majority errs for at least two reasons:
Rule 1.2, Ala.R.Cr.P., states that "[the Rules of Criminal Procedure] are intended to provide for the just and speedy determination of every criminal proceeding," and provides that "[t]hey 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." Rule 1, Ala. R.App.P., provides, similarly, that 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."
Although I recognize that this Court, in adopting the Rules of Criminal Procedure and the Rules of Appellate Procedure, did not intend to set aside all the rules of appellate practice that had governed this Court's use of its supervisory power, it appears to me that this Court, by adopting Rule 1.2, Ala.R.Cr.P., and Rule 1, Ala. R.App.P., intended that decisions on procedural matters, both in the trial court and in the appellate courts, should be based on considerations of what would be the least time-consuming, the least expensive, and the most just.
If we applied those principles of procedural law to the facts of this case, we would not wait to see if Spears is convicted and then review his double jeopardy claim on an appeal from his conviction. We would, clearly, review his constitutional claim now, because the trial court has already convened a jury to determine some factual issues, as it was permitted to do under the provisions of Rule 15.4,[3] and we have before us a record of the proceedings in regard to those issues. Consequently, we have all that we need to decide the constitutional issue of double jeopardy that Spears raised in the trial court and before the Court of Criminal Appeals in his petition for the writ of mandamus.
Although I recognize that a supervisory writ should not be substituted for an appeal, I believe we should construe our Rules of Criminal Procedure and Rules of Appellate Procedure to permit criminal defendants, like Spears, who seek to present only a legal issue and who can present an adequate record, to use the extraordinary writ process to get review of trial court proceedings without having to wait for the conclusion of the case in the trial court. We provide for such a review in civil cases by permitting an appeal of an interlocutory order. See Rule 5, Ala.R.App.P., "Appeal *1260 by Permission." In interlocutory appeals in civil cases, there is no requirement that the petitioner meet the stringent requirements of extraordinary writ practice of showing a clear, legal right to the relief sought and showing that the issue cannot be presented on appeal.
I think that the majority is applying the old standard to this case, and has not considered the requirements of Rule 1.2, Ala. R.Cr.P., and Rule 1, Ala.R.App.P.
In Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the petitioner was permitted, in a State court, to raise his double jeopardy claim by use of an extraordinary writ, and this Court, in Ex parte Coleman, 584 So. 2d 455 (Ala.1991), on a petition for a writ of prohibition, reviewed a criminal defendant's double jeopardy claim. The report of the case does not show whether the State challenged the petitioner's right to review the interlocutory order in that case, but, to me, it would seem that whether the State raised such an issue would make no difference.
In Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977), the United States Supreme Court held that an interlocutory appeal can be taken from a pretrial order rejecting a claim of former jeopardy. The Court, in an opinion by Chief Justice Burger considering the interests protected by the Double Jeopardy Clause, said:
431 U.S. at 660-62, 97 S. Ct. at 2040-42, 52 L. Ed. 2d at 660-62 (emphasis in original) (footnotes omitted). In this case, this Court's holding, that an adequate remedy is afforded by a direct appeal from a conviction, is in irreconcilable conflict with the interest protected by the Double Jeopardy Clause and recognized in Abney. The remedy by appeal is in reality no remedy at all, since it still forces the defendant "to endure a trial that the Double Jeopardy Clause was designed to prohibit." 431 U.S. at 662, 97 S. Ct. at 2041. Therefore, a pretrial petition for a writ of mandamus is the only means available through which a defendant's rights under the Double Jeopardy Clause can be protected, because the remedy by appeal is inadequate to prevent undue injury; therefore, the well-established test as to whether the writ of mandamus will be issued has been met.
Moreover, the use of an extraordinary writ to review a double jeopardy claim before trial is no novelty in state court practice. See, Harris v. Washington, 404 U.S. 55, 92 S. Ct. 183, 30 L. Ed. 2d 212 (1971); Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990).
It is a matter of legitimate concern that a remedy by petition for writ of mandamus may be abused by defendants. Plainly, a defendant should not be permitted to obtain a dilatory continuance of his trial simply by filing a frivolous double jeopardy claim and appealing its denial. However, as the Abney Court pointed out, "It is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims of former jeopardy." 431 U.S. at 663 n. 8, 97 S. Ct. at 2042 n. 8, 52 L. Ed. 2d at 662 n. 8.
In this regard, the procedure utilized by the Eleventh Circuit Court of Appeals is instructive. See, United States v. Farmer, 923 F.2d 1557 (11th Cir.1991). Under that procedure, if the trial court makes a written finding that the double jeopardy claim is frivolous or dilatory, the trial court is not divested of jurisdiction when the defendant appeals the denial of his double jeopardy challenge, and the trial can proceed. Id. at 1565. If the trial court makes no such finding, the trial is stayed pending the outcome of the interlocutory appeal. Id. If a trial court does make such a finding, the defendant's interests are still protected, because he can request an appellate stay of the retrial. Id. The appellate court will rule on the district court's written finding by ruling on the request for a stay. Id. See also, United States v. Dunbar, 611 F.2d 985 (5th Cir.1980), wherein the old Fifth Circuit Court of Appeals had adopted an identical procedure.
Spears presents a substantial question of constitutional law in his petition, but I do not address his claim on the merits. Even if the majority agreed to consider the merits of his case, he might not get the relief he seeks. The petitioner in Ex parte Coleman did not get the relief he sought, but he at least got the legal issue settled before he was tried. To require Spears to go to trial without a resolution of his constitutional claim seems to violate the governing *1262 spirit of the rules. I must, therefore, respectfully disagree with my colleagues.
I suggest, in closing, that we at least should consider amending Rule 5, Ala. R.App.P., to permit appeals by permission in criminal cases where substantial issues of law are presented, as they are in this case, and where a quick appellate resolution of those issues could materially speed up the final disposition of the case.
[1] Judge Kimbrough stated that he was uncomfortable proceeding with the trial because he anticipated participating in future disciplinary proceedings against the prosecuting attorney.
[2] In Ex parte Sharpe, 513 So. 2d 609 (Ala.1987), the petitioner moved to dismiss the indictments against him on the ground that they had been returned by a special, but unauthorized, grand jury. The trial court denied the motion. The Court of Criminal Appeals issued a writ of mandamus directing the trial court to grant the motion. The state sought certiorari review, and we reversed the judgment of the Court of Criminal Appeals on the ground that the petitioner had not complied with the requirements of Rule 21, Ala.R.App.P. In Ex parte Bell, 511 So. 2d 519 (Ala.Crim.App.1987), the petitioner sought a writ of mandamus directing the trial court to dismiss the indictment against him on the ground that a retrial would constitute double jeopardy. He also sought to prohibit the state from seeking to impose the death penalty on his retrial, and to require the appointment of new counsel to represent him. The Court of Criminal Appeals, without discussing the requirements for issuing a writ of mandamus, rejected the petitioner's double jeopardy argument, as well as his request for the appointment of new counsel. The court did issue a writ preventing the state from seeking the imposition of the death sentence. We do not consider either of these cases, or any of the cases that our research has disclosed, to be direct or persuasive authority for the proposition that a ruling on a motion to dismiss an indictment on double jeopardy grounds should be reviewable on a petition for a writ of mandamus.
[3] Rule 15.4 provides:
"(a) Determination of Motions. A motion raising defenses or objections made before trial pursuant to this rule shall be determined before trial, unless the court for good cause orders that it be deferred for determination at the trial on the merits.
"(b) Jury Trial. Unless a jury trial of an issue of fact raised by the motion is waived, such issue shall be tried by a jury if a jury trial is constitutionally required.
"(c) Court Trial. All other issues of fact raised by the motion shall be determined by the court without a jury in such manner as the court may direct." | April 30, 1993 |
0220e80d-4871-4d3a-9603-6a75ae12b2d7 | Wayne J. Griffin Elec. v. Dunn Const. | 622 So. 2d 314 | 1920264 | Alabama | Alabama Supreme Court | 622 So. 2d 314 (1993)
WAYNE J. GRIFFIN ELECTRIC, INC., et al.
v.
DUNN CONSTRUCTION COMPANY, et al.
1920264.
Supreme Court of Alabama.
April 30, 1993.
Rehearing Denied June 11, 1993.
*315 Edward P. Meyerson and Hub Harrington of Najjar Denaburg, P.C., Birmingham, for appellants.
William R. Lucas, Jr. and William H. Brooks of Lightfoot, Franklin, White & Lucas, Birmingham, for Dunn Const. Co., Inc., Federal Ins. Co., Tim Mitch, Donald Parks and Rayford Smith.
Thomas L. Stewart and Graham L. Sisson, Jr. of Gorham & Waldrep, P.C., Birmingham, for Birmingham-Jefferson Civic Center Authority.
HOUSTON, Justice.
On May 10, 1990, Dunn Construction Company, Inc., as general contractor, entered into a contract with the Birmingham-Jefferson Civic Center Authority ("the Authority") for construction of the Authority's East Complex project. Thereafter, Wayne J. Griffin Electric, Inc., Guin Company, Inc., and Steel City Erection Company, *316 Inc., entered into separate subcontracts with Dunn for work to be performed on the project. After substantially completing the project, each subcontractor submitted to Dunn a one-page release; the language in each release was identical and the release provided, in part, as follows:
"APPLICATION FOR PAYMENT AND PARTIAL RELEASE OF LIEN"
(Emphasis added.) Each release was signed by an authorized officer of the respective subcontractor,[1] and each release was sworn to and notarized. Before executing the releases, none of the officers who signed the releases discussed the releases with anyone at Dunn or with anyone from their respective companies, and two of the officers testified that they did not even read the releases before signing them. No exceptions were noted on the releases.
Several weeks after the project was completed, each subcontractor submitted to Dunn, for the first time, claims for extra compensation for alleged delays, which had occurred before the execution and submission of the releases. The subcontractors also gave notice of their intent to file, and then did file, liens on the property. Subsequently, Dunn sued for a judgment declaring that the general releases barred the subcontractors' claims. The Authority moved to intervene as a plaintiff, seeking a similar declaratory judgment.
Dunn and the Authority moved for summary judgments, which the trial court entered "to the extent of the releases being enforceable in accordance with their terms excluding retainage and amounts due under the contract for work done after the last release and including change orders agreed to by the parties." The subcontractors appeal. We affirm.
According to the subcontractors, the trial court erroneously found that the language of the releases was unambiguous, as a matter of law, and improperly construed the submission of a routine application for payment and partial release of lien as a full release of all claims. They maintain, among other things, that the title of the release ("APPLICATION FOR PAYMENT AND PARTIAL RELEASE OF LIEN") "compels the court to find the release itself is ambiguous." They also maintain that the trial court erred in failing to consider evidence that the execution of the document was fraudulently induced.
A summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. See Bechtel v. Crown Cent. Petroleum Corp., 495 So. 2d 1052 (Ala. 1986). This case was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule. See West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala.1989); Ala.Code 1975, § 12-21-12.
The threshold questionwhether a release is ambiguousis a question of law to be decided by the Court, see, Baker v. Blue Circle, Inc., 585 So. 2d 868 (Ala. 1991). If the Court finds the release to be unambiguous, then the construction and legal effect of the release are questions of *317 law, which, under appropriate circumstances, may be decided on a motion for summary judgment. See, Baker v. Blue Circle, Inc., supra. However, if the Court determines that the terms of the document are ambiguous in any respect, then the true meaning of the document becomes a question for the factfinder. See, e.g., McDonald v. U.S. Die Casting & Development Co., 585 So. 2d 853 (Ala.1991).
The mere fact that the parties argue different constructions of the document does not force the conclusion that the disputed language is ambiguous, see, Englund's Flying Service, Inc. v. Mobile Airport Authority, 536 So. 2d 1371 (Ala.1988). Rather, a document is unambiguous if only one reasonable meaning emerges, see Reeves Cedarhurst Development Corp. v. First Amfed Corp., 607 So. 2d 184 (Ala. 1992). Furthermore, the designation that a party gives to an instrument, i.e., the title of a document or the caption of a provision, does not alter the meaning of the contents of the documentit does not control the interpretation or construction of the document, the legal effect of the document, or the relationship of the parties; and it does not determine the nature or character of the document. See 17A C.J.S. Contracts § 294, pp. 40-41 (1963). Rather, the written instrument must be construed in its entiretysingle provisions or sentences are not to be disassociated from others referring to the same subject matter. See, e.g., Englund's Flying Service, Inc., supra.
Thus, absent fraud, a release, supported by valuable consideration and unambiguous in meaning, will be given effect according to the intention of the parties from what appears in the four corners of the document itself; and parol evidence is not admissible to impeach or vary its terms. See, Cleghorn v. Scribner, 597 So. 2d 693 (Ala. 1992); Whitman v. Walker County Bd. of Education, 591 So. 2d 481 (Ala.1991); Alabama Farm Bureau Ins. Co. v. Hunt, 519 So. 2d 480 (Ala. 1987); Baker v. Ball, 473 So. 2d 1031 (Ala.1985). See, also, Ex parte Aratex Services, Inc., 622 So. 2d 367 (Ala.1993).
That is, in ascertaining the intent of the parties, the plain and clear meaning of the terms of the document must be given effect, and the parties must be presumed to have intended what is plainly and clearly set out in that document. See Nix v. Henry C. Beck Co., 572 So. 2d 1214 (Ala. 1990).
Construing the releases in their entirety, we find no ambiguity. Furthermore, the subcontractors presented no evidence that they were fraudulently induced into executing the releases. Therefore, because the releases are unambiguous and because there is no evidence of fraud, we must look to what appears on the face of the documentsto the clear and plain words of the releasesin order to give the releases effect according to the intentions of the parties; and parol evidence is inadmissible to impeach the terms of the releases.
The plain and ordinary meaning of the words in the releases executed by the subcontractors is to relieve Dunn and the Authority from "any and all claims" the subcontractors may have that in any way relate to the construction "through the date of execution of [the release]." If the parties had intended to limit the releases, they could have specifically done so. However, having not expressly limited the releases, the subcontractors cannot now assert an intent not found within the four corners of the document.
The summary judgment for Dunn and the Authority was proper.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] The releases submitted to Dunn were dated December 13, 1991 (Griffin); January 23, 1992 (Guin); and January 6, 1992 (Steel City). Subsequently. Griffin executed and submitted another release to Dunn dated March 31, 1992. | April 30, 1993 |
d3aa5f4c-8b47-458f-8bc3-0f70c3be79b3 | Fulton v. Callahan | 621 So. 2d 1235 | 1910611 | Alabama | Alabama Supreme Court | 621 So. 2d 1235 (1993)
Thomas W. FULTON, et al.
v.
H.L. CALLAHAN.
1910611.
Supreme Court of Alabama.
April 16, 1993.
Rehearing Denied June 4, 1993.
*1237 Brock B. Gordon, E. Watson Smith and Alan C. Christian of Johnstone, Adams, Bailey, Gordon and Harris, Mobile, for appellants.
Jerry A. McDowell and David R. Quittmeyer of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
ALMON, Justice.
The individual defendants, majority shareholders and directors of The Finch Companies, Inc. ("the corporation"), appeal from a judgment awarding the plaintiff, H.L. "Sonny" Callahan, a minority shareholder and director, $3,927,500 in compensatory and punitive damages and appointing a receiver and a new board of directors. The defendants were the corporation and the appellants Thomas W. Fulton, Daniel R. Fulton, Samuel C. Fulton, and Elizabeth J. ("Betty Jo") Fulton. Betty Jo is the daughter of Thomas W. Finch, founder of the warehousing and transfer business that became The Finch Companies, Inc., in 1985. She is the wife of Samuel C. Fulton; Thomas W. Fulton and Daniel R. Fulton are their two sons. Sonny Callahan and Betty Jo Fulton are first cousins.
All of the Fultons are members of the board of directors of the corporation. Together they own 51% of the outstanding shares. Sonny Callahan and his son Scott Callahan are both directors; together they own 49% of the shares.[1]
*1238 Callahan brought an action for compensatory and punitive damages, alleging negligent and wanton breach of fiduciary duty and conspiracy to commit these alleged wrongs. Callahan also sought compensatory and punitive damages for intentional depreciation of the company's stock in violation of § 10-2A-71, Alabama Code 1975. In addition, Callahan sought an injunction, a declaratory judgment, an accounting concerning Callahan's "advance account," and the appointment of a receiver pursuant to § 10-2A-195, Alabama Code 1975. The corporation counterclaimed, alleging that Callahan was liable to the corporation for the unpaid amount of $399,650.50 on an advance account.[2]
The jury returned a verdict in favor of Callahan, awarding him $2,927,500 in compensatory damages and $1,000,000 in punitive damages. After entering a judgment on the verdict, the trial court considered Callahan's equitable claims. After adopting the jury's advisory findings that the Fultons' conduct had been oppressive and that the Fultons had misapplied and wasted the corporate assets and after making its own finding of a breakdown of the corporate "entente cordiale,"[3] the trial court held that Callahan was entitled to equitable relief. The trial court removed the existing board of directors, appointed a receiver and a new board of directors to manage the corporation, and ordered the new board to submit a plan of liquidation.
The Fultons raise a number of issues on appeal, including whether the evidence was sufficient to support a claim of intentional stock depreciation as defined in § 10-2A-71, whether the court erred in denying the motion for new trial on the ground of juror misconduct, and whether the court properly awarded equitable relief.
This litigation stems from a dispute between majority and minority shareholders of a closely held family corporation. Because sufficiency of the evidence is at issue, a detailed factual statement is necessary.
The Mobile warehousing and moving business that became The Finch Companies, Inc., was founded as a proprietorship in 1933 by Thomas W. Finch. Thomas W. Finch was Betty Jo's father and Callahan's uncle. In 1957 Mr. Finch incorporated his business, forming two corporations: Finch Realty Company and Finch Warehouse and Transfer Company, Inc. The former owned the real estate; the latter operated the business. When Callahan was 13 years old, he came to live with Thomas W. Finch and his wife, who reared him as a son. Thus, although they were cousins, the relationship of Callahan and Betty Jo was more like that of brother and sister. As they were growing up, both Betty Jo and Callahan worked in the family business. After graduating from high school and spending two years in the United States Navy, Callahan returned and began working in the business as a dispatcher.
In 1964 Mr. Finch died. Callahan, who at the time of Mr. Finch's death was assistant vice president, became president and *1239 chief executive officer of both corporations. During Callahan's presidency the business was successful and grew. Operations expanded to Montgomery and Birmingham. Between 1964 and 1985, five new warehouses were built or acquired, increasing the amount of warehousing space used in the business from 50,000 square feet to 650,000 square feet. Callahan also formed two new corporations: Great Southern Corporation and Furniture Leasing Concepts, Inc.
During these years, Callahan and the Fultons established two practices. First was the annual distribution of substantially all the earnings and profits of the business. Because the shareholders were also employees, these distributions took the form of salaries and bonuses. The purpose of this arrangement was to avoid the disadvantageous tax consequences of distributing the earnings and profits of the business to the shareholders in the form of dividends. Second was the practice of maintaining "advance accounts" for directors and officers. Before 1985, Callahan, Betty Jo, Mrs. Finch, and Samuel Fulton (Betty Jo's husband) each maintained draw or advance accounts. These accounts allowed them to withdraw money during the year. At the end of the year, the accounts would be credited with whatever bonuses were declared. If such bonuses were insufficient to cover the advance account, then the negative balance was carried over to the next year.
In 1984 Callahan was elected to the United States House of Representatives. Because of strict limits on outside earned income imposed by ethics rules of the House of Representatives, Callahan proposed that the business reorganize and become a Subchapter S Corporation. The Fultons agreed, and four corporations (Finch Realty Corporation, Finch Warehousing and Transfer Company, Inc., Great Southern Corporation, and Furniture Leasing Concepts, Inc.) were consolidated into one corporation called The Finch Companies, Inc. The Callahans and the Fultons elected to make the new corporation a Subchapter S corporation. Unlike a Subchapter C corporation, corporate earnings in an S-corporation pass through and are taxed directly to the shareholders at individual rates. Shareholders of an S-Corporation are taxed on their proportionate shares of the corporation's earnings, regardless of whether the directors declare any dividends. Thus, under this new arrangement Callahan would receive unearned income from the business in the form of dividends taxed to him but not to the corporation.
As part of an agreement between the Callahans and the Fultons, Callahan stepped down, and Betty Jo's son Thomas W. Fulton ("Thomas") became president of the newly consolidated corporation. The parties agreed that the Fultons would hold a 51% majority of all the shares of the corporation and that the Callahans would hold 49%. The Fultons and the Callahans also agreed to require Callahan's approval for any capital expenditure in excess of $5,000. Other aspects of the agreement, however, were disputed at trial. Callahan testified that he and Betty Jo orally agreed that each year all the earnings and profits of the corporation would be distributed as dividends to the shareholders. Betty Jo denied any such agreement. Undisputed, however, was testimony showing that all of the corporation's profits for 1985, 1986, and 1987 were distributed automatically without formal action on the part of the board of directors.
During the first three years that followed the consolidation, relations between Callahan and the Fultons were generally amicable. These were the most profitable years the business had ever known. In a January 1988 board meeting, Thomas proposed that the business expand from warehousing and local drayage into long-haul freight. After reviewing earnings projections prepared and presented by Thomas at the February 1988 meeting, the board unanimously approved the plan. Based on his own investigation and consultation with others in the long-haul freight business, Thomas estimated that with five tractors and eight trailers, the trucking division would generate first-year earnings of $37,599. Although initially opposed to the idea, *1240 Callahan voted in favor of the proposal after receiving assurances from Thomas that losses would not exceed $50,000. Thomas also agreed in January 1988 that if the venture did not succeed, he would shut it down.
After the decision in 1988 to enter the long-haul freight business, relations between Callahan and the Fultons began to deteriorate, along with the financial strength of the business. Losses from the trucking division mounted. Callahan continued his practice of taking large withdrawals on his advance account, and Callahan and the Fultons initiated difficult negotiations for the buy-out of Callahan's shares.
Contrary to Thomas's projections, the plan to enter the long-haul freight business turned out disastrously. From the beginning, the trucking division suffered heavy losses. By April 1989, after 10 months of operation, the trucking division had lost $77,449. Notwithstanding such losses, in 1989 Thomas leased 20 more trucks and additional trailers.
By the end of 1989 the trucking division had lost $300,000. In a business plan prepared by Thomas and presented to the board in February 1990, Thomas projected, based on 1989 information, that the trucking division would have net profits of $88,612 in 1990, $148,000 in 1991, and $213,000 in 1992. The division, however, lost approximately $300,000 in 1990. At trial, Thomas testified that he expected the division to lose around the same amount in 1991. By September 1991, after roughly three years of operation, cumulative losses from the trucking division had reached $950,000.
In the February 1990 board meeting, Callahan pleaded with the Fultons to get out of the trucking business. The Fultons considered a plan to shut down the division by buying out the leases and selling the equipment. The corporation had acquired its trucks under leases having terms generally between four and five years. When Thomas negotiated these leases, however, he did not include any contractual way of getting out of them before their terms had expired. Thus, when faced with persistent losses, the corporation could not shut the trucking division down without buying out the leases and selling trucks. Because the market was at that time glutted with trucking equipment, Thomas estimated, in a report to the board in 1990, that if the corporation bought out the leases on the trucks and sold them, it would sustain a loss of $300,000.[4] Later that year, in an internal business plan, it was estimated that as of October 30, 1990, it would cost $700,000 to buy out the leases. In the judgment of the Fultons, however, it was better to try to conduct the trucking business at a profit, or at least at lower levels of loss, until the lease terms expired than to try to sell the trucks and trailers at such a loss in an equipment-laden market. At the February 1990 board meeting, Callahan made a motion to look for means to separate the trucking division from the corporation. Asserting that this proposal was impracticable, the Fultons voted it down.
After the 1985 consolidation, Callahan began making large withdrawals from his advance account. In July 1985, immediately after the consolidation, Callahan's draw account had a negative balance of $144,381. Callahan withdrew $49,776.12 in 1985 and $156,155.52 in 1986. Callahan's share of net earnings, however, was only $15,496.41 in 1985 and $72,690.00 in 1986. Thus, although Callahan's share of distributed earnings was credited each year to his advance account, the deficit increased. The Fultons thought the withdrawals were excessive and told Callahan that they could not continue. At the January 1988 meeting of the board of directors, the Fultons informed Callahan that he would have to *1241 limit his withdrawals to $10,000 per month. Callahan, however, withdrew $214,290 in 1988. His share of distributed earnings for the year was $188,175. This practice continued, and when this action was filed, the negative balance in Callahan's advance account had reached $416,939.
When the Fultons informed Callahan at the January 1988 meeting that he would have to limit his draws to $10,000 a month, Callahan told them that he wanted to be bought out. Shortly after this meeting, Thomas sent a letter to one of the corporation's attorneys authorizing him to represent Callahan in the buy-out negotiations. Against the background of escalating losses in the trucking division and increasing financial difficulty, there followed a series of offers and counteroffers in which the principal dispute was the value of Callahan's shares.
In April 1988, Callahan proposed that the two families value Callahan's shares at $3,662,753. Callahan based this estimate on the average of two sums arrived at by employing a capitalized income valuation approach and a net asset value valuation approach. In July 1988 Thomas responded with a valuation of $620,605 and a net cash offer of approximately $600,000, representing $1,000,000 less the deficit balance in Callahan's advance account. The Fultons arrived at their valuation by averaging the net income of the three most profitable years the corporation had ever known (a $101,000-per-year average) and calculating the present value of a stream of such income over a 10-year period. The Fultons thus calculated Callahan's shares to be worth about $620,605. In making their net cash offer, they then increased this figure to $1,000,000. Callahan did not accept, and Thomas withdrew the offer in August 1988.
At the January 1989 board meeting, Callahan and the Fultons disputed whether corporate income, upon which Callahan had paid income taxes, was his personal property before the actual declaration of a dividend. Until the parties could obtain legal advice, action was postponed until May 1989. It was subsequently determined that no shareholder was entitled to S-corporation earnings and profits until the board declared a dividend.
At the May 1989 meeting, over Callahan's objection, the Fultons voted to distribute 100% of the proceeds from the recent sale of a capital asset, but only 50% of the corporation's earnings. This decision was made retroactive to 1988. In addition, the Fultons voted to require that dividends be applied to outstanding balances on advance accounts and to allow advances in the future only for the purpose of paying taxes on corporate income. However, the board did approve an $80,000 loan to Callahan for the first five months of 1989. Because of the large deficit in Callahan's advance account, the effect of these decisions after 1989 was to prohibit Callahan from receiving any more dividend distributions or taking any more advances, other than those necessary to pay taxes. The Fultons also voted to charge Callahan interest on the outstanding balance of his advance account.
At the May 1989 meeting Callahan learned that, without formal board approval, the corporation had obtained a bank loan of $57,000 and had signed a lease costing $646,260. Thomas and Betty Jo had signed and delivered resolutions stating that at a meeting the board had approved the loan and lease in question, even though no such meeting ever took place. On cross-examination, however, Callahan admitted that during his presidency, he and Betty Jo routinely signed such resolutions authorizing various corporate actions notwithstanding the absence of formal board approval. Over Callahan's objection at the May 1989 meeting, the board authorized Thomas to borrow an amount not to exceed $100,000 and authorized Thomas and Betty Jo to borrow sums exceeding $100,000.
At the May 1989 board meeting, Callahan also became aware of an investment account opened by Thomas for surplus corporate funds. As with other transactions during this period, the Fultons established the account after submitting to Morgan Keegan & Company, Inc., a resolution signed by Thomas and Betty Jo stating *1242 that at a meeting the board had authorized the establishment of the account. No such authorization at a meeting, however, had been given. Over the life of the account Thomas invested $165,982 in corporate funds, for a total loss of $70. Some of the investments were made on a margin, which at times equalled $121,732. At trial Callahan introduced expert testimony indicating that it was very unusual for a corporation to make investments of corporate surplus on margin.
After the May 1989 board meeting, the buy-out negotiations continued. In September 1989 Callahan proposed that the parties avoid all the wrangling over valuation and simply divide the assets of the corporation. The Fultons, however, viewing the corporation as a single entity, refused to consider at that time the splitting up of the business. Convinced that his shares were worth $3,800,000, Callahan proposed in October 1989 a sale price of $2,900,000 or $593 per share, to be paid over 10 years.[5] The Fultons rejected the offer as not "in the ballpark" and suggested that their July 1988 offer price of $204.50 per share was more reasonable. In November 1989, to help the parties arrive at a fair price, Callahan renewed an earlier proposal that the parties consider any offer price to be a figure at which the offeror would be willing to sell. With this suggestion, Callahan offered to sell his shares for $2.9 million or, in the alternative, to buy the Fultons' stock for $3.8 million. The Fultons responded by stating, vehemently, that their stock was not for sale at any price.
At this point in the negotiations, the Fultons hired the accounting firm Ernst & Young to appraise Callahan's minority share of the corporation for purposes of a buy-out. Betty Jo had originally commissioned Ernst & Young to determine the fair market value of the corporation for gift and estate tax planning purposes because Callahan and the Fultons had failed to reach an agreement after more than a year of negotiations. Since 1986, Betty Jo, who then owned 47.2% of the outstanding shares, had been anxious about emptying her estate of the stock and transferring it by gift to her sons Thomas and Daniel Fulton and their wives.[6] The Fultons, however, apparently changed the stated purpose of the Ernst & Young appraisal from valuing Betty Jo's shares for estate planning purposes to valuing Callahan's minority interest.
The Ernst & Young report valued a 100% controlling interest in the corporation at $2 million, and, after applying minority and marketability discounts, appraised Callahan's 48.9% minority interest at $626,000. Ernst & Young reached the $2 million figure by averaging valuations derived from an income capitalization approach and from a market or comparative company approach. Ernst & Young stated that it declined to employ a cost or net asset value approach to valuation because, it said, such an approach failed to take into account the corporation as a going concern and failed to properly consider its future earnings potential.
At trial, Callahan disputed the valuation of the Ernst & Young appraisal. Over the Fultons' objection, Callahan introduced testimony from real estate appraisers indicating that of the seven warehouses owned by the corporation, five were worth $6.9 million and the remaining two were worth $1,784,000. Based upon the liabilities shown on the corporation's financial statements, Callahan's counsel proposed to the jury, in closing argument, that the net asset value of the corporation was $6,825,000 and that Callahan's 48.9% interest had a value of $3,344,440.
Based on the Ernst & Young appraisal, Thomas sent a letter, dated December 20, 1989, offering Callahan $1 million for his stock in the corporation. In the letter *1243 Thomas explained that the Ernst & Young appraisal had been commissioned to value Callahan's shares for possible buy-out and that this valuation would also serve to establish the value of Betty Jo's stock for purposes of her gift and estate planning. The letter cautioned Callahan that once Betty Jo began giving her stock to her sons and their wives at a share value based on the appraisal, the Fultons would be unable to alter substantially their $1 million offer:
In December 1990 and January 1991, with no buy-out agreement imminent, Betty Jo made transfers of her stock to her sons and daughters-in-law.[7] Her goal in these gift transactions was to take advantage of the federal annual gift tax exclusions. On advice from Ernst & Young, Betty Jo stated the value of the transferred stock at $79.82 per share. Betty Jo admitted at trial that by doing so she impliedly represented that the entire corporation was worth only $800,000.
At trial and on appeal, Callahan and the Fultons have disputed the relationship between Betty Jo's estate planning, the Ernst & Young appraisal, and the buy-out negotiations. The Fultons have asserted that they commissioned the accounting firm to appraise Callahan's shares for the dual purpose of breaking the impasse in the negotiations and arriving at a realistic valuation that would satisfy Callahan and the Internal Revenue Service. At trial, however, Callahan tried to show that the Fultons unfairly devalued his stock in an effort to buy him out at less than fair value and to assist Betty Jo with her estate planning. According to Callahan, Betty Jo wanted to convey her stock and voting power to her sons, but had to limit its value in order to avoid adverse gift and estate tax consequences. Thus, according to Callahan, the purchase value of Callahan's shares was unfairly tied to and limited by the Ernst & Young appraisal and requirements of Betty Jo's estate planning.
In February 1990, the board of directors met again. As in 1989, the board declared a dividend of 50% of earnings and profits and required that all dividends be applied first to outstanding negative balances on advance accounts. As in the year before, advances were permitted to pay tax liabilities arising from quarterly corporate profits. Over Callahan's strenuous objection, the Fultons voted to increase Thomas's salary, as president of the company, by $20,000. Callahan moved for, but the board failed to pass, a resolution to increase Patrick Callahan's salary by the same percentage as Thomas and Daniel Fulton's salaries. The board, however, voted to allow Callahan's other son Patrick to receive some bonus commissions that the board had provided for Daniel Fulton and voted to continue Scott Callahan's salary of $40,000 while he was on leave of absence working for a realty company in the Mobile area, in anticipation of later doing realty work for The Finch Companies. It was also during this meeting that the Fultons voted down a resolution, introduced by Callahan, to look for means to separate the trucking division from the corporation.
Around the time of the February 1990 meeting, the corporation was experiencing financial difficulty due to the combined effect of the heavy losses suffered by the trucking division and Callahan's large advance account withdrawals.[8] On February *1244 6, 1990, First Alabama Bank wrote Thomas to complain about "past due" loans and to request that the corporation bring them current. Because of its cash flow problems, the corporation was also threatened by overdrafts. In May 1990, another of the corporation's creditors, AmSouth Bank, denied an application for a $100,000 loan to put a new roof on one of the warehouses. Later, in June 1990, AmSouth complained about past due loans and asked the corporation to submit a plan for repayment.
Meanwhile, buy-out negotiations continued, and in September 1990 Thomas proposed a $1,600,000 cash-and-notes plan ($327.20/share). In return for Callahan's stock and payment of his $380,000 debt to the corporation, Thomas and his brother Daniel would borrow $1,000,000 and give Callahan $1,000,000 cash down and a $600,000 note payable in seven years with interest. Because of the corporation's cash flow problems and the consequent difficulty in servicing $1,000,000 more in debt, the September 1990 proposal evolved into a plan to split off part of the corporation to Callahan. This plan involved the tax-free split-off of one of the warehouses to a new corporation formed by Callahan and the transfer to this new corporation of certain accounts, sundry warehousing equipment, a non-interest bearing note for $250,000, and a $750,000 cash payment for working capital. By mid-October 1990, Callahan and the Fultons had reached an agreement in principle under these terms. The agreement, however, was contingent on the Fultons' obtaining long-term mortgage financing in the amount of $1,350,000. Because of the corporation's poor earnings performance and general financial weakness, the Fultons were unable to secure the necessary financing.
Despite a net operating loss of $146,108, the corporation managed to make a small profit of $5,101 in 1990. At its February 1991 meeting, the board voted, over Callahan's strong opposition, to declare no dividends for 1990. Also over Callahan's objection, the board passed resolutions prohibiting new advances to officers or shareholders in 1991 and discontinuing Callahan's $1,000 per month director's fee. Unlike in 1990, the board did not advance money to pay tax liabilities. As a result, Callahan had to pay, from other sources of income, taxes on income recognized by the corporation due to interest charged on the deficit balance of Callahan's advance account.
On April 10, 1991, Callahan filed this action.
At the conclusion of the trial, the judge submitted to the jury a special verdict form and two special interrogatories for the purpose of making advisory findings. The special verdict form included four causes of action: (1) A derivative claim on behalf of the corporation alleging waste and mismanagement, (2) A claim alleging wanton breach of a fiduciary duty of care, brought individually by Callahan and derivatively on behalf of the corporation, (3) An individual claim alleging intentional depreciation of Callahan's stock, brought pursuant to *1245 § 10-2A-71, Ala.Code 1975,[9] and (4) An individual claim alleging conspiracy to commit these alleged wrongs. On the derivative claim of waste and mismanagement, brought by Callahan on behalf of the corporation, the jury found for the plaintiff corporation, but awarded no damages. On the corporation's and Callahan's claim of wantonness and on Callahan's claim for conspiracy, the jury found for the Fultons. On Callahan's statutory claim of intentional devaluation of his stock, the jury found for Callahan against the Fultons and awarded him $2,927,500 in compensatory damages. The jury also assessed punitive damages of $1,000,000 against the Fultons. To decide the corporations' counterclaim regarding Callahan's "advance account," the trial judge submitted a special verdict question, and the jury returned a special finding that the parties had agreed that the account would be paid only out of future corporate earnings. By special interrogatory, the jury also made two advisory findings: (1) that the acts of the defendants had been oppressive and (2) that the defendants had misapplied or wasted the assets of the corporation.
After entering a $3,927,500 judgment for Callahan, the trial judge considered the equitable claims. The trial judge adopted the jury's advisory findings and after making his own additional finding that there had been a breakdown of the corporate "entente cordiale," the trial judge held that Callahan was entitled to equitable relief. In his initial November 1991 order, the judge removed the existing directors and appointed a new board consisting of a receiver/trustee, a director appointed by the court, two directors named by Callahan, and an additional director appointed by the receiver/trustee. Although retaining the power to do so, the trial judge did not provide for the immediate dissolution and liquidation of the corporation. On the contrary, the initial order granted the receiver/trustee and new board broad powers to conduct the business as a going concern. In December 1991, the trial court amended its November 1991 order, increasing the number of directors from five to seven and allowing the Fultons to appoint two directors to the new board. In January 1992, the trial judge ordered the directors to present to the court a plan to liquidate the corporation.
In November 1991, the Fultons filed a post-trial motion requesting the trial court to enter a judgment notwithstanding the verdict or a new trial, or to alter, amend, or vacate the judgment; or, in the alternative, to order a remittitur. The Fultons also moved to stay the trial court's equitable order. Presented with these motions were affidavits from two jurors describing use of dictionaries during the deliberations. After reviewing the parties' briefs and hearing oral argument, the trial judge denied the Fultons' post-trial motion in all respects.
The first issue is whether the evidence introduced at trial was sufficient to sustain Callahan's claim under § 10-2A-71, Ala. Code 1975, alleging intentional devaluation of his stock by the Fultons.
Section 10-2A-71, Ala.Code 1975, states:
This statute specifically proscribes unfair stock dealings by directors and officers. Alabama Code 1975, § 10-2A-71, commentary. A cause of action under this statute includes the following elements: (1) A defendant who is a president, director, or managing officer, irrespective of title, (2) An act or a declaration or statement, in writing or otherwise, (3) Intent to depreciate *1246 the value of the corporation's stock or bonds, with the further intent to enable the director or officer defendant, or another person, to buy the corporation's stock or bonds at less than their real value, and (4) damage. The measure of damages is the difference between the real and the depreciated value of the stock at the time the defendant perpetrates the wrongfully depreciating act. Belcher v. Birmingham Trust Nat'l Bank, 348 F. Supp. 61, 147 (N.D.Ala.1968), stay denied, 395 F.2d 685 (5th Cir.1968).
The trial court denied the defendants' motions for directed verdict and judgment notwithstanding the verdict, on the issue of the sufficiency of the evidence to support Callahan's stock devaluation claim. On appeal, the Fultons make three arguments to demonstrate that Callahan failed to prove a claim under § 10-2A-71. First, they argue that the statute provides only for "an equitable remedy to reverse a sale of stock." Second, they argue that because Callahan suffered no loss on a sale of stock that was proximately caused by unfair insider dealing, they are not liable. Third, they contend that because Callahan was aware of all the facts relevant to any valuation of the corporation and its stock, Callahan has failed to prove a claim under § 10-2A-71.
Although this Court has never construed this statute, a federal district court sitting in Alabama applied a predecessor to this provision in Belcher v. Birmingham Trust Nat'l Bank, 348 F. Supp. 61 (N.D.Ala.1968) (applying Code of Ala.1940, Tit. 10, § 92), stay denied, 395 F.2d 685 (5th Cir.1968). Although the earlier statute, Tit. 10, § 92, Code of Ala. 1940, was a criminal provision, the language of the former statute and the present one are almost identical. Compare Ala.Code 1975, § 10-2A-71, with Ala.Code 1940, Tit. 10, § 92. In Belcher, the district court construed Tit. 10, § 92, to imply a civil cause of action for violation of the statute. Belcher, 348 F. Supp. at 146. The court held several majority-shareholder directors and officers liable for concealing and failing to divulge the value of timber lands owned by the corporation with the intent of buying another shareholder's shares at less than their real value. Belcher, 348 F. Supp. at 147. The Belcher court viewed the majority-shareholder directors and officers' purchase offers as impliedly representing that the prices offered for the minority shareholders' stock reflected its fair value. See Belcher, 348 F. Supp. at 138, n. 11; see id. at 143-47. The key factor in Belcher was that the defendants "knew the [true] underlying values." Id., at 147.
The Fultons' first argument, that § 10-2A-71 provides only for an equitable remedy, is without merit. Neither the language and purpose of the statute nor the district court's opinion in Belcher supports this construction. Equally without merit is the Fultons' second argument that to recover damages under § 10-2A-71 a plaintiff must have suffered a loss on a sale of stock, which loss was proximately caused by the defendant's act or statement made to devalue the stock. The language of § 10-2A-71 requires only that the defendant act or make a statement with the intent to devalue the stock "with the further intent to enable such president, director or other managing officer, or any other person, to buy such stock or bonds at less than the real value thereof." Ala.Code 1975, § 10-2A-71 (emphasis added); Belcher, 348 F. Supp. at 146-47. It is unnecessary to prove that the defendant purchased the stock; a plaintiff need only prove that the defendant intentionally acted to devalue the stock with the intent to be able to buy the stock at less than its real value.
Third, the Fultons argue that Callahan failed to prove a claim because, they say, he was fully aware of the facts relevant to any valuation of his stock. The Fultons' argument mischaracterizes the nature of the wrong that the statute proscribes. The Fultons' argument impliedly analogizes to an action for fraud and assumes thereby that some type of reliance on the part of the plaintiff is required.
Section 10-2A-71 provides that directors and managing officers owe a duty not to engage in unfair insider dealings for the purpose of buying shareholder stock at less than real value. The statute constitutes a *1247 more specific statutory expression of the general fiduciary duty owed by directors and officers to shareholders under other provisions of the Alabama Business Corporation Act. See Ala.Code 1975, § 10-2A-76 (fiduciary duties of directors); § 10-2A-74 (director's general duty of care). As in an action alleging breach of fiduciary duty, the only relevant facts under § 10-2A-71, for purposes of sufficiency, are the defendant's intent and conduct and the damage incurred by the plaintiff. Thus, even if substantial evidence existed from which a jury could reasonably find that Callahan was indeed aware of all the facts relevant to the value of his stock, he could still recover if the defendants' conduct was otherwise actionable.
More generally, the Fultons argue that the evidence is insufficient to sustain a claim of devaluation with an intent to buy at less than real value. The standard of review is whether the nonmoving party has produced substantial evidence to support its claim. Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38 (Ala.1990); Ex parte Oliver, 532 So. 2d 627 (Ala.1988); see also Ala.Code 1975, § 12-21-12. In determining the propriety of a directed verdict or judgment notwithstanding the verdict, this Court "must review the entire evidence and indulge every reasonable inference in favor of the nonmoving party." Northeast Alabama Regional Medical Ctr. v. Owens, 584 So. 2d 1360, 1365 (Ala.1991). After carefully reviewing the record in the light most favorable to Callahan, this Court concludes that Callahan presented substantial evidence from which a reasonable jury could infer that the Fultons had intentionally devalued the corporation's stock with the intent of buying Callahan's stock at less than its real value.
Callahan's evidence of the relationship between Betty Jo's estate planning and the buy-out negotiations with Callahan constituted substantial evidence from which a jury could reasonably infer that the Fultons intended to tie the buy-out price to Betty Jo's estate planning, enabling them thereby to buy out Callahan at less than fair value and allowing Betty Jo to transfer more stock without gift tax consequences. Both Thomas's December 20, 1989, letter to Callahan informing him that the Fultons would be unable to substantially raise their $1 million offer after Betty Jo began "gifting" her shares and the relatively low $79.82 per share value Betty Jo used when reporting her 1989 and 1990 gifts of stock constitute substantial evidence that the Fultons had depreciated Callahan's stock with the intent to buy it for less than its real value. Moreover, the inference of unfair insider dealing is strengthened by the facts that after the May 1989 meeting Callahan was effectively unable to receive any more income from the corporation and that the Fultons were really the only market for Callahan's stock.
In our disposition of this issue, we emphasize the special considerations presented by the fact that Callahan was a minority shareholder in a closely held corporation. Callahan's position in the circumstances of this case illustrates the unique vulnerability of minority shareholders in closely held corporations, especially in buy-out negotiations, when often there is no real market for their shares. Because of the limited marketability of their shares and the right of the majority shareholders to control corporate decision-making in closely held corporations, minority shareholders are restricted in their ability to realize the value of their investment, whether it be in the form of salary, dividends, or proceeds from a sale of their stock. Callahan depended, as minority shareholders generally do, on the Fultons' treating him fairly.
The second issue for our consideration is whether the trial court erred in denying the Fultons' motion for new trial based on allegations of juror misconduct. Submitted with the Fultons' post-trial motion for new trial were three juror affidavits stating, among other things, that the jury foreperson brought a pocket dictionary into the jury deliberations and consulted it to determine the meaning of key terms in the trial judge's oral charge.
*1248 The threshold question here is whether, under the facts of this case, this Court will consider juror affidavits for the purpose of impeaching the jury's verdict. "The general rule in Alabama, as well as in a majority of jurisdictions, is that affidavits of jurors will not be accepted for the purpose of impeaching their own verdict." Weekley v. Horn, 263 Ala. 364, 365, 82 So. 2d 341 (1955); see also Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala.1984); Allman v. Beam, 272 Ala. 110, 130 So. 2d 194 (1961). "This general rule is subject to an exception which arises when the affidavits tend to show extraneous facts which have influenced the verdict." Whitten, 447 So. 2d at 657; see also Allman, 272 Ala. at 115, 130 So. 2d at 198; Weekley, 263 Ala. at 366, 82 So. 2d at 342; Leith v. State, 206 Ala. 439, 90 So. 687 (1921). Thus, the exception has two components: (1) presence of extraneous facts before the jury and (2) influence on the verdict.
On the question of use of the dictionary, juror V.W.'s affidavit states:
Similarly, juror K.W.'s supplemental affidavit states:
"Definitions of legal terms and concepts... from general reference books (World Book and American College Encyclopedia Dictionary) are extraneous matters and fall within the exception to the general rule which, likewise, is well recognized in our case law." Nichols v. Seaboard Coastline Ry., 341 So. 2d 671, 673 (Ala.1977) (emphasis in the original). The affidavits of both V.W. and K.W. show that the foreperson, M.M., brought a small pocket dictionary into the jury room and read definitions of terms from the judge's oral charge, such as "oppressive," "conspiracy," "waste," and "wantonness." K.W.'s affidavit shows that K.W. also read to the jury definitions he had looked up in a dictionary kept at his office. Both affidavits indicate that the jurors considered these definitions before voting, and K.W. stated that he believed the definitions influenced the voting. Because the affidavits show both the presence of extraneous matters and evidence of influence on the verdict, we consider the affidavits submitted by the Fultons.
The principal issue now becomes whether the juror misconduct, in the circumstances of this case, requires the granting of a new trial. In Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala.1984), this Court stated the often quoted rule concerning juror misconduct: "Juror misconduct will justify a new trial when it indicates *1249 bias or corruption, or when the misconduct affected the verdict, or when from the extraneous facts prejudice may be presumed as a matter of law." Whitten, 447 So. 2d at 658 (overruling Jones v. McMonigal, 409 So. 2d 1381 (Ala.1982), to the extent Jones had excluded, as a ground for granting a new trial, extraneous matters from which prejudice may be presumed); see also Jordan v. Brantley, 589 So. 2d 680 (Ala.1991) (quoting the Whitten rule); Nowogorski v. Ford Motor Co., 579 So. 2d 586 (Ala.1990) (quoting the Whitten rule); Coots v. Isbell, 552 So. 2d 139, 140 (Ala.1989) (quoting the Whitten rule). "In each of the cases in which we have held that the trial judge erred in failing to grant a new trial, there has been a common factorthe existence of juror misconduct that could have affected the verdict." Nowogorski, 579 So. 2d at 589 (emphasis in the original); Coots, 552 So. 2d at 140. Consideration of the prejudicial effect of extraneous matter has been held to be a "case-by-case determination to be made in light of the particular facts and attending circumstances." Nowogorski, 579 So. 2d at 590; see also Nichols, 341 So. 2d at 676-77.[10] Thus, this Court will affirm a trial court's denial of a motion for a new trial if the trial court could have reasonably found that the introduction of the extraneous matter into the jury's deliberations was not prejudicial. Jordan v. Brantley, 589 So. 2d 680, 682 (Ala.1991).
Callahan argues that the defendants could not have been prejudiced by the jury's reference to the dictionary definitions. After noting that the V.W. and K.W. affidavits refer to only four words, "wantonness," "conspiracy," "oppressive," and "waste," Callahan argues:
(Emphasis in the original.)
The Fultons, however, contend that the verdict was influenced to their prejudice because the terms "oppression" and "wantonness" were part of the judge's oral charge to the jury on punitive damages:
(Emphasis added.) Relying on Nowogorski and Nichols, the Fultons argue, alternatively, that the dictionary definitions constituted extraneous material that was prejudicial as a matter of law.
We hold that it was reversible error to deny the Fultons' motion for new trial on the basis of juror misconduct. Considering the jury's assessment of punitive damages in this case, we hold that the trial court could not have reasonably concluded that the jury's reference to dictionary definitions of "oppression" and "wantonness" was not prejudicial. These terms were material to a finding of the type of conduct necessary to support an award of punitive damages. Moreover, the V.W. affidavit and the K.W. affidavit each states that the affiant and the other jurors considered the definitions before voting. K.W.'s affidavit states further that he believed that the definitions "influenced [the jury] in [its] voting on the verdict." Because we conclude that the Fultons have shown actual prejudice, we do not reach their argument that the use of the definitions was prejudicial as a matter of law.
*1250 We believe our holding here is consistent with our recent decisions in Jordan v. Brantley, 589 So. 2d 680 (Ala.1991), and Nowogorski v. Ford Motor Co., 579 So. 2d 586 (Ala.1990). In Jordan the plaintiffs filed negligence claims against a number of defendants, arising out of the misidentification of the bodies of two men killed in an automobile accident. According to juror affidavits, the jury was unable to reach a verdict until the second day of deliberations, when the jury foreperson used a dictionary to look up the meanings of "prudent" and "reasonable." Because these terms were material to resolving a key issue in the case and because the foreperson told the trial court that the dictionary definitions had influenced the jury, this Court affirmed the trial court's granting of the defendant's motion for new trial, holding that the trial court could have reasonably found that the presence of extraneous matter in the jury deliberations was prejudicial.
In Nowogorski, the plaintiff filed a claim under the Alabama Extended Manufacturer's Liability Doctrine in which the critical factual question was whether a tractor sold to the plaintiff's husband was "defective." Although the juror affidavits varied, seven of them stated that a dictionary definition of "defective" was read to the jury during its deliberations. At least one juror stated that before hearing the dictionary definition of "defective," he was more in favor of the plaintiff, but that after hearing it he was more in favor of the defendant manufacturer. The jury eventually rendered a verdict against the defendant. Finding that this evidence was sufficient to demonstrate that the juror misconduct could have affected the verdict, this Court held that the trial court had erred in denying the plaintiff's motion for a new trial.
As in Jordan and Nowogorski, the juror affidavits in this case indicate that the jury considered dictionary definitions of terms material to a key issue in the case. Moreover, as in Nowogorski, at least one juror affidavit in this case stated that the juror believed that the jury's consideration of the definitions influenced the jury. The Court in Nowogorski held that the statement of the juror who said that he was more in favor of the defendant after hearing the definition than before was sufficient evidence of prejudice, even though the jury eventually rendered a verdict against that defendant:
Nowogorski, 579 So. 2d at 590 (emphasis added). Thus, the inquiry is whether the dictionary definitions could have influenced the decision-making of the jury, not whether the jury's consideration of the definitions necessarily determined the outcome. Because we find that the juror misconduct in this case could have affected the verdict, we hold that the trial court erred in not granting the Fultons' motion for new trial.
The Fultons allege various other forms of juror misconduct: bias or prejudice, material alterations of the verdict form, and failure to follow the court's instructions. Because we reverse and remand for a new trial on the basis of the jury's use of a dictionary, we pretermit discussion of these other allegations of juror misconduct.
The Fultons challenge the trial court's award of equitable relief on two bases. First, the Fultons argue that the trial court's findings were plainly and palpably wrong. Second, the Fultons argue that, notwithstanding the propriety of the trial court's findings, the trial judge did not have the authority under § 10-2A-196, Ala. *1251 Code 1975, to dismiss duly elected officers and directors of the corporation and order a procedure for filling their vacancies and continuing the business indefinitely as a going concern.
Section 10-2A-195, Ala.Code 1975, grants a circuit court the power to dissolve and liquidate a corporation in an action brought by a shareholder, when it is established:
Ala.Code 1975, § 10-2A-195(a)(1) (1980 Ala.Acts, No. 80-633, § 108); see also Levine v. Beem, 608 So. 2d 373 (Ala.1992). The substance of this Code provision was adopted by Alabama in 1959; see 1959 Ala. Acts, No. 414, § 78, at 1095 (codified at Tit. 10, § 21(78), Ala.Code 1940 (recompiled 1958), repealed, 1980 Ala.Acts, No. 80-633), and like much of the Alabama Business Corporation Act, it is derived from the ABA Model Business Corporation Act. Before 1959, the common law governed involuntary liquidation and the appointment of receivers.
Section § 10-2A-196 sets out the procedures and powers of a circuit court in liquidating a corporation:
The Fultons argue first that the trial judge's findings were plainly and palpably wrong. Because the trial court adopted the advisory findings of oppression and waste or misapplication of corporate assets, this Court directs its review "as if the trial judge had heard the case unaided by the jury's advice." McCaghren v. McCaghren, 294 Ala. 89, 312 So. 2d 384, 385 (Ala.1975); see also Jackie Fine Arts, Inc. v. Berkowitz, 448 So. 2d 318, 321 (Ala.1984). This Court will revise the findings of trial judges on questions of fact "only where, after making proper allowances and indulging all reasonable intendments in favor of the court below, we reach the clear conclusion that the findings are unsupported by the evidence or that the judgment is palpably wrong as being against the great weight of the evidence." Berkowitz, 448 So. 2d at 321.
The Fultons argue that under Alabama case law, appointment of a receiver is an extreme remedy, justified only when the facts disclose a scheme on the part of the directors or majority shareholders to wreck the corporation and dissipate its assets and the minority shareholder proves that serious loss and complete ruin is inevitable and imminent. The Fultons contend that Callahan failed to establish either a scheme to wreck the corporation and dissipate its assets or an inevitable and imminent risk of serious loss and complete ruin to the underlying corporate assets that would justify appointment of a receiver.
The Fultons' argument emphasizes the extreme nature of the remedy and the traditional view that it is proper only to preserve underlying corporate assets from imminent serious loss caused by the wrongful conduct of those shareholders in control of the corporation. In support of their argument, the Fultons cite decisions of this Court in Phinizy v. Anniston City Land Co., 195 Ala. 656, 71 So. 469 (1916), Gettinger v. Heaney, 220 Ala. 613, 127 So. 195 (1930), and Lost Creek Coal & Mineral *1252 Lands Co. v. Scheuer, 222 Ala. 400, 132 So. 615 (1931).
In Phinizy, this Court declared the long-standing view of dissolution and appointment of receivers in Alabama:
195 Ala. at 660-61, 71 So. at 471. In Gettinger v. Heaney, this Court summarized the rule:
220 Ala. at 617, 127 So. at 198.
While these cases remain the law in Alabama, the adoption in 1959 of what is now § 10-2A-195(a)(1) "liberalized the law regarding dissolutions" and extended the jurisdiction of the court to dissolve and liquidate corporations. Abel v. Forrest Realty, Inc., 484 So. 2d 1069, 1072 (Ala.1986); see Belcher v. Birmingham Trust Nat'l Bank, 348 F. Supp. 61, 148 (N.D.Ala.1968) (construing Tit. 10, § 21(78), Ala.Code 1940). The inclusion of "illegal, oppressive or fraudulent" acts by "directors or those in control," as grounds for appointment of a receiver under § 10-2A-195(a)(1), reflects the legislative extension of the remedy to do more than just protect or rescue the underlying assets of the corporation from wilfully destructive conduct of controlling shareholders. Consonant with this legislative expansion of protectible interests is this Court's recognition of a duty on the part of majority shareholders to act fairly toward minority interests. Burt v. Burt Boiler Works, Inc., 360 So. 2d 327, 331 (Ala. 1978).
Even before the enactment of the provision now codified at § 10-2A-195(a)(1), this Court recognized in Altoona Warehouse Co. v. Bynum, 242 Ala. 540, 7 So. 2d 497 (1942), the protection of these interests by appointment of a receiver:
242 Ala. at 546, 7 So. 2d at 502 (emphasis added) (quoting 6 Thompson § 4628, at 528 (3d ed. 1927)). In Altoona Warehouse Co., "entente cordiale" was defined as "the mutual confidence in the integrity of purpose and effort to carry on the affairs of the business of the corporation for the benefit of all the stockholders." 242 Ala. at 545, 7 So. 2d at 502.
Thus, we conclude that Callahan did not have to show that the Fultons willfully wrecked the corporation and dissipated its assets and that the corporation's assets were in imminent danger of serious loss. As § 10-2A-195(a)(1) provides, Callahan only had to prove one of the enumerated grounds for appointment of a receiver. Both the jury, through its special advisory interrogatory, and the court found "oppression" and "waste." With regard to the trial court's finding of a breakdown of entente cordiale, we construe Altoona Warehouse Co. to require proof only that, because of intentional misconduct, "the rights of [a] minority of stockholders are put in imminent peril and the underlying, original corporate entente cordiale is unfairly destroyed." 242 Ala. at 546, 7 So. 2d at 502.
After carefully considering all the facts and circumstances in light of the standard of review, we cannot say that the trial court's findings were not supported by the evidence or were against the great weight of the evidence. From the Fultons' conduct during the buy-out negotiations and other facts and circumstances, the trial court could have inferred that the Fultons had oppressed Callahan. Furthermore, the trial court could have inferred that intentional misconduct by the Fultons had destroyed the corporate entente cordiale and that Callahan's minority rights and interests were in imminent danger of serious loss.
The Fultons' second argument is that while § 10-2A-196(b) authorizes the court to appoint a liquidating receiver "to collect the assets of the corporation," it does not give the court the power to remove properly elected directors, to order a procedure for appointing a new board, or to appoint receivers to continue the business indefinitely as a going concern. Because a provision of the trial court's January 8, 1992, order directed the new board of directors to present a plan of liquidation, we do not address the issue of the trial court's power under the statute to appoint and authorize a receiver to manage and continue a business as a going concern.
What the Fultons are disputing here in their second argument is not so much the court's jurisdiction to liquidate the corporation as the court's authority or power to frame the remedy as it did. The court clearly has the discretion to appoint a liquidating receiver under § 10-2A-196(b) if it makes a finding of one of the jurisdictional grounds of § 10-2A-195(a)(1).
Although the language of § 10-2A-196(b) does not specifically give a circuit *1254 court the power to remove duly elected directors and appoint new ones, that section does not limit the power of a circuit court to frame its judgment to afford equitable relief. Section 10-2A-76, Ala.Code 1975, preserves unimpaired the court's equitable jurisdiction to prevent or remedy fraud, oppression, and other inequitable conduct:
In Abel v. Forrest Realty, Inc., 484 So. 2d 1069 (Ala.1986), this Court affirmed a trial court's refusal to dissolve a corporation, stating that "the ultimate decision of whether to dissolve a corporation must be made by the trial court, guided by equitable principles, based on the particular facts of each case." 484 So. 2d at 1071. Likewise, "It is also in the very nature of equity proceedings that the trial court is authorized to mold its decrees so as to adjust the equities of all parties and to meet the obvious necessities of each situation." Coupounas v. Morad, 380 So. 2d 800, 803 (Ala.1980) (imposing constructive trust on second newly formed corporation in favor of original corporation to remedy the usurping of a corporate opportunity). We hold that in the circumstances of this case, it was within the equitable jurisdiction of the trial court to frame its judgment to provide for the removal of the existing board of directors and the appointment of a new one to formulate a plan of liquidation.
Because the trial court committed reversible error in denying the Fultons' motion for a new trial on the basis of juror misconduct, the judgment on the jury verdict must be reversed. There was sufficient evidence to submit the stock depreciation claim to the jury, so the trial court did not err in denying the motion for JNOV. The judgment is affirmed insofar as it grants equitable relief.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I write only to address the issue of minority shareholder "squeeze-out." There is confusion as to whether this cause of action sounds in tort or in contract, which was caused in no small part by footnote 13 to my special opinion concurring in part and dissenting in part in Ex parte Brown, 562 So. 2d 485, 500 (Ala.1990), and by my unpublished dissent in Michaud v. Morris, which was withdrawn when "the brethren" saw the light and reversed themselves and the trial court in a second opinion. Michaud v. Morris, 603 So. 2d 886 (Ala.1992).
In Ex parte Brown, this Court was presented with a motion filed under Rule 59, A.R.Civ.P., to alter, amend, or vacate the final order and to consider, among other things, the "tort of squeeze-out." I was so convinced in Ex parte Brown that there was no "squeeze-out," no matter what type of claim it was, that I was not concerned with classifying it. The majority granted relief to the plaintiffs in Ex parte Brown; therefore, I assumed that the majority of this Court had recognized what the Court was asked to recognize: the plaintiffs' "tort of squeeze-out." Because of this, in my unpublished dissent to the withdrawn and unpublished first opinion in Michaud v. Morris, I described the majority's action as "extending the tort of squeeze-out to impermissible limits."
I gather that there is confusion among the bench and bar as to what we have done with or what we have done to the cause of action for "squeeze-out," based upon the *1255 excellent articles that have appeared in The Alabama Lawyer. See Andrew P. Campbell, Litigating Minority Shareholder Rights and the New Tort of Oppression, 53 Ala.Law. 108 (1992), and Michael E. DeBow, "Oppression" of Minority Shareholders: Contract, Not Tort, 54 Ala.Law. 128 (1993).
If the majority of this Court does not think that it has adopted a tort of "squeeze-out" by its decision in Ex parte Brown so that we are bound by stare decisis, then "squeeze-out" of minority shareholders is a contractual action. Corporate law is a form of contract law; and "squeeze-out" should be a contractual action, because the minority shareholders' injuries flow from a breach of an implied contractthe behavior of the majority shareholders (officers, directors, etc.) violates the reasonable expectations of the minority shareholders that is "generated by the business relationship which the contract created." F. Hodge O'Neal, Introduction (Symposium: Rights of Minority Shareholders), 22 Wake Forest L.Rev. 1, 6 (1987).
[1] When Callahan filed this action, the shares of The Finch Companies, Inc., were held in the following percentages:
[2] The Fultons also counterclaimed, alleging that before the consolidation that created The Finch Companies, Inc., Callahan had breached a duty of undivided loyalty. The Fultons claimed that as president of Finch Warehousing and Transfer Company, Inc., Callahan had breached this duty by establishing, with others, a competing warehousing and transporting business called Great Southern Corporation. Upon Callahan's motion, the trial court dismissed the Fultons' counterclaim as barred by the running of the statutory period of limitations. No issue is raised as to this ruling.
[3] For purposes of brevity, we refer to the trial judge's third finding as "breakdown of the corporate entente cordiale." In phrasing his finding in the order, the trial judge stated that "the mutual confidence in the integrity of purpose and effort to carry on the affairs of the business of the corporation for the benefit of all shareholders has been destroyed." In Altoona Warehouse Co. v. Bynum, 242 Ala. 540, 7 So. 2d 497 (1942), this Court used almost identical language to define the destruction of "corporate entente cordiale."
[4] This plan called for borrowing around $2 million and selling the equipment for $1.7 million. In his testimony at trial, Thomas admitted that if all had gone according to plan, the corporation would have able to save between $400,000 and $500,000 in losses that the trucking division later incurred. Thomas emphasized, however, that there was no assurance that the corporation would have been able to sell the trucks for $1.7 million under existing market conditions in so short a time.
[5] The offer terms included a $300,000 cash down payment, financing of the balance over 10 years, cancellation of Callahan's debt, and sums to pay tax liabilities.
[6] Letters to Callahan and testimony from the Fultons indicated that Betty wanted a proper valuation in order to avoid possible I.R.S. penalties and additional taxes for undervaluing the stock.
[7] These two transfers equalled 20% of the total shares outstanding.
[8] Annual financial statements show the decline in the corporation's profitability after entering the long-haul freight business:
[9] In giving his oral instruction on this claim, the trial judge read the text of the statute to the jury.
[10] This phrase quoted from Nowogorski is based upon Justice Bloodworth's special concurring opinion in Nichols, in which Justices Maddox, Almon, Shores, Embry, and Beatty concurred. Justice Jones's lead opinion in Nichols, in which Justice Faulkner concurred, would have found prejudice as a matter of law, but the majority disagreed with Justice Jones's view on this point. | April 16, 1993 |
d288a934-c1fb-4bfe-b09a-9e7741c1916c | Holland v. Brandenberg | 627 So. 2d 867 | 1910872 | Alabama | Alabama Supreme Court | 627 So. 2d 867 (1993)
Charles W. HOLLAND
v.
Mavis BRANDENBERG.
1910872.
Supreme Court of Alabama.
May 14, 1993.
Rehearing Denied October 1, 1993.
*868 Bryce U. Graham, Tuscumbia, for appellant.
Gilbert P. Self, Florence, for appellee.
ADAMS, Justice.
The defendant, Charles Holland, appeals from a judgment entered in favor of the plaintiff, Mavis Brandenberg, on a jury verdict assessing damages of $13,000 on her claims of outrageous conduct, breach of contract, and conversion. We affirm.
In January 1988, Mavis Brandenberg purchased a mobile home from Charles Holland and Archie Brown under a rent-to-own agreement. Under the terms of the agreement, Brandenberg lived in the mobile home and paid Holland and Brown $150.00 per month toward the total purchase price. The mobile home was to remain on Holland's land until the plaintiff received legal title to the mobile home. On August 26, 1988, Holland repossessed the mobile home from the plaintiff, although she was not in default of any monthly payments, and he sold it to a third party the next day. Brandenberg was unable to secure the return of any of her personal property located in the mobile home.
Brandenberg sued Holland and Brown, alleging breach of contract; conversion (that they had wrongfully taken the mobile home and had wrongfully destroyed her personal property); and the tort of "outrageous conduct." Brandenberg sought compensatory damages for the alleged breach of contract; compensatory and punitive damages for the alleged conversion; and compensatory and punitive damages for the alleged outrageous conduct. Among her claims for compensatory damages was a claim for damages for mental anguish.
The defendants filed a pro se answer and a counterclaim, alleging that Brandenberg was destroying the trailer or causing it to depreciate. The plaintiff's motion for summary judgment was denied and the case was set for trial.
The court denied the defendants' motion for directed verdict and submitted all three of the plaintiff's claims to the jury. The court also submitted the defendants' counterclaim to the jury. The jury returned a verdict in favor of Brown and against Holland, assessing damages at $13,000. The jury returned *869 a verdict for the plaintiff on the defendants' counterclaim. The judge entered a judgment on those verdicts.
Several days after the trial, Holland learned that before the trial, during an in camera interview with a juror, the trial judge was informed by the juror that he had been convicted of a felony, but that his rights had been restored in 1979.
Holland moved for a new trial, alleging:
The court denied the motion, and Holland appealed. Brown is not involved in this appeal.
The essence of the Holland's first argument on appeal is that the trial judge committed reversible error by failing to inform the parties of the juror's disqualification. We disagree.
Ala.Code 1975, § 12-16-60, provides the criteria for qualifications for jurors:
"We have held that the statutory prerequisite to jury service requiring the absence of any conviction of an offense involving *870 moral turpitude is an absolute, and that such conviction is an automatic disqualification from jury service where the juror was asked that question and failed to respond." Chrysler Credit Corp. v. McKinney, 456 So. 2d 1069 (Ala.1984). This case, however, presents a different situation. Here, on voir dire examination, the prospective jurors were not specifically asked whether any of them had been convicted of an offense involving moral turpitude. Failure to use due diligence in testing jurors as to qualifications or grounds of challenge is an effective waiver of grounds of challenge; a defendant cannot sit back and invite error based on a juror's disqualification. Beasley v. State, 337 So. 2d 80 (Ala.Crim.App.1976). We have examined the record and have determined that the defendant failed to exercise due diligence in ascertaining the qualifications of the juror; he cannot now ask this Court to correct this failure.
Furthermore, while we do not specifically approve of the ex parte communication between the trial judge and the juror, any error that may have occurred was harmless, because no substantial rights of the defendant were affected. Rule 61, Ala.R.Civ.P.
The defendant next contends that the oral jury charge was erroneous because, he says, the trial court did not sufficiently instruct the jury concerning the counterclaim.
When examining a charge asserted to be erroneous, this Court looks to the entirety of the charge to see if there is reversible error. Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986). See also Shoals Ford, Inc. v. Clardy, 588 So. 2d 879 (Ala.1991). We have examined in its entirety the charge given the jury by the trial court, and we conclude that the court gave the jury adequate instructions concerning the counterclaim; thus, we find no reversible error.
On this appeal, Holland makes no argument regarding the sufficiency of the evidence to support an award of damages for mental anguish or an award of damages for outrageous conduct. Because those issues are not raised, we will not address them.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | May 14, 1993 |
5c19b50c-5448-4736-95ea-0f8dbb7c4bf6 | Ex Parte Tuck | 622 So. 2d 929 | 1920134 | Alabama | Alabama Supreme Court | 622 So. 2d 929 (1993)
Ex parte Dan TUCK d/b/a Colony Pools.
(Re Herbert D. McKAY, v. Dan TUCK d/b/a Colony Pools).
1920134.
Supreme Court of Alabama.
May 14, 1993.
William W. Lawrence of Wooten, Thornton, Carpenter, O'Brien, Lazenby & Lawrence, Talladega, for petitioner.
E. Paul Jones, Alexander City, for respondent.
ADAMS, Justice.
We granted Dan Tuck's petition for certiorari review of the judgment of the Court of Civil Appeals in McKay v. Tuck, 622 So. 2d 926 (Ala.Civ.App. 1992). We affirm.
Dan Tuck sued Herbert D. McKay in the District Court of Talladega County on March 4, 1991. On December 19, 1991, the district court entered a judgment in favor of Tuck and against McKay.
On January 2, 1992, McKay sent a facsimile transmittal sheet to the office of the circuit clerk of Talladega County; that transmittal included a copy of a notice of appeal from the district court to the circuit court. He also advised the circuit clerk's office that the original of the notice of appeal was being placed in the mail the same day. The clerk's office received the original notice of appeal on January 3, 1992. Tuck filed a motion to dismiss the appeal on January 23, 1992, arguing that McKay's notice of appeal was untimely specifically, that it was not filed within the 14-day period prescribed by Ala.Code 1975, § 12-12-70(a).
The circuit court granted Tuck's motion to dismiss. The Court of Civil Appeals reversed the circuit court's judgment of dismissal. We address the following issue of first impression: Whether sending, by facsimile, a copy of a notice of appeal from district court to circuit court satisfies the Rule 5(e), A.R.Civ.P., requirement of "filing with the clerk or register of the court."
Notably, the question of whether a facsimile transmittal can be used as a form of filing raises questions of monumental public importance. Because the use of facsimile machines has become so pervasive, and because the modern world has become so technologically demanding, it is not surprising that we should have to consider this question. Although we have not previously addressed this question, courts in a few states, as well as the federal courts, have addressed it. Rule 5(e), F.R.Civ.P. provides:
"(e) Filing With the Court Defined. [Effective until Dec. 1, 1991. See, also, subd. (e) below.] The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, *930 except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.
See also Matter of Changes to Ark.R. of Civ.Proc., 780 S.W.2d 334 (Ark.1989), In re Amendments to the Fla. Rules of Civ. Proc., 604 So. 2d 1110 (Fla.1992), Fitcher v. Board of Environmental Protection, 604 A.2d 433 (Me.1992), and Calabrese v. Springer Personnel of New York, Inc., 141 Misc.2d 566, 534 N.Y.S.2d 83 (N.Y.City Civ.Ct.1988).
Tuck argues that the focus of the issue is not on the reliability of facsimile machines and facsimile transmissions, but whether McKay complied with the Rules of Civil Procedurespecifically Rule 5(e) and Ala. Code 1975, § 12-12-70(a).
After reviewing the record and the briefs, and after hearing the oral arguments of both parties, we conclude that no person was misled or prejudiced by the facsimile filing of the notice of appeal. Additionally, we note that the circuit clerk's office was notified that the original notice of appeal was being placed in the mail on the same day, and that that office did receive the original notice of appeal the next day. Rule 1(c), A.R.Civ.P., provides that the Rules of Civil Procedure "shall be construed to secure the just, speedy and inexpensive determination of every action." Therefore, for purposes of this appeal, we will treat the facsimile copy of the notice of appeal transmitted on January 2, 1992, as a timely filing, and we affirm the judgment of the Court of Civil Appeals.
This Court has referred the whole subject of facsimile filings, including notices of appeal, to its Standing Committee on the Rules of Civil Procedure and its Standing Committee on the Rules of Appellate Procedure. As of now, we have not received a report from these committees.
We offer the following caveat to the Bar: The notice of appeal from the district court to the circuit court in this case is treated as a proper and timely filing. Likewise, other filings attempted by facsimile transmission in reliance on the opinion of the Court of Civil Appeals will be taken as proper on the same basis through the period ending July 31, 1993. After that date we will not recognize facsimile transmissions as filings, within the meaning of our rules of court or the statutes of this state, except as statutes or rules may specifically authorize "filing" by facsimile transmission. The Alabama rules of court do not presently specifically authorize any "filings," either of notices of appeal or any other documents, by facsimile transmissions.
For the foregoing reasons, the judgment of the Court of Civil Appeals is affirmed.
AFFIRMED.
*931 HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur. | May 14, 1993 |
4bd06e70-2d47-4b56-98e4-4977ab07bbd6 | Woodruff v. LEIGHTON AVE. OFFICE PLAZA | 622 So. 2d 304 | 1911422, 1911517 | Alabama | Alabama Supreme Court | 622 So. 2d 304 (1993)
Gerald WOODRUFF and Jack Wallach
v.
LEIGHTON AVENUE OFFICE PLAZA, LTD., et al.
William J. DAVIS
v.
Julian W. JENKINS.
1911422, 1911517.
Supreme Court of Alabama.
April 30, 1993.
Rehearing Denied June 18, 1993.
*305 Cleophus Thomas, Jr., Anniston, for Gerald Woodruff and Jack Wallach.
Jack W. Torbert of Torbert and Torbert, P.A., Gadsden, for Leighton Avenue Office Plaza, Ltd. and Julian Jenkins.
Clarence L. McDorman of Yearout, Myers & Traylor, P.C., Birmingham, for appellee/cross-appellant William Davis.
James S. Hubbard, Anniston, and Thomas Reuben Bell, Sylacauga, for Ian C. Mac-Kenzie.
SHORES, Justice.
These are consolidated appeals from summary judgments in cases concerning a failed partnership venture in Calhoun County, Alabama, known as Leighton Avenue Office Plaza, Ltd. We affirm the partial summary judgment for the defendants against the plaintiffs; we reverse the summary judgment in favor of defendant Julian W. Jenkins against defendant William J. Davis on Davis's cross-claim.
Leighton Avenue Office Plaza, Ltd. ("Leighton"), was organized in October 1980 as a limited partnership to implement architect Julian W. Jenkins's plan to renovate a Victorian house in Anniston and convert it into an office complex. The sole general partner was Gulf General Corporation, an Alabama corporation, whose stockholders were Julian W. Jenkins, William J. Davis, and Ian MacKenzie. Once the Leighton partnership was formed, the property at 1419 Leighton Avenue, Anniston, Alabama, was acquired, and the principals set about finding investors to purchase limited partnership interests. Gerald G. Woodruff, Jr., and Jack S. Wallach paid $21,300 each and were sold limited partnership interests.
The venture was not successful; rental income was insufficient to pay expenses. MacKenzie, who had been a stockholder in Gulf General Corporation, endorsed and turned over his stock to the corporation as treasury stock on May 6, 1985. On December 31, 1985, Gulf General Corporation, Leighton's general partner, was dissolved by its shareholders, Davis and Jenkins. Davis then sold his limited partnership interest in Leighton to Jenkins on March 7, 1986, in exchange for a condominium development. Davis contends that Jenkins agreed to indemnify him against liability that he might incur in regard to Leighton.
On June 30, 1986, the assets of the Leighton partnership were sold. The deed was executed by Leighton Avenue Office Plaza, Ltd., a limited partnership; by Jenkins and Davis, listed as a general partners in the Leighton partnership; and by Mac-Kenzie, listed as a general partner, by and through his attorney in fact. The property was sold for $387,000, from which was deducted SouthTrust Bank's mortgage payoff of $349,783.40 and a tax proration of $1,878.91, giving a net due to the seller of $35,337.69. The net was used along with personal funds of Jenkins ($8,846) and Mac-Kenzie ($4,423) to liquidate the partnership's remaining debt to Central Bank.
On June 23, 1988, Woodruff and Wallach sued Leighton and Jenkins, Davis, and MacKenzie, seeking monetary damages. Davis filed a cross-claim against Jenkins, calling upon Jenkins to indemnify him in this lawsuit.
Woodruff and Wallach's complaint was amended several times, and, when the motions for summary judgment were filed, the claims were as follows: Count one *306 that the defendants had breached an agreement with the plaintiffs by disposing of the assets of the partnership without their consent; count twothat the defendants had transferred the assets of the partnership in violation of the limited partnership agreement and had breached a fiduciary duty to the plaintiffs; count threethat the defendants had represented to the plaintiffs that, upon payment of $21,300, the plaintiffs would become limited partners with the rights and privileges accorded such partners; four count that the certificate of limited partnership contained statements that were false in a material respect; and five count that the defendants had failed to amend the limited partnership agreement in the manner set out in Alabama Code 1975, § 10-9A-21.
The plaintiffs and the defendants moved for summary judgments, and Jenkins moved for a summary judgment on Davis's cross-claim. The trial judge entered a summary judgment on behalf of Leighton, Jenkins, Davis, and MacKenzie on all claims except the fraud claim (relating to the sale of the limited partnership interest) and entered a summary judgment for Jenkins on Davis's cross-claim for indemnity; these judgments were made final pursuant to Rule 54(b), A.R.Civ.P. The plaintiffs and Davis appeal.
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 nonmoving party must present "substantial evidence" creating a genuine issue of material fact, 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).
Woodruff and Wallach contend that the trial court erred in entering the summary judgment on all their claims except the fraud claim. They rely upon § 6.1(i) of the "Limited Partnership Certificate and Agreement," which concerns the rights and duties of the general partner. Here, the agreement provides that the powers of the general partner include, but are not limited to, the power to:
However, the Limited Partnership Certificate and Agreement also provides in Article X, "Duration of Business: Dissolution," as follows:
The defendants argue that, while paragraph 6 may have applied while the partnership was a going concern, once Gulf General Corporation, the general partner, was dissolved, Article X took over and those provisions of the Certificate of Limited Partnership governing dissolution, along with the Alabama Business Corporation Act, controlled.
Section 10-9A-140, Alabama Code 1975, provides that a limited partnership is dissolved and its affairs shall be wound up upon the happening of events specified in the certificate of limited partnership or in the event of withdrawal of a general partner. When Gulf General Corporation, the general partner, was dissolved on December 31, 1985, the limited partnership was thereby dissolved under § 10.2. Once the partnership was dissolved under § 10.5, the general partner had a duty to wind up the affairs and "sell all or such portion of the remaining Limited Partnership assets as promptly as is consistent with obtaining the fair value thereof." Under § 10-9A-143, the creditors of the partnership were entitled to the first proceeds. When the proceeds were insufficient to pay the creditors, they looked to Jenkins and Mac-Kenzie, who personally paid the remaining debt.
Once the limited partnership was dissolved, it had to be liquidated. The limited partners had no authority to liquidate it.[1] This left only the representatives of the general partner to wind up the affairs of the partnership. § 10-9A-124, Ala.Code 1975; Universal C.I.T. Credit Corp. v. Phenix-Girard Bank, 254 Ala. 643, 49 So. 2d 273 (1950). For that reason, the defendants' partial summary judgment is affirmed. The fraud count remains to be tried.
We consider finally Davis's cross-claim for indemnity, which is based upon an agreement that Jenkins signed on March 7, 1986. The agreement provides that Jenkins will indemnify Davis "from any and all liability he may incur arising out of the operation of Leighton Avenue Office Plaza Ltd., a limited partnership, after this date." Counsel for Davis contends that the trial court invaded the province of the jury in entering the summary judgment for Jenkins. "[W]hen the terms of a contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact for the jury." Dill v. Blakeney, 568 So. 2d 774, 778 (Ala.1990). We agree that in the context of the facts of this case, the indemnity agreement is ambiguous. The summary judgment for Jenkins against Davis is due to be reversed and the cause remanded for proceedings consistent with this opinion.
HORNSBY, C.J., and HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., concurs in case 1911422 and dissents in case 1911517.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in the affirmance of the summary judgment in case number 1911422. I must respectfully dissent from the reversal of the summary judgment in favor of Jenkins on Davis's indemnity claim in case number 1911517.
The pertinent paragraph of the indemnity agreement sued upon reads:
"I further agree to indemnity and hold harmless William J. Davis from any and all liability he may incur arising out of *308 the operation of Leighton Avenue Office Plaza Ltd., a limited partnership, after this date."
Davis, in his brief, argues that "[t]he Leighton Avenue property was the only asset of the limited partnership at the time of its dissolution," and that "[i]t would seem to be without question that one of the acts that Jenkins might perform in his operation of the property is to sell it." The word "operation" in the indemnity agreement, in my opinion, is not ambiguous, and I cannot agree with Davis that the parties intended the word to include selling the asset of the limited partnership. Giving that expanded definition to the word "operation" in the indemnity agreement, in my opinion, is not warranted; I think the trial judge correctly entered the summary judgment on Davis's claim. I must dissent on that point.
[1] Section 7.3 of the Agreement of the parties provided: "No limited partner, as such, shall take part in the management of the business, transact any business for the Limited Partnership, or have the power to sign for or to bind the Limited Partnership to any agreement or document, said powers being vested solely and exclusively in the General Partner." | April 30, 1993 |
b810bb06-db0f-4293-b9d7-783da5c4a76a | Ex Parte Johnson | 629 So. 2d 619 | 1920135 | Alabama | Alabama Supreme Court | 629 So. 2d 619 (1993)
Ex parte John Wilson JOHNSON.
(Re John Wilson Johnson v. State.)
1920135.
Supreme Court of Alabama.
April 23, 1993.
Rehearing Denied August 20, 1993.
George H. Jones, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted certiorari review to determine whether the trial court erred when it admitted testimony that the defendant, while being questioned by police while he was in custody, elected to remain silent and asked for legal help.
The Court of Criminal Appeals, in an unpublished memorandum, held that "[a]ny improper comment on the appellant's exercise of his Miranda right to remain silent in reference to his failure to answer a question about the knife was cured when the officer testified without objection that subsequently the appellant `wouldn't talk about the incident, and ... asked if he could have legal help." The Court of Criminal Appeals affirmed Johnson's conviction, and subsequently denied his application for rehearing and denied his motion under Rule 39(k), Ala. R.App.P., 617 So. 2d 707 and 614 So. 2d 1066. We reverse and remand.
Johnson was convicted of the criminal offense of burglary in the first degree with intent to rape. He was sentenced under the Habitual Felony Offender Act to a term of life without parole.
Before his arrest, Johnson, at the time a suspect in the burglary, was brought in for questioning by the police. The questioning occurred after one of the investigating officers, Sergeant Harrison, had given Johnson a standardized Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During his trial, the following occurred during questioning by Ms. McClendon, the prosecutor:
(R. 415-17.)
In addressing the issue presented by this testimony, the Court of Criminal Appeals stated:
(R. 417.)
We disagree with the conclusion of the Court of Criminal Appeals that any improper comment was "cured when the officer testified without objection" that Johnson would not talk about the incident and asked if he could have legal help. Before trial, Johnson had moved to suppress any evidence concerning the knife; at a suppression hearing, the following exchange took place:
(R. 225-26.)
It seems clear that Johnson was objecting, both at the suppression hearing and *621 at his trial, to the admission of the police officer's testimony that he elected to remain silent and asked for legal help. In view of that fact, we hold that the Court of Criminal Appeals erred in concluding that any error had been cured. We agree with Johnson that the facts of this case are strikingly similar to the facts set out in Marshall v. State, 570 So. 2d 832 (Ala.Cr.App.1990). In Marshall, the following occurred:
570 So. 2d at 833. Of this similar testimony, the court in Marshall stated that "[t]he witness's response, deliberately solicited by the assistant district attorney, constituted a clear and highly improper comment on the defendant's exercise of his constitutional rights." Id. This Court, in Ex parte Marek, 556 So. 2d 375, 382 (Ala.1989), abolished the tacit admission rule in pre-arrest situations "to the extent that the rule allows introduction of evidence of the accused's silence when confronted with an accusation." The Court also noted in Marek that the use of tacit admissions occurring after an individual has been given the Miranda warnings had been abolished in Ex parte Harris, 387 So. 2d 868 (Ala.1980). In Harris, the Court stated: "The crux of our holding is simply that it is fundamentally unfair and in violation of due process of law to inform a person under arrest that he has a right to remain silent and then permit an inference of guilt from that silence." 387 So. 2d at 871; see also Ex parte Brooks, 562 So. 2d 604 (Ala.1990). "The standard is strict; virtually any description of a defendant's silence following arrest and a Miranda warning will constitute a Doyle [v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)] violation." United States v. Rosenthal, 793 F.2d 1214, 1243 (11th Cir.), modified on other grounds, 801 F.2d 378 (11th Cir.1986), cert. denied, 480 U.S. 919, 107 S. Ct. 1377, 94 L. Ed. 2d 692 (1987). We conclude that the holding in Marshall was correct.
The State argues that the Marshall case is distinguishable, but that any error in the admission of the testimony in this case, "even if error, was merely harmless," because "the evidence concerning [Johnson's] ownership of this knife rendered any admission or denial by him cumulative at best," and "[i]t was beyond dispute ... that [Johnson] was guilty of this crime." We cannot agree with the State's argument. We see no significant difference between the testimony that was admitted in this case and the testimony that the Court of Criminal Appeals found to be inadmissible in Marshall. We hold, therefore, that the judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and KENNEDY, JJ., concur.
HOUSTON, STEAGALL and INGRAM, JJ., dissent.
HOUSTON, Justice (dissenting).
I would quash the writ.
I can distinguish this testimony from the following testimony in Marshall v. State, 570 So. 2d 832, 833 (Ala.Cr.App.1990):
I believe that we should return to basics. "The crux of our holding [in Ex parte Harris, 387 So. 2d 868 (Ala.1980),] is simply that it is fundamentally unfair and in violation of due process of law to inform a person under arrest that he has a right to remain silent and then permit an inference of guilt from that silence." 387 So. 2d at 871.
I infer from the question in Marshall that Marshall had rented the brown Nissan in Decatur, Georgia, on June 5 and returned it on June 7. The brown Nissan had been parked near the scene of the crime. I can reasonably infer Marshall's guilt from his silence.
In the present case, the knife was found in the bed of the victim and was a crucial piece of evidence; however, I do not infer Johnson's guilt from the officer's testimony quoted above.
INGRAM, Justice (dissenting).
Because the present case is distinguishable from Marshall v. State, 570 So. 2d 832, 833 (Ala.Cr.App.1990), I would quash the writ.
After being given a Miranda warning, Johnson answered extensive questions about the incident. When asked about the knife, Johnson simply did not respond. He then went on to answer more questions about the incident. Finally, Johnson refused to discuss the incident any further and "asked for legal help." At that point the detective ended the interview. At no time before asking for legal help did Johnson invoke his Fifth Amendment right against self-incrimination.
While the majority correctly states that the testimony in this case is similar to that testimony that caused the problem in Marshall, these two cases are not analogous. The testimony in Marshall set out in the majority opinion shows that the objectionable testimony was directly related to the defendant's clear invocation of his Fifth Amendment rights. In the present case, however, it is undisputed that Johnson continued to answer questions after having remained silent with regard to the knife.
The most striking similarity between Marshall and the present case is that in both cases the witness ultimately testified that the defendant terminated the interview and asked for counsel. In Marshall, the defendant objected to that testimony and the conviction was reversed, based on its admission. However, in the present case, the testimony regarding Johnson's termination of the interview was admitted without objection.
I would also conclude that the testimony regarding Johnson's refusal to answer questions about the knife was cumulative. The State presented overwhelming circumstantial evidence linking Johnson to the knife and to the crime. Accordingly, I would conclude that any error based on the testimony regarding Johnson's refusal to answer questions about the knife was harmless.
STEAGALL, J., concurs. | April 23, 1993 |
89a0c990-38c7-491d-93bc-e82079923197 | Mikkelsen v. Salama | 619 So. 2d 1382 | 1911774 | Alabama | Alabama Supreme Court | 619 So. 2d 1382 (1993)
William R. MIKKELSEN and Theresa Lena Mikkelsen
v.
Samir SALAMA.
1911774.
Supreme Court of Alabama.
April 30, 1993.
*1383 Samuel G. McKerall, Gulf Shores, for appellants.
R. Alan Alexander and Thomas H. Nolan, Jr. of Brown, Hudgens, P.C., Mobile, for appellee.
HOUSTON, Justice.
This is an appeal from the dismissal of a third-party complaint.
Richard Coggin sued Theresa L. Mikkelsen and her father, William R. Mikkelsen, for damages for personal injuries, and Richard's wife Lisa Coggin sued the Mikkelsens for damages for loss of consortium; the Coggins alleged that the injuries resulted from a collision between the vehicle Theresa Mikkelsen was driving and the bicycle Richard Coggin was riding. Against Theresa Mikkelsen the Coggins alleged negligence, gross negligence, and wantonness and/or recklessness in the operation of her vehicle. Against William Mikkelsen the Coggins alleged the negligent entrustment of his vehicle to Theresa Mikkelsen. The Mikkelsens answered, generally denying the allegations in the complaint. Thereafter, they filed a third-party complaint against Dr. Samir Salama, a physician who had treated Theresa Mikkelsen and had prescribed medication for her for a mental condition known as "bipolar disorder" (a manic/depressive illness). Dr. Salama moved to dismiss the third-party complaint pursuant to Rule 12(b)(6), Ala.R.Civ. P., alleging that it failed to state a claim upon which relief could be granted and that the Mikkelsens sought indemnity or contribution that was not allowed under Alabama law. The trial court granted Dr. Salama's motion to dismiss and certified the judgment of dismissal as final pursuant to Rule 54(b), A.R.Civ.P. The Mikkelsens appeal. We reverse and remand.
Although the Mikkelsens maintain that they are not joint tort-feasors with Dr. Salama, they nevertheless contend that if they are determined to be joint tort-feasors they should have been allowed to proceed against Dr. Salama because, they say, this case fits within a recognized exception to the rule prohibiting indemnity among joint tort-feasorsthe exception applies in those instances "where both parties are at fault, but the fault of the party from whom indemnity is sought was the proximate or primary cause of the injury." Crigler v. Salac, 438 So. 2d 1375, 1385 (Ala.1983). According to the Mikkelsens, this case fits within that exception because Dr. Salama's "failure to warn [Theresa] and her father that [she] should not operate automobiles while suffering from `bi-polar disorder' and *1384 taking [the prescribed medication for the disorder] was the proximate or primary cause of the Coggins' injuries."
According to Dr. Salama, although the Mikkelsens alleged that he "negligently failed to advise or warn Theresa about certain alleged facts, [they] failed to allege that [he] did not conform to the proper standard of practice in his treatment [of] or advice [to] Theresa," so as to state a claim against him under the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-540 et seq. He also maintains that the trial court properly dismissed the Mikkelsens' third-party complaint as a claim for indemnity or contribution among tort-feasors not allowed under Alabama law.
A dismissal for failure to state a claim is proper only if it appears beyond a reasonable doubt that the nonmoving party can prove no set of facts that would entitle him to relief. See, Pearce v. Schrimsher, 583 So. 2d 253 (Ala.1991).
Generally, under Rule 8, Ala.R.Civ.P., pleadings need only put the defending party on notice of claims against him; however, Ala.Code 1975, § 6-5-551, qualifies the generalized pleadings permitted by Rule 8(a) by requiring in medical malpractice actions that the complaint include a detailed specification and factual description of the act and omission the plaintiff says renders the health care provider liable to the plaintiff. See, e.g., Miller v. Mobile County Board of Health, 409 So. 2d 420 (Ala.1982). Section 6-5-551 provides:
There are no cases specifically dealing with the pleading requirements of § 6-5-551. However, because the pleading requirements of § 6-5-551 are similar to the requirement of pleading fraud with specificity under Rule 9(b), Ala.R.Civ.P., the comments and the case law applicable to Rule 9 aid us in determining whether a pleading sufficiently complies with the requirements of § 6-5-551.
Thus, when a plaintiff files a complaint alleging that a health care provider breached the standard of care owed to the plaintiff, although every element of the cause of action need not be stated with particularity, the plaintiff must give the defendant health care provider fair notice of the allegedly negligent act and must identify the time and place it occurred and the resulting harm. If the complaint affords the defendant health care provider fair notice of these essential elements, the courts should strive to find that the complaint includes the necessary "detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff." Section 6-5-551; see Comments, Rule 9; see, e.g., Keller v. Security Federal Savings & Loan Ass'n, 555 So. 2d 151 (Ala.1989); Kabel v. Brady, 519 So. 2d 912 (Ala.1987).
Therefore, in order for the Mikkelsens to state a claim for relief against Dr. Salama, they had to include in their third-party complaint a statement of the allegedly negligent act of Dr. Salama, identifying the time and place it occurred and the resulting harm.
The Mikkelsens' third-party complaint reads, in part, as follows:
The Mikkelsens' third-party complaint met the requirements of § 6-5-551 by giving Dr. Salama fair notice of the claim asserted against him and against which he had to defend. It sufficiently alleged that Dr. Salama's negligent act was his failure to warn Theresa or her family that she should not drive while suffering from the mental disorder he had diagnosed or while taking the medication he had prescribed; it sufficiently alleged that his negligent act was informing Theresa that she should live a normal life and drive herself to and from her place of employment; it sufficiently alleged the date and place of his negligent act; and it sufficiently alleged that the harm resulting from his negligent act was the accident made the basis of this case, which, it alleged was the proximate or primary cause of the Coggins' injuries.
The trial court erred in dismissing the Mikkelsens' third-party complaint against Dr. Salama.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | April 30, 1993 |
b44c5cca-fab1-403a-92ab-8d6cb39ed3ad | Dale v. Kelly | 620 So. 2d 632 | 1911375 | Alabama | Alabama Supreme Court | 620 So. 2d 632 (1993)
Pamela L. DALE and Mike Dale
v.
Lillie H. KELLY.
1911375.
Supreme Court of Alabama.
May 7, 1993.
Douglas C. Martinson and Douglas C. Martinson II, Huntsville, for appellants.
Donna S. Pate of Lanier Ford Shaver & Payne P.C., Huntsville, for appellee.
Jack Drake of Drake & Pierce, Tuscaloosa, and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.
ALMON, Justice.
The plaintiff, Pamela Dale,[1] appeals from a judgment on a jury verdict in favor of the defendant, Lillie Kelly, in Dale's negligence action based on an automobile accident that occurred in a privately owned parking lot. The issues are: 1) whether the trial court erred in failing to instruct the jury on the "Rules of the Road," Ala.Code 1975, § 32-5A-1 et seq.; and 2) whether the trial court erred in denying Dale's motions for directed verdict and for J.N.O.V., based on what Dale says was undisputed proof of Kelly's negligence.
On February 20, 1990, Kelly, an employee of Intergraph, Inc., was driving slowly in a westerly direction in a one-way lane of traffic in Intergraph's parking lot. This one-way lane intersected with a two-way lane that ran north and south; traffic was controlled at this intersection by a "yield" *633 marker painted on the one-way lane. As Kelly approached the yield marker, she "came off" the accelerator, looked first to her right and then to her left, and, seeing no one, then entered the intersection. As Kelly entered the intersection, her vehicle struck Dale's car; Dale had been travelling south in the two-way lane of traffic. Kelly testified that she did not apply her brakes before entering the intersection because she did not see Dale's car approaching. Kelly also testified that she was familiar with the intersection and that she knew of the yield marker.
Dale argues that the trial court erred in failing to give the following instructions based on the "Rules of the Road," Ala. Code 1975, § 32-5A-1 et seq.:
Dale concedes that this Court has never held that the Rules of the Road apply to private parking areas. Dale argues, however, that the Rules of the Road should be made applicable to heavily travelled private parking areas that employ normal traffic control devices, because these parking areas are effectively the same as public highways. She urges this Court to follow the Virginia Supreme Court's decision in Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987). The Furman court held that the Virginia statutory rules of the road apply to condominium parking lots.
Substantial differences between the Virginia and Alabama rules prevent this Court from following Furman. The Virginia rules apply to all "highways," and "highway" is defined in the Virginia Code as "the entire width between the boundary lines of every way or place of whatever nature open to the use of the public for purposes of vehicular traffic." Va.Code Ann. § 46.1-1(10). Because the condominium parking lot did not limit the access of the public with gates, a guard station, or other means, the Furman court held that the lot was a "highway" within the statutory definition.
The Alabama rules apply "exclusively to the operation of vehicles upon highways." Ala.Code 1975, § 32-5A-2. The term "highway" is defined in the Alabama Code as the "[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." § 32-1-1.1(23) (Emphasis added.) Because the statutory definition of the term "highway" excludes private parking lots, the Rules do not apply to private parking lots.
Dale argues that even if the Rules do not apply to private areas in the same manner as they apply to highways, trial courts should nevertheless be able to use *634 the Rules as guidelines in framing instructions on common law negligence. This argument, even if correct, does not present any error in the case before us. Such instructions would presumably be discretionary with trial judges, and, in this case, the trial court gave such instructions covering substantially all of the points raised in the requested instructions:
These instructions substantially covered the requested "Rules of the Road" instructions as guidelines in determining negligence, and Dale's argument on this point presents no error.
In her argument that the trial court erred in denying her motion for J.N.O.V., Dale argues that the collision, which followed Kelly's failure to stop at the yield marker, constitutes prima facie evidence of Kelly's negligence. Dale then argues that Kelly did not overcome this prima facie case by presenting substantial evidence that she was not negligent.
Questions regarding the breach of the duty of care are generally for the jury. Sungas, Inc. v. Perry, 450 So. 2d 1085 (Ala.1984). Kelly testified that she approached the intersection slowly and looked both ways before entering it. In light of all the evidence, the trial court did not err in denying the motion for J.N.O.V.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] Pamela Dale's husband Mike Dale sued also, alleging loss of consortium. His claim is derivative, and we need not discuss it separately. | May 7, 1993 |
e6033a6d-a3c1-4896-916a-e4e2ac28cf98 | Hamme v. CSX Transp., Inc. | 621 So. 2d 281 | 1911924 | Alabama | Alabama Supreme Court | 621 So. 2d 281 (1993)
William Frank HAMME and Sheila Diane Hamme
v.
CSX TRANSPORTATION, INC.; and W.L. Wood.
1911924.
Supreme Court of Alabama.
May 14, 1993.
*282 Stewart E. Burns of Burns, Burns & Burns, Gadsden, for appellants.
Curtis Wright of Dortch, Wright & Russell, Gadsden, for appellees.
HOUSTON, Justice.
William Frank Hamme and his wife Sheila appeal from a judgment based on a directed verdict for the defendants, CSX Transportation, Inc., and H.L. Wood, on the Hammes' wantonness claim arising out of a collision involving a CSX train and a truck driven by Frank Hamme.
The Hammes sued CSX and Wood,[1] individually and as agent, servant, or employee of CSX, alleging that CSX and Wood had negligently and wantonly caused a collision between the train and Frank Hamme's truck and that in that collision he had suffered injury. Frank Hamme sought "judgment against [CSX and Wood] in [the] sum of [$450,000], plus interest and costs ... and [claimed] punitive damages." Sheila Diane Hamme alleged loss of consortium as a result of the injuries her husband claimed to have suffered in the collision and sought a "judgment against [CSX and Wood] in the sum of [$150,000], plus interest and costs ... and [claimed] punitive damages." CSX and Wood answered, denying each allegation and claiming that Frank Hamme was contributorily negligent and was therefore barred from recovering for any negligence on the part of CSX and Wood.
At the close of the Hammes' case, CSX and Wood moved for directed verdicts on the claims of negligence and wantonness. The trial court denied a directed verdict on the negligence claim, but directed a verdict for CSX and Wood as to the wantonness claim. Subsequently, after having been instructed on the law of negligence and contributory negligence, the jury returned verdicts for CSX and Wood on Frank Hamme's negligence claim and on Sheila Hamme's claim. The court entered a judgment pursuant to the jury's verdicts and the directed verdict. Thereafter, the Hammes moved for a new trial on the wantonness claim, maintaining that "[t]he evidence and inferences therefrom which are most favorable to [the Hammes] provide substantial evidence of wantonness." The trial court denied the Hammes' motion for new trial. The Hammes appeal from that portion of the trial court's judgment based on the directed verdict for CSX and Wood on the wantonness claim. The Hammes do not appeal as to their negligence claim. We affirm in part, reverse in part, and remand.
This action was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule. See West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala. 1989), for a definition of "substantial evidence"; Ala.Code 1975, § 12-21-12. In actions filed after June 11, 1987, a directed verdict for a defendant is proper if the plaintiff fails to present substantial evidence as to some element of his cause of action. See South Central Bell Telephone Co. v. Branum, 568 So. 2d 795 (Ala.1990). In reviewing a directed verdict, this Court must view the evidence in the light most favorable to the nonmoving party.
In this case, to show that the trial court erred in directing a verdict for CSX and Wood on that portion of the wantonness count seeking compensatory damages, the Hammes, as the nonmovants, had to present "substantial evidence" in support of the claim of wantonness. See Berry v. Fife, 590 So. 2d 884 (Ala.1991), in which the Court held that the applicable standard of review in actions in which a party alleges wanton conduct and seeks compensatory *283 damages, in all cases filed after June 11, 1987, is the "substantial evidence" rule. The Hammes had to present "substantial evidence" that CSX and Wood acted with "knowledge of the danger or a consciousness that injury was likely to result from an act or an omission to act," Burlington Northern R.R. Co. v. Whitt, 575 So. 2d 1011, 1021 (Ala.1990), in order to submit to the jury the wantonness claim seeking compensatory damages.
To be wanton, it is not required that the actor know that a person is within the zone made dangerous by the actor's conduct; rather, it is sufficient that the actor knows that there is a strong possibility that another might rightfully come within the zone. See Restatement (Second) of Torts, § 500, comment d (1965); Joseph v. Staggs, 519 So. 2d 952 (Ala.1988). The actor's knowledge may be proved by showing circumstances from which the fact of knowledge is a reasonable inference; it need not be proved by direct evidence. Wantonness does not require an intent to injure another, but may consist of an inadvertent act or failure to act, when the one acting or failing to act has knowledge that another is probably imperiled by the act or the failure to act and the act or failure to act is in reckless disregard of the consequences. Id.; Roe v. Lewis, 416 So. 2d 750 (Ala.1982); Atlantic Coastline R.R. v. Brackin, 248 Ala. 459, 28 So. 2d 193 (1946).
The undisputed facts of this case establish the following: The collision occurred around 6:00 a.m. on a rainy, semi-dark morning at the 9th Street railroad crossing in Gadsden, Alabama. Frank Hamme was travelling approximately 15 miles per hour, with his windshield wipers on, but he had no problem with visibility. He was familiar with the crossing, having passed it numerous times before, but on this day he did not stop the truck at the crossing. Rather, he slowed down to 2-3 miles per hour and looked in both directions; he saw no train. When his front tires were on the tracks and he looked to the right, he saw the train 20-30 feet away and he then "stomped on [the] gas to beat [the] train." The train was travelling at approximately 15 miles per hour. The train was approximately 900 feet from the crossing, when Wood, the engineer of the train, first saw Frank Hamme's truck, which was then approximately 500 feet from the railroad crossing. Wood thought Mr. Hamme was not going to stop at the crossing.
Other evidence is disputed. However, viewed in the light most favorable to the Hammes, as required under our applicable standard of review, it reveals the following: Although there was a company rule that the lights on the front of the engine were to be on at all times, Mr. Hamme saw no lights on the train. Although it was customary to blow the whistle for at least 10 seconds when the train reached a whistle board marker along the track, approximately 1000 feet from the crossing, Mr. Hamme heard no whistle. Although the railroad signals at the crossing, i.e., the flashing lights and ringing bells, were automatically activated and deactivated when the train passed over a specific circuit on the track, Mr. Hamme saw no lights flashing and heard no bells ringing at the railroad crossing.[2] Although Wood knew that Mr. Hamme was not going to stop at the railroad crossing, Wood did not apply the emergency brakes until after the train had hit the truck.
While we recognize a continuing duty on the part of a person intending to cross railroad tracks to stop, look, and listen for approaching trains, if there is substantial evidence that the railroad failed to use all reasonable means to warn the approaching driver of his danger, after the railroad discovered *284 the approaching driver's peril, or if there is substantial evidence that the railroad failed to stop the train after discovering the approaching driver's peril, if it could have done that in time to avoid the collision, then the question of wantonness is for the jury. Southern Ry. v. Diffley, 228 Ala. 490, 153 So. 746 (1934).
Based on the foregoing, and in accordance with our standard of review, we hold that the Hammes presented substantial evidence that, after discovering Frank Hamme's peril, Wood failed to use all reasonable means to warn Mr. Hamme of that peril and/or that Wood failed to stop the train, assuming that he could have done so in time to avoid the collision. Thus, the Hammes presented a fact question for the jury on the issue of wantonness.
Thus, to the extent that the Hammes seek compensatory damages on the wantonness claim, because "fair-minded persons in the exercise of impartial judgment [could] reasonably infer the fact sought to be proved," i.e., wantonness, West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989), the trial court erred in directing a verdict for CSX and Wood. Thus, we reverse the judgment as to the claim for compensatory damages on the basis of wantonness.
We note that in actions in which a party alleges wanton conduct as a cause of action and seeks punitive damages, in all cases in which the right accrued after June 11, 1987, the wanton conduct must be proved by "clear and convincing evidence." See, Ala.Code 1975, § 6-11-20(a); see, also, Berry v. Fife, supra; and International Rehabilitation Associates, Inc. v. Adams, 613 So. 2d 1207 (Ala.1992). Ala.Code 1975, § 6-11-20(b)(4), defines "clear and convincing evidence" as follows:
In this case, although in their complaint the Hammes sought punitive damages and in their notice of appeal they did not withdraw that claim, the Hammes state as follows in their reply brief on appeal:
Therefore, whether the Hammes presented the "clear and convincing evidence" of wantonness necessary to create a fact question for the jury on the claim for punitive damages is not before us. Thus, as to the Hammes' claim for punitive damages on the basis of wantonness, we affirm the judgment based on the directed verdict.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in part and dissenting in part).
I concur with the majority opinion except for the holding "that the Hammes presented substantial evidence that, after discovering Frank Hamme's peril, Wood failed to use all reasonable means to warn Mr. *285 Hamme of that peril and/or that Wood failed to stop the train, assuming that he could have done so in time to avoid the collision." 621 So. 2d at 284. On that point, I must respectfully dissent.
The engineer, Wood, testified that he did not see Frank Hamme's truck until it moved into sight from around a building, when it was between seven and nine automobile lengths from the crossing, and that he (Wood) did not realize until Hamme reached the crossing that Hamme was not going to stop, at which point Wood placed the train in "emergency." Based on this testimony, I do not find substantial evidence that the defendants "acted with `knowledge of the danger or a consciousness that injury was likely to result from an act or an omission to act,'" 621 So. 2d at 283, quoting in part Burlington Northern R.R. v. Whitt, 575 So. 2d 1011, 1021 (Ala. 1990), sufficient to submit the wantonness claim to the jury. In Whitt, there was evidence not only that the red warning lights were not operating, but also that the train was moving at an excessive speed and that the "peepholes" on the signal lights, which permit train crew members to observe whether the warning lights are flashing, were covered with paint.
Accordingly, I would affirm the trial court's judgment based on the directed verdict.
[1] Wood was the engineer of the train that collided with Frank Hamme's truck.
[2] The parties spend a great deal of time arguing whether the lights at the crossing were flashing and whether the crossing bells were ringing. However, the lights and the bells at the crossing site were automatically activated and deactivated as the train passed over a specific circuit on the track. These devices were not within the control of train personnel, and there was no evidence that CSX knew of any problems with these devices. Therefore, whether the lights were flashing and whether the bells were ringing, that question has no bearing on our determination of the wantonness issue as to CSX, other than under the doctrine of respondeat superior. | May 14, 1993 |
5b22a556-6c3d-417e-bbf6-53a2c52e842f | Ex Parte State Dept. of Human Resources | 624 So. 2d 589 | 1912001 | Alabama | Alabama Supreme Court | 624 So. 2d 589 (1993)
Ex parte STATE DEPARTMENT OF HUMAN RESOURCES.
(Re A.P. v. STATE DEPARTMENT OF HUMAN RESOURCES; and M.K. v. STATE DEPARTMENT OF HUMAN RESOURCES. Re M.A.K.))
1912001.
Supreme Court of Alabama.
April 16, 1993.
*590 William Prendergast, Coleman Campbell and Lynn S. Merrill, Asst. Attys. Gen., for petitioner.
Steven A. Backer, Huntsville, for A.P.
KENNEDY, Justice.
This case involves the termination of parental rights of M.K., the mother, and A.P., the father, in regard to M.A.K., the child.
The issue is whether the Court of Civil Appeals erred in reversing the trial court's determination that it was in the best interest of the child to terminate parental rights. We hold that it did.
The Department of Human Resources ("DHR") had been involved with the mother, M.K., since 1977. DHR provided services to M.K. and two children born before M.A.K. was born. On August 21, 1989, the hospital at which M.A.K. was born notified DHR that M.A.K. had been born. A DHR caseworker visited M.K. at the hospital and asked her whether she was planning to take the child home. M.K. stated that she did intend to take the child home with her.
A social worker from DHR visited the home on August 22, 1989. At that time she found the home to be unsanitary and in "deplorable" condition. There were dirty clothes and objects on the floor of the home, the beds were unmade and the bed linens were dirty, and there were no utilities. There were no supplies for a baby, i.e., no baby bed, no baby food, no baby clothes. Also, there were nine people living in the house. M.K. shared a bedroom with A.P. and with a sister of M.K. Another sister of M.K., that sister's child, M.K.'s brother, and the brother's girlfriend slept in another bedroom. M.K.'s parents slept in the living room.
The social worker talked with the child's father, A.P., who told her that he was going to buy supplies for the child with a credit card. He also stated that the utilities would be turned on the next day. The social worker obtained a court order for immediate shelter care for the child.
In April 1991, DHR filed a petition requesting that the court terminate the parental rights of M.K. and A.P. The petition contained the following allegations:
(C.R. 10).
At the hearing, a social worker testified that she had offered to help M.K. locate adequate housing and that several times M.K. had stated that she was "going to" move within a week or a month, but had never done so. The social worker also stated that financial assistance was offered to M.K. and A.P. to help them find adequate housing.
A social worker who had been involved with M.K. and her other two children stated that the parental rights of those children had been terminated in November 1989. She stated that M.K. needed to establish her own residence, because her family members would tell her that she did not need to do what the social worker asked her to do.
Another social worker visited M.K.'s home immediately before the hearing and found bugs crawling out of the sink, bugs in the bathroom, and bugs in the refrigerator. There were exposed light sockets and windows that had been boarded shut. Trash and debris were on the floor, along with several empty whiskey bottles. There was water on the floor in the utility area that had been there on the social worker's prior visit to the home approximately one month earlier. There was broken glass on the back porch, which the family members stated had been there since they moved in.
A psychologist testified that M.K. and A.P. were functionally illiterate and needed counseling in order to develop the proper home environment for rearing a child. There was testimony favorable to M.K. and A.P., indicating that they had regularly visited the child during scheduled times while the child was in foster care. M.K. attended a parenting class and A.P. maintained employment during this period. However, there was no evidence that M.K. or A.P. tried to improve the condition of the home or their circumstances. The social worker told M.K. that it would be necessary for her to have some kind of income, but M.K. never found employment.
The trial court found clear and convincing evidence that it was in the best interest of the child to terminate the parental rights of M.K. and A.P. The court also found that reasonable efforts had been taken to prevent or eliminate the need to remove the child from her parents.
The Court of Civil Appeals held that the parents had shown a willingness and desire to parent this child, but had not been afforded the opportunity to do so because the child had been taken from them immediately after her birth. The court stated that "while the parents have failed to provide financial assistance, i.e., material needs for the child, they have clearly maintained contact and visitation with the child as allowed by DHR, and have attempted, albeit unsuccessfully, to adjust their circumstances to meet the needs of the child." A.P. v. Department of Human Resources, 624 So. 2d 586 (Ala.Civ.App.1992). The court concluded that the trial court did not find that the parents were unwilling or unable to discharge their responsibilities for the child and that it had not found that such conduct or conditions existed as to render the parents unable to care for the child and that such conduct or condition was unlikely to change in the future. The Court of Civil Appeals reversed the judgment terminating parental rights, instructing the trial court to conduct further proceedings, "which could include" a determination of "whether the conditions are proper to care" for the child and the "likelihood of such conditions changing in the foreseeable future." 624 So. 2d at 589.
A parent has a prima facie right to custody of his or her child and this right can be overcome only by clear and convincing evidence that the child's best interests would be served by permanently terminating the parent's custody. R.C.M. v. State Dep't of Human Resources, 601 So. 2d 100 (Ala.Civ. App.1991). The best interest of the child is the primary concern in a proceeding to terminate parental rights. R.C.M.
Section 26-18-7, Ala.Code 1975, a part of the Child Protection Act, sets out the statutory *592 grounds for termination of parental rights, as follows:
(Emphasis added.)
The record reveals that M.K. and A.P. did not comply with DHR's request that they obtain adequate housing. M.K. and A.P. failed to correct their living conditions, and there was no evidence that they would have done so in the future. The condition of the house was unsanitary and unsafe for an infant, and no preparations were made for taking care of the child. The number of people in the house, the sleeping arrangements, and the condition of the house could not provide a healthy, stable environment for an infant. Although the Court of Civil Appeals seemed to focus on an indication of the parents' willingness to care for the infant in that they showed up for scheduled visits with the child, this alone does not defeat an effort by DHR to satisfy the requirements of § 26-18-7.
This Court held in Ex parte Beasley, 564 So. 2d 950 (Ala.1990), that when the State is petitioning to terminate parental rights, the trial court must find from clear and convincing evidence that the child is dependent and that the court must determine whether all *593 viable alternatives to termination have been explored.
It is clear from the record that M.A.K. was dependent; she was an infant and needed constant supervision and care. Also, the trial court found that alternatives to termination had been considered. Specifically, the trial court stated that reasonable efforts had been made to eliminate the need to remove the child from her parents. The record supports this finding, because it shows that the parents had failed to make any changes in their living conditions even after DHR requested them to accomplish rehabilitation. Also, no alternative family placement was available, because the extended family all lived in the same house with the mother and father.
The Court of Civil Appeals seems to indicate in its opinion that the trial court was required to make written findings regarding whether the conditions were proper for rearing an infant and regarding whether the conditions were likely to change in the "foreseeable future." There is no such requirement in the Child Protection Act. The Court of Civil Appeals has previously held that detailed findings in a termination order are preferable, but are not required. M.J.G.L. v. State Department of Human Resources, 587 So. 2d 1004 (Ala.Civ.App.1991). Also, a nonparticularized finding by the trial court that a child is dependent is also a finding that the allegations in the dependency petition are true and the trial court need not make a specific finding on the allegations. Grant v. State Department of Human Resources, 560 So. 2d 1050 (Ala.Civ.App.1989).
In the present case, the petition alleged that the parents were "unwilling or unable to discharge their responsibilities to and for this child or that the conduct or condition of the parents was such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future." Certainly, the record supports the allegations in the petition concerning the parents' inability to discharge their responsibilities to the child, and the conditions of the parents have not changed.
We note that the trial court heard evidence that M.K.'s parental rights in regard to two other children had been terminated in 1989. See M.F.K. v. Department of Human Resources, 571 So. 2d 317 (Ala.Civ. App.1990). A court may consider the past history of the family, as well as evidence of its present conditions. Fitzgerald v. Fitzgerald, 490 So. 2d 4 (Ala.Civ.App.1986). In In re Shivers, 440 So. 2d 1081 (Ala.Civ.App.1983), the Court of Civil Appeals held that because the child's best interest is controlling in a termination proceeding, the trial court may consider a parent's loss of custody of other children.
The trial court's decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong. M.J.G.L., 587 So. 2d 1004. We hold that the trial court did not err in terminating the parental rights of M.K. and A.P. as to M.A.K.
Based on the foregoing, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for an order consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | April 16, 1993 |
bb6a4030-edc7-414d-840e-c7fe16387d0f | Fox v. Hunt | 619 So. 2d 1364 | 1911556 | Alabama | Alabama Supreme Court | 619 So. 2d 1364 (1993)
John FOX, et al.
v.
Guy HUNT, et al.
1911556.
Supreme Court of Alabama.
April 16, 1993.
*1365 William J. Baxley and Joel E. Dillard of Baxley, Dillard & Dauphin, Birmingham, for appellants.
James H. Evans, Atty. Gen., and George E. Jones III, Asst. Atty. Gen., for appellees.
INGRAM, Justice.
The plaintiffsJohn Fox, Pat Booher, Vickie Allen, and Jimmy Farrissued Guy Hunt, Robin Swift, Robert Childree, Polly Conradi, Debra Hackett, and Jackie Calhoun, in their respective capacities as Governor, director of finance, state comptroller, and circuit court clerks.[1] The complaint sought class certification for the plaintiffs as representatives of that class of plaintiffs in prior civil lawsuits that had paid the statutory $50 civil jury trial fee, pursuant to §§ 12-19-71(4) and -72(4), Ala. Code 1975. The complaint alleged that all statutory fees required to be paid for a jury trial in a civil action were unconstitutional. An amended complaint filed August 30, 1991, alternatively challenged only that part of the fee paid into the "state general fund" as an unconstitutional "tax" on the right to have a jury in a civil trial. See § 12-19-72(4) (allocating $40 of the $50 jury trial fee to the state general fund).
The trial court denied the plaintiffs' request for class certification and entered a summary judgment in favor of the defendants. The plaintiffs appealed, challenging the $50 jury trial fee, §§ 12-19-71(4) and -72(4), as violating Ala. Const.1901, § 11, guaranteeing the right to jury trial, and § 13, the open courts provision. The facts of this case are not disputed; therefore, this Court must determine whether the defendants were entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.
This Court has held that the Legislature is constitutionally empowered to impose fees for the benefit of the judiciary.
Swann v. Kidd, 79 Ala. 431, 432 (1885).
In Green v. Austin, 425 So. 2d 411, 414 (Ala.1982), this Court held:
(Emphasis supplied.)
The guarantee of a right to trial by jury is not a guarantee of the "right to litigate without expense"; therefore, requiring the payment of a reasonable jury fee is not an infringement on the right to a trial by jury. 50 C.J.S. Juries § 117 (1947). However, a jury trial fee may be unconstitutional if it is "arbitrary, capricious, or oppressive." Id.; see also Green, 425 So. 2d at 414.
The reasoning behind allowing jury trial fees was stated by the Supreme Court of Wisconsin in Portage County v. Steinpreis, 104 Wis.2d 466, 472-73, 312 N.W.2d 731, 734 (1981):
(Citations omitted.)
We hold that the Legislature may assess a jury trial fee in civil actions and such a fee will not be unconstitutional unless it is arbitrary, capricious, or oppressive.
Fox and the other plaintiffs argue that the statutory jury trial fee is actually a tax imposed for purposes of increasing the general fund, and that a tax on the right to a trial by jury is unconstitutional. They argue in their brief that the Alabama constitutional protections of the right to trial by jury and the right to open courts "were trampled by the State when the ... jury tax statute was enacted to raise funds for the general fund and was not directly related to the administration of the court system or the implementation of jury trials." Because a portion of the jury trial fee is paid into the State's general fund, the plaintiffs argue that the $50 fee is a tax because, they say, its purpose is to increase the State's general fund for the benefit of other state programs at the expense of the right to jury trial.
The plaintiffs depend upon a Texas case, LeCroy v. Hanlon, 713 S.W.2d 335 (Tex. 1986), to argue that the jury trial fee is actually an unconstitutional tax on those plaintiffs seeking to exercise their constitutional right to a jury trial in a civil action. According to the plaintiffs, the Texas Supreme Court in LeCroy held that a similar jury fee law, which allocated $40 of a $75 fee to the state general fund, amounted to a general revenue tax on the right to litigate; *1367 therefore, the court held, the fee statute violated the open-courts provision of the Texas constitution. The Texas court stated:
LeCroy, 713 S.W.2d at 342 (emphasis added).
The Texas Supreme Court went on to hold that the filing fee was unconstitutional because the fee was "a general revenue tax on the right to litigate: the money goes to other statewide programs besides the judiciary." Id. at 341. In a footnote, a majority of the LeCroy court stated that the approximately $11 million raised by the fees "flows out of the treasury at random." Id. at 341 n. 9. The judiciary accounted for only .5% of the total state budget; therefore, the LeCroy majority found that 99.5% of the revenue generated by the filing fee was being paid to programs other than the judiciary. Id.
Justice Gonzalez, dissenting from the Texas court's majority opinion, stated:
Id. at 345-46 (Gonzalez, J., dissenting).
The opinions of our sister states are merely persuasive authority, and this Court is not bound by the doctrine of stare decisis to follow such decisions. "Such a decision may be considered if it appears to throw light on the question in issue, but it will be followed by the court in the sister state only if the reasoning of the decision is persuasive." 20 Am.Jur.2d Courts § 203 (1965). We decline to adopt the reasoning of the majority of the LeCroy court.
The State's evidence in support of its motion for summary judgment showed that in fiscal year 1989-90 the State, to run the judicial system, spent over $59 million more than the $500,000 collected in jury fees. This Court would have to deny the economic reality of the Legislature's funding of the judiciary in favor of an accounting artifice in order to hold that any portion of the jury trial fees collected by the circuit court clerks actually went to programs, other than the judiciary, funded through the state's general fund. Therefore, we hold that neither the jury trial fee, nor that portion of it that is paid directly into the general fund, is an unconstitutional tax on the right to litigate or on the right to a jury trial in a civil case.
We also hold that the $50 fee is not arbitrary, capricious, or oppressive. The State is required to compensate jurors in civil cases at the rate of $10 a day and $.05 per mile for travel to and from court. §§ 12-19-110 and -210(a), Ala.Code 1975. Because Rule 47(b), A.R.Civ.P., requires that jurors "be selected from a list containing the names of at least 24 competent jurors," the minimum cost incurred by the State for a jury in a civil trial on the first day is $240 plus the cost of mileage. Once the 12-member jury is selected, the minimum *1368 cost per day is $120 plus mileage. Because the $50 jury fee is only a fraction of the cost to compensate the jury for just one day, we conclude that it is not arbitrary or capricious. Also, the plaintiffs presented no evidence indicating that the amount of the fee is oppressive.[2]
We affirm the summary judgment entered in favor of all defendants.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The defendants/appellees represented on this appeal by the attorney general's office are circuit court clerks Conradi, Hackett, and Calhoun. According to the appellees'" Statement of the Case," the other defendants, namely Hunt, Swift, and Childree, are only "nominal" defendants and have taken no active role in the defense of this action.
[2] We note that the fee can be waived if the plaintiff is indigent. § 12-19-70(b), Ala.Code 1975. | April 16, 1993 |
a8a6ca9a-eeaa-4f2f-b6b5-7f0d43e38d71 | Smith v. Scott Paper Co. | 620 So. 2d 976 | 1911108 | Alabama | Alabama Supreme Court | 620 So. 2d 976 (1993)
Robert L. SMITH
v.
SCOTT PAPER COMPANY.
1911108.
Supreme Court of Alabama.
February 5, 1993.
Order Overruling Application for Rehearing April 30, 1993.
Andrew T. Citrin, Robert T. Cunningham, Jr. and David G. Wirtes, Jr. of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellant.
Broox G. Holmes, Robert J. Mullican and Clifford C. Brady of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
STEAGALL, Justice.
The plaintiff, Robert L. Smith, appeals from a summary judgment entered in favor of the defendant, Scott Paper Company, in an action alleging fraud and the tort of outrage.
Scott Paper had denied Smith's claim for worker's compensation benefits and, in a previous lawsuit by Smith against Scott Paper, the trial court had entered a judgment awarding Smith the benefits. Smith then filed this action; the trial court entered a summary judgment in favor of Scott Paper, holding that Smith's claims arose out of the same nucleus of operative facts as his earlier worker's compensation *977 claim and that, by not bringing these claims in the first action, Smith was barred by the doctrine of res judicata from bringing the claims in this case.
Smith appeals, arguing that the worker's compensation action was not based upon the same cause of action as this tort action and that the doctrine of res judicata therefore does not bar the claims in this case. Smith argues that his worker's compensation case did not encompass all of the issues raised in this case and that the evidence and the burden of proof in a worker's compensation case do not support a recovery on the claims in this case.
The elements of res judicata are (1) a final judgment on the merits (2) rendered by a court of competent jurisdiction (3) with substantially the same parties and (4) with the same cause of action presented in both cases. Crutcher v. Wynn, 591 So. 2d 453 (Ala.1991). Smith concedes that the first three elements of res judicata are present in this case; therefore, the question before this Court is whether the same cause of action is presented in this case as was presented in the worker's compensation case.
In Patrick v. Femco Southeast, Inc., 590 So. 2d 259 (Ala.1991), this Court stated that the issues of fact and law in a worker's compensation case are entirely different from those in a fraud action and that the trier of fact in a fraud action and that in a worker's compensation action, and the evidence to support or refute a fraud claim and that necessary to support or refute a worker's compensation claim are different. In the instant case, the issues of law and fact regarding the fraud and outrage claims are different from those presented in the worker's compensation case and, as in Patrick, the trier of fact in this case is different from that in the worker's compensation case, and the evidence necessary to support or refute the fraud and outrage claims is different from the evidence necessary to support or refute the worker's compensation claims.
Initially we hold, therefore, that Smith's present claims are not barred by the doctrine of res judicata. A correct judgment, however, will not be reversed even if the trial court has based it on the wrong reasons. Boykin v. Magnolia Bay, Inc., 570 So. 2d 639 (Ala.1990).
In order to enter a summary judgment, the trial court must determine 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, A.R.Civ.P. This case was filed after June 11, 1987; accordingly, the "substantial evidence rule" applies to the ruling on the motion for summary judgment. Ala.Code 1975, § 12-21-12. In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence creating a genuine issue of material fact. Betts v. McDonald's Corp., 567 So. 2d 1252 (Ala.1990). "[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).
In order to sustain his fraud claim based on misrepresentation, Smith must present substantial evidence (1) that Scott Paper had a duty to speak the truth, (2) that it falsely represented to him a material existing fact, whether intentionally, recklessly, or innocently, (3) that he relied upon the false representation, and (4) that he suffered loss or damage proximately resulting from the false representation. Smith v. MBL Life Assur. Corp., 589 So. 2d 691 (Ala.1991).
In order to sustain his claim of outrage, Smith must present substantial evidence that Scott Paper, "by extreme and outrageous conduct intentionally or recklessly" caused him to suffer "severe emotional distress." American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980); see, also, Gray v. Liberty National Life Ins. Co., [Ms. 1911246, July 30, 1993], 1993 WL 283888 (Ala.1993), and Bailey v. Avera, 560 So. 2d 1038 (Ala.1990).
Gray v. Liberty National Life Ins. Co., 1993 WL 283888, *3; see American Road Service Co. v. Inmon, at 365.
The record shows that Smith failed to present substantial evidence in support of his fraud and outrage claims and thus did not refute Scott Paper's 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 on these claims. See Rule 56. The trial court's judgment is affirmed.
AFFIRMED.
MADDOX, ALMON and ADAMS, JJ., concur.
INGRAM, J., concurs in the result.
STEAGALL, Justice.
APPLICATION OVERRULED.
ADAMS, HOUSTON and INGRAM, JJ., concur.
ALMON, J., concurs specially on denial of application for rehearing.
MADDOX, J., dissents.
ALMON, Justice (concurring specially on denial of application for rehearing).
On application for rehearing, I have reconsidered the issues presented on original submission, and I would now vote to affirm the summary judgment on the ground of res judicata. The "same cause of action" element for res judicata does not require the same theory of relief to have been presented in the prior action, but only that both actions grow out of "the same nucleus of operative fact." Crutcher v. Wynn, 591 So. 2d 453, 454 (Ala.1991), quoting NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990). If the test for res judicata is met, "any claim that was or could have been adjudicated in the prior action is barred from further litigation." Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 725 (Ala. 1990) (emphasis added); Chandler v. Commercial Union Ins. Co., 467 So. 2d 244 (Ala.1985).
In his workers' compensation action, Smith argued that he should receive the additional 10% payment for failure to pay a workers' compensation claim without good cause. Ala.Code 1975, § 25-5-59 (a 1992 amendment raised the additional payment to 15%). In attempting to show that Scott Paper had failed to pay without good cause, Smith introduced evidence that Scott Paper had tried to coerce him into claiming benefits under its accident and sickness ("A & S") insurance, which covered non-work-related injuries, rather than claiming benefits under the workers' compensation law. The court in the workers' compensation action denied the additional 10% payment. The fraud and outrage claims in this case are based on the same alleged attempt to coerce Smith into filing under the A & S coverage. In entering the summary judgment in this case, the court noted the above-stated facts and also noted:
The court here also noted, regarding the proceedings in the former action: "By letter dated December 4, 1989, the then attorney for Plaintiff even offered to settle the fraud and outrage claims which Plaintiff claimed arose out of Scott's February 1989 denial of benefits." See Judge McRae's well-reasoned order, attached as Appendix A to this opinion, for a full statement of the evidence and the court's reasons for granting the motion.
*979 In Patrick v. Femco Southeast, Inc., 590 So. 2d 259 (Ala.1991), Patrick was fired after he claimed workers' compensation benefits. He filed an action alleging wrongful termination, and Femco counterclaimed, alleging fraud. Patrick argued that the counterclaim should have been filed in his workers' compensation action and thus was barred by res judicata. The Court disagreed:
590 So. 2d at 261 (emphasis added). The basis of Femco's fraud claim does not appear in the opinion; it does not appear to have been related to Patrick's claim for workers' compensation benefits. In any event, Femco made a showing that it did not discover the fraud until long after the workers' compensation claim had been adjudicated.
Here, by contrast, the fraud and outrage claims are directly related to the denial of workers' compensation benefits and are virtually identical to the claim, litigated in the workers' compensation action, that Scott Paper delayed payment without good cause.[2] The statement in Patrick that the trier of fact is not the same does give me some pause. A workers' compensation claimant is not given a trial by jury except on the question of whether his own willful misconduct caused his injury, if the employer raises that defense. Ala.Code 1975, § 25-5-81(a)(2). However, Smith could still have joined his workers' compensation, fraud, and outrage claims in one complaint and received a jury trial as to the latter two claims. See Rule 18, Ala.R.Civ.P. See Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So. 2d 90 (Ala. 1989), which held that Lowman's claims alleging fraud, conspiracy to defraud, and outrage were not barred by the exclusivity provisions of the Workers' Compensation Act, but that those provisions required proof of the tort claims by clear and convincing evidence. "In her complaint, Ms. Lowman also included a claim for further workers' compensation benefits, alleging that her disability had become permanent." 547 So. 2d at 92.
For the foregoing reasons, I now would hold that the trial court correctly held that the doctrine of res judicata bars this action. I therefore concur to overrule the application for rehearing.
"This cause comes before the Court on the Motion for Summary Judgment by Scott Paper Company (hereinafter `Scott'). The basis of Scott's motion is that the *980 claims made by Plaintiff in this suit are barred by the doctrine of res judicata due to the June 11, 1990 judgment of this Court in an earlier lawsuit between Plaintiff and Scott. Scott's position is that the earlier judgment for Plaintiff in a lawsuit for workman's compensation benefits bars Plaintiff's claims in this second lawsuit in which Plaintiff seeks damages from Scott based on alleged wrongful conduct in the denial of those benefits or an alternative accident and sickness benefit for non-job-related injuries for the same incident. The thrust of Plaintiff's position is that the motion should fail because there is ample evidence of fraudulent/outrageous mishandling of Plaintiff's claims for these benefits and the claim in the first lawsuit is not the same `cause of action' as the claims in this lawsuit.
"In ruling on a Motion for Summary Judgment based on res judicata the Court does not weigh the evidence alleged to support the claims made in the second lawsuit, but considers whether the claims made in both lawsuits arise out of the same nucleus of operative facts. If the claims in both lawsuits arise out of the same `nucleus of operative fact' then res judicata applies not only to the precise legal theory or claim presented in the prior case but to all legal theories and claims brought in the second lawsuit between the same parties which could have been brought in the first lawsuit.
"With this in mind the Court upon consideration of the arguments, extensive briefs and matters of record finds and determines as follows:
"1. On October 3, 1988, Plaintiff sustained a sprained back while working for Scott. He reported the injury to Scott as a workman's compensation claim and Scott treated the injury as a workman's compensation claim and paid Plaintiff's medical bills and lost time from employment. Plaintiff was on light duty for a few days but on October 10, 1988 was asymptomatic and returned to work with no restrictions.
"2. Until January 10, 1989, Plaintiff continued to work for Scott full time plus additional overtime and had no new injury. On January 10, 1989, Plaintiff went to his physician and was diagnosed as having a herniated disc. Plaintiff reported this back condition to Scott on January 14, 1989 and applied for workman's compensation benefits.
"3. After medical and factual investigation, Scott notified Plaintiff on February 8, 1989 that workman's compensation benefits were denied because the January 1989 back problem was not related to the October 3, 1988 work incident.
"4. On February 10, 1989, Plaintiff applied in a written form to Scott for Accident and Sickness (A & S) benefits which is a plan for coverage of disability caused by non-work related injury or sickness. Plaintiff had made several prior A & S claims for sickness or injury in which Plaintiff stated on the forms that the injury or sickness was not work-related and these claims were paid by Scott. Plaintiff also had prior workman's compensation claims paid by Scott. Plaintiff was aware in February 1989 that the A & S benefits was only for non-work-related injury or sickness. Nevertheless, Plaintiff put on his February 10, 1989 application for A & S benefits that his January 1989 back problem was work-related. The A & S claim was denied because Plaintiff stated on the claim form that his January back problem was work-related. Plaintiff alleges that on or about February 10, 1989, Scott attempted to coerce him to change the A & S form to say that his back problem was not job related. If there was attempted coercion it failed because the Plaintiff refused to change the A & S form.
"5. Plaintiff did not work from January 16, 1989 through May 21, 1989 when he returned to work full time. Plaintiff filed his first lawsuit in this Court against Scott on March 3, 1989 styled Robert Smith v. Scott Paper Company, CV-89-0724. This first lawsuit claimed workman's compensation benefits and a § 25-5-59, Code of Ala. [1975,] penalty for Scott's alleged failure to pay compensation without good cause.
*981 "6. During the pendency of the first lawsuit, Plaintiff through his then attorney acknowledged the existence of tort claims for fraud and outrageous conduct because of Scott's denial of workman's compensation benefits and accident and sickness benefits. By letter dated December 4, 1989, the then attorney for Plaintiff even offered to settle the fraud and outrage claims which Plaintiff claimed arose out of Scott's February 1989 denial of benefits. Plaintiff asserted in the first lawsuit as he does in this lawsuit that he was forced to file bankruptcy because Scott denied benefits in February 1989.
"7. It is undisputed that the facts and alleged wrongful conduct for which Plaintiff makes the claims in this lawsuit occurred before the first lawsuit was filed.
"8. The transcript of Plaintiff's first trial of April 1990, shows that Plaintiff's then attorney stated to the Court that Scott attempted to coerce Plaintiff into changing his February 10, 1989 A & S claim form to state that his injury was not work-related so that Scott would only be required to pay A & S benefits rather than workman's compensation benefits. The gravamen of Plaintiff's complaint in this second lawsuit is that Scott attempted to coerce Plaintiff to accept A & S benefits instead of workman's compensation and that failure to pay benefits for the January back problem was fraudulent and outrageous. In the second lawsuit complaint, as amended, Plaintiff alleges Scott's conduct was `part of a pattern or practice ... of intentional wrongful conduct....' The transcript of the trial in the first lawsuit also shows that it was Plaintiff's position that Scott `has a pattern or practice of trying to get these employees to sign on what's called A & S.'
"9. In the trial of the first lawsuit, Plaintiff even called a co-employee, Leonard Allen, as a witness to show that Scott had attempted to coerce some employees into accepting A & S benefits rather than workman's compensation benefits. This is the same witness named by Plaintiff in his deposition in this second lawsuit as being a witness to Plaintiff's claim of a `pattern or practice' by Scott as to A & S claims to support Plaintiff's claim of fraud and outrage in this second lawsuit.
"10. On June 11, 1990, judgment was entered by the Court in favor of Plaintiff in Plaintiff's first lawsuit and Scott paid and continues to pay workman's compensation benefits to Plaintiff for the back problem which Plaintiff reported in January, 1989. Although he Court entered judgment in favor of Plaintiff in his first lawsuit, the Court denied Plaintiff's claim for the 10% penalty for failure to pay compensation without good cause.
"11. On October 3, 1990, Plaintiff filed this second lawsuit claiming that Scott was guilty of outrageous conduct in denying these same workman's compensation benefits and A & S benefits. Plaintiff amended his complaint to state an additional claim for fraud which he also claims arose out of the same denial of benefits to Plaintiff during his temporary disability from January 14, 1989 to May 16, 1989.
"12. The facts alleged by Plaintiff in this second lawsuit to constitute fraud and outrage were in existence, known by and available to Plaintiff and his counsel before and during the pendency of his first lawsuit against Scott.
"1. In order for a judgment in a prior suit to bar a subsequent lawsuit, the following elements should be present: (a) the question of fact must have been litigated and determined by a court of competent jurisdiction; (b) a final judgment must have been rendered on the merits; (c) the parties to both suits must be substantially identical; and (d) the same cause of action must have been presented in both suits. Hughes v. Martin, 533 So. 2d 188 (Ala.1988); Robinson v. Holley, 549 So. 2d 1 (Ala.1989). If these elements are present then any issue that was, or could have been, adjudicated in the prior lawsuit is barred by the doctrine of res judicata. Robinson v. Holley, supra; Waters v. Jolly, 582 So. 2d 1048 (Ala. 1991).
"2. The four elements required by the doctrine of res judicata are present in this *982 case. Plaintiff's first lawsuit was litigated in and determined by a court of competent jurisdiction. A final judgment was rendered on the merits of the claim Plaintiff chose to bring at that time. The parties to this lawsuit are identical to the parties in Plaintiff's first lawsuit. Furthermore the same cause of action is present in both lawsuits.
"3. The same cause of action exists when `the same evidence is applicable in both actions.' Hughes v. Martin, 533 So. 2d 188 (Ala.1988). The evidence applicable in Plaintiff's first lawsuit, while not as extensive as the evidence required to sustain the fraud and outrage claims, is evidence that is applicable in this lawsuit. In his first lawsuit, Plaintiff presented evidence applicable to the claims he asserts in this case. Res judicata bars all legal theories and claims, whether or not asserted in a previous lawsuit, that arise out of the same nucleus of operative fact. Crutcher v. Wynn, 591 So. 2d 453 (Ala.1991). Plaintiff's cause of action arises out of Scott's denial of benefits to the Plaintiff. This `nucleus of operative fact,' i.e., the denial of benefits to the Plaintiff, gives rise to one cause of action. Robinson v. Holley, 549 So. 2d at 2.
"4. In this case, Plaintiff's claims for [a penalty for denial of] workman's compensation benefits, outrageous conduct, and fraud all arise out of the denial of benefits by Scott for the same back problem and work incident. Plaintiff has one cause of action for the claims and legal theories that arise out of the denial of those benefits. Plaintiff cannot split his claims into more than one lawsuit. Because the cause of action has been litigated and those benefits accepted by Plaintiff, Plaintiff is now barred by the doctrine of res judicata from asserting additional claims for fraud and outrageous conduct that arise out of the denial of benefits. Crutcher v. Wynn, 591 So. 2d at 454; Robinson v. Holley, 549 So. 2d at 3.
"5. When all the elements of res judicata are present, any claim that was or could have been litigated is barred from further litigation. Martin v. Hughes, supra; Crutcher v. Wynn, supra. The fact that Plaintiff elected not to bring his fraud and outrageous conduct claims in his first lawsuit does not prohibit the application of the doctrine of res judicata to these claims. See, Chandler v. Commercial Union Insurance Company, 467 So. 2d 244 (Ala. 1985); Robinson v. Holley, supra. Plaintiff could have brought his claim for fraud and outrageous conduct in his first lawsuit along with his claim for workman's compensation. See, Lowman v. Piedmont Shirt Manufacturing Co., 547 So. 2d 90 (Ala.1990). The record shows that Plaintiff's claims for fraud and outrageous conduct arose out of the same nucleus of operative fact as his workman's compensation claim. The record also shows that during the pendency of Plaintiff's first lawsuit, the Plaintiff was aware of his tort claims for fraud and outrageous conduct and even offered to settle those claims. By electing not to bring these claims which could have been litigated in his first lawsuit, Plaintiff is now barred by the doctrine of res judicata from bringing these claims in this lawsuit.
"In consideration of the foregoing, it is the opinion of this Court that [Defendant's] Motion for Summary Judgment is well taken and should be granted.
"NOW THEREFORE, it is ORDERED, ADJUDGED and DECREED:
"Comes now Defendant, Scott Paper Company, and moves the Court to enter, pursuant to Rule 56 of the Alabama Rules of Civil Procedure, summary judgment in the Defendant's favor ... on the ground that there is no genuine issue as to any material fact and that the Defendant is entitled to a judgment as a matter of law.
*983 "As grounds for its Motion for Summary Judgment, the Defendant will show unto the Court that the Plaintiff is barred from bringing this action by doctrines of res judicata, judgment estoppel and collateral estoppel.
"In support of this motion, Defendant files the pleadings in this case; pleadings, judgment and portions of trial transcript in the case entitled Robert Smith v. Scott Paper Company, CV-89-724 in the Circuit Court of Mobile County, Alabama; the deposition of Robert L. Smith taken in this case; correspondence attached hereto as Exhibits `A' and `B'; and Brief in Support of the Motion for Summary Judgment which will be filed prior to oral argument.
"The Defendant respectfully requests oral argument."
MADDOX, Justice (dissenting).
On original submission, I concurred in the affirmance of the judgment entered in favor of the defendant, Scott Paper Company, on Smith's claims of fraud and outrage, because of the reasons stated in that opinion.
I am still of the opinion that this Court, on original submission, correctly held that Smith's tort claims were not barred by the doctrine of res judicata because they arose out of the same operative facts as Smith's workers' compensation claim. Patrick v. Femco Southeast, Inc., 590 So. 2d 259 (Ala. 1991). In Patrick, I believe that the Court stated that the issues of fact and law in a workers' compensation case are entirely different from those in a fraud action and that the trier of fact in a workers' compensation case and the evidence required to support or refute a fraud claim in a workers' compensation case, are not the same as those in a fraud case.
On original submission, however, this Court affirmed the summary judgment on the ground that Smith had failed to present substantial evidence in support of his fraud and outrage claims to refute Scott Paper's prima facie showing that there was no genuine issue of material fact.
On application for rehearing, I have become convinced, after reading Smith's brief, that the only issue this Court should have decided on original submission was the question of the propriety of the summary judgment on Scott Paper's defense of res judicata. Therefore, I must disagree with the Court's refusal to grant rehearing and reverse the action of the trial court.[1]
[2] It may well be that even in the absence of res judicata Smith could not present substantial evidence of fraud or outrage. After Scott Paper denied his workers' compensation claim, he filed an A & S claim, but indicated on the claim form that the injury was job-related. The alleged coercion by Scott Paper was in its suggestion that he state on the A & S claim that the injury was not job-related. It appears that Scott Paper was simply consistently taking the position that the injury was not job-related. The court held in the workers' compensation action that the delay in payment was not without good cause, and this holding appears to substantiate that Scott Paper had a colorable defense to the claim of a job-related injury. Thus, I see no basis for a finding of fraud or outrage.
However, Smith argues forcefully on rehearing that the summary judgment motion raised only the res judicata issue (see Appendix B to this opinion); that the parties joined issue only on this question, not on the merits; that Smith therefore did not introduce evidence on the merits; and that the affirmance issued by this Court therefore deprives him of property without due process. I note that Smith introduced a great deal of evidence in support of his argument that res judicata did not bar this action. That evidence might suffice to establish that Scott Paper is entitled to a judgment as a matter of law, but because Smith argues rather persuasively that the merits of his claim are not presented in the posture of this appeal, I have re-examined the res judicata question.
[1] I cannot agree with the special concurring views of Justice Almon that Smith's tort claims arose out of the same operative facts as his workers' compensation claim. | April 30, 1993 |
60080b76-e09e-4cc0-b257-820e8f08ead8 | Jefferson County v. ACJIC | 620 So. 2d 651 | 1910571 | Alabama | Alabama Supreme Court | 620 So. 2d 651 (1993)
JEFFERSON COUNTY, et al.
v.
ALABAMA CRIMINAL JUSTICE INFORMATION CENTER COMMISSION, et al.
1910571.
Supreme Court of Alabama.
May 7, 1993.
*652 Jere L. Beasley and Thomas J. Methvin of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, for appellants.
Mays R. Jemison of Jemison & Mendelsohn, Montgomery, for appellees.
Don Siegelman of Cherry, Givens, Lockett & Diaz, Montgomery, for amicus curiae Alabama Sheriffs Ass'n.
Edwin A. Strickland, County Attorney, Birmingham, and Jeffrey M. Sewell and Charles S. Wagner, Asst. County Attys., for appellants on petition for rehearing.
Jere L. Beasley, Mays R. Jemison, Thomas J. Methvin of Beasley, Wilson, Allen, Mendelsohn, Jemison & James, P.C., Montgomery, for Alabama Crim. Justice Information Center Comm'n, Alabama Crim. Justice Information Center and Larry Wright, for appellees on petition for rehearing.
Bart Harmon of Webb, Crumpton, McGregor, Davis & Alley, Montgomery, for amicus curiae Ass'n of County Comm'ns of Alabama, on petition for rehearing.
Don Siegelman of Cherry, Givens, Lockett & Diaz, Montgomery, for amicus curiae Alabama Sheriffs Ass'n, on petition for hearing.
James H. Evans, Atty. Gen., amicus curiae, on petition for rehearing.
PER CURIAM.
The opinion of August 28, 1992, is withdrawn and the following is substituted therefor.
The plaintiffs, Jefferson County and the City of Birmingham, challenge a computer user fee unilaterally imposed upon them by the Alabama Criminal Justice Information Center Commission (the "ACJIC"). The two questions before this Court are whether the ACJIC is legally authorized to adopt a rule whereby costs charged to ACJIC by the Finance Department for computer time are passed on to law enforcement agencies such as the plaintiffs, and whether the ACJIC is subject to the Alabama Administrative Procedure Act, § 41-22-1 et seq. ("AAPA"). We hold that the ACJIC is not so authorized, and that the ACJIC is subject to the AAPA.
The parties on March 6, 1991, stipulated to the following facts:
The stipulation of facts makes it clear that the plaintiffs/appellants appeared before the ACJIC Commission to protest the user fee. After hearing the objections, the ACJIC voted to disconnect the City of Birmingham and Jefferson County from the ACJIC computer database if the user fees were not paid. Following this decision of the ACJIC, the plaintiffs initiated this lawsuit in the Jefferson County Circuit Court by filing a notice of appeal and a petition for review in accordance with the AAPA, which provides for judicial review of final actions or decisions of state agencies. The petition for review alleged that the ACJIC adopted the computer user fee without first complying with the provisions of the AAPA.
Accompanying the petition for review was a request for a stay and a motion to expedite. On January 29, 1990, the trial court entered an order setting a hearing on the motion to expedite. The court granted the stay on February 9, 1990. On February 26, 1990, the ACJIC filed a motion to dismiss, contending that there was no "contested case" as defined in § 41-22-3(3), and that the imposition of the user fee was not a "rule" as defined in § 41-22-3(9). In the alternative, the ACJIC contended that even if the AAPA applied, venue was proper only in Montgomery County, Alabama.
The plaintiffs responded to this motion to dismiss by filing a response that contended that § 41-22-20 authorizes the appeal of agency final decisions or actions, and that they had a statutory right of appeal from the decisions or actions of the ACJIC. They further argued that, pursuant to § 41-22-20(b), venue was proper in Jefferson County, because no other statute makes provision for appealing a final decision of the ACJIC Commission. Further pleadings were filed, culminating in the ACJIC's filing of a petition for a writ of mandamus in this Court.
On August 31, 1990, this Court transferred the petition for writ of mandamus to the Court of Civil Appeals. The Court of Civil Appeals held in Ex parte Alabama Criminal Justice Information Center Commission, 572 So. 2d 487 (Ala.Civ.App. 1990), that the ACJIC is exempt from the AAPA and need not comply with the AAPA *656 before adopting and imposing the rule at issue in this case. The Court of Civil Appeals reasoned that under § 41-9-594, Code of Alabama 1975, the ACJIC Commission has the authority to "establish its own rules, regulations and policies for the performance of the responsibilities charged to it in this article," and "may establish other policies and promulgate such regulations that provide for the efficient and effective use and operation of the Alabama criminal justice information center." The Court of Civil Appeals issued a writ of mandamus directing the Jefferson County trial judge to transfer this case to the Montgomery County Circuit Court.
On November 28, 1990, the plaintiffs filed a petition for writ of mandamus in this Court, seeking a review of the decision of the Court of Civil Appeals. This Court denied the petition on January 14, 1991, and the case was transferred to Montgomery County.
On March 27, 1991, the ACJIC filed a motion for summary judgment in Montgomery County, which was heard on February 27, 1991. The parties executed the joint stipulation of facts set out herein. The trial court entered a summary judgment in favor of the ACJIC on August 16, 1991. In entering the summary judgment, the trial judge stated in pertinent part:
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). Two issues are before us: 1) whether the ACJIC is legally authorized to adopt a rule whereby costs charged to the ACJIC by the Finance Department for computer time are passed on to such law enforcement agencies as the plaintiffs, and 2) whether the ACJIC is subject to the provisions of the AAPA.
We look first to the enabling legislation that creates the Alabama Criminal Justice Information Center Commission, Act No. 872, Ala.Acts 1975. See § 41-9-590 et seq., Code of Alabama 1975. The legislation provides that the ACJIC Commission "shall establish, develop and continue to operate a center and system for the interstate and intrastate accumulation, storage, retrieval, analysis and dissemination of vital information relating to certain crimes, criminals and criminal activity." § 41-9-591. The ACJIC Commission is directed to "provide for a uniform crime reporting system for the periodic collection and analysis of crimes reported to any and all criminal justice agencies within the state," and the statute provides that "The collection of said data and the time for submission of said data shall be subject to the commission's regulation-making authority." § 41-9-620.
The ACJIC Commission is also delegated the responsibility to:
§ 41-9-621.
The ACJIC enabling legislation reveals an obvious legislative intent that the ACJIC and its user agencies share information with each other for the benefit of all law enforcement agencies throughout the State and the nation. Were it not for the input of local governments into the system, there would be no data base. Undisputed testimony in this case indicates that the City of Birmingham entered approximately 32,406 transactions into the ACJIC data base in 1990, while Jefferson County entered *658 approximately 22,304 transactions that year.
The ACJIC enabling legislation expressly requires that the ACJIC be funded by the State:
§ 41-9-599. The enabling legislation contains no other provision regarding funding for the ACJIC.
We note that the enabling legislation contains no express authority for the ACJIC to charge user agencies for access to the system. The trial court concluded that the terms of § 41-9-594 imply the authority to impose a user fee. We disagree. Our review of the ACJIC enabling legislation fails to disclose any provision from which an implied power to assess a user fee could be derived. The rulemaking powers found in § 41-9-594 cannot be read so as to make cities and counties financially responsible for funding the ACJIC. While § 41-9-594 does give a general grant of power to the ACJIC to "establish its own rules, regulations and policies for the performance of the responsibilities charged to it in this article," that general grant of power is followed by an enumeration of particular classes of responsibility and authority. The broad statement of authority in § 41-9-594 is followed by a directive to the ACJIC Commission to ensure that use of the "data available through [the ACJIC] system" is restricted to "properly authorized persons and agencies." There is no mention of user fees or service charges.[2]
It is clear that the legislature intended for the ACJIC to be funded by the State. As previously noted, the ACJIC enabling legislation expressly requires the ACJIC to obtain funding via the State Appropriation Bill. We also note that the enabling legislation contains a number of provisions imposing specific duties and obligations upon local government. None of these provisions imposes an obligation to fund the ACJIC.
Under the principle of expressio unis est exclusio alterius, a rule of statutory construction, the express inclusion of requirements in the law implies an intention to exclude other requirements not so included. City of Birmingham v. Brown, 241 Ala. 203, 2 So. 2d 305 (1941); Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933). It is clear that if the legislature had intended to make local governments responsible for the financial needs of the ACJIC, it would have done so when it set out specific duties in the statute.
The ACJIC has been funded by the State, not by local governments, since its inception in 1975.[3] The ACJIC's interpretation and application of the enabling legislation further confirms the already clear legislative intent that local governments not be a funding source for the ACJIC. It is settled law in Alabama that an administrative agency is purely a creature of the legislature and has only those powers conferred upon it by the legislature. Ethics Commission of the State of Alabama v. Deutcsh, 494 So. 2d 606 (Ala.1986); Ex parte City of Florence, 417 So. 2d 191 (Ala. 1982). The legislature expressly imposed the ACJIC funding obligation upon the State. § 41-9-599. The ACJIC cannot claim implied powers that exceed and/or conflict with those express powers contained in its enabling legislation. Every rule of statutory construction compels the conclusion that the enabling legislation confers no power upon the ACJIC to charge local government users of the data base. Therefore, we reject the trial court's holding that the ACJIC has implied power beyond that conferred by the legislature.
*659 We next consider whether the ACJIC is subject to the AAPA. The scope of the AAPA is stated at § 41-22-2(d); that section provides:
The term "agency" is defined in § 41-22-3(1) as follows:
The ACJIC enabling act grants express authority to the Commission to promulgate rules and regulations, and the ACJIC is not expressly exempt from the statutory definition of the term "agency." Therefore, in accordance with § 41-22-2(d), the ACJIC is subject to the AAPA. Moreover, we note that the record reflects that in its answers to requests for admissions the ACJIC admitted that it is an agency of the State of Alabama as the term "agency" is defined at § 41-22-3(1), Code of Alabama 1975.
Finally, we note that § 41-22-25, part of the AAPA, provides an unequivocal legislative mandate that the AAPA be broadly construed. Section 41-22-25(b) provides that "this chapter shall be construed to apply to all covered agency proceedings and all agency action not expressly exempted by this chapter or by another statute specifically referring to this chapter by name." We hold that the ACJIC is clearly subject to the AAPA.
For the foregoing reasons, the judgment of the trial court is reversed and a judgment is rendered in favor of the appellants.
OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND JUDGMENT RENDERED.
MADDOX, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
STEAGALL, KENNEDY and INGRAM, JJ., dissent.
STEAGALL, Justice (dissenting).
Section 41-9-591, Ala.Code 1975, provides that the Alabama Criminal Justice Information Center Commission "shall establish, develop, and continue to operate a center and system for the interstate and intrastate accumulation, storage, retrieval, analysis and dissemination of vital information relating to certain crimes, criminals and criminal activity." Under § 41-9-620, the ACJIC is required to provide for a uniform crime reporting system for collection and analysis of reports of crimes to criminal justice agencies within the state and, under § 41-9-621, the ACJIC is also required to make available any information in the ACJIC files that will aid in fighting crime to all criminal justice agencies within this state, to all federal criminal justice and criminal identification agencies, and to criminal justice and criminal identification agencies in other states. The ACJIC is not, however, required to provide computer reports or use of computer time to these agencies.
I agree with the Court of Civil Appeals that the ACJIC is not subject to the provisions of the Alabama Administrative Procedure Act, § 41-22-1 et seq. (see Ex parte Alabama Criminal Justice Information Center Commission, 572 So. 2d 487 (Ala. Civ.App.1990)) and with the trial court's holding that the ACJIC is authorized under § 41-9-594 (its rule-making authority) to adopt rules, regulations, and policies that concern the ACJIC's responsibilities to provide *660 for an efficient and effective operation.
In 1983, both Jefferson County and the City of Birmingham entered into a "Terminal User Agreement" with the ACJIC, under which rent was to be paid for one terminal located in their respective law enforcement departments. They have paid rent for years on these terminals. In my opinion, this is an admission that the ACJIC had the authority to charge a fee. Moreover, it appears from the stipulations in this case that every user other than Jefferson County and the City of Birmingham has paid the user fee.
As stated in the majority opinion, the parties in this case stipulated that 79 of the 149 computer terminals owned by Jefferson County that are capable of accessing the ACJIC database through the county's mainframe computer are used by the Jefferson County Revenue Department to obtain automobile registration and license information. I do not believe that the Legislature, in creating the ACJIC, intended for user agencies to have unlimited discretion to use the State's computer system.
I would affirm the trial court's judgment and hold that under its rule-making authority, the ACJIC may promulgate a rule requiring these agencies to reimburse the ACJIC for costs charged to the ACJIC by the State Finance Department for computer time. Therefore, I respectfully dissent.
INGRAM, J., concurs.
KENNEDY, Justice (dissenting).
I concurred in the original opinion in this case. However, after reviewing the ACJIC's application for rehearing, and after much deliberation on the application, I am persuaded that the majority opinion is in error. Accordingly, I respectfully dissent from the denial of the ACJIC's application for rehearing.
In my view, the ACJIC has the authority to impose user fees under its express rule-making authority. See Ala.Code 1975, § 41-9-594. This fact is indicated both by the language of § 41-9-594[4] and by the logical result of a contrary interpretation. Without the user fees, the ACJIC's very existence would be in grave jeopardy.
Because state funding for the ACJIC pursuant to § 41-9-599 is aspirational, in holding that the ACJIC's only source of funding is pursuant to § 41-9-599 the majority unreasonably presumes that the legislature gave the ACJIC absolute directives but left it no sure ability to do that which it is required to do. Section 41-9-599 provides:
(Emphasis added.) Note that this provision leaves state funding aspirational, depending on the will of the Governor.
Instead of leaving the very existence of the ACJIC to the discretion of the Governor, the legislature expressly gave rule-making power to the ACJIC to facilitate its carrying out its mission, see § 41-9-594, and, necessarily, to facilitate its continued existence.
I note also that although the ACJIC has the authority to disseminate data by direct computer access, the ACJIC is not required by statute to do so, and if it does so as an accommodation to a local government, it certainly is not required to do so at a loss that jeopardizes its existence.
In sum, the notion that the ACJIC should bear the considerable expense of unlimited data access by an unlimited number of computer terminals in Jefferson County (now 281) is unsupported.
Finally, the opinion of the court discusses whether the AAPA applies to the ACJIC. Although this is unclear, I presume that the opinion addresses the specific question of whether (assuming arguendo that it has *661 the rule-making authority to impose user fees) the ACJIC was required to adhere to the AAPA in its method of imposing the user fees, something the ACJIC did not do.
The opinion of the court holds that the ACJIC is an "agency," a fact the ACJIC does not dispute, and the majority concludes from that holding that the AAPA would apply. This conclusion is flawed because the opinion fails to address § 41-22-2(a), a part of the AAPA, which states: "This chapter is intended to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public." (Emphasis added.) To determine only, as the opinion of the Court does, that the ACJIC is an "agency," begs the question whether the AAPA applies to this agency, which has no public access and is strictly an intergovernmental entity. See Ex parte Alabama Criminal Justice Information Center Comm'n, 572 So. 2d 487 (Ala.Civ.App.1990).
[1] This Court has added the brackets; the appellants argue that the statement in brackets is not supported by the record evidence.
[2] Section 41-9-644 authorizes the ACJIC to charge a fee (not to exceed $5.00) to individuals seeking copies of their criminal records. This demonstrates that the legislature took fees into consideration, but that it authorized a fee only in this limited situation.
[3] See paragraphs 8 and 23 of the stipulation of facts, supra.
[4] Stating, in pertinent part: "The commission shall establish its own rules, regulations and policies for the performance of the responsibilities charged to it in this article." | May 7, 1993 |
0f38ed4d-c2ea-4272-ad79-65a41a901f6a | Ex Parte Johnson | 620 So. 2d 665 | 1901573 | Alabama | Alabama Supreme Court | 620 So. 2d 665 (1993)
Ex parte Cedric JOHNSON.
(Re Cedrick Johnson[*]
v.
State).
1901573.
Supreme Court of Alabama.
April 16, 1993.
*666 Maurice S. Bell and David G. Flack, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for respondent.
PER CURIAM.
This Court's original opinion in this case was dated May 15, 1992. That opinion was withdrawn and a new opinion substituted therefor on September 18, 1992. That September 18, 1992, opinion is now withdrawn and the following is substituted therefor:
Cedric Johnson petitions for review of a judgment of the Court of Criminal Appeals (see 620 So. 2d 661, Ala.Cr.App.1991) affirming his conviction for a violation of Ala.Code 1975, § 13A-11-72(a). That section prohibits a person who has been convicted of committing or attempting to commit a "crime of violence," as that phrase is defined in § 13A-11-70(2), from owning or possessing a "pistol" or having one under his or her control.
The Court of Criminal Appeals, in affirming Johnson's conviction, suggested that perhaps Johnson would have been entitled to a judgment of acquittal, but concluded that he had not properly raised the issue of the State's failure to prove all the elements of the offense. The State does not dispute Johnson's contention that he was entitled to a judgment of acquittal based on the State's failure to prove the elements of the offense, but argues that Johnson failed to properly raise that issue.
Johnson was a passenger in an automobile stopped by police because the operator was driving erratically. Johnson exited the vehicle, and one of the officers involved observed that he was wearing an empty pistol holster. The officer searched the vehicle and found a pistol, which Johnson identified as his.
Although Johnson had previous convictions for the felonies of theft of property in the first and second degrees and burglary in the third degree, he possessed a permit to carry the pistol.[1]
Johnson was indicted for a violation of § 13A-11-72(a) and was convicted at trial. Invoking the provisions of the Habitual Felony Offender Act, Ala.Code 1975, § 13A-5-9, the trial court sentenced Johnson to 40 years' imprisonment.
As stated, the Court of Criminal Appeals, in reviewing Johnson's conviction, suggested that the State had failed to prove a prima facie case, but held that he had not properly raised any issue in that regard.
A critical element of the offense stated at § 13A-11-72(a) is that the defendant *667 has had a prior conviction for "committing or attempting to commit a crime of violence." Ala.Code 1975, § 13A-11-72(a); see, Wigley v. State, 456 So. 2d 339 (Ala.Cr. App.1982). Section 13A-11-70(2) gives the following definition:
Regarding this definition, as it relates to a violation of § 13A-11-72(a), the Court of Criminal Appeals stated:
620 So. 2d at 664. (Emphasis added.)
In short, as the Court of Criminal Appeals indicated, convictions for burglary in the third degree and theft in the first and second degrees, as set out in the new Criminal Code provisions, can embrace acts that are not deemed a "crime of violence" as that term was intended by the legislature in enacting what is now § 13A-11-70.
Because what is now § 13A-11-70(2) was enacted years before the new Criminal Code offenses were enacted, see Tit. 14, § 172(a), Code of Ala.1940, one cannot simply look to the name given an offense in the new Criminal Code provision and conclude that it is synonymous with an older term found in § 13A-11-70(2). See Doss v. State, 220 Ala. 30, 123 So. 231 (1929); Hudson v. Reed, 259 Ala. 340, 66 So. 2d 909 (1953).
For example, it is a mistake to summarily conclude that the newer offense term of "theft" equates to the "larceny" that is denominated a "crime of violence" in § 13A-11-70(2). "Larceny," referred to as a "crime of violence" in § 13A-11-70(2), has a narrower meaning than could be attributed to it by equating the old term "larceny" with newer "theft" offense provisions.
Under the new Criminal Code provisions, "theft," for example, encompasses the crime of embezzlement. See Ala.Code 1975, § 13A-8-2; §§ 13A-8-2 through 13A-8-5 Commentary (stating that the new "theft" provisions "subsume ... the many forms of embezzlement existing within former [law]"). Previously, there existed a distinct embezzlement statute, which was adopted because, at common law, "larceny" did not encompass acts of embezzlement. Id.; see Tit. 14, § 126, Code of Ala.1940 (denominating the distinct statutory crime of embezzlement). Stated simply, although the many forms of embezzlement are now subsumed within "theft" in the first, second, or third degree, this fact came about after the enactment of what is now § 13A-11-70(2). Thus, when § 13A-11-70(2) refers to "larceny" as a "crime of violence," see § 13A-11-70(2), it is not referring to embezzlement, which was a distinct offense when what is now § 13A-11-70(2) was enacted, although the new Criminal Code offense provisions would include embezzlement as a "theft" offense.
Addressing the evidence offered by the State on the prior-crime-of-violence element, the Court of Criminal Appeals stated: "The State proved that the appellant had been convicted of burglary in the third degree and theft of property in the first and second degrees." 620 So. 2d at 664. Indeed, it is undisputed that on the element of a prior "crime of violence," the State produced only evidence of the fact of these *668 convictions under the new Criminal Code provisions. As we have discussed, this is insufficient to show proof on the element of a prior "crime of violence."
However, the Court of Criminal Appeals held that Johnson had not properly raised the issue of whether the State had proved a prima facie case, because "[n]o objection raising this issue was presented to the Circuit Court." 620 So. 2d at 664.
The State argues that Johnson failed to preserve for review any contention relating to the element of a prior "crime of violence" because his counsel, in making his motion for a judgment of acquittal, did not specifically object to a lack of proof on the precise element of a prior "crime of violence."
Johnson moved at the close of the state's evidence for a judgment of acquittal. His counsel argued, among other grounds, "that the state has failed to prove a prima facie case."[2]
Regarding motions for judgments of acquittal, i.e., motions to exclude the state's evidence and discharge the accused,[3] it has been stated:
C. Gamble, McElroy's Alabama Evidence § 449.05 (4th ed. 1990).
In Ex parte Maxwell, 439 So. 2d 715, 717 (Ala.1983), we stated:
Citing Maxwell, this Court stated in Carroll v. State, 468 So. 2d 186, 189 n. 3 (Ala. Cr.App.1985):
In the present case, counsel for the defendant unquestionably stated the ground that "the state has failed to prove a prima facie case." This ground is adequate to preserve for review the claimed insufficiency of the evidence, as both Maxwell and *669 Carroll make abundantly clear. We hold that this insufficiency was properly preserved and, because the State did not come forward with additional proof after Johnson made his motion, the denial of the motion was not harmless error. See C. Gamble, McElroy's Alabama Evidence § 449.05 (4th ed. 1990). The judgment must be reversed and a judgment rendered for the defendant, because the State failed in its burden of proof. This Court cannot affirm a conviction where the record is silent, as it effectively is here, as to an essential element of the offense. See Ex parte Peterson, 466 So. 2d 984, 987 (Ala. 1984).
APPLICATION GRANTED; OPINION WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL, and INGRAM, JJ., concur.
KENNEDY, J., concurs in the judgment and this opinion, but dissents from the granting of rehearing.
[*] The defendant's case in the Court of Criminal Appeals was styled "Cedrick Johnson v. State."
[1] It is conceded by the parties that the sheriff who issued the permit was acting beyond his legal authority in issuing the permit. Where a sheriff acts beyond his or her legal authority in issuing a pistol permit, "the license is void." Crawford v. State, 356 So. 2d 690, 691 (Ala.Cr. App.1978).
[2] Counsel for Johnson said, after seeking to "address the court on a motion for a judgment of acquittal," that "without the admission of certain legal evidence or [rather] unlawful evidence... there would not be a conviction on a mere prima facie case." Thus, at that point, counsel was referring to what would be if the court excluded certain evidence. Counsel then addressed what in his view "was": "Even in that regard, we would say [that] we move for a judgment of acquittal of the defendant on the grounds that the state has failed to prove a prima facie case."
"Even in that regard" is nonsensical to any interpretation of that full statement. However, given the change in verb tense to indicate that at that time, i.e., with the evidence up to that point, the state had failed to prove a prima facie case, it is evident that what counsel meant to say by "even in that regard" was "even if you don't exclude that evidence" ("the state has failed to prove a prima facie case").
[3] Rightly or wrongly, the terms "motion for a judgment of acquittal" and "motion to exclude the evidence and discharge the accused" are used interchangeably. Compare, Maxwell, infra, with Talley v. City of Clanton, 495 So. 2d 1165, 1167-68 (Ala.Cr.App.1986). | April 16, 1993 |
3cf0ec7a-3d8d-4edb-b3f3-41e16b48b6ac | DEAL BY AND THROUGH BARBER v. Hill | 619 So. 2d 1347 | 1911089 | Alabama | Alabama Supreme Court | 619 So. 2d 1347 (1993)
Brandy K. DEAL, a minor, By and Through her mother and next friend, Melissa BARBER
v.
Eddie HILL.
1911089.
Supreme Court of Alabama.
April 9, 1993.
Frank J. Tipler, Jr., James Harvey Tipler and D. Milburn Gross, Jr. of Tipler and Tipler, Andalusia, for appellant.
W. Sidney Fuller, Andalusia, for appellee.
ALMON, Justice.
Brandy K. Deal, a minor, by and through her mother and next friend, Melissa Barber, filed a complaint alleging assault and battery against the City of Opp, Alabama, the City of Opp Board of Education, Caroline Henderson a/k/a Connie Henderson, and Eddie Hill. The court entered a summary judgment for Hill and, pursuant to Rule 54(b), Ala.R.Civ.P., made that judgment final. This appeal concerns only the judgment for Hill.
Deal gave the following affidavit:
Hill, in his affidavit, denied imposing on Brandy Deal any punishment, authorizing anyone else to do so, or taking any part in the matter. The only other evidence submitted on the summary judgment motion was the deposition of a psychologist who treated Deal after the incident.
In Suits v. Glover, 260 Ala. 449, 71 So. 2d 49 (1954), this Court affirmed a judgment on a verdict for the defendant schoolteacher in an action alleging assault and battery arising out of a school spanking. The Court held as follows:
260 Ala. at 450, 71 So. 2d at 50 (citations omitted).
In Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977), the United States Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment does not apply to traditional corporal punishment of students. The Court held that the student has a liberty interest under the Fourteenth Amendment, but that "the Fourteenth Amendment's requirement of procedural due process is satisfied by Florida's preservation of common-law constraints and remedies," 430 U.S. at 683, 97 S. Ct. at 1419.
The Supreme Court's ruling in Ingraham has been followed by a Federal district court in Alabama:
"* However, even if Pringle's failure to follow board policy on corporal punishment did state a cognizable federal claim, the failure to follow the policy would be a violation without an injury, at least, as to Shawn Hale. The failure of Pringle to spank Shawn in the principal's office and with another adult present in no manner detracted from the fact that Shawn deserved the spanking and the further fact that the spanking was inflicted in a reasonable manner."
Hale v. Pringle, 562 F. Supp. 598, 601-02 (M.D.Ala.1983).
Thus, the holding in Suits v. Glover that a teacher may punish a student unless he "inflict[s] on the child immoderate chastisement... with legal malice or wicked motives or ... inflict[s] some permanent injury," 260 Ala. at 450, 71 So. 2d at 50, is the applicable law. The evidence before us has no tendency to show that Hill violated the Suits v. Glover standard.
Deal argues that her evidence presents a fact question as to whether Hill can be liable for conspiracy to commit assault, citing instruction 5.03, Alabama Pattern Jury Instructions (Civil), which comes within the topic of "Assault and Battery" and is entitled "Joint LiabilityConspiracy." It includes:
The pattern jury instruction cites several cases, of which Abney v. Mize, 155 Ala. 391, 46 So. 230 (1908), is directly on point regarding conspiracy to commit assault. The Court in Abney approved the following instruction:
Hill points out that Deal did not include a count alleging conspiracy in her complaint. Even assuming the complaint to state a cause of action for conspiracy, and even assuming that Henderson's acts might possibly have violated the Suits v. Glover standard, Deal's affidavit does not present sufficient evidence to withstand the summary judgment motion. At most, her evidence shows that Hill failed to override Henderson's already formed intention of punishing Deal. He was not Henderson's supervisor, and there is no evidence that he had authority to instruct her not to punish Deal. Deal states in her affidavit that Hill gave Henderson the pointer after Henderson said she was going to paddle Deal, but this statement is not substantial evidence that Hill entered into a conspiracy with Henderson to "inflict on [Deal] immoderate chastisement." Suits v. Glover, supra.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | April 9, 1993 |
fae7ef10-5aca-49a8-9584-d43929af9882 | Coyle v. Harper | 622 So. 2d 302 | 1911421 | Alabama | Alabama Supreme Court | 622 So. 2d 302 (1993)
Gail COYLE and Wendy Hicks
v.
Ann HARPER.
1911421.
Supreme Court of Alabama.
April 9, 1993.
*303 Marylee Abele, Birmingham, for appellants.
Mark S. Boardman and Perryn S. Godbee of Porterfield, Harper & Mills, P.A., Birmingham, for appellee.
ALMON, Justice.
The plaintiffs, Gail Coyle and her daughter, Wendy Hicks, a minor, appeal from a summary judgment for the defendant, Ann Harper, in their action alleging negligent supervision. Hicks was a student in Harper's class in Putnam Middle School. She was injured by another student in the classroom while Harper was monitoring the halls during or immediately after the change of classes. Harper was performing a discretionary function and is therefore immune from liability. Nance v. Matthews, 622 So. 2d 297 (Ala. 1993). The summary judgment for the defendant is affirmed.
AFFIRMED.
HORNSBY, C.J., and HOUSTON, STEAGALL and INGRAM, JJ., concur. | April 9, 1993 |
1dd2c217-409a-4af7-8128-2c2aa43c6388 | KS v. Carr | 618 So. 2d 707 | 1910836, 1910856 | Alabama | Alabama Supreme Court | 618 So. 2d 707 (1993)
K.S.
v.
John CARR, et al.
John CARR and Lifeline Children Services, Inc.
v.
K.S.
1910836, 1910856.
Supreme Court of Alabama.
April 2, 1993.
*708 Thomas W. Bowron II of Jones & Bowron, P.C., Birmingham, for appellant/cross-appellee.
A. Joe Peddy and James L. Stirling, Jr. of Smith, Spires & Peddy, Birmingham, for appellees/cross-appellants.
INGRAM, Justice.
The opinion released December 11, 1992, is withdrawn, and the following opinion is substituted therefor.
The plaintiff, K.S., appeals (case 1910836) from the trial court's denial of her "Batson" motion. The defendants, John Carr and Lifeline Children Services, Inc., cross-appeal (case 1910856), arguing that the trial court erred in denying their motion for a directed verdict.
This case presents the following issues: 1) whether the trial court erred in finding that Lifeline and Carr's use of their peremptory strikes was not racially motivated and therefore did not violate Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), Edmonson v. Leesville Concrete Co., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), and Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989); 2) whether, assuming the trial court erred with regard to the Batson issue, this Court should address the challenge to the sufficiency of K.S.'s evidence; and 3) assuming we should address this issue, whether the trial court erred in denying Lifeline and Carr's motion for a directed verdict.
In 1987, K.S., a white, unmarried minor female, discovered that she was pregnant. She eventually entered into an agreement with Lifeline whereby she agreed to place her child with Lifeline for adoption. Lifeline, in turn, agreed that if K.S. placed her child for adoption then Lifeline would pay all of K.S.'s medical expenses related to her pregnancy and the birth of her child.
After the child's birth, Lifeline placed him in a foster home. K.S. later changed her mind and decided that she wanted to keep the child. Three days after notifying Lifeline of her decision, K.S. regained custody of the child. K.S. claims that during the three-day interval Lifeline wrongfully withheld the child from her in an attempt to force her to assume responsibility for the medical bills.
K.S. sued Lifeline and Carr, Lifeline's director, for damages, alleging the torts of *709 outrage and invasion of privacy. Lifeline and Carr initially filed a motion to dismiss, which was denied by the trial court. The trial court then granted their motion for summary judgment on the invasion of privacy count, but denied their motion with regard to the tort of outrage.
Following discovery, the case proceeded to jury selection. The record shows that seven members of the venire were black. Lifeline used five of its six peremptory challenges to remove blacks from the venire. After the clerk called the names of the 12 veniremembers who had not been struck, K.S. moved for a mistrial, arguing that Lifeline and Carr had struck blacks from the venire in a racially discriminatory manner.
Without expressly finding that K.S. had established a prima facie case under Ex Parte Branch, 526 So. 2d 609, 625 (Ala. 1987), the trial court directed Lifeline and Carr to state their reasons for striking the black veniremembers. After hearing the explanations and the arguments of counsel, the trial judge held that Lifeline and Carr had not violated Batson. Accordingly, he denied K.S.'s motion for a mistrial.
The case proceeded to trial. At the conclusion of K.S.'s case, Lifeline and Carr moved for a directed verdict, and the court overruled the motion. Lifeline and Carr renewed their motion for a directed verdict at the close of all the evidence. The trial court again denied the motion and submitted the case to the jury, which returned a verdict in favor of Lifeline and Carr. No party filed post-trial motions, and the trial court entered a judgment based on the jury verdict.
K.S. appealed, and Lifeline and Carr cross-appealed.
We first note that K.S., a white female, does have standing to challenge the use of peremptory challenges to eliminate blacks from the venire in this civil action. In Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989), we held that the Batson principle applies in civil as well as criminal cases. See also, Edmonson v. Leesville Concrete Co., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991). Moreover, the United States Supreme Court has held that white litigants, as well as black litigants, have standing to challenge the discriminatory use of peremptory challenges to remove blacks from the jury venire. Powers v. Ohio, 499 U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).
Lifeline and Carr argue that K.S.'s Batson motion was not timely. We disagree.
In support of their argument, Lifeline and Carr cite McGruder v. State, 560 So. 2d 1137 (Ala.Crim.App.1989). In that case, the defendant made a Batson motion after the members of the venire that had been struck had been dismissed from the courtroom. 560 So. 2d at 1142. In explaining its approval of the trial court's holding that the defendant's Batson motion was untimely, the Court of Criminal Appeals stated, "It is the release of the unselected members of the venire and the problems and difficulties created thereby which truly govern the timeliness of a Batson motion." Id. at 1143.
After thoroughly reviewing the record, we find no support for Lifeline and Carr's contention that K.S.'s motion was made after the venire had been dismissed. Accordingly, we conclude that the Batson motion was timely.
Lifeline and Carr also assert that K.S. failed to present a clear record containing sufficient evidence of the race of the veniremembers. We disagree and conclude that the record, taken as a whole, sufficiently establishes the race of the veniremembers who were struck as well as the race of those who were not.
The record shows that seven members of the venire were black and that the remaining members were not. In denying K.S.'s motion, the trial judge stated, "[T]here were seven blacks on this [venire]. Five were struck by the defendants." We recognize that the record does not name the two black veniremembers who were not struck. However, Lifeline and Carr discuss in their brief the striking of five black *710 veniremembers. Moreover, they discuss, by name, the two blacks who were not struck.
We now turn to the issue of whether Lifeline and Carr provided sufficiently race-neutral explanations for using five of their six peremptory challenges to remove blacks from the venire.
We note that, initially, the party alleging discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination. Ex parte Branch, 526 So. 2d 609, 622 (Ala. 1987). After a prima facie case has been established, there is a presumption that the peremptory challenges were used to discriminate against black jurors. Ex parte Branch, 526 So. 2d at 623. The responding party then must articulate a clear, specific, and legitimate reason for the challenge that relates to the particular case to be tried and that is nondiscriminatory. Ex parte Bird, 594 So. 2d 676, 679 (Ala.1991), quoting Batson, 476 U.S. at 97, 106 S. Ct. at 1723. Once the responding party has articulated a race-neutral reason or explanation for eliminating the black jurors, the moving party can offer evidence showing that the reason or explanation is merely a sham or pretext. Ex parte Branch, 526 So. 2d at 624. When the trial court has followed this procedure, its determination will be overturned only if that determination is clearly erroneous. Ex parte Branch, 526 So. 2d at 625.
In reviewing a decision of the Court of Criminal Appeals, we stated:
Huntley v. State, [Ms. 1910530, September 18, 1992] ___ So.2d ___ (Ala.1992) (quoting Merrill v. Southern Methodist University, 806 F.2d 600, 605 (5th Cir.1986). Accordingly, we will review the relevant portions of the record in determining whether the trial court's ultimate determination that the reasons given for the strikes were race-neutral was clearly erroneous.
Counsel for Lifeline and Carr stated that they struck black veniremember B.K. because he was single, had no children, and was "not on the work force." The record shows, however, that white veniremembers M.G. and C.F. were also single. Moreover, it appears from the record that white veniremembers M.G., C.F., L.H., and C.M. were also childless. Additionally, white veniremember L.C. stated during voir dire that she was unemployed.
We further note that B.K. was asked only one specific question on voir dire. That is, Lifeline and Carr asked B.K. if he would find for them if the evidence showed that they were not liable. B.K. responded in the affirmative.
Among the factors we consider in determining whether a proffered explanation is a sham or pretext is whether "persons with the same or similar characteristics as the challenged juror were not struck." Branch, 526 So. 2d at 624. Even if the fact that B.K. was single, had no children, and was not in the work force could be viewed as a valid basis for excluding him from the jury, the fact that whites who shared some of the same characteristics were not excluded leads us to conclude that the proffered explanation was a sham or pretext.
Lifeline and Carr's counsel stated that they struck black veniremember B.F. because she had no children and was a nurse at Cooper Green Hospital. The record shows, however, that B.F. stated that she had three children. Moreover, while B.F. was in the health care profession, she was not a nurse. Rather, she was a darkroom technician. Therefore, even if the fact that a juror had no children or was a nurse would relate to her service as a juror, neither of these characteristics actually applied to B.F.
Lifeline and Carr's counsel stated that they struck black veniremembers W.C. and J.M. (# 189) because they had previously been plaintiffs in civil lawsuits. W.C. *711 had been a plaintiff in an employment discrimination suit and J.M. had been the plaintiff in a lawsuit involving a traffic accident. Both cases were settled before trial. The record further shows that the husband of white veniremember L.H. had previously been a plaintiff in a civil lawsuit; L.H. was not removed from the jury. Moreover, the record shows that the lawsuit in which L.H.'s husband had been involved proceeded to trial and was submitted to a jury.
Another consideration that would lead us to reject a proffered explanation is that the explanation is "based on a group bias where the group trait is not shown to apply to the juror specifically." Branch, 526 So. 2d at 624 (quoting Slappy v. State, 503 So. 2d 350, 355 (Fla.Dist.Ct.App.1987); affirmed, State v. Slappy, 522 So. 2d 18 (Fla. 1988), cert. denied, Florida v. Slappy, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 909 (1988)). Moreover, Lifeline and Carr's counsel did not ask any of these veniremembers about any biases they may have had. See Branch, 526 So. 2d at 623.
We conclude that with regard to these four veniremembers, the trial court's determination that they were struck for race-neutral reasons is erroneous. The explanation given for striking one of the black veniremembers is factually inaccurate, based on that veniremember's testimony during voir dire. Some of the white veniremembers who were not struck shared some of the same characteristics based upon which one of the black veniremembers was struck. Two black veniremembers were struck for reasons that were not fully articulated and that were not based on specific questions directed to those veniremembers on voir dire. Each of these factors indicates the insufficiency of an explanation offered as "race-neutral."[1] Accordingly, the judgment of the trial court based on the jury verdict is reversed.
Having reversed the judgment of the trial court based on the jury verdict, we now must determine whether it is proper for this Court to address Lifeline and Carr's challenge to the sufficiency of K.S.'s evidence.
Ordinarily, a Batson violation cannot be considered harmless error. However, we need not treat a Batson violation as harmless error in order to reach the issue raised in the cross-appeal. In this case, there are two errors, both of which are reversible.
If we had ruled against K.S. on her appeal, then the cross-appeal would properly be dismissed as moot and the judgment of the trial court would be affirmed. However, having decided that Lifeline and Carr violated Batson in the use of their peremptory challenges, we must reverse the judgment of the trial court and then proceed to address Lifeline and Carr's contention that the trial court erred in denying their motion for a directed verdict. If we were to conclude that Lifeline and Carr were not entitled to a directed verdict at the close of all the evidence, then, and only then, should we remand this case for a new trial. If, on the other hand, we conclude, after reviewing the record, that the trial court erred in denying the defendants' motion for directed verdict, then we must render a judgment for Lifeline and Carr.
If Lifeline and Carr were entitled to a judgment as a matter of law, then there was no role for the jury to play as factfinder and the coincidence that the defendants' use of their peremptory challenges in jury selection violated Batson should not yield a different result. A directed verdict precludes the submission of the case to the jury.[2] Rule 50(a), A.R.Civ. *712 P., provides that "[t]he order of the court granting a motion for a directed verdict is effective without any assent of the jury." Moreover, there is no indication in the record that the constitution of this jury had a prejudicial effect on K.S.'s presentation of her case. Accordingly, we conclude that the composition of the jury is irrelevant to the trial court's decision whether to direct a verdict. To decide otherwise would make compliance with Batson the tail that wags the dog; that is, Batson would become superior to aspects of procedural and substantive law in the State of Alabama that are not related to juries and their composition.
K.S. contends that in order for this Court to examine the sufficiency of the evidence, Lifeline and Carr not only must have moved for a directed verdict at the close of all the evidence, under Rule 50, A.R.Civ.P., but also must have timely moved for a judgment notwithstanding the verdict. We disagree. In each of the cases cited by K.S. on this issue, the appellant received an adverse jury verdict. Schwertfeger v. Moorehouse, 569 So. 2d 322 (Ala.1990); Barnes v. Dale, 530 So. 2d 770 (Ala.1988); Bains v. Jameson, 507 So. 2d 504 (Ala.1987); Perdue v. Gates, 403 So. 2d 165 (Ala.1981); and Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877 (Ala. 1979). It is clear from those cases that in order for a jury verdict loser to appeal, challenging the sufficiency of the evidence, he first must have moved for a directed verdict at the close of all the evidence and then he must renew that motion by moving for a judgment notwithstanding the verdict or for new trial.[3] None of those cases, however, addresses an appeal by a jury verdict winner who on appeal is faced with the possible reversal of the favorable jury verdict.
In A.T.F. Trucking Co. v. Fisher Brothers Sales, Inc., 498 So. 2d 846 (Ala.Civ.App. 1986), the plaintiff received a favorable jury verdict but was dissatisfied with the amount of damages. He then moved for a judgment notwithstanding the verdict or for a new trial. The trial court granted the j.n.o.v. with regard to liability and ordered a new trial on the issue of damages. In reversing the judgment of the trial court, the Court of Civil Appeals stated: "This court is at a loss to understand why a j.n.o.v. was granted when the verdict was already in favor of plaintiff and moving party. Such action would appear to be contrary to Rule 50(b), A.R.Civ.P." 498 So. 2d at 848. It appears, then, that Lifeline and Carr would not have been permitted to move for a j.n.o.v. after receiving a favorable jury verdict; clearly, any judgment they sought would have been consistent with the jury's verdict.
Rule 50(b), A.R.Civ.P., provides that a motion for j.n.o.v. must be filed within 30 days from the entry of judgment. The record shows that the judgment was entered in this case on January 15, 1992, and that K.S. filed her notice of appeal on February 26, 1992. In order for Lifeline and Carr to move for a j.n.o.v. within the 30-day time limit (which ended February 14, 1992), they would have had to file their motion before K.S. filed her notice of appeal. It would clearly be an exercise in futility for a jury verdict winner to move for a j.n.o.v. before that party is even aware that the losing party is challenging the jury verdict. Accordingly, we conclude that Lifeline and Carr properly preserved for appeal the issue of whether the trial court erred in denying their motion for directed verdict.
The standard of review applicable to a directed verdict or to a denial of a motion for a directed verdict is whether the nonmoving party has presented substantial evidence in support of his position. If he has not, then a directed verdict is proper. Bailey v. Avera, 560 So. 2d 1038, 1039 (Ala. 1990). A verdict is properly directed only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact for the jury to determine. Woodruff v. Johnson, 560 So. 2d 1040 (Ala.1990). Moreover, whether to direct a verdict is not a matter within the discretion of the trial court; on review no presumption of correctness attaches to such a ruling. McCord v. McCord, 575 So. 2d 1056, 1057 (Ala.1991); Barksdale v. St. Clair County Comm'n, 540 So. 2d 1389 (Ala.1989).
Our function is to review the entire evidence and all reasonable inferences that a jury might have drawn therefrom, in the light most favorable to the nonmoving party, Thomaston v. Thomaston, 468 So. 2d 116, 119 (Ala.1985), and if reasonable inferences in favor of the nonmovant's claim can be drawn from the evidence, we must hold that the motion should have been denied. Zaharavich v. Clingerman, 529 So. 2d 978, 980 (Ala.1988). To satisfy the "substantial evidence test" (see § 12-21-12, Ala.Code 1975), 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); Rowden v. Tomlinson, 538 So. 2d 15, 19 (Ala.1988).
In Nabors v. St. Paul Ins. Co., 489 So. 2d 573, 574 (Ala.1986), we stated that a claim of outrageous conduct "is an action difficult of proof and one for which recovery may be had only upon meeting all the elements of the stringent standard announced in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980)." In Inmon, we held that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress." 394 So. 2d at 365. In order for the plaintiff to recover for emotional distress, it must be "so severe that no reasonable person could be expected to endure it." 394 So. 2d at 365. Any award of damages for this tort "must be reasonable and justified under the circumstances"; and liability will ensue "only when the conduct is extreme." 394 So. 2d at 365. Extreme conduct is that which is "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." 394 So. 2d at 365. Recovery of damages for the tort of outrage is limited "to the most reprehensible situations." Kizziah v. Golden Rule Ins. Co., 536 So. 2d 943, 948 (Ala.1988).
Considered in the light most favorable to K.S., the evidence shows the following: In early 1987 she was an unmarried minor and was approximately six months pregnant. K.S. agreed with Lifeline Services to place her child for adoption. Lifeline agreed that if K.S.'s child was finally placed with adoptive parents, then Lifeline would pay the medical expenses related to K.S.'s pregnancy and the birth of the child. Lifeline agreed and advised K.S. that at any point before the judicial termination of her parental rights, she could elect to keep her child. The record further shows that K.S. and her parents agreed that if she chose to keep the child they would be responsible for the medical expenses. As the basis of her outrage claim, K.S. alleges that John Carr and Lifeline refused to return the child to K.S. until she formally assumed responsibility for the medical bills.
K.S.'s testimony shows that the child was born on July 14, 1987. The next day, Kim Acton, a Lifeline counselor, placed the child with a foster family for temporary care pending adoption. Acton also executed a note payable to St. Vincent's Hospital in payment of K.S.'s medical expenses. During the course of K.S.'s pregnancy and after the birth, Acton repeatedly advised *714 K.S. that she could elect to keep the child rather than releasing it for adoption. K.S.'s parents, however, would not agree for her to rear the child in their home.
In early August 1987, an aunt of K.S. agreed that K.S. could live with her and rear the child. On Monday, August 10, 1987, K.S. telephoned Kim Acton and notified her that she had chosen to keep the child. K.S. agreed to meet with Acton the following day to discuss her decision. On Tuesday, August 11, K.S. met with Acton, and Acton expressed her opinion that it would be very difficult for K.S. to rear the child. Acton reminded her, however, that she was free to make that decision. At that time, Carr reminded K.S. that she had agreed to assume the medical expenses if she kept the child and advised her that she should make the necessary arrangements before picking up the child.
K.S. went to St. Vincent's Hospital that afternoon and attempted to make arrangements for the payment of the bill. Because K.S. was only 18 years old, she was not permitted to assume personal responsibility for the bill. Neither K.S.'s parents nor her aunt was willing to assume the debt. K.S. notified Acton and Carr of her problems with St. Vincent's Hospital. Carr again explained that the medical bills were her responsibility and that she should make some arrangement for their payment before she picked up the child. However, according to K.S.'s testimony, neither Carr nor Acton told her that she would not be permitted to take her child until she made proper arrangements with St. Vincent's.
On Wednesday, August 12, K.S. contacted Acton at Lifeline to make plans to pick up the child. Acton told K.S. that the child was sick and that it would be better to wait until the next day. There was no evidence that this representation was false. During this conversation, Carr again reminded K.S. of her obligation regarding the medical bills and requested that she make arrangements with the hospital before she picked up the child. There is no evidence that Carr told her at this time that she would not be allowed to pick up the child before she made arrangements with the hospital.
K.S. arranged with Acton to pick up the child on the morning of Thursday, August 13. K.S. was unable to follow through with this plan because she did not have transportation. Acton again advised K.S. by telephone that she should take care of the bill at St. Vincent's. At approximately 3:30 p.m. on Thursday, August 13, K.S. telephoned John Carr from an attorney's office. K.S. and the attorney had attached a recording device to the attorney's telephone. Both K.S.'s testimony and the tape recording of the conversation reflect the following: K.S. told Carr that she had been unsuccessful in making any arrangements with St. Vincent's Hospital. Carr emphasized that K.S. was obligated to assume responsibility for the medical bills and that Lifeline should not be left with that responsibility. Both Carr and Acton told K.S. that they would not prevent her from picking up the child.
Later that day, K.S. went to Lifeline and picked up her child. At that time, no one other than Lifeline had assumed the debt to St. Vincent's Hospital.
While we may agree that K.S.'s experience was emotionally stressful, we must conclude that she did not present substantial evidence to support her claim that the conduct of Lifeline or John Carr was "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. In Inmon, this Court recognized that the tort of outrage does not allow recovery for "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." 394 So. 2d at 365. After thoroughly reviewing the record, we conclude that the conduct of John Carr and any other agent of Lifeline may be characterized, at worst, as disorganized. There is no evidence, direct or indirect, from which a jury could infer that the conduct in question was extreme and outrageous or that it was done with the intent to inflict severe emotional distress upon K.S. To the contrary, the evidence is undisputed that the defendants cooperated with K.S. from the time she *715 first contacted them until she ultimately took custody of her child. Accordingly, we conclude that the trial court erred in denying Lifeline and Carr's motion for a directed verdict.
The judgment of the trial court based on the jury verdict is reversed because of the Batson violation. Based on the merits of the cross-appeal, as discussed above, we are compelled to render a judgment for the defendants.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; 1910836REVERSED; 1910856JUDGMENT RENDERED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur.
KENNEDY, J., concurs in part and dissents in part.
KENNEDY, Justice (concurring in part; dissenting in part).
I agree that there was a Batson violation in this case, but I respectfully dissent as to the majority's failure to redress this violation.
According to the majority, "a Batson violation cannot be considered harmless error." 618 So. 2d at 711. The majority suggests that properly, it cannot decide this case on a determination that the Batson violation was harmless error. In my view, however, this is what the majority has done.
The majority's analysis falls squarely under the harmless error doctrine. Basically what the majority says is that when a Batson "error" is found to cause no meaningful prejudice, it is, in effect, irrelevant for purposes of review. The majority states:
618 So. 2d at 711.
Note how precisely this proposition comports with the harmless error doctrine. "Harmless error" is "[a]n error which is... merely academic and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case." Black's Law Dictionary (5th ed. 1979). "Where a final judgment in a matter grants to the appellant all the rights and relief he could possibly receive in [an] action, there is no point in considering possible error in the case, and any error ... becomes harmless." 5 Am.Jur.2d "Appeal and Error," § 776 (1962). See Rule 45, Ala.R.App.P.[4]
In stating that it does not apply the harmless error doctrine in this case, the majority says that "[i]n this case, there are two errors, both of which are reversible," and, therefore, it concludes, it "need not treat a Batson violation as harmless error in order to reach the [directed verdict] issue raised in the cross-appeal." 618 So. 2d at 711. Thus, the majority implies that it reaches its resultdenying relief to K.S. although it states that the trial court erred with regard to jury selectionwithout implicating the harmless error doctrine.
In my view, this explanation begs the question; it is unresponsive as to how the majority concludes that its saying that the Batson violation is not "prejudicial" or is simply "coincidental," and, therefore, is "irrelevant," is not calling it "harmless error."
The majority opinion suggests a concern about a practical undesirability of remanding this case. It states that the verdict in *716 favor of the defendants was amply supported by the record, and concludes that the violation of K.S.'s Fourteenth Amendment rights "should not yield a different result." 618 So. 2d at 711.
A Batson violation is not rendered acceptable because the facts of the case can be seen to disfavor the litigant invoking his or her Batson rights.[5] Factually strong cases could always overcome a party's constitutional rights, thereby effectively denying the rights, which is precisely what has happened here.
Moreover, we have impliedly recognized this concern before, in a case that the majority now appears to contradict. In Perry v. State, 368 So. 2d 305 (Ala.Cr.App.1978), the Alabama Court of Criminal Appeals reviewed a robbery conviction. The accused had not taken the stand at trial. The prosecution had not commented on this fact at trial. Also, the accused's guilt had been established by evidence that was not materially in conflict. Nevertheless, on appeal the accused argued, in pertinent part, that the trial court reversibly erred in refusing to give a requested charge on the legal effect of his exercise of the constitutional right not to testify. The Court of Criminal Appeals held that, given the lack of any "comment [at trial] on the appellant's failure to testify" and "the fact that the evidence without material conflict disclosed that the appellant and his cohorts robbed the bank in question," there was no injury despite the trial court's error in refusing the instruction, i.e., that the error was "harmless error." Thus, held the Court of Criminal Appeals, the accused was not entitled to a new trial. 368 So. 2d at 308-09 (Emphasis added.)
This Court, in an 8-0 decision (Justice Bloodworth not sitting), reversed the judgment of the Court of Criminal Appeals and remanded the case, although, as the Court of Criminal Appeals had said, the evidence, "without material conflict," established the accused's guilt. Ex parte Perry, 368 So. 2d 310 (Ala.1979).
Writing for the Court, Justice Jones ably reasoned that the harmless error doctrine (which questions "whether such error has affected the substantial rights of the accused," 368 So.2d at 312) could not be properly applied to deny the accused redress. To treat the matter as harmless error effectively denies the accused his constitutional right against self-incrimination, according to Justice Jones, who called the applicability of the harmless error doctrine, where such a right is in issue, "tantamount to the denial of the fundamental right of the accused, as constitutionally ... mandated." Id. at 312.
This case presents precisely the same type of situation as that in Perry. If these cases differ materially, it is that this is a much more compelling situation than that in Perry.
The trial judge in this case stated:
The trial court concluded that no Batson violation had occurred. The majority says that one did occur, but that K.S. is not entitled to redress, a holding that has the same practical effect as the trial court's action.
The majority discusses whether a Batson violation has "a prejudicial effect" on the presentation of a party's case. This is a discounted inquiry, as Ex parte Perry makes clear.[6] Moreover, Batson indicates *717 a substantial and widespread injury any time a Batson violation is permitted: "The harm from discriminatory jury selection extends beyond that inflicted on the [party] and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson v. Kentucky, 476 U.S. 79, 87, 106 S. Ct. 1712, 1718, 90 L. Ed. 2d 69 (1986).
Finally, I disagree with the implication of the majority's statement that "[t]o decide [other than as the majority holds] would make compliance with Batson the tail that wags the dog; that is, Batson would become superior to aspects of procedural and substantive law in the State of Alabama that are not related to juries and their composition." 618 So. 2d at 712.
I fear that this apparent misunderstanding of the superiority of constitutional rights fatally clouds the majority's analysis of this case. Batson and the line of United States Supreme Court cases based on it, e.g., Edmondson v. Leesville Concrete Co., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991); Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), as interpretations by the highest court in the land, of the supreme law of the land, are superior to any procedural or substantive law of the State of Alabama. U.S. v. Const. Art. VI;[7] see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).
[1] We decline to address the proffered explanation for striking black veniremember J.M. (# 185). Because the striking of one black veniremember for a racially discriminatory reason violates the rule established in Batson, even if we were to accept the proffered explanation for striking veniremember # 185, the outcome of this case would not be altered.
[2] In Perry v. State, 368 So. 2d 310, 312 (Ala. 1979), this Court held that the harmless error rule has no field of operation where the trial court refuses to give a requested jury charge as to the legal effect of the right of an accused not to testify. In that case, the constitutional violation was presumed to have a prejudicial effect on the role of the jury as factfinder.
[3] As noted above, Lifeline and Carr moved for a directed verdict at the close of K.S.'s case and renewed that motion at the close of all the evidence. Thus, Lifeline and Carr did all that they could do, prior to the submission of the case to the jury, to preserve for appeal their challenge to the sufficiency of K.S.'s evidence. If the jury had returned a verdict in favor of K.S., then Lifeline and Carr would have had to move for a j.n.o.v. or for a new trial in order to preserve their right to appeal.
By way of comparison, we note that the Batson issue was forever preserved for appeal when K.S. moved for a mistrial at the conclusion of jury selection.
[4] Rule 45 provides:
"No judgment may be reversed or set aside, nor new trial granted ... 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."
[5] Furthermore, if the majority is concerned with the undesirability of remanding for a new trial, how does this concern justify leaving K.S. wholly without redress?
[6] I strongly disagree with the majority's statement, in footnote two of its opinion, that in Perry the violation of the accused's constitutional rights was "presumed to have a prejudical effect on the role of the jury as factfinder." 368 So. 2d at 312. I respectfully point out that nowhere in the Perry opinion did the Court refer to any such purported "presumption." Perry does not so hold and, in fact, expressly stated that any harmless error or "substantial injury" question had "no field of operation" in the Court's review.
[7] "This Constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding." | April 2, 1993 |
69fd1f8d-4dc1-4400-9211-ac7cba481db3 | Phillips Colleges of Alabama v. Lester | 622 So. 2d 308 | 1920162 | Alabama | Alabama Supreme Court | 622 So. 2d 308 (1993)
PHILLIPS COLLEGES OF ALABAMA, INC., and Southern Junior College
v.
William LESTER, Jr.
1920162.
Supreme Court of Alabama.
April 30, 1993.
Rehearing Denied June 11, 1993.
*309 M. Wayne Wheeler, Birmingham, for appellants.
Ralph Bohanan, Jr. of Pittman, Hooks, Marsh, Dutton & Hollis, P.C., Birmingham, for appellee.
HOUSTON, Justice.
In this fraud action William Lester, Jr., a licensed cosmetologist, sought damages from Phillips Colleges of Alabama, Inc., and Southern Junior College ("the school"), based on allegations that the school had misrepresented the nature of its cosmetology instructor program.[1] A jury awarded Lester $15,000 in compensatory damages and $35,000 in punitive damages. The trial court entered a judgment on that verdict and later denied the school's motion for a judgment notwithstanding the verdict, or to alter, amend, or vacate the judgment, or for a new trial. The school appealed. We affirm.
*310 The following issues have been presented for our review:
Considering the first two issues together, we note the record shows that Lester initially made the following allegations in his complaint:
(Emphasis added.) Lester amended his complaint shortly before trial by adding the following allegation:
Recently, in Thomas v. Baptist Medical Center-DeKalb, 614 So. 2d 997 (Ala.1993), we again explained that although under modern rules of civil practice the pleadings generally need only to put the defending party on notice of the claims against him, Rule 9(b) is an exception to the rule set out in Rule 8(a) permitting generalized pleadings. "`The pleading must show [the] time, [the] place, and the contents or substance of the false representations, the facts misrepresented, and an identification of what has been obtained.'" Miller v. Mobile County Board of Health, 409 So. 2d 420, 422 (Ala. 1981), quoting the committee comments to Rule 9(b). Contrary to the school's contention, a careful reading of Lester's allegations show that they were sufficiently specific to inform the school as to the nature of the alleged misrepresentations (i.e., that the school had induced Lester to pay over $2,000 in tuition by misrepresenting the content or scope of its cosmetology instructor program), as to the time of the misrepresentations (i.e., on or about October 12, 1987), and as to the place where Lester claimed the misrepresentations had been made (i.e., at the school). Lester's complaint met the requirements of Rule 9(b).
As to the sufficiency of the evidence, the record shows that Lester's claim was based on allegations that the school had failed to perform as promised by not providing him with adequate practical training. In Hearing Systems, Inc. v. Chandler, 512 So. 2d 84, 87 (Ala. 1987), this Court, quoting Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala. 1983), held:
"`The only basis upon which one may recover for fraud, where the alleged fraud is predicated on a promise to perform or abstain from some act in the future ... is when the evidence shows that, at the time ... the promises of future action or abstention were made, the promisor had no intention of carrying out the promises, but rather had a present intent to deceive. Robinson v. Allstate Insurance Co., 399 So. 2d 288 (Ala. 1981). If such intent is not substantiated by the evidence, the fraud claim should not be submitted to the jury. The failure to perform, alone, is not evidence of intent not to perform at the time the promise was made. If it were, a mere breach of contract would be tantamount to fraud. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726 (1976)....'"
See, also, Centon Electronics, Inc. v. Bonar, 614 So. 2d 999 (Ala.1993).
The evidence shows that written materials provided to Lester by the school stated that students in the cosmetology instructor program would receive a certain number of hours of practical training by assisting the instructors in teaching cosmetology students, both in a "clinic" setting and in the "classroom." Lester presented evidence that he paid over $2,000 in tuition and completed the program in reliance on the school's representations. The evidence further indicated that he received far less practical training than he had been led to believe he would receive. Specifically, Margaret Moody, the director of the school's cosmetology instructor program, testified that the school never intended to allow cosmetology instructor students to obtain the kind of practical teaching experience described in the school's materials. She testified further that although the school's materials stated that cosmetology instructor students were to participate in teaching "classes," the school actually intended for these students to practice their teaching before one of the school's instructors, without a "class" actually being present. Two instructors, Anna Johnson and Lana Parker, testified that they were never made aware that cosmetology instructor students were supposed to receive a certain number of hours of practice teaching. Although the school maintained records as to the number of hours that students attended classes, it kept no records documenting any student's activities during those classes. The evidence was sufficient under the "substantial evidence" and the "clear and convincing evidence" standards of review, *312 both of which are applicable in this case, see Ala.Code 1975, §§ 12-21-12 and 6-11-20, to create a fact question for the jury as to whether, as Lester maintained, when the school contracted with him it intended not to provide him with the kind of training outlined in its written materials. The trial court properly denied the school's motion for a judgment notwithstanding the verdict.
As to the third and fourth issues, the school contends that the trial court erred in allowing Donay Sturgeon to testify on behalf of Lester. The school also contends that the court erred when it allowed Jean Salary to testify on behalf of Lester and that the prejudice caused by that error was not eradicated when the court later instructed the jury to disregard her testimony. The thrust of the school's complaint appears to be that Lester, for the purpose of setting an "ambush" at trial, concealed an intention to call these witnesses. The school asserts that neither of these witnesses should have been permitted to testify because Lester failed to identify them in a supplemental or amended response to one of its interrogatories that sought disclosure of potential witnesses. The school insists that the subsequent exclusion of Salary's testimony did not eradicate the prejudice caused by its initial admission.
After reviewing the record, we conclude that the trial court committed no error in connection with these two witnesses. It is well settled that the trial court, based on the particular circumstances of the case, may properly require a party to disclose the names of all persons he intends to call as witnesses at trial, but that a discovering party does not have the absolute right to demand from an adverse party a list of all witnesses to be called at trial. See Alabama Power Co. v. Courtney, 539 So. 2d 170 (Ala.1988). In the present case, the trial court considered all of the circumstances surrounding Lester's use of these witnesses and apparently concluded that he had not knowingly concealed their identities in violation of Rule 26(e), A.R.Civ.P. Sturgeon was not located and interviewed until shortly before trial. The decision to allow this witness to testify was within the discretion of the trial court, and we find no abuse of discretion in this regard. Likewise, the decision to admit Salary's testimony was also discretionary with the trial court. The record shows that at the close of Lester's case, the school renewed its motion to exclude the testimony of both Sturgeon and Salary. After reconsidering the matter, the trial court apparently concluded that, because Lester's attorney had spoken with Salary well before the trial, Lester should have informed the school sooner that Salary would be called as a witness. The trial court instructed the jury as follows:
The school did not object to this instruction. We can find no abuse of discretion on the trial court's part in the way it handled the testimony of this witness. See Burnett v. Martin, 405 So. 2d 23, 25 (Ala. 1981) ("the general rule ... is that if evidence is admitted, but later deemed improper and excluded, the error is cured so long as the jury is instructed clearly and explicitly to disregard the evidence").
The school contends that it was entitled to a new trial on the ground that Lester, who is black, intentionally discriminated against potential white jurors, in violation of the rule announced in Batson v. Kentucky, supra. (Issue five) The rationale of Batson has been extended to civil cases. Edmonson v. Leesville Concrete Co., ___ U.S. ___, 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991); Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989).
*313 Assuming, without deciding, that Batson applies under the facts of this case, see White Consolidated Industries, Inc. v. American Liberty Ins. Co., 617 So. 2d 657 (Ala.1993); see, also, Williams v. State, [Ms. 91-1259, February 12, 1993] ___ So.2d ___ (Ala.Crim.App.1993), we note that the school presented no evidence to the trial court from which an inference of intentional racial discrimination could be inferred. The record shows that the jury was selected from a venire of 24 potential jurors. Nineteen of those potential jurors were white and five were black. The school exercised its peremptory challenges to remove four of the five blacks from the venire. The jury, as finally empaneled, consisted of eleven whites and one black. The speciousness of the school's position on this issue is reflected in the fact that Lester had no choice but to remove some of the whites from the mostly white venire. The school would, in effect, have us hold that Lester's failure to strike at least some of the blacks from the venire is evidence of intentional racial discrimination on his part. This we refuse to do. The trial court properly rejected the school's motion for a new trial on this ground.
As to the sixth issuewhether the school was entitled to a new trial on the ground that Lester's attorney made an impermissible comment concerning the school's financial statusthe record shows that Lester's attorney made the following remarks during his opening statement:
The school did not object to these remarks when they were made. However, after the school had completed its opening statement and after the jury had been excused for the day, the school moved to have the trial court instruct the jury not to consider the remarks. Before the jury reassembled the next morning, the school requested that the trial court "give some sort of instructions to the jury for them to disregard [the remarks] in such a way [as] not to overemphasize or underemphasize" the remarks. The trial court gave the following instruction:
The school did not object to this curative instruction. The school was not entitled to a new trial on the ground that Lester's attorney made an impermissible comment with respect to the school's wealth. See Hill v. Sherwood, 488 So. 2d 1357 (Ala. 1986).
Neither was the school entitled to a new trial on the ground that the trial court erred in refusing several of its written requested jury instructions. (Issue seven.) After examining the school's requested instructions, we conclude that they were properly refused because they were either confusing or misleading or because the same rule of law was substantially and fairly given to the jury either in the court's oral charge or at other stages of the trial. Rule 51, A.R.Civ.P. We specifically reject the school's contention that the court's failure to use the words "substantial evidence" was fatal to its oral charge. Lester's action was not pending on June 11, 1987; therefore proof by substantial evidence was required in this case to sustain his claim for compensatory damages. Ala. Code 1975, § 12-21-12. "Substantial evidence" is defined as "evidence of such *314 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). (Emphasis added.) See Moore v. Liberty National Life Ins. Co., 581 So. 2d 833 (Ala.1991). As we have noted, the evidence was sufficient, under both the "substantial evidence" and the "clear and convincing evidence" standards of review, to submit Lester's fraud claim to the jury. The question concerning the sufficiency of the evidence (i.e., whether it was of such "weight and quality" that the jurors could reasonably infer from it that Lester had been defrauded) was a question of law and was therefore for the court to decide; the court answered that question when it ruled on the school's motion for a directed verdict at the close of all the evidence. Throughout its oral charge, the trial court instructed the jurors that Lester bore the burden of reasonably satisfying them from the evidence that the school made a promise that it intended not to keep. Therefore, the trial court gave the jury the guidance it needed.
Finally, the school contends that the damages were excessive. After carefully reviewing the record, however, we agree with the trial court that the evidence supports both the $15,000 compensatory damages award and the $35,000 punitive damages award. Lester testified that he had paid the school over $2,000 in tuition. He also testified that before enrolling in the school's program, he was working four days per week as a cosmetologist and that he was earning approximately $50 on a "bad" day and between $150 and $200 on a "good" day. While enrolled in the school, Lester earned approximately $130 per week. The jury could have found, therefore, that Lester lost, in addition to his tuition, between $1,680 ($50 × 4 days $130 × 24 weeks in the program) and $16,080 ($200 × 4 days$130 × 24 weeks) in income. As to the punitive damages award, the jury could have found from the evidence that the school had intentionally misrepresented the nature of its cosmetology instructor program for the purpose of increasing its enrollment and, ultimately, its tuition revenues. The $35,000 award was not excessive for such an intentional fraud.
We note the school's insistence that this case should be remanded with instructions for the trial court to make specific findings of fact on the excessiveness issue, in accordance with our holding in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). However, since Hammond, we have pointed out that it was never our intention to automatically remand every case in which excessiveness was at issue. See Lowder Realty Co. v. Sabry, 542 So. 2d 1240 (Ala.1989). Where the record on appeal is sufficient for this Court to review the excessiveness issue, as it is in the present case, a Hammond remand is not necessary.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Southern Junior College was renamed Phillips Junior College after this action was filed. | April 30, 1993 |
6e903a22-d2a5-495b-aced-d05c89c496f9 | First Real Estate Co. v. Brown Marx Tower Limited Partnership | 620 So. 2d 648 | 1911779 | Alabama | Alabama Supreme Court | 620 So. 2d 648 (1993)
FIRST REAL ESTATE CORPORATION OF ALABAMA, INC., et al.
v.
BROWN MARX TOWER LIMITED PARTNERSHIP, et al.
1911779.
Supreme Court of Alabama.
May 7, 1993.
*649 Marion F. Walker, Birmingham, for appellants.
Andrew P. Campbell and Suzanne Johnson Miceli of Leitman, Siegal, Payne & Campbell, P.C., Birmingham, for appellees.
INGRAM, Justice.
The defendants, First Real Estate Corporation of Alabama, Inc., and Evelyn Long ("First Real Estate"), appeal from the denial of their request for arbitration.
The dispositive issue is whether the management agreement between the parties involved interstate commerce so that the Federal Arbitration Act ("FAA") would be applicable.
Brown Marx Tower Limited Partnership ("Brown") and Bell Building Group, Inc. ("Bell"), entered into separate management agreements with First Real Estate for the management of the Brown Marx Tower Building in Birmingham, Alabama, and the Bell Building in Montgomery, Alabama. Brown is a limited partnership, organized and existing under the laws of the State of New York, with its principal place of business in New York. Bell is an Alabama corporation, with its principal place of business in New York. First Real Estate is an Alabama corporation, doing business primarily in Jefferson County, Alabama. The management agreements for the Brown Marx Tower Building and the Bell Building were negotiated in Alabama. Under the management agreements, First Real Estate was to act in a fiduciary capacity to manage the property, tenants, and rents in a reasonable and competent manner and to actively use its best efforts to obtain new tenants.
Brown and Bell sued First Real Estate, alleging fraud, breach of contract, breach of fiduciary duty, gross negligence, and interference with business relations, all of which would have occurred within Alabama and arose out of obligations that were to be fulfilled solely in Alabama.
In order for the FAA to apply, the agreement or contract must involve interstate commerce and must contain an arbitration clause that was voluntarily entered into by the parties. A.J. Taft Coal Co. v. Randolph, 602 So. 2d 395 (Ala.1992). "The slightest nexus of an agreement with interstate commerce will bring the agreement within the FAA." A.J. Taft Coal, supra, at 397.
We have reviewed the record and find that the agreements had no nexus with interstate commerce. The mere use of the telephone and mail by persons in different states to communicate about activity that is purely local is too slight to constitute such a nexus. See Taft Coal, supra. Accordingly, we conclude that the trial court properly denied First Real Estate's request for arbitration.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | May 7, 1993 |
487a52d4-e3a4-4c6e-a7f1-c8ef6c1e71af | Griggs v. Driftwood Landing, Inc. | 620 So. 2d 582 | 1911596, 1911653, 1911673 | Alabama | Alabama Supreme Court | 620 So. 2d 582 (1993)
Margaret T. GRIGGS, individually and as executrix of the Estate of W. Garrett Griggs, deceased
v.
DRIFTWOOD LANDING, INC., et al.
SUNBANK/WEST FLORIDA, N.A.
v.
Margaret T. GRIGGS, individually and as executrix of the Estate of W. Garrett Griggs, deceased.
Roger L. QUICK, et al.
v.
Margaret T. GRIGGS, individually and as executrix of the Estate of W. Garrett Griggs, deceased.
1911596, 1911653 and 1911673.
Supreme Court of Alabama.
April 16, 1993.
*583 Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellant/cross-appellee Margaret T. Griggs.
Julian B. Brackin and Thack H. Dyson of Brackin and Dyson, P.C., Foley, for appellee Driftwood Landing, Inc.
Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee/cross-appellant Sunbank/West Florida, N.A.
Robert E. McDonald, Jr., Mobile, for appellee Thomas C. Adams.
Wade B. Perry, Jr. of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellees/cross-appellants Roger L. Quick, Charlene M. Quick, William D. Oaks, Barbara I. Oaks, Noble Payne, Thelma Payne, Paul Steadman, Albert Steadman
HORNSBY, Chief Justice.
This case involves an alleged breach of warranty of title to certain land in Baldwin County, Alabama. Based on an alleged defect in a deed description (that defect concerning a strip approximately 30 feet wide along the west boundary of the land), Driftwood Landing, Inc. ("Driftwood"), the subsequent grantee of the property in question, sought a declaratory judgment and equitable relief against Margaret Griggs, individually and as executrix of the estate and last will and testament of W. Garrett Griggs. The Griggses were joint owners of this property and conveyed it to Thomas C. Adams and Ethel C. Adams, jointly, from whom Driftwood purchased the property.
The trial court granted the relief sought by Driftwood, finding a breach of the warranty of title given in the warranty deed from the Griggses to the Adamses. The trial court also held that a proportionate reduction in the purchase price of the property *584 was appropriate relief for the defect. Applying this reduction to the balance of a promissory note, which the Adamses had executed in favor of the Griggses in exchange for the property and which Driftwood had assumed, the trial court held that no balance was owing on the note. Margaret Griggs appeals, individually and as executrix of the estate of W. Garrett Griggs. We affirm.
The dispute over the approximately 30-foot strip of the property had its origin in a deed dated April 19, 1941, from Thekla McPhaul and A.B. McPhaul to the Department of Conservation of the State of Alabama. That deed conveys to the State a strip of land 330 feet in width east of the west boundary line of Section 9, Township 9 South, Range 5 East, in Baldwin County, which is on the north shore of Cotton Bayou, near Orange Beach. That deed contains the following condition:
In September 1944, the McPhauls conveyed to Amos Garrett a separate parcel of land located east of and adjoining the land the McPhauls had conveyed to the State. The McPhauls also transferred to Garrett any reversionary interest they had in the property conveyed to the State.
By plat dated July 18, 1946, Amos Garrett dedicated "Garrett Subdivision," which included property conveyed to him by the McPhauls and adjoining the property conveyed to the State. Garrett conveyed the lots in question to Neil Lauder in 1946, who sold them to the Griggses in 1968. These conveyances described the property according to the plat map. The subdivision plat indicates that the west boundary of the Garrett Subdivision lies only 300 feet east of the west boundary of Section 9, whereas the McPhaul deed to the State indicates that the property could not be located closer than 330 feet east of the west boundary of Section 9. Therein lies the claimed defect in the title to Lot 1 of Block 1 and Lot 1 of Block 2, of Garrett Subdivision.
The evidence at trial revealed that this problem was caused by a disagreement among surveyors concerning the true location of the west line of Section 9. Two different points were used as section corners by the surveyors to describe the west section line, and, thus, the west line of the property in question. Margaret Griggs admits on appeal that an "overlap" exists between the land as described in the deed to the State and the western portion of the lots the Griggses conveyed to the Adamses. Griggs, however, invokes the reversion clause in the McPhaul deed to the State, and she claims that application of that clause cures any defect in the property description. A map showing the location of the lots and of this "overlap" is attached as an appendix.
On November 5, 1982, the Griggses conveyed the property in question to Adams by warranty deed. As consideration for the property, the Adamses paid $50,000 down and executed to the Griggses a $100,000 promissory note, which was secured by a grantor's lien on the property. When the Adamses sold the property to Driftwood on October 11, 1983, Driftwood assumed the promissory note.
When Driftwood discovered the alleged defect, it hired a surveyor to examine the west boundary. The surveyor determined that the property was "short" on the west side. Driftwood then entered into a boundary line agreement with the State to solve the dispute, so that it could receive approval of its development plans from the Baldwin County Planning Commission and could proceed with its planned development of this land. Under this agreement, Driftwood ceded a strip of land 21.03 feet wide, measured east-west, along the west boundary *585 line.[1]
Driftwood sued the Griggses on September 5, 1984, seeking equitable relief for breach of the warranty of title contained in the deed to the Adamses. Driftwood sought a declaratory judgment determining the amount due the Griggses on the promissory note. Driftwood also sought a proportionate reduction in the purchase price of the property (i.e., a reduction in the price proportionate to the amount of land lost because of the breach of warranty of title); it argued that the amount of the reduction in price should be taken as a credit on the balance of the note. Further, Driftwood sought injunctive relief to cancel the grantor's lien on the property held by the Griggses.
On the same day, the trial court entered an ex parte order granting Driftwood the temporary relief sought. The trial court's order canceled the Griggses's grantor's lien, upon Driftwood's posting of a $125,000 bond; it posted such a bond by letter of credit issued by Sunbank/West Florida, N.A.
That letter of credit eventually lapsed, and Griggs filed a counterclaim against Driftwood, alleging that it had failed to post an irrevocable letter of credit as required by the trial court's order and seeking a judgment declaring that the remaining provisions of the trial court's order did not cancel the grantor's lien held by the Griggses. Griggs also sued Sunbank, alleging that it must post a currently valid bond; Griggs also sued the Adamses, seeking a money judgment for the amount due under the promissory note.
While the litigation progressed, Driftwood constructed condominiums on the property and sold the condominium units to individual purchasers. Driftwood gave Sunbank a mortgage on the property to secure Sunbank's construction loan to Driftwood in the amount of approximately $600,000. As a result, this case involves Sunbank; AmSouth Bank, which had taken mortgages from some individual purchasers of the condominium units; and the individual condominium unit owners. These parties have cross-appealed as a precautionary measure. If this Court reverses the trial court's order, then these parties argue that they are not subject to any liability arising from the alleged defect in title. Sunbank also argues that it has no continuing liability on the letters of credit it issued on behalf of Driftwood.
From September 5, 1985, when the court entered the initial order, until January 16, 1992, the parties filed pleadings and motions and conducted discovery. During this time, Margaret Griggs, as executrix of the estate of W. Garrett Griggs, was substituted in place of W. Garrett Griggs in this action on October 31, 1990. All parties filed motions for summary judgment, and the trial court heard arguments on these motions. On January 16, 1992, the trial court granted Griggs's motion for summary judgment, holding that the grantor's lien retained by the Griggses in the deed to the Adamses remains in full force and effect. The trial court also entered a summary judgment for Sunbank, holding that it had no continuing liability on the letter of credit it had issued.
On June 22, 1992, after an ore tenus hearing on all remaining issues, the trial court entered an order holding that there had been a breach of warranty of title given in the conveyance by the Griggses to the Adamses and that the appropriate equitable relief was a reduction in the purchase price. Applying this reduction, the trial court held that Griggs had already been paid what she was due under the promissory note, and that nothing more was due on the note. The trial court, thus, held that the note had been satisfied and that the grantor's lien was, accordingly, extinguished. It is from this judgment that Griggs appeals.
*586 Griggs raises two issues on appeal. Generally, she argues that the trial court's holding was clearly erroneous and against the great weight of authority. First, she argues that the trial court erred in failing to give effect to the reversion clause in the McPhauls' 1941 deed to the State. Second, she argues that, if this Court upholds the trial court's determination that a defect in title does exist, then the trial court erred in determining the amount for which Griggs is liable.
This was a nonjury case. Where the trial court hears ore tenus evidence, a presumption of correctness exists as to the court's findings of fact based on that ore tenus evidence; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So. 2d 877, 878 (Ala. 1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala.1981). However, when the trial court improperly applies the law to the facts, 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).
Griggs argues that the trial court improperly failed to give effect to the reversion clause contained in the deed from the McPhauls to the State. She argues that the State failed to comply with the requirement in the deed that the state to use the property "for the purpose of a state park or state parkway," and that this failure caused a reversion of title, in favor of her, as the ultimate successor in interest to Amos Garrett, to whom the McPhauls had assigned this reversionary right. She argues that the trial court's failure to give effect to the reversionary clause is clearly erroneous and against the great weight and preponderance of the evidence.
Griggs admits that there is an "overlap" of 30 feet between the parcel described in the State's deed and that parcel described in Driftwood's deed. However, she argues that the State did not use the land "as a state park or state parkway." In support of this argument, Griggs relies on evidence that the plats in the office of the Baldwin County tax assessor reveal that, at all times between 1946 and 1983, the owners of the lots within the Garrett subdivision had paid taxes on the full 100-foot width of those lots, rather than on the lesser width that they should have been paying taxes on if the State had title to the disputed 30-foot strip. However, this evidence provides no support for her arguments. Neither Griggs nor others owning the lots could claim title to the 30-foot strip because of their payment of taxes. State ex rel. Attorney General v. Tarleton, 279 Ala. 555, 188 So. 2d 516 (1966).
Griggs also refers to evidence that while the Griggses and Neil Lauder, a previous owner, owned the lots, they used the 30-foot strip and that the State did not use it. She argues that their acts of possession demonstrate that the State has not used the land as "a state park or state parkway," within the meaning of the reversion clause.[2]
Griggs relies on this Court's holding in Trustees of Howard College v. McNabb, 288 Ala. 564, 573, 263 So. 2d 664 (1972), for the proposition that a "parkway" must be used "`for the benefit of the public' at large, and [must be] open for the use and enjoyment of everyone, rather than for the use of those few individuals who own adjoining property." Griggs argues that the disputed strip in this case was used only for the benefit of the abutting landowners and not for the benefit of the public at large.
In McNabb, a similar condition was inserted in a deed to Jefferson County, Alabama; *587 the property conveyed contained a lake, and the deed required that the "said property be used as a parkway only." Id. 288 Ala. at 568, 263 So. 2d at 667. Jefferson County agreed "to beautify and use the property hereby conveyed as such a parkway." Later, the lake was drained and Jefferson County conveyed the land to the Trustees of Howard College (now Samford University), who, the original grantors argued, did not maintain it as a "parkway." Construing the term "parkway," this Court relied on a prior decision dealing with the meaning of the word "parkway" and defining the term as follows:
McCraney v. City of Leeds, 239 Ala. 143, 145, 194 So. 151, 152 (1940) (Emphasis added.)
Applying the definition used in McNabb, this Court held that where no public dedication of the lake had been made and where abutting landowners had been allowed to use the lake for their benefit and enjoyment, but where no private easement or reservation in the lake was created, the trustees of Howard College had not complied with the requirement. McNabb, 288 Ala. at 574, 263 So. 2d at 673. Accordingly, this Court gave effect to a reversion clause, which caused title to revert to the original grantor. Id.
This Court has also held that the State is not required to construct facilities or park-like features on property to meet a deed requirement that the State use the land "for state park purposes." Taylor v. Martin, 585 So. 2d 849, 850 (Ala.1991). Where the State preserved the property in its natural state to provide the public with an aesthetic view, this was sufficient to meet the requirement in the deed and thus prevent the operation of the condition subsequent.
Furthermore, this Court has adhered to the general rule of law that disfavors conditions subsequent in conveyances of real property because they tend to the destruction of estates. Taylor v. Martin, 585 So. 2d 849, 852 (Ala.1991); Stewart v. Weaver, 264 Ala. 286, 87 So. 2d 548 (1956). See also Burnham v. City of Jackson, 379 So. 2d 931, 933 (Miss.1980). Accordingly, this Court strictly construes such conditions against the grantor. Taylor, 585 So. 2d at 852; Henry v. Etowah County, 77 Ala. 538 (1884) (conditions subsequent "are generally to be construed strictissimi juris, against the grantor in the deed creating them").
We find evidence to support the trial court's finding that the State's use of the land substantially complied with the condition. See 4 G. Thompson, Commentaries on the Law of Real Property § 1890 (1979) (substantial compliance). There was evidence that the State used the disputed strip in its construction of State Highway 161 in 1945, as a "buffer" between the pedestrian and residential zones and the vehicular zone along Highway 161, and as property reserved for possible future expansion of that road. Indeed, evidence indicated that the State has expanded Highway 161 by approximately six to eight feet and that it has added a bicycle lane alongside the highway, and that these additions expanded onto 30-foot strip in dispute here. Furthermore, Griggs acknowledges that Highway 161 runs north and south alongside the disputed strip of land, directly to the west of that strip, and that Gulf State Park is located directly to the west of Highway 161. It is also undisputed that the construction of Highway 161 was for the benefit of the public.
The trial court's holding also complies with the law regarding reversionary clauses. Using the definition of "parkway" recommended by Griggs, and upon which this Court relied in McNabb, we hold that the evidence was sufficient to permit the trial court to infer that the State had used the disputed strip in substantial compliance with the deed requirement. The State's use of the property, therefore, does not *588 invoke the condition subsequent. Accordingly, the trial court's holding was not clearly erroneous or against the great weight of the evidence.
Griggs argues that, if the trial court properly found a defect in title, then it did not apply the proper measure of damages. Regarding the measure of damages, the trial court stated:
Griggs contends that the trial court applied an improper measure of damages. Griggs relies on Alger-Sullivan Lumber Co. v. Union Trust Co., 207 Ala. 138, 92 So. 254 (1922), to argue that Driftwood, in order to receive a proportionate reduction in the purchase price, must rescind the sale and tender the defective title back to her, as one of the grantors and as executrix of the estate of W. Garrett Griggs, the other grantor, so that she can defend it. Griggs argues that because Driftwood has effectively transferred the disputed strip to the State without her consent, title cannot be tendered to her and that a reduction in the purchase price is therefore not available.
This case is unlike Alger-Sullivan, however, in that the grantees in Alger-Sullivan, sought a refund of the entire purchase price of the property because of a partial failure of title. This Court held that where a conveyance provides for a refund of the entire purchase price in the case of "each acre of land the title to which shall fail," meaning a total failure of title, the purchaser was not entitled to recover the entire purchase price for a partial failure without offering to return the land. The facts of this case are clearly distinguishable. Driftwood does not contend that a failure of title occurred as to the entire 100-foot lot, and it does not seek a refund of the entire purchase price. Driftwood is not required to tender back to Griggs the title in order to receive a proportionate reduction in the purchase price for a partial failure of title.
Griggs next argues that the proper measure of damages is the difference in the value of the property as warranted and the value of the property with the defect. From a careful review of the record, we conclude that the trial court applied this precise measure of damages.
The trial court relied on competent evidence to support its finding of the amount of damages. Griggs testified that 25.81 feet of beachfront property was lost as a result of the defect. She further testified that beachfront property was worth approximately $1,000 per foot when she and W. Garrett Griggs sold the property to the Adamses.[3]
We conclude that the trial court applied the proper measure of damages. The trial court's calculations are clearly based on the difference in the value of the property as *589 represented ($150,000 for a 100-foot lot) and the value of the property as it really was ($111,285 for a 74.19-foot lot).
Griggs's final argument focuses on a limit to the damages Driftwood may recover. Griggs argues that in no event may the damages awarded exceed the sale price of the property. St. Paul Title Ins. Corp. v. Owen, 452 So. 2d 482 (Ala.1984). The damages awarded in this case did not exceed the sale price of the property.
The trial court's judgment is affirmed; the issues raised in the cross-appeals are thereby rendered moot.
1911596AFFIRMED.
1911653DISMISSED.
1911673DISMISSED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
*590
[1] The agreement measured east-west the property ceded. However, the northern and southern boundaries run northeast-southwest, so that those boundary lines are longer than the east-west measurement across the center of the land. The southern boundary of the property is the shoreline. That shoreline boundary, like the northern boundary, is 25.81 feet long. See the map attached as an appendix.
[2] Griggs does not argue that Lauder or the Griggses obtained title to the land by adverse possession against the State. "There is abundant authority in this State for the proposition of law that title cannot be acquired by adverse possession of land owned by the State or a county." Taylor v. Martin, 585 So. 2d 849, 852 (Ala.1991).
[3] Although there is some authority suggesting that damages measuring the difference in value as represented and as is should be measured "as of the date of eviction, [and] not as of the time of the sale," Driftwood did not at trial raise this argument and does not on its cross-appeal contend that it is due more in damages than the trial court awarded. See Lacks v. Stribling, 406 So. 2d 926, 929 (Ala.Civ.App.1981), cert. denied, 406 So. 2d 932 (Ala.1981). Therefore, we are limited to reviewing the trial court's use of the measure of damages as of the time of sale. | April 16, 1993 |
4e86e839-8eec-4202-a86e-ba3972c7342d | McCloud v. City of Irondale | 622 So. 2d 1272 | 1920396 | Alabama | Alabama Supreme Court | 622 So. 2d 1272 (1993)
John McCLOUD and Donna McCloud
v.
CITY OF IRONDALE.
1920396.
Supreme Court of Alabama.
May 7, 1993.
Rehearing Denied June 25, 1993.
Harold P. Knight, Birmingham, for appellants.
John T. Ennis, Sr., and E. Allen Dodd, Jr., Birmingham, for appellee.
INGRAM, Justice.
The plaintiffs, John and Donna McCloud, appeal from a summary judgment in favor of the defendant, the City of Irondale, Alabama.[1]
The McClouds sued Irondale for damages, alleging (1) that Irondale had trespassed on their property, (2) that Irondale had intentionally caused groundwater and sewage to drain onto their property and had failed to correct the problem, and (3) that they were third-party beneficiaries of a "contract" between Irondale and the Jefferson County Community Block Grant Program and that Irondale had breached that contract. The trial court consolidated the McClouds' action with an action brought by Irondale to condemn the McClouds' property.
Irondale initially moved to dismiss the McClouds' claims. After the trial court denied its motion, it filed its answer and then moved for a summary judgment.[2] After *1273 receiving materials in support of the motion and materials in opposition to it, the trial court entered a summary judgment for Irondale on all of the McClouds' claims.[3]
A summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P. To defeat a properly supported motion for summary judgment, the nonmoving party must present substantial evidence to support its claims. Ala.Code 1975, § 12-21-12. To satisfy the "substantial evidence test," the nonmoving party is required to present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). When the trial court does not give specific reasons for entering a summary judgment, we will affirm the judgment if there is any ground upon which the judgment could have been based. Yarbrough v. C & S Family Credit, Inc., 595 So. 2d 880, 881 (Ala.1992).
After reviewing the summary judgment motion and the materials submitted in support of the motion and those in opposition to it, we conclude that Irondale properly supported its motion and that the McClouds failed to present substantial evidence in support of any of their claims against the City of Irondale. Accordingly, the summary judgment is affirmed.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] The McClouds filed a "motion to set aside summary judgment" on June 29, 1992. Because they filed their notice of appeal before the motion was ruled on, the motion was withdrawn by operation of law. Rule 4(a), A.R.App.P.; Herring v. Shirah, 542 So. 2d 271 (Ala. 1988).
[2] The first paragraph of Irondale's motion for summary judgment appears to be directed only at the second and third counts of the McClouds' complaint. However, the remainder of the motion and the materials submitted in support thereof address all three of the McClouds' claims. Accordingly, the trial court did not err in treating the motion as one for summary judgment on all of the claims.
[3] The condemnation action proceeded to trial and is not at issue in this appeal. | May 7, 1993 |
61708706-4d52-43ba-a42c-b711e98d06f6 | Nance by and Through Nance v. Matthews | 622 So. 2d 297 | 1911659 | Alabama | Alabama Supreme Court | 622 So. 2d 297 (1993)
Brandi NANCE, By and Through her mother and next friend, Jo NANCE
v.
James Michael MATTHEWS, et al.
1911659.
Supreme Court of Alabama.
April 9, 1993.
Rehearing Denied June 18, 1993.
*298 Robert M. Shipman, Huntsville, for appellant.
Donald B. Sweeney, Jr. of Rives & Peterson, Birmingham, for appellees.
HORNSBY, Chief Justice.
The plaintiff, Brandi Nance, by and through her mother and next friend, Jo Nance, appeals from the dismissal of her claims against James Michael Matthews, individually and in his official capacity as principal of Corley Elementary School; Shannon Cole, individually and in her official capacity as school nurse of Corley Elementary School; and William Scott, individually and in his official capacity as supervisor of special education services of the Marshall County School System. The trial court allowed Nance to proceed with her claim against Joyce Garrett, a special aide at Corley Elementary School. Therefore, Nance's claim against Garrett is not at issue in this appeal. The trial court entered a Rule 54(b), A.R.Civ.P., order making the dismissal final as to Matthews, Cole, and Scott.
Nance's complaint alleges that the Marshall County School System hired Garrett as a special aide to care for Nance, a disabled minor who suffers from spina bifida, while Nance attended Corley Elementary *299 School, a school in the Marshall County School System. Nance alleges that Scott, the supervisor of special education services, was informed of Nance's need, because of recent bladder surgery, to be catheterized while at school on January 22, 1992, and that Scott, in turn, informed Garrett of this need. Nance alleges that she had been catheterized at school on many occasions in the past, but that this procedure was particularly urgent on January 22, 1992, because of recent surgery.
She contends that Garrett was the special aide whose duty it was to catheterize Nance, but that Garrett negligently failed to do so on January 22, 1992, after she had been informed of the need to do so. Nance contends that the failure to catheterize her was the result of negligence and willful and wanton conduct on the part of the defendant, and that as a result she sustained physical injuries, mental trauma, and other injuries, and she claimed $2 million in damages.
Nance argues that the trial court improperly dismissed her claims against Matthews, the principal; Cole, the nurse; and Scott, the supervisor of special education services. Nance's complaint alleges that these defendants negligently supervised Garrett and that they inadequately supervised her in a willful and wanton manner. Nance also argues that these three defendants negligently retained Garrett and that they did so in a willfully and wantonly deficient manner after they knew or should have known of several prior occasions on which, Nance says, Garrett was negligent in her care of Nance. For instance, Nance alleges that these defendants knew or should have known of an incident when Garrett was pushing Nance in a wheelchair and allowed the wheelchair and Nance to roll down a flight of stairs. Nance contends that, in light of their knowledge of Garrett's previous misconduct toward Nance, these defendants' retention and supervision of Garrett was negligent and willfully and wantonly deficient.
These three defendants argue that the trial court properly dismissed Nance's claim against them because, they contend, they possess sovereign immunity from suit under Article I, § 14, Alabama Constitution of 1901. They argue that they are entitled to both absolute immunity and qualified immunity for the performance of discretionary functions.
On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So. 2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So. 2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So. 2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So. 2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So. 2d 1100, 1101 (Ala. 1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala. 1986).
Nance argues that the trial court erred in dismissing Matthews, Cole, and Scott on the basis that they had immunity under Article I, § 14. To resolve this issue, this Court must consider: 1) whether, as to these defendants, the plaintiff's action is, in effect, one against the State (if so, they would have absolute immunity from suit); and, if not, then 2) whether the defendants are entitled to substantive or qualified immunity on the basis that they were engaged in the exercise of a discretionary public function. See Phillips v. Thomas, 555 So. 2d 81, 83 (Ala.1989).
Article I, § 14, provides that "the State of Alabama shall never be made a defendant in any court of law or equity." Therefore, *300 the State and its agencies possess absolute immunity from suit. Phillips v. Thomas, 555 So. 2d at 83; Hickman v. Dothan City Bd. of Educ., 421 So. 2d 1257, 1258 (Ala.1982); Gill v. Sewell, 356 So. 2d 1196, 1198 (Ala.1978); Milton v. Espey, 356 So. 2d 1201, 1202 (Ala.1978). In determining whether state officers and employees possess absolute immunity, this Court considers the nature of the action and the relief sought. Phillips, supra; DeStafney v. University of Alabama, 413 So. 2d 391, 395 (Ala. 1981); Milton, 356 So. 2d at 1202. In an action against a state officer or employee that is, in effect, an action against the State, the officer or employee is entitled to absolute immunity. Phillips, supra; Barnes v. Dale, 530 So. 2d 770, 781 (Ala. 1988); DeStafney, 413 So. 2d at 393.
Considering the nature of Nance's action against these defendants and the relief sought, we conclude that Nance's action is not, in effect, one against the State. Therefore, these defendants are not entitled to absolute immunity under the allegations in the complaint; however, they may be entitled to qualified, or substantive, immunity if they were engaged in the exercise of a discretionary function. Barnes, 530 So. 2d at 783 (quoting DeStafney, 413 So.2d at 395). The defendants argue that they were engaged in the performance of discretionary functions and, therefore, are entitled to qualified immunity.
We have held that in determining whether an employee makes difficult decisions and exercises discretion "the courts must focus on the process employed to arrive at the decision." Smith v. Arnold, 564 So. 2d 873, 876 (Ala.1990). Courts must make this assessment on a case-by-case basis. Grant v. Davis, 537 So. 2d 7, 8 (Ala. 1988).
The distinction between discretionary functions and ministerial ones is often elusive and difficult to make. However, this Court has made the following comments:
"`[M]inisterial acts' [are] those involving `[l]ess in the way of personal decision or judgment or [in which] the matter for which judgment is required has little bearing of importance upon the validity of the act'.... `[M]inisterial acts are those done by officers and employees who are required to carry out the orders of others or to administer the law with little choice as to when, where, how, or under what circumstances their acts are to be done.' [Citing Restatement (Second) of Torts, § 895D, cmt. f (1979).] Conversely, `discretionary acts' are defined as follows by Black's Law Dictionary 419 (5th ed. 1979): `Those acts [as to which] there is no hard and fast rule as to course of conduct that one must or must not take and, if there is [a] clearly defined rule, such would eliminate discretion.... One which requires exercise in judgment and choice and involves what is just and proper under the circumstances.'"
Smith, 564 So. 2d at 876.
Distinguishing between these functions on the basis of definitions alone, however, is not helpful. We have held that "[t]he problem is not to define terms like `discretionary'... but to make a pragmatic assessment of what, if any, degree of immunity is necessary to enable the particular governmental function to be effectively performed." Bell v. Chisom, 421 So. 2d 1239, 1241 (Ala.1982). Therefore, a review of the cases in which this Court has made such an assessment is helpful to provide some examples of the kinds of acts this Court considers ministerial and the kinds it considers discretionary.
We have held that doctors who work at a state mental health facility and whose positions require them to make difficult decisions in their employment perform a discretionary function and are, therefore, entitled to qualified immunity in an action arising out of their decision to release a patient from the mental health facility. Barnes, 530 So. 2d 770, 784. Likewise in Smith, we recognized that the very nature of the mental health profession involves difficult decision-making in diagnosing and treating a patient. 564 So. 2d 873, 875. In Smith we held that a state employee doctor in that profession performs a discretionary function in diagnosing and treating a patient *301 and is therefore entitled to immunity in an action alleging that the employee doctor negligently diagnosed and treated a patient who had been involuntarily committed to a mental health facility and failed to provide adequate suicide prevention measures for that patient. Id. Accord Smith v. King, 615 So. 2d 69 (Ala.1993).
In Taylor v. Shoemaker, 605 So. 2d 828 (Ala.1992), we recently held that engineers and a superintendent of the State Highway Department exercised discretion in determining whether to remove railway rails surrounding a railroad crossing signal and, therefore, were entitled to immunity in an action arising out of the collision of a motor vehicle with the rails. Similarly, in Grant v. Davis, 537 So. 2d 7 (Ala.1988), this Court held that engineers and a superintendent of the State Highway Department exercised discretion in deciding whether and how to maintain and repair a highway and were therefore entitled to immunity in an action alleging a negligent failure to maintain and repair the highway and a negligent failure to properly inspect the shoulder of the highway. In Gill v. Sewell, 356 So. 2d 1196 (Ala.1978), we held that the decision by the director of a work release center to release a convicted felon from the center was a discretionary public function and that the director was therefore immune in an action arising out of the felon's later alleged shooting of a police officer.
In DeStafney this Court held that a day care employee whose position required the exercise of due care rather than decision-making was engaged in a ministerial function and was, therefore, not entitled to immunity in an action arising from her alleged negligence in allowing a child to fall off a piece of playground equipment operated by a state university. 413 So. 2d 391, 395. We also held in that case that the president of the university was engaged in a discretionary function and was entitled to immunity. Id.
Similarly, in Phillips this Court held that a day care employee's act of inspecting certain premises and checking "yes" on an inspection sheet for the answer to the question whether the pool on the premises was enclosed with a fence, was a ministerial act. Therefore, we held that the day care employee was not entitled to immunity in an action in which the plaintiff alleged that the worker had negligently inspected the premises and had thereby caused the injuries suffered by a child who fell into water that had collected on a covering over a swimming pool. 555 So. 2d at 82, 86. We also held that the director of the Family and Children's Services Division of the State Department of Human Resources exercised a discretionary public function in training and supervising the day care employee whose alleged negligence caused the child's injury. Id. at 85.
In this case, Nance argues that these three defendants negligently and in a willfully and wantonly deficient manner supervised and retained Garrett. With respect to Nance's claims of negligence, we hold that these defendants were engaged in discretionary functions and that they are therefore entitled to qualified immunity. This Court has held that "the exercise of such [training and supervisory] functions is, for the most part, discretionary in nature, and to that extent, affords [the defendant supervisor] substantive [or qualified] immunity from suit," noting that "[t]hese duties, while perhaps affirmative ones, require constant decision making and judgment on the part of the supervisor or trainer." Phillips, 555 So. 2d at 85. The decision whether or not to retain Garrett as an employee also requires the use of discretion. See Hickman v. Dothan City Bd. of Educ., 421 So. 2d 1257 (Ala.1982) (holding that the decision not to retain a teacher for the next school year was a discretionary function for which the defendants possessed qualified immunity).
Although we have held that acts that are generally discretionary may be composed of ministerial elements, Phillips, 555 So. 2d at 86, Nance neither alleges nor argues that the acts of supervision and retention have ministerial elements that would remove from the defendants the protective shield of immunity.
Furthermore, we recognize that without some degree of immunity for the performance *302 of these functions, public officers and employees who perform them may act not on the basis of policy but with the goal of avoiding personal liability or vexatious suits. See Bell v. Chisom, 421 So. 2d 1239 at 1241 (Ala.1982). Accordingly, in light of this concern and the uncontested discretionary nature of the conduct of these defendants, we hold that these defendants were engaged in discretionary acts for which they are entitled to qualified immunity.
Therefore, construing most strongly in Nance's favor her allegations that these defendants had negligently supervised and negligently retained Garrett, we conclude that Nance can prove no set of circumstances that would entitle her to relief against these defendants on these allegations.
Nance's claim that these defendants supervised and retained Garrett in a willfully and wantonly deficient manner is similar to the plaintiffs' claims in Hill v. Allen, 495 So. 2d 32 (Ala. 1986). In Hill, the plaintiffs, six mentally retarded students, sued the members of the Cullman City Board of Education, the special education coordinator, the superintendent of the board, and the principal of the middle school at which the alleged wrongful conduct occurred. The plaintiffs alleged that they were subjected to "numerous incidents of abuse, physical, mental, and sexual [by certain other defendants described as] instructors and aides." Id. at 33. They argued that the defendants "failed or refused to take appropriate action to protect mentally retarded children in the public schools of Cullman, Alabama, from the acts and actions of [those other] defendants." Id. at 34. The original complaint charged the appellees with negligent, wanton, or intentional misconduct. Id.
In Hill, we recognized that "[i]n Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213 (Ala.1983), the scope of discretionary function immunity was expanded to include immunity from allegations of wanton conduct against state officials sued in their individual capacities where there was no evidence of bad faith on their part." Hill, 495 So. 2d at 34. We affirmed the trial court's judgment on the pleadings in favor of the school principal, the superintendent, and the special education coordinator, because the plaintiffs in Hill did not allege fraud or bad faith on the part of those defendants. Id.
The defense of qualified immunity does not apply to allegations of bad faith and fraud; likewise, it does not apply to actions against state officials in their official capacity based on acts committed beyond their authority. Gill v. Sewell, 356 So. 2d 1196, 1198 (Ala.1978); Milton v. Espey, 356 So. 2d 1201, 1203 (Ala.1978); Unzicker v. State, 346 So. 2d 931, 933 (Ala. 1977).
In this case, Nance did not allege or argue that these defendants acted fraudulently, in bad faith, or beyond their authority. Therefore, these defendants are entitled to qualified immunity from Nance's claim that they supervised and retained Garrett in a willfully and wantonly deficient manner, because, as discussed above, these acts are discretionary. The trial court's dismissal of Nance's claim of willful and wanton conduct is, therefore, due to be affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | April 9, 1993 |
e63c268d-7520-4eea-a977-f365165923da | Tanner v. Alabama Power Co. | 617 So. 2d 656 | 1900797, 1900798 | Alabama | Alabama Supreme Court | 617 So. 2d 656 (1993)
Charles C. TANNER and Shirley Tanner
v.
ALABAMA POWER COMPANY.
1900797, 1900798.
Supreme Court of Alabama.
April 2, 1993.
K. Mark Parnell of Gorham, Waldrep, Stewart, Kendrick & Bryant, Birmingham, for appellants.
Steven F. Casey of Balch & Bingham, Birmingham, for appellee.
ADAMS, Justice.
Our opinion of August 9, 1991, is withdrawn and the following is substituted therefor.
Charles and Shirley Tanner appealed from an order of the Jefferson County Circuit Court granting an application of Alabama Power Company ("APCo") for condemnation of a right-of-way over the Tanners' property. The trial judge, before determining the amount of damages, entered an order purporting to certify the order as a "final judgment" pursuant to Ala.R.Civ.P. 54(b). The dispositive issue before us is whether Rule 54(b) allows the circuit court to certify as final its order granting a public utility's application for condemnation while expressly retaining jurisdiction to determine the amount of compensation to be awarded to the landowner. We hold that it does not.
Rule 54(b), in pertinent part, states:
(Emphasis added.) The sine qua non of the rule's applicability is the existence of multiple parties or claims. The rule confers appellate jurisdiction over an order of judgment only where the trial court "has completely disposed of one of a number of claims, or one of multiple parties." Rule 54(b), committee comments (emphasis added). In other words, the "trial court cannot *657 confer appellate jurisdiction upon this court through directing entry of judgment under Rule 54(b) if the judgment is not otherwise `final.'" Robinson v. Computer Servicenters, Inc., 360 So. 2d 299 (Ala. 1978). "That a judgment is not final when the amount of damages has not been fixed by it is unquestionable." "Automatic" Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So. 2d 555, 557 (Ala. 1977); see also Moody v. State ex rel. Payne, 351 So. 2d 547 (Ala. 1977).
In this case, the trial court, in granting APCo's application for condemnation without adjudicating the issue of damages, failed to "completely dispose" of APCo's claim. See committee comments to Rule 54(b); see also Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976). An order that does not dispose of the entire claim is inherently interlocutory in nature. McGowin Investment Co. v. Johnstone, 291 Ala. 714, 287 So. 2d 835 (1973).
In McGowin, as in this case, landowners, prior to an adjudication of the issue of damages, appealed from an order granting an application for condemnation. In dismissing the appeal, this Court noted that it had "been unable to find any Alabama condemnation case in which an appeal was allowed prior to assessment of damages." 291 Ala. at 715, 287 So. 2d at 836. Additionally, the Court reasoned that the statutory provision requiring "a deposit or payment into court of the damages assessed in condemnation cases in order to secure entry pending appeal," see Ala.Code 1940, Tit. 19, § 24 (currently Ala.Code 1975, § 18-1A-289); and the provision "providing for payment of damages within [the designated time] after appeal is determined," see Tit. 19, § 25 (currently § 18-1A-290), "seemed clearly to indicate that the legislature intended that judgments in condemnation cases become final only after assessment of damages." McGowin, 291 Ala. at 716, 287 So. 2d at 836-37. (Emphasis added.)
The reasoning of McGowin is equally applicable in this case. To put it simply, the trial court's attempted Rule 54(b) certification was ineffective to transform its condemnation order into a final judgment. Consequently, we are compelled to dismiss the appeals as premature. Powell v. Republic Nat'l Life Ins. Co., 293 Ala. 101, 300 So. 2d 359 (1974); Alldridge v. Metro Bank, 398 So. 2d 314 (Ala.Civ.App.1981).
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPEALS DISMISSED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur. | April 2, 1993 |
4e9c5578-419d-44bc-9af6-e725ee31eca0 | Rhodes v. General Motors Corp. | 621 So. 2d 945 | 1911866 | Alabama | Alabama Supreme Court | 621 So. 2d 945 (1993)
Daniel C. RHODES and Sabrina Rhodes
v.
GENERAL MOTORS CORPORATION, CHEVROLET DIVISION; and Chrysler Credit Corporation.
1911866.
Supreme Court of Alabama.
May 21, 1993.
*946 Gaines C. McCorquodale and Jacqualyn M. Sheffield of McCorquodale and McCorquodale, Jackson, for Daniel C. Rhodes and Sabrina Rhodes.
Richard T. Dorman and Patricia J. Ponder of McRight, Jackson, Dorman, Myrick & Moore, Mobile, for General Motors Corp.
Mayer W. Perloff of Reid, Friedman, Perloff & Ross, Mobile, for Chrysler Credit Corp.
INGRAM, Justice.
The plaintiffs, Daniel and Sabrina Rhodes, appeal from summary judgments entered in favor of the defendants, Chrysler Credit Corporation and General Motors Corporation.
The Rhodeses, husband and wife, purchased a 1989 Chevrolet Cavalier automobile from David Jones Chevrolet, Inc. ("Jones"). The car was manufactured and warranted by General Motors Corporation; Chrysler Credit Corporation financed the purchase. After the Rhodeses purchased the automobile, they returned it to Jones on three occasions for repairs. While Jones still had possession of the car after the third repair, Chrysler Credit repossessed it because of the Rhodeses' failure to make scheduled payments.
The Rhodeses filed an eight-count complaint against Chrysler Credit, General Motors, and Jones. They sought damages from General Motors and Jones for breach of warranty and sought compensatory damages from Chrysler Credit and Jones for wrongful repossession, conversion, fraudulent misrepresentation, and intentional infliction of emotional distress by extreme and outrageous conduct. Also, in Count VIII, they sought damages based on a claim that Chrysler Credit wrongfully reported the repossession and deficiency to a credit bureau. In the first amendment to their complaint, the Rhodeses added a demand against Jones and Chrysler Credit for punitive damages. In their second amendment, they sought damages against General Motors for mental anguish and suffering.[1] Finally, the Rhodeses amended their complaint a third time, seeking damages from General Motors and Jones for fraudulent misrepresentations they said occurred during the sale of the automobile.
Each of the defendants moved for a summary judgment. The trial court first granted a summary judgment in favor of Jones. Holding that "there is no genuine issue as to the liability of [the defendants], and that said defendant[s] [are] entitled to a judgment as a matter of law," the trial court later entered summary judgments in favor of Chrysler Credit and General Motors. It is from these judgments that the Rhodeses appeal.[2]
A summary judgment is proper when the motion and the materials submitted in support of it, and those submitted in opposition thereto, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P. To defeat a properly supported motion for summary judgment, the nonmoving party must present substantial evidence to support its claims. 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 *947 exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). "[O]n review of a summary judgment, we must view all the evidence in a light most favorable to the nonmovant and we must entertain all reasonable inferences from the evidence in favor of the nonmovant." Lee v. City of Gadsden, 592 So. 2d 1036, 1038 (Ala.1992).
With regard to their claims against General Motors, the evidence, viewed in a light most favorable to the Rhodeses, shows the following: On July 13, 1989, the Rhodeses purchased a 1989 Chevrolet Cavalier from Jones. The Cavalier had been manufactured by General Motors. On the date of purchase, the odometer on the automobile registered 291 miles.
After purchasing the automobile, the Rhodeses returned it to Jones for repairs on three occasions. On August 9, 1989, Jones performed some touch-up painting on the car. On August 24, 1989, the Rhodeses brought the car back to Jones, complaining of noise in the transmission. At that time, Jones installed a new clutch, pressure plate, and throw out bearing. Finally, on September 26, 1989, the Rhodeses brought the car back to Jones, again complaining of noise in the transmission. At that time Jones removed the transmission from the car and shipped it to a company specializing in transmission repairs, and that company performed repairs on the transmission.
It is undisputed that General Motors paid for each of these repairs under the terms of the "New Car Limited Warranty" that applied to the car. Under the terms of that warranty, General Motors had agreed to cover repairs to correct any defect in materials or workmanship of the car for three years or 50,000 miles, whichever came first.
While Jones still had the car after the third repair, Chrysler Credit repossessed it because of the Rhodeses' failure to make scheduled payments. Except to the extent that they claim consequential damages as a result of having the car repaired, the Rhodeses make no claims against General Motors with regard to the repossession of the car. See footnote 1.
In the first count of their complaint, the Rhodeses seek damages from General Motors for breach of the implied warranty of merchantability. Ala.Code 1975, § 7-2-314. General Motors asserts that it cannot be held liable under this theory because Jones, not General Motors, was the seller of the automobile.
We note that each section in the Uniform Commercial Code dealing with implied warranties places obligations on the seller of goods. In this case, General Motors was the manufacturer of the automobile, and Jones was the seller. § 7-2-103(1)(d). In Wellcraft Marine v. Zarzour, 577 So. 2d 414 (Ala.1990), we stated: "There is no right of action on an implied warranty theory against a manufacturer for property damage without privity of contract." 577 So. 2d at 419. (Emphasis in Wellcraft.) Similarly, we conclude that, without privity of contract, there is no right of action against a manufacturer for direct economic loss.[3]
The Rhodeses contend that in extending a written warranty, General Motors created privity of contract with the Rhodeses. When presented with a similar contention in Wellcraft, we held: "Regardless of any express warranties that a manufacturer may wish to give with a product, by their very language the commercial code's implied warranty sections apply to the seller of the product." Id. at 419. *948 (Emphasis added.) We see no reason to disturb that holding in this case. Accordingly, as to the count alleging a breach of implied warranty, the summary judgment in favor of General Motors is affirmed.
In Count II of their complaint, the Rhodeses allege that General Motors breached its express written warranty. The written limited warranty provides that General Motors will pay for the costs of any repairs to the vehicle necessitated by defects in materials or workmanship during the applicable warranty period. It is undisputed that each time the Rhodeses brought the vehicle in for repairs, it was repaired and General Motors paid all charges for the repair. The Rhodeses produced no evidence that the September 26, 1989, repair failed to remedy the car's transmission problem.[4] There is no evidence that while the Rhodeses had possession of the car it ever stopped or failed to operate.
After considering the record and the parties' briefs, we conclude that the trial judge correctly held that the Rhodeses had failed to present substantial evidence in support of their breach of warranty claim. See, Belcher v. Versatile Farm Equipment Co., 443 So. 2d 912 (Ala.1983); Dickson v. U-J Chevrolet Co., 454 So. 2d 964 (Ala. 1984). Accordingly, as to the count alleging a breach of the express warranty, the summary judgment in favor of General Motors is affirmed.
In Count IX of their complaint as amended, the Rhodeses allege that General Motors represented to them that the car they were purchasing was new and was without defects. The Rhodeses do not allege that any specific representation to this effect was made to them. Rather, they claim that because General Motors supplied them with a "New Car Limited Warranty," General Motors was warranting that the car was new and was without defects.
The Rhodeses do not claim that the car had been previously owned, wrecked, or damaged or that it had any patent defects. Rather, they claim that the fact that the car had to be repaired three times after purchase is evidence that the car was not new and that it was defective.
In Tittle v. Steel City Oldsmobile GMC Truck, Inc., 544 So. 2d 883 (Ala.1989), we considered the application of a warranty that provided: "This warranty covers any repairs and needed adjustments to correct defects in material or workmanship." 544 So. 2d at 891. In that case, we concluded that rather than guaranteeing the car to be free of defects, the warranty actually anticipated that defects would arise and provided for remedying such defects. Id. Similarly, we conclude that the language in this warranty cannot be construed as a representation that the car was and would remain free of defects.[5]
Because the Rhodeses failed to present substantial evidence to support their claim that General Motors falsely represented that the car they purchased was new and without defects, we conclude that the trial court properly entered the summary judgment as to the misrepresentation count against General Motors. Accordingly, with regard to that count the summary judgment is affirmed.[6]
With regard to the Rhodeses' claims against Chrysler Credit, the evidence, viewed in the light most favorable to the Rhodeses, shows: Chrysler Credit financed the Rhodeses' purchase of a 1989 Chevrolet Cavalier on July 13, 1989. The Rhodeses *949 entered into an installment purchase contract with Chrysler Credit, pursuant to which they agreed to make 60 payments of $335.96 each; and Chrysler Credit retained a security interest in the car. The first payment was due on August 12, 1989. On August 10, 1989, the Rhodeses forwarded a check for $335.96 to Chrysler Credit. That check was returned unpaid because of insufficient funds. The Rhodeses made no other payments under the installment contract.
On October 2, 1989, an agent of Chrysler Credit repossessed the vehicle from the premises of David Jones Chevrolet. On October 6, 1989, Chrysler Credit mailed to the Rhodeses a notice stating that the vehicle had been "voluntarily surrendered" and that it would be sold at a private sale after October 16, 1989. The letter informed the Rhodeses that they should contact Chrysler Credit by telephone or by mail if they had any questions. On October 16, 1989, the Rhodeses' attorney mailed a letter to Chrysler Credit demanding the return of the vehicle. Chrysler Credit did not respond to this letter. The car was sold on November 22, 1989, leaving a deficiency of over $3,000. Chrysler Credit reported the repossession and the resulting deficiency to a credit bureau.
Daniel and Sabrina Rhodes each submitted an affidavit in which they stated, "Based on conversations we had with David Jones Chevrolet, Inc., and Chrysler Credit Corporation, we were informed and believed that no payment had to be made toward the purchase of the automobile until such time as the defects in the automobile were repaired." Other than these statements in their affidavits, however, the Rhodeses presented no evidence that anyone at Chrysler Credit authorized the Rhodeses to withhold payments on the installment contract until the vehicle was repaired.
The Rhodeses alleged that someone at Chrysler Credit told them that they did not have to make any payments under the installment contract until the car was finally repaired by Jones. They further alleged that this was a false representation and that they relied upon it to their detriment. The only evidence in support of this allegation is the statement quoted above from the Rhodeses' affidavits.
In support of its motion for summary judgment, Chrysler Credit submitted the testimony of Joe Rovira, its employee in charge of the Rhodeses' account. He testified that he was the only person who would have had a contract with the Rhodeses regarding their delinquency. He further testified that he did not authorize the Rhodeses to withhold payment until their car was repaired. We conclude, therefore, that Chrysler Credit made a prima facie showing that no genuine issue of material fact existed with regard to the Rhodeses' fraud claim. Lee, 592 So. 2d 1036.
In contrast, the only evidence submitted by the Rhodeses in opposition to the motion for summary judgment on this count is the conclusory statements in their affidavits. In opposing a motion for summary judgment, the nonmovants cannot merely rely on the allegations in their complaint. Nettles v. Henderson, 510 So. 2d 212 (Ala. 1987); Rule 56(e), A.R.Civ.P. Moreover, we have held that affidavits offered in opposition to a properly supported motion for summary judgment "must be more than a mere verification of the allegations contained in the pleadings, and must present facts that would be admissible in evidence." Black v. Reynolds, 528 So. 2d 848, 849 (Ala.1988) (citing Morris v. Morris, 366 So. 2d 676 (Ala.1978)).
The materials submitted by the Rhodeses contain no particular evidence about the alleged conversation with Chrysler Credit. That is, they do not identify the party with whom they claim to have spoken, the approximate date of the alleged conversation, or the content of the alleged conversation. Based on this paucity of evidence, we conclude that the Rhodeses failed to present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment [could] reasonably infer" *950 (West, 547 So.2d at 871) that a representative of Chrysler Credit actually informed the Rhodeses that they did not have to make payments under the installment contract until the car was repaired. Clearly, one of the essential elements of a fraud claim is that the defendant made a false representation. Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). Because the Rhodeses failed to present substantial evidence of this essential element of their claim, the trial court properly held that there was no genuine issue of material fact and that Chrysler Credit was entitled to a judgment as a matter of law. Rule 56(c)(3) and (e), A.R.Civ.P.
Ala.Code 1975, § 7-9-503, provides in relevant part: "Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action." With regard to collateral such as automobiles, § 7-9-504(3) provides that "reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor." We have held that selling collateral without satisfying the notice requirements of § 7-9-504(3) constitutes conversion. Simmons Machine Co. v. M & M Brokerage, Inc., 409 So. 2d 743, 751 (Ala.1981).
The Rhodeses argue that the notice Chrysler Credit sent to them failed to fulfil the purpose of § 7-9-504(3) and that the repossession of their car was wrongful and constituted conversion. Specifically, they point out that the notice stated that the car had been "voluntarily surrendered," whereas it was actually repossessed from the premises of David Jones Chevrolet.
We conclude that the notice at issue in this case clearly met the formal requirements of § 7-9-504(3) and fulfilled the purpose of that provision. We note, in the first place, that the Rhodeses concede in their brief that Chrysler Credit met the formal requirements of § 7-9-504(3). The notice must inform the debtor whether the sale of the collateral is to be private or is to be public. Lavender v. AmSouth Bank, N.A., 539 So. 2d 193, 195 (Ala.1988). In the case of a private sale, § 7-9-504(3) requires only "reasonable notification of the time after which any private sale is to be made." Id. See also, White and Summers, Uniform Commercial Code: Practitioner's Edition, § 27-12 at 600-01. The notice in this case met these requirements.
The Rhodeses principally argue that the notice failed to fulfil the purpose of § 7-9-504(3). We disagree. In considering the sufficiency of notice in another case, the Court of Civil Appeals stated:
Wells v. Central Bank of Alabama, N.A., 347 So. 2d 114, 120 (Ala.Civ.App.1977). See, Lavender, 539 So. 2d at 195; Simmons, 409 So. 2d at 749.
As stated above, Chrysler mailed the notice on October 6, 1989; the Rhodeses' attorney on October 16, 1989, mailed a letter demanding the return of the car; and the car was privately sold on November 22, 1989. It is undisputed that between October 16 and November 22 the Rhodeses made no attempt to bring their account with Chrysler Credit current. In fact, other than the October 16 letter, neither the Rhodeses nor their attorney had any further communication with Chrysler Credit until after the car was sold.
Considering the contents of the notice sent by Chrysler Credit, we reject the Rhodeses' contention that they were not informed that the car had been repossessed and that it would be privately sold. Even if the phrase "voluntarily surrendered" misstates the means by which Chrysler Credit took possession of the car, it is undisputed that the Rhodeses knew that *951 Chrysler Credit had, in fact, taken possession of it and that Chrysler Credit intended to sell it.
The Rhodeses make no other arguments in support of their claim for damages for conversion and wrongful possession. In light of our holding that the notice in this case complied with both the letter and the spirit of § 7-9-504(3), we conclude that as to the conversion and wrongful repossession claims the trial court properly granted Chrysler Credit's motion for summary judgment.
In Count VII of their complaint, the Rhodeses allege that by engaging in extreme and outrageous conduct Chrysler Credit caused the Rhodeses to suffer severe emotional distress. See, American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980). The Rhodeses have failed to present any argument or to cite any authority in challenging the summary judgment on this count. Accordingly, as to this count the summary judgment is affirmed. Rule 28(a), A.R.App.P.
In Count VIII of their complaint, the Rhodeses seek damages from Chrysler Credit because, they claim, "in reporting this incident as a repossession to the credit bureau, [Chrysler Credit damaged] the credit rating and reputation of the Plaintiffs." The Rhodeses have failed to present any argument or to cite any authority in support of their claim that Chrysler Credit wrongfully engaged in conduct that harmed their reputation. Therefore, as to this claim also the summary judgment is affirmed. Rule 28(a), A.R.App.P.
After considering the arguments and reviewing the record, we conclude that the trial judge properly entered the summary judgments for General Motors and Chrysler Credit. Accordingly, the judgments are affirmed.
AFFIRMED.
MADDOX, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
HORNSBY, C.J., concurs in the result.
[1] The Rhodeses contend that if the car had not been defective then the events leading up to the repossession of the car would not have taken place. Therefore, they sought damages from General Motors for the mental anguish and suffering they claim to have experienced because of the repossession of the car.
[2] The Rhodeses did not oppose Jones's motion for summary judgment; they do not appeal from the summary judgment in favor of Jones, and Jones is not a party to this appeal.
[3] An action for damages for physical harm to the plaintiff's property is one for "property damage"; and an action for damages for "inadequate value, costs of repair, and replacement of defective goods or consequent loss of profits is one for `economic loss.'" James J. White and Robert S. Summers, Uniform Commercial Code: Practitioner's Edition, § 11-4 at 534 (3d ed. 1988).
[4] After Chrysler Credit repossessed the car, more warranty work was performed on the car. The brake cable was adjusted, and the cruise control cable was repaired and adjusted.
[5] The warranty in this case provides in relevant part: "REPAIRS COVERED This warranty covers repairs to correct any defect in material or workmanship of the vehicle occurring during the WARRANTY PERIOD."
[6] Because we have concluded that the trial court properly entered the summary judgment in favor of General Motors on all of the substantive theories of liability, we see no need to address the Rhodeses' claim for damages for mental anguish and suffering. | May 21, 1993 |
af0c173d-580a-4ceb-89e8-72c3ef04981e | In Re Birmingham Asbestos Litigation | 619 So. 2d 1360 | 1911667 | Alabama | Alabama Supreme Court | 619 So. 2d 1360 (1993)
In re BIRMINGHAM ASBESTOS LITIGATION.[1]
Reida H. UNDERWOOD, as executrix of the Estate of Ernest Burtrand Hanks, deceased, Plaintiff-Appellant,
v.
ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants,
Asarco Incorporated, et al., Defendants-Appellees.
1911667-CER.
Supreme Court of Alabama.
April 16, 1993.
*1361 J. William Lewis and Ronald T. Dudley, Jr., of Environmental Litigation Group, P.C., Birmingham, for appellants.
William H. Mills of Redden, Mills & Clark, Birmingham; and Myron J. Bromberg and D. Jeffrey Campbell of Porzio, Bromberg & Newman, P.C., Morristown, NJ, for Asarco Inc.
William J. Sullivan, Jr., and Mac B. Greaves of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for The Flintkote Co.
Richard W. Vollmer III of Killion & Vollmer, P.C., Mobile, for Garlock, Inc., and Coltec Industries, Inc.
Michael B. Kinnard and J. Ford Little of Baker, Worthington, Crossley, Stanberry & Woolf, Knoxville, TN; and Allan Wheeler of Starnes and Atchison, Birmingham, for Keene Corp.
Norwood S. Wilner, George D. Gardner, and Michael J. Marees, Jacksonville, FL, for Armstrong World Industries, Inc., National Gypsum Co. and U.S. Gypsum Co.
Walter J. Sears III, Norman Jetmundsen, Jr., Michael D. McKibben, and T. Michael Brown of Bradley, Arant, Rose & White, Birmingham, for Irex Corp.
James Lewis Griffith and Amy Lynn Currier of Mannino, Walsh & Griffith, Philadelphia, PA, and Burr & Forman, Birmingham, for General Dynamics Corp.
Sydney F. Frazier, Jr., of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham; and John H. Hall, Marianne Consentino, and Wendy DiChristina of DeBevoise & Plimpton, New York City, for Bairnco Corp.
James L. Goyer III and Carl S. Burkhalter of Maynard, Cooper, Frierson & Gale, P.C., Birmingham, for amicus curiae Business Council of Alabama.
Michele Odorizzi of Mayer, Brown & Platt, Chicago, Illinois; and Michael D. Knight of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for amicus curiae Product Liability Advisory Council, Inc.
William D. Eggers and Carol E. Warren of Nixon, Hargrave, Devans & Doyle, Rochester, NY; and James C. Barton and Hollinger F. Barnard of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for amicus curiae National Ass'n of Mfrs.
STEAGALL, Justice.
The United States Court of Appeals for the Eleventh Circuit, 966 F.2d 1392, certified to this Court the following question of law:
The answer to this question is sought in regard to all actions encompassed by a January 8, 1991, order issued from the United States District Court for the Northern District of Alabama in which the district court consolidated, for pretrial purposes, all cases in that district "asserting claims for personal injury, illness, or death from exposure to asbestos products or asbestos-containing products." In these consolidated actions, the plaintiffs generally *1362 allege that they had been exposed to asbestos in the workplace and had suffered serious injury as a result. (Some plaintiffs represent the estates of persons they say died because of exposure to asbestos in the workplace.) The defendants are parent corporations that the plaintiffs alleged held voting interests in subsidiaries that manufactured, installed, or sold asbestos or asbestos-containing products and then placed these products into the stream of commerce, where they ultimately became a part of the buildings where the plaintiffs (or their decedents) worked. The plaintiffs seek to hold the parent corporations liable for the activities of the asbestos-related subsidiaries.
It is well settled that a parent corporation, even one that owns all the stock of a subsidiary corporation is not subject to liability for the acts of its subsidiary unless the parent so controls the operation of the subsidiary as to make it a mere adjunct, instrumentality, or alter ego of the parent corporation. First Health, Inc. v. Blanton, 585 So. 2d 1331 (Ala.1991); Simmons v. Clark Equip. Credit Corp., 554 So. 2d 398 (Ala.1989); Messick v. Moring, 514 So. 2d 892 (Ala.1987); Duff v. Southern Ry., 496 So. 2d 760 (Ala.1986); Washburn v. Rabun, 487 So. 2d 1361 (Ala.1986); American Pioneer Life Ins. Co. v. Sandlin, 470 So. 2d 657 (Ala.1985); Ex parte Baker, 432 So. 2d 1281 (Ala.1983); Cohen v. Williams, 294 Ala. 417, 318 So. 2d 279 (1975). However, the mere domination or control of a corporation by its stockholder cannot be enough to allow a piercing of the corporate veil; rather, there must be the added elements of misuse and harm or loss resulting from the misuse. First Health, Inc. v. Blanton, supra. Limited liability is one of the principal purposes for which the law has created the corporation. Chenault v. Jamison, 578 So. 2d 1059 (Ala.1991). Thus, it is the law in Alabama that a plaintiff must first "pierce the corporate veil" before the parent corporation's liability may be established.
The plaintiffs advocate a departure from this established doctrine of "piercing the corporate veil" and argue that a parent corporation should be liable for the acts of its subsidiary if (1) the parent controls the subsidiary and (2) the parent can foresee the harm that the subsidiary's activities may have. The plaintiffs base this "duty to control" theory on Restatement (Second) of Torts § 315 (1965), which states:
The type of "special relation" that would establish the third person's duty to control the actor is defined in §§ 316 and 319 of the Restatement. These relations include those of parent and child and master and servant, the relation of a possessor of land or chattels to a licensee, and the relation of one who takes charge of a person having dangerous propensities to a person who may be harmed as a result of those dangerous propensities. The plaintiffs contend that the association between a parent company and its subsidiary should also be deemed a "special relation" for purposes of § 315. Their theory of liability rests upon the premise that the § 315 duty to control should apply in any circumstance where one individual controls the actions of another and the other's actions result in foreseeable harm.
No Alabama case has adopted this theory or specifically embraced § 315(a) as part of this state's tort law. The plaintiffs have not shown that other jurisdictions have applied § 315(a) to establish a corporate parent's responsibility for its subsidiary's business activities, and the authorities they have cited do not persuade us to create this rule of law as an alternative to our long-held doctrine of piercing the corporate veil. We therefore hold that, under Alabama law, the "duty to control" doctrine may not be applied to hold a parent *1363 corporation liable for the acts of its subsidiary.
QUESTION ANSWERED.
MADDOX, ALMON, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] We have styled this case just as it is styled in the United States Court of Appeals. | April 16, 1993 |
8731ce59-9166-4df3-ba88-ac753125130e | Jefferson Clinic, PC v. Roberson | 626 So. 2d 1243 | 1910845 | Alabama | Alabama Supreme Court | 626 So. 2d 1243 (1993)
JEFFERSON CLINIC, P.C.
v.
Cora ROBERSON.
1910845.
Supreme Court of Alabama.
March 26, 1993.
Rehearing Denied August 27, 1993.
W. Michael Atchison, Robert P. MacKenzie III, and P. Perry Finney of Starnes & Atchison, Birmingham, for appellant.
James D. Forstman, Birmingham, for appellee.
ADAMS, Justice.
Jefferson Clinic, P.C., a professional corporation of physicians practicing medicine at Cooper Green Hospital in Birmingham, Alabama, appeals a judgment based on a jury verdict in favor of Cora Roberson in the amount of $250,000. We reverse and remand.
Roberson was injured in an automobile accident and was taken to Cooper Green *1244 Hospital, where she was diagnosed as having five broken ribs and a pneumothorax, which is a partially collapsed lung. When Roberson was admitted to Cooper Green, several X-rays were done of her spine, including her neck. The X-rays of Roberson's neck did not indicate a fracture and, therefore, she was treated for a strain to her neck. Physical therapy was attempted on Roberson for the neck strain; however, it was abandoned because she could not endure the pain. Although Roberson contends that she continued to be in intense pain, no further tests were run on her neck to determine if, in fact, there was a fracture to the spine that had not shown up on the original X-rays taken of her neck. She was released from the hospital and was sent to a nursing home, where she stayed until she returned for two check-ups at Jefferson Clinic; her condition was found to be improving. Thereafter, she sought the opinion of Dr. Gaylon Rogers. Dr. Rogers examined her and placed her back in the hospital. He ordered further X-rays of her neck and later ordered a CT scan; the CT scan indicated that there was, indeed, a fracture to the vertebrae of her neck.
Roberson thereafter sued Jefferson Clinic, Cooper Green Hospital, and her attending physicians, alleging that she had received negligent medical care. Cooper Green and three of the physicians were dismissed prior to trial. The jury returned a verdict in favor of the other physician; therefore, Jefferson Clinic is the sole party appealing.
Following the trial, the judge charged the jury as follows:
First, Jefferson Clinic contends that the trial judge erred in charging the jury that
Jefferson Clinic argues that this charge, which is just the reverse of the "honest error charge" found to be error in Shumaker v. Johnson, 571 So. 2d 991 (Ala.1990), is equally confusing and misleading to the jury and, therefore, should not have been allowed. In Shumaker v. Johnson, 571 So. 2d 991 (Ala. 1990), this Court reviewed the propriety of the following "honest error" jury charge given in a medical malpractice case:
Shumaker, at 993.
Chief Justice Hornsby, speaking for a majority of the Court, stated:
"Sasser v. Connery, 565 So. 2d 50, 53 (Ala. 1990) (Hornsby, C.J., concurring specially).
Shumaker, at 993-94.
The purpose of eliminating the "honest error" charge in Shumaker was to prevent the confusion of the jury. As stated in Shumaker, the issue in a medical malpractice case is whether the doctor has breached the standard of care, and the issue of good faith on the part of the physician has no place in this type of case. We need look no further than Shumaker for the proposition that the injection of subjective standards rather than objective standards into the jury's deliberative process clearly causes confusion. Despite the fact that in this case the judge gave the opposite of the "honest error charge," we hold that the resulting confusion of the jury is the same. Therefore, on the basis of the rationale of Shumaker, the judgment in this case is hereby reversed.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, STEAGALL and INGRAM, JJ., concur.
MADDOX, SHORES and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
If it is error to give the "honest error" jury charge one way, and I do not think it was (Shumaker v. Johnson, 571 So. 2d 991, 995-97 (Ala.1990) (Houston, J., dissenting)), it should be error to give it the way it was given in this case. The majority is being consistent in reversing and remanding this case. I do not believe in this case, as I did not believe in Shumaker v. Johnson, that the trial court's charge, taken as a whole, could have prejudiced the rights of the appellant. I would allow both the "honest error" jury charge and the mirror image of it that was given in this case; in my opinion, it is not error to give either. It should not be reversible error to give the charge given in this case or the charge given in Shumaker. Therefore, I would affirm the judgment of the trial court, and I dissent.
MADDOX, J., concurs. | March 26, 1993 |
ed62440e-4b26-488a-b5e9-2939b481dbe5 | Acstar Ins. v. American Mechanical Contr. | 621 So. 2d 1227 | 1910930 | Alabama | Alabama Supreme Court | 621 So. 2d 1227 (1993)
ACSTAR INSURANCE COMPANY
v.
AMERICAN MECHANICAL CONTRACTORS, INC.; Highland Bank; Roy F. Bragg and Carolyn Bragg; and Wade M. Cline and Anita Cline.
1910930.
Supreme Court of Alabama.
April 16, 1993.
Rehearing Denied June 4, 1993.
*1228 Thomas R. Elliott, Jr. of London, Yancey, Elliott & Burgess, Birmingham, for appellant.
Edward P. Meyerson and Hub Harrington of Najjar Denaburg, P.C., Birmingham, for appellees.
PER CURIAM.
The defendant/third-party plaintiff Acstar Insurance Company ("Acstar"), appeals from a summary judgment for the defendant American Mechanical Contractors, Inc. ("AMCI"), the defendant-intervenor Highland Bank ("Highland"), and the third-party defendants Roy F. Bragg and Carolyn B. Bragg and Wade M. Cline and Anita Cline.
The facts are essentially undisputed. Harbert International, Inc. ("Harbert"), a Delaware corporation specializing in public and private construction, was awarded contracts by the United States Government in early 1989 for the construction of a "multi-storage training facility" in Virginia Beach, Virginia (the "Virginia Project") and a mail processing center in Lake Mary, Florida (the "Florida Project"). AMCI, a mechanical contracting company, submitted bids to Harbert for the mechanical and plumbing work on the projects. AMCI was awarded subcontracts on the Virginia Project, on its low bid of $854,000, and on the Florida Project, on its low bid of $3,087,000.
Both subcontracts specifically required AMCI to furnish Harbert performance and payment bonds before any commencement of subcontractor's work at the job site. AMCI contacted its insurance brokers, McGriff, Seibels & Williams, Inc. ("McGriff-Seibels"), to obtain the necessary bonds. McGriff-Seibels then contacted Acstar, an Illinois corporation with its principal place of business in Connecticut. Acstar was actively involved in writing payment and performance bonds and was licensed to do business in Alabama.
On April 25, 1989, Acstar, in a letter to McGriff-Seibels, agreed to execute bonds on the projects in return for premiums in the amount of 2.4% of the contract price and "an irrevocable letter of credit in the amount of $250,000 plus executed indemnification agreement."
AMCI and Roy F. Bragg and Carolyn B. Bragg and Wade M. Cline and Anita Cline ("indemnitors"), executed an indemnity agreement. The indemnitors were the stockholders of AMCI and their spouses. The agreement contained the following provisions:
Citizens and Southern National Bank ("C & S Bank") issued a $250,000 irrevocable letter of credit to Acstar on behalf of AMCI. C & S Bank subsequently assigned its rights under this letter of credit to Highland Bank. The letter of credit was to become effective upon issuance of the payment and performance bonds. Acstar's ability to draw down on the letter of credit was conditioned "in the event you deem it necessary by reason of your having executed bond(s) on behalf of American Mechanical Contractors, Inc."
Acstar issued payment and performance bonds for the two projects on May 18, 1989. *1229 On June 1, 1989, Acstar forwarded the invoice for premiums in the sum of $85,126.50 to McGriff-Seibels.
The bonds, properly executed by Acstar and AMCI, were subsequently delivered to Harbert by AMCI. On June 5, 1989, Harbert wrote to AMCI, acknowledging receipt of the bonds and pointing out that "[t]he bonding company, Acstar, is not on our list of acceptable companies." The letter further stated: "At this point, the bonds, as submitted, are not acceptable because we have no information to judge the capability of Acstar to support the liability the two bonds represent. I suggest we meet on Thursday, June 8, 1989, to discuss the matter further."
AMCI forwarded a copy of this letter, via facsimile, to Acstar on June 7, 1989, with the notation "any help you can give us is needed. We need this information for our meeting on Thursday." Responding the same day, Acstar wrote to AMCI, providing three paragraphs of financial information, including its listing in "Best's Property-Casualty Insurance Reports" (1988 edition), its proposed treasury listing on or before June 30, 1989, and a statement that its "statutory surplus is one of the highest of the approximately 600 surety companies admitted for writing surety bonds." In conclusion, the letter stated:
AMCI did not seek return of the bonds. Harbert replied on June 13, 1989: "[A]fter receipt of additional information on Acstar Insurance Company, we have decided to accept the bonds as submitted by your firm for the above-referenced projects." The bonds, accordingly, were not returned.
On June 22, 1989, Acstar wrote to Harbert, stating, "Harbert's rejection of the bonds in its letter of June 15, 1989 to American Mechanical rendered the bonds null and void." A handwritten notation on this letter indicates that it was received on June 26, 1989.
AMCI then wrote to Acstar on June 26, 1989, confirming that "[p]ayment for the two bonds on the above-referenced jobs will be sent to your office tonight via Federal Express" and stating, "We have been given an acceptance by Harbert International. If you are not willing to accept our check, please give me a call." A July 8, 1989, notation on this letter reads "please file in underwriting file."
On June 27, 1989, Harbert wrote to AMCI and Acstar, stating:
Acstar did not refuse the premium payment and did not thereafter declare the bonds null and void or seek their return. Acstar did not return the premium check or call AMCI. Acstar's president, Henry Nozko, Jr., acknowledged that Acstar made no request for the return of the bonds after June 27, 1989. The bonds remained in the possession of Harbert.
Beginning in the last quarter of 1989 and continuing into the spring of 1990, AMCI went into default on both projects in terms of payment and performance, and Harbert was required to expend substantial additional sums to complete AMCI's work and to pay debts due and owing to AMCI's materialmen and suppliers. During the spring of 1990, Harbert declared AMCI in default on both the Virginia Project and the Florida Project. AMCI admitted in its answer to Harbert's complaint that it had failed to make timely payments to suppliers of labor and material and had failed to prosecute and complete its work in a timely manner. When claims by AMCI's creditors were ultimately made on the subject bonds, *1230 Acstar denied its surety obligations, reaffirmed its cancellation of the bonds, and restated its position that the bonds were both null and void.
By two letters dated April 24 and April 26, 1990, Acstar subsequently drew on the full amount of the letter of credit. The documentation presented to C & S Bank as support for the draw upon the letter of credit stated that the bonds issued by Acstar on behalf of AMCI were "still outstanding."
On June 15, 1990, Acstar notified Harbert that the payment and performance bonds were null and void. Acstar wrote to Harbert and explained that Harbert had rejected the bonds on June 7, 1989, and that Acstar had subsequently withdrawn its offer, making the bonds null and void. Thereafter, Acstar informed claimants that the performance and payment bonds were null and void. While Acstar stated that the bonds were null and void, it understood that there was exposure under the bonds because Harbert was contending that the bonds were still in force.
Acstar's denial of all claims made on the subject bonds, and its insistence that the bonds had been canceled and rendered null and void pursuant to Harbert's letter of June 5, 1989, prompted Harbert to institute this action on June 27, 1990. Harbert alleged that it had suffered losses, damage, and costs in excess of $1,000,000 on the bonds. Harbert also claimed punitive damages, alleging that Acstar's refusal to pay under the bonds had been in bad faith. Each of the defendants, Acstar and AMCI, then filed cross-claims against each other. Defendant Acstar also filed a third-party claim against the indemnitors, seeking indemnity under their indemnity agreement. Highland Bank, having been assigned the rights of C & S Bank under the $250,000 letter of credit, petitioned the court to intervene as a party defendant and to assert a cross-claim against Acstar.
In September 1991, Acstar and Harbert entered into a settlement agreement whereby Acstar, in an effort to mitigate potential exposure, paid Harbert $680,000. Under the settlement agreement, Acstar received an assignment of Harbert's claim against AMCI for the amount of $680,000. Acstar remained exposed to claims by labor and material suppliers under the payment bonds.
AMCI and the indemnitors moved for a partial summary judgment against Acstar. Acstar, as cross-claimant and third-party plaintiff, then filed a motion for summary judgment against co-defendant AMCI and against the indemnitors. Acstar sought a summary judgment against AMCI on the grounds that Acstar was an assignee of certain undisputed claims and rights in favor of Harbert and that Acstar was entitled to recover against AMCI under the doctrine of equitable subrogation. These motions were directed only to the contract-based claims; they did not relate to the tort claims asserted against Acstar.
Highland Bank's motion to intervene and the aforementioned motions for summary judgment were heard by the trial court. By an order entered on February 6, 1992, the court granted the motion for partial summary judgment filed by AMCI and the indemnitors against Acstar, and denied Acstar's motion for summary judgment against these parties. Acstar, as well as AMCA and the indemnitors, agrees that the basis for this order was the evidence before the trial court that the subject bonds were null and void and of no force and effect. Thus, the court held, Acstar was precluded from pursuing any claim arising from the indemnity agreement entered into in relation to said bonds. The court made this finding and ordered Acstar to return to AMCI $98,320.07, the funds held by Acstar from the unearned premium payment plus legal interest. The court also granted Highland Bank's motion to intervene and required Acstar to pay to Highland $276,250, the principal amount of the letter of credit plus legal interest. The court made the summary judgment final pursuant to Rule 54(b), A.R.Civ.P. Acstar appealed.[1]
*1231 Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering 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 burdens placed on the moving party by this rule have often been discussed by this Court:
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985)).[2]
The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
The appellant, Acstar, has raised several issues for our review.
In spite of Acstar's position, during the course of this litigation, that the bonds were never in effect, Acstar now contends that the bonds were never rendered null and void, because, it says, Acstar and AMCI, after Acstar's alleged cancellation of the bonds, treated the bonds in all respects as if they were legal, binding, and in full force in effect. However, AMCI asserts, and the trial court agreed, that testimony taken from officials of Acstar indicated that the bonds had been canceled before acceptance, were never in force and effect, and were at all times null and void.
This cause came before the trial court on cross motions for summary judgment. The defendant AMCI and the indemnitors, as third-party defendants, filed their motion for partial summary judgment against Acstar, and in support of that motion regarding the validity of the bonds, submitted testimony of two of Acstar's officers, Henry W. Nozko, Jr., its president, and Robert Frazer, its vice president.
Nozko stated in his deposition:
Nozko deposition, p. 24.
The "intention of the parties at the time of making [a] contract controls, not subsequent perceptions." Devlin v. Ingrum, 928 F.2d 1084, 1090 (11th Cir.1991). This Court stated in Lilley v. Gonzales, 417 So. 2d 161, 163 (Ala.1982), that "the law of contracts is premised upon objective rather than subjective manifestations of intent." Additionally, the Eleventh Circuit Court of Appeals has stated that "it is well recognized in all areas of the law, that a subjective intent on the part of the actor will not alter the relationship or duties created by an otherwise objectively indicated intent." In re Lane, 742 F.2d 1311, 1316 (11th Cir. 1984).
According to those legal principles, even though Acstar's president, Nozko, testified in his deposition that the bonds issued by Acstar on May 18, 1989, were null and void, his testimony as to validity was merely a contention and should not be conclusive on the issue of whether the bonds were valid. To determine whether the bonds were valid, the trial court should have analyzed the evidence before it, which showed Acstar's objective manifestations of intent to validate the bonds when it accepted AMCI's premium payment. A detailed analysis of the communications between AMCI, Acstar, and Harbert regarding the bonds establishes that, as of June 27, 1989, when Acstar accepted AMCI's premium payment, Acstar intended that the bonds issued on May 18, 1989, be valid.
On April 25, 1989, Acstar wrote to AMCI, confirming an agreement between them that Acstar would issue two payment and performance bonds to Harbert on AMCI's behalf. That letter stated: "It is our understanding that you will forward the contracts amounting to $3,100,000 and $850,000 and an irrevocable letter of credit in the amount of $250,000, plus executed indemnification agreement. Upon receipt, we will execute payment and performance bonds at the agreed rate of 2.4%." On April 26, 1989, the indemnitors executed an indemnity agreement with Acstar on AMCI's behalf, and on May 17, 1989, C & S Bank, on behalf of AMCI, established an irrevocable letter of credit in Acstar's favor. On May 18, 1989, Acstar issued the bonds to Harbert.
On June 5, 1989, Harbert wrote AMCI a letter acknowledging receipt of the bonds, and stating: "The bonding company Acstar is not on our list of acceptable companies. At this point, the bonds, as submitted, are not acceptable because we have no information to judge the capability of Acstar to support the liability the two bonds represent." AMCI forwarded a copy of this letter to Acstar on June 7, 1989, with a notation that "any help you can give us is needed." Acstar responded the same day with a letter to AMCI providing three paragraphs of financial information. Acstar's letter stated:
Harbert, apparently unaware that Acstar had declared the bonds null and void, wrote to AMCI on June 13, 1989, stating, "[A]fter receipt of the additional information on Acstar ... we have decided to accept the bonds...." Then, Acstar, apparently unaware that Harbert had accepted the bonds, wrote to Harbert on June 22, 1989, stating, "Harbert's rejection of the bonds in its letter of June 5, 1989, ... rendered *1233 the bonds null and void." On June 26, 1989, AMCI wrote to Acstar as follows: "Payment for the two bonds ... will be sent to your office tonight.... We have been given an acceptance by Harbert.... If you are not willing to accept our check, please give me a call."
On June 27, 1989, Harbert wrote to Acstar and AMCI, stating: "We have executed the bonds in hand and consider them in full force and effect." As promised, AMCI forwarded the premium payment to Acstar. Acstar accepted AMCI's premium payment, and from June 27, 1989, until this action was filed on June 27, 1990, Acstar never again asserted that the bonds issued on May 18, 1989, were null and void. During that time, all of the parties relied on the bonds as valid and enforceable. Acstar even stated in a letter dated October 9, 1989, to McGriff, Seibels & Williams, Inc., AMCI's insurance brokers, that AMCI was bonded by Acstar.
The foregoing correspondence establishes that AMCI and Acstar had a valid agreement, confirmed in the letter Acstar wrote to AMCI on April 25, 1989, that Acstar would undertake the role of surety in a relationship between AMCI, Acstar, and Harbert. As of May 18, 1989, AMCI had partially performed its part of the agreement by securing a letter of credit and having the indemnitors execute an indemnity agreement on its behalf. Likewise, Acstar, in performing its part of the agreement, had issued the bonds. Impliedly, Acstar was obligated to give Harbert a good faith opportunity to accept Acstar as a bonding company. The fact that Acstar, in its letters to AMCI on June 5, 1989, and June 22, 1989, may have declared the bonds issued on May 18, 1989, null and void did not relieve Acstar of its obligation under the original agreement between Acstar and AMCI to undertake the role of surety. Acstar's behavior upon learning that Harbert had approved it as a bonding company evidences the fact that Acstar understood that, upon Harbert's approval, Acstar was obligated to issue the bonds on AMCI's behalf.
In AMCI's letter to Acstar dated June 26, 1989, AMCI notified Acstar that Harbert had accepted Acstar as a bonding company and stated that payment for the bonds would be forthcoming unless Acstar objected. We conclude that AMCI's letter is prima facie evidence that on June 26, 1989, AMCI extended to Acstar an offer to validate the bonds issued on May 18, 1989, and, further, that Acstar, by its silent acceptance of AMCI's premium payment, accepted AMCI's offer to validate the outstanding bonds. Even though Nozko denied the validity of the bonds in his deposition testimony taken after Harbert commenced this action, Nozko's subjective contentions do not alter Acstar's objective manifestations of intent to create a suretyship by validating the outstanding bonds. AMCI presented no substantial evidence to rebut Acstar's showing that the bonds were valid.
Based on the foregoing, we hold that the performance and payment bonds issued by Acstar on May 18, 1989, were valid, and, for that reason, the summary judgment for AMCI is due to be reversed.
The indemnitors executed the indemnity agreement to guarantee the obligations undertaken by AMCI as principal on the bonds to be issued by Acstar. The indemnitors personally guaranteed the debt, obligations, or performance of AMCI. Acstar's claim of indemnity against AMCI as principal and against the Braggs and Clines as indemnitors was derived solely from the bonds issued by Acstar.
The trial court held that because the underlying bonds were null and void, there was no consideration for the underlying contract between the indemnitors and Acstar. Because we conclude that the bonds were valid and enforceable, we also conclude that the indemnification agreement was valid and that the summary judgment for the individual indemnitors is due to be reversed also.
Acstar also argues that the trial court failed to properly consider the fact that Acstar had an assignment of Harbert's rights against AMCI to the extent of its $680,000 settlement payment.[3] Thus, Acstar contends that even if the bonds were null and void, under this settlement and assignment of rights by Harbert to Acstar, any amount due from Acstar to AMCI should be set-off against this assignment.
While this argument may have merit, our holding that the bonds were valid makes our consideration of this issue unnecessary. Under our holding that the bonds were valid and enforceable, Acstar would have the right to recover from AMCI, or from the indemnitors, the entire $680,000 it paid to Harbert pursuant to the settlement. Because we hold that the bonds were valid and enforceable, there is no need to calculate any set-off. We believe this result is preferable because the sum that Acstar is entitled to recover is consistent with its actions, and the actions of the other parties, from the inception of the surety relationship.
Highland Bank filed a motion to intervene in this action to protect its interest and/or to assert a claim against Acstar for its draw down of the $250,000 letter of credit originally issued by C & S Bank. The letter of credit was assigned to Highland Bank from C & S Bank. Because the trial court held that the underlying bonds were null and void and that the indemnity agreement failed for lack of consideration, the court simply ordered Acstar to refund all monies obtained pursuant to the nonexistent bonds. Because the indemnitors were the personal guarantors of the letter of credit and AMCI was directly obligated to Highland Bank for this indebtedness, AMCI and the indemnitors stipulated before the trial court that Highland Bank's claim to these funds was undisputed. Pursuant to this stipulation, the trial court awarded Highland Bank $276,250, the amount of the letter of credit plus legal interest.
The basis for recovery in favor of Highland Bank was fundamentally the same as the basis claimed by AMCI: Just as AMCI was entitled to relief because the bonds were null and void, Highland was entitled to recover the funds improperly obtained by Acstar on the letter of credit on the same grounds. However, because we conclude that the trial court erred in holding that the bonds were null and void, we must logically conclude also that Highland Bank had no right to recover the letter of credit proceeds and that the judgment in its favor is also due to be reversed.
Based on the foregoing, we hold that the trial court improperly entered the summary judgment in favor of AMCI, the indemnitors, and Highland Bank. We hold that the trial court erred in holding that the bonds were null and void. Likewise, because we hold that the bonds were valid and enforceable, the underlying indemnity agreement did not fail for want of consideration. In addition, we also hold that Acstar was legally entitled to draw the funds under the letter of credit.
Therefore, the judgment of the trial court is hereby reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., dissents.
*1235 MADDOX, Justice (dissenting).
The conclusion reached by the majority appears on its face to be correct, but in reaching that conclusion the majority must apply equitable principles that were neither presented, nor argued, to the trial court. The trial court's ruling was based upon uncontradicted evidence that the bonds were null and void. To permit Acstar Insurance Company to argue before the trial court that the bonds were null and void and then to argue on appeal that they were valid seems legally inappropriate. Consequently, I must respectfully disagree with the holding of the majority.
The uncontroverted evidence shows that in the action underlying this appeal Acstar took the position that the bonds made the basis of this action had been canceled, were of no force and effect, and were at all times null and void. In fact, Acstar, on numerous occasions, requested the trial court to make a finding of fact that the bonds were null and void. As Acstar requested, the trial court found that the bonds were indeed null and void. Consequently, based on this holding, no principal-surety relationship could have existed between AMCI and Acstar.
In view of my opinion that the bonds were null and void, I likewise am of the opinion that the trial court correctly decided that the indemnity agreement executed by the indemnitors must fail for lack of consideration. Acstar's claim of indemnity against AMCI as principal and against the Braggs and the Clines as indemnitors was derived solely from the bonds, which, by Acstar's admission, were canceled and rendered null and void. The law is clear that Acstar cannot recover against the principal or an indemnitor on an indemnity agreement that is predicated upon an underlying contract that is null and void; if the underlying contract was null and void, then there was no consideration for the contract with Acstar. As a result, there can be no indemnity from either the principal or the indemnitors.
Because I believe the trial court correctly ruled that the bonds were null and void, I must also disagree with the majority's holding regarding the letter of credit proceeds recovered by Highland Bank. In short, I am of the opinion that the trial court properly entered the summary judgment in favor of AMCI and the indemnitors, holding that (1) the bonds were null and void; (2) the indemnity agreement failed for want of consideration; and (3) Acstar was not legally entitled to the funds under the letter of credit. However, I also believe that the trial court improperly ignored Acstar's settlement and assignment of rights from Harbert. Acstar had an assignment of Harbert's rights to the extent of its $680,000 settlement payment. Any monies due to be refunded to AMCI should have been set-off against this settlement payment. This includes the unearned premium payment on the bonds, plus legal interest of $98,323.07 that the trial court ordered Acstar to refund.
In addition, although the trial court, at first glance, appears to have reached the correct legal conclusion in regard to the letter of credit proceeds, I think that the court erred when it failed to consider Acstar's rights under the settlement agreement. This amount, $276,250, was also due to be set-off against Acstar's $680,000 settlement payment. The trial court failed to consider Acstar's rights under the assignment and improperly allowed AMCI, which was directly obligated for this indebtedness, to recover this money on behalf of Highland Bank.
[1] Acstar's notice of appeal listed Acstar as appellant and AMCI and Highland Bank as appellees. However, the notice of appeal specifically refers to the motions for summary judgment granted by Judge Leach. His order entered summary judgment for AMCI as well as for the indemnitors (the Clines and the Braggs), based upon their joint motion for a partial summary judgment. AMCI and the indemnitors are all represented by the same attorneys, and the issues involving the indemnitors raised in appellant Acstar's brief have been addressed in appellee AMCI's brief. We recognize that this appeal from Judge Leach's summary judgment against Acstar is really an appeal as to all parties that prevailed in their motions for summary judgmentincluding the indemnitors (the Clines and the Braggs). Thus, we recognize that the indemnitors are also parties to this appeal; we have styled this case accordingly.
[2] Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet its burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982).
[3] We note that AMCI contends that the references to the issues of the Harbert settlement and assignment and to the doctrine of equitable subrogation made a part of Acstar's argument were never placed in issue before the trial court. AMCI argues that there was no pleading or evidence ever directed to these issues and that, therefore, they cannot be raised or addressed on appeal. However, these issues were raised in Acstar's motion for summary judgment against AMCI and the indemnitors. (R. 570.) In addition, Acstar, in a prior brief in support of a motion for summary judgment, had stated arguments regarding these issues. (R. 435-36.) | April 16, 1993 |
9a283aef-3f2f-4199-8de4-238cc277f8e6 | Ex Parte Fuller | 620 So. 2d 675 | 1910796 | Alabama | Alabama Supreme Court | 620 So. 2d 675 (1993)
Ex parte Alan Andrew FULLER.
(Re Allan Andrew Fuller
v.
State).[1]
1910796.
Supreme Court of Alabama.
April 16, 1993.
*676 Paul M. Hardin and Anthony J. Bishop, Evergreen, for petitioner.
James H. Evans, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
In Alan Andrew Fuller's trial, the court admitted into evidence an audio recording of an alleged confession. He was convicted, and the Court of Criminal Appeals affirmed his conviction; we granted certiorari review to determine whether the opinion of the Court of Criminal Appeals relating to the foundation to be laid for the admission of sound recordings is consistent with other cases decided by that court. While we find inconsistencies in the opinions of that court, we conclude that the court reached the correct result in this case; therefore, we affirm.
Fuller was arrested, indicted, and tried in Monroe County in relation to the death of Joe Floyd. Apparently, Fuller and Floyd were best friends and, on the day of Floyd's death, they had argued over whether Floyd had informed Fuller's wife that Fuller had taken Valium on a particular occasion. Fuller maintained that he shot Floyd in self-defense.
After Fuller's arrest, and while Fuller was in custody, he made a full statement to police officers. The statement was recorded on an audio cassette tape. At trial, Fuller's attorney objected to the State's attempt to admit the tape recording into evidence, arguing that the State had not laid the proper foundation for its admission, and, further, that the tape was not sufficiently audible.[2] After hearing in *677 camera the tape and testimony from one of the police officers, the trial court overruled Fuller's objection, allowed the prosecution to play the tape for the jury, and admitted the tape into evidence. The jury convicted Fuller of manslaughter; the trial court sentenced him to 20 years' imprisonment.
The Court of Criminal Appeals affirmed Fuller's conviction; the court held that the prosecution had established a proper predicate for admitting the cassette tape and further held that any audibility problem would go to the weight accorded the evidence by the jury and not to its admissibility.
Fuller correctly asserts that caselaw from the Court of Criminal Appeals conflicts as to the proper predicate for a taped sound recording. In its opinion in this case, the Court of Criminal Appeals quotes Jackson v. State, 582 So. 2d 598 (Ala.Crim. App.1991), for the proposition that "all that is required [to admit sound recordings into evidence] is to show that the recordings are `reliable representations of the subject sound.'" Fuller v. State, 620 So. 2d 669, 672 (Ala.Cr.App.1991). Moreover, Jackson points out that in Molina v. State, 533 So. 2d 701 (Ala.Crim.App.1988), cert. denied, 489 U.S. 1086, 109 S. Ct. 1547, 103 L. Ed. 2d 851 (1989), the Court of Criminal Appeals changed the requirements for a proper predicate from the seven-prong test set out in Voudrie v. State, 387 So. 2d 248 (Ala.Cr.App.), cert. denied, 387 So. 2d 256 (Ala.1980)[3] to the "reliable representation" standard. However, in Carraway v. State, 583 So. 2d 993 (Ala.Crim.App.1991), cert. denied, 583 So. 2d 997 (Ala.1991), the Court of Criminal Appeals held that the seven-prong Voudrie test applied to admission of sound recordings while the "reliable representation" standard applied to admission of videotape recordings. We note also, however, that in Carraway, Judge Bowen expressed the opinion that Molina had changed the required predicate to "reliable representation" for both sound and videotape recordings. Carraway, 583 So. 2d at 997 (Bowen, J., concurring in the result, joined by Taylor, J.). In short, there is a conflict as to exactly which standard applies to the admission of sound recordings: the "reliable representation" standard or the seven-prong Voudrie test. We hold that either standard may apply, depending on the circumstances of a given case.
Traditionally, courts and commentators analyzing the issue of the admissibility of sound recordings, photographs, motion pictures, videotape recordings, maps, and diagrams have treated all these items in the same manner. See 3 James H. Chadbourn, Wigmore on Evidence, § 790 (1970 & Supp.1991); 2 John W. Strong, McCormick on Evidence § 214 (1992); William A. Schroeder, et al., Alabama Evidence, § 11-3 (1987 & Supp.1988); F.M. English, Annotation, Admissibility of Sound Recordings in Evidence, 58 A.L.R.2d 1024 (1958); and see, International UAW-CIO v. Russell, 264 Ala. 456, 470, 88 So. 2d 175, 186 (1956) (discussing the "pictorial communication" theory as applied to motion pictures); National States Ins. Co. v. Jones, 393 So. 2d 1361, 1366 (Ala.1980) (discussing tape recordings); and C.P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 437, 301 So. 2d 196, 200-01 (1974) (discussing tape recordings). In fact, in National States Insurance, this Court stated, "A tape recording of a pertinent event is analogous to a photograph of a scene. A recording preserves the situation as it took place just as a photograph preserves the scene as it existed at a given point." 393 So. 2d at 1367.
*678 There are two theories upon which photographs, motion pictures, videotapes, sound recordings, and the like are analyzed for admission into evidence: the "pictorial communication" or "pictorial testimony" theory and the "silent witness" theory. Wigmore, supra, § 790; McCormick, supra, § 214; and Schroeder, supra § 11-3. The "pictorial communication" theory is that a photograph, etc., is merely a graphic portrayal or static expression of what a qualified and competent witness sensed at the time in question. Wigmore, supra, § 790, and McCormick, supra, § 214. The "silent witness" theory is that a photograph, etc., is admissible, even in the absence of an observing or sensing witness, because the process or mechanism by which the photograph, etc., is made ensures reliability and trustworthiness. In essence, the process or mechanism substitutes for the witness's senses, and because the process or mechanism is explained before the photograph, etc., is admitted, the trust placed in its truthfulness comes from the proposition that, had a witness been there, the witness would have sensed what the photograph, etc., records. Wigmore, supra, § 790, and McCormick, supra, § 214.
A reasonable reading of Voudrie, Carraway, Molina, and the more recent caselaw of the Court of Criminal Appeals[4] leads us to conclude that the Court of Criminal Appeals is of the opinion that the "pictorial communication" and "silent witness" theories are mutually exclusive theories, rather than alternative theories. The proper foundation required for admission into evidence of a sound recording or other medium by which a scene or event is recorded (e.g., a photograph, motion picture, videotape, etc.) depends upon the particular circumstances. If there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question, then the "silent witness" foundation must be laid. Under the "silent witness" theory, a witness must explain how the process or mechanism that created the item works and how the process or mechanism ensures reliability. When the "silent witness" theory is used, the party seeking to have the sound recording or other medium admitted into evidence must meet the seven-prong Voudrie test. Rewritten to have more general application, the Voudrie standard requires:
On the other hand, when a qualified and competent witness can testify that the sound recording or other medium accurately and reliably represents what the witness sensed at the time in question, then the foundation required is that for the "pictorial communication" theory. Under this theory, the party offering the item must present sufficient evidence to meet the "reliable representation" standard, that is, the witness must testify that the witness has sufficient personal knowledge of the scene or events pictured or the sounds recorded and that the item offered accurately and reliably represents the actual scene or sounds.
*679 Under either analysis, the trial court should listen to, or examine, in camera, the sound recording or other medium and should allow a party opposing admission to thoroughly cross-examine the predicating witness to test the accuracy and reliability of either the witness's memory or the process or mechanism to which the witness is testifying. Additionally, the trial court should allow the opponent of the evidence sufficient opportunity, through the discovery process, to have the sound recording or other medium tested for tampering and falsification.
Clearly, the prosecution here laid a proper predicate for admitting the sound recording in question under the "pictorial communication" theory. The following testimony appears in the record:
(R. at 101-03; emphasis supplied.)
Based on the foregoing, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY, and INGRAM, JJ., concur.
[1] The petition was filed in this Court under the name Alan Andrew Fuller. The case in the Court of Criminal Appeals was styled under the name Allan Andrew Fuller.
[2] Because we granted certiorari review to address the conflict in caselaw concerning foundational requirements for admissibility, we pretermit any discussion of audibility. We note, however, that partial inaudibility, or lack of clarity, as the case may be, affects the weight afforded the evidence and not its admissibility.
[3] The seven-prong test espoused in Voudrie is as follows:
"(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement."
Voudrie, 387 So. 2d at 256 (quoting Annot., 58 A.L.R.2d 1024, at 1027-28).
[4] See, e.g., Ross v. State, 555 So. 2d 1179 (Ala. Crim.App.1989), Jackson v. State, 582 So. 2d 598 (Ala.Crim.App.1991), and Strother v. State, 587 So. 2d 1243 (Ala.Crim.App.1991). | April 16, 1993 |
6a3f97a2-4c26-4603-8dec-15fc6edc15f3 | Opinion of the Justices | 624 So. 2d 107 | N/A | Alabama | Alabama Supreme Court | 624 So. 2d 107 (1993)
OPINION OF THE JUSTICES.
No. 338.
Supreme Court of Alabama.
April 27, 1993.
Members of the Senate
Alabama State House
Montgomery, Alabama 36130
Dear Senators:
We have received Senate Resolution 97, which requests our opinion as to whether the finding in Section One of Senate Bill 607 ("S. 607") (the finding that the Legislature is required to provide schoolchildren with substantially equitable and adequate educational opportunities) is constitutionally required. Section One of S. 607 reads as follows:
As stated above, S. 607 was introduced in response to the finding of the Circuit Court of Montgomery County in the consolidated cases of Alabama Coalition for Equity, Inc. v. Hunt (CV-90-883) and Harper v. Hunt (CV-91-117). For a better understanding of the question presented and in view of the fact that S. 607 makes reference to the order, we directed the clerk of this court to obtain a certified copy of the order issued in the consolidated cases. See Rule 10(f), Ala. R.App.P.; Amendment 328, §§ 6.02, 6.11, Ala. Constitution of 1901. In your request you refer to this order, which is attached as an appendix to, and made a part of, this opinion. This order is not presently appealable, because the trial court has retained jurisdiction in order to address other aspects of this litigation. However, the trial court has, in an exhaustive opinion, addressed the constitutional issues that were raised in that court and that are the subject of your request for an advisory opinion.
The Justices typically refuse to answer questions involving matters that are the subject of pending litigation. The question posed by Senate Resolution 97, however, is of great importance to the people of the State of Alabama and to the Legislature, and your request for an Advisory Opinion indicates that you are interested in promptly addressing the matters required to be addressed by the order of the circuit court in the two consolidated cases.
Because the legal issues presented in those cases could be raised on appeal, provided an *109 appeal should be taken within the time provided for by Rule 4, Ala.R.App.P., we deem it both appropriate and advisable that we call your attention to some of the principles of law that govern us as we respond to your inquiry.
The statute authorizing the Justices of this Court to render advisory opinions, but not requiring them to do so, was enacted into law in 1923, and is carried in the 1975 Alabama Code as § 12-2-10. When the first request for an advisory opinion was made to the Justices in 1923, a majority of them found that the original act was constitutional, but the Justices set forth the following principles that guided them, and continue to guide us, when we express our individual opinions as authorized by the Advisory Opinion Act:
Opinion of the Justices No. 1, 209 Ala. 593, 594, 96 So. 487 (1923).
Since the Justices issued their opinions on that first request, the Justices have responded conscientiously to many requests from the Legislature, "in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties." Opinion of the Justices No. 160, 266 Ala. 370, 371, 96 So. 2d 752, 753 (1957). See also, Opinion of the Justices No. 274, 394 So. 2d 957, 959-60 (Ala.1981).
Because the question you pose is one of great public interest, and because the question raises a question of fundamental constitutional law relating to the separation of powers of government, we elect to express our opinion on the question you ask, but we must point out, as we did on another occasion when the Legislature asked for the opinion of the Justices on the constitutionality of pending legislation while the basic constitutionality of the same Act was being raised on appeal in an adversary setting: "[T]he procedure, as well as the advisability, of rendering advisory opinions is not without difficulty, particularly in view of the fact that the questions are presented outside the normal adversary system wherein pertinent facts from the record of a trial court would be presented, and the issues would be briefed by attorneys and most times orally argued before the Court." Opinion of the Justices No. 289, 410 So. 2d 388 at pages 391-92 (Ala.1982).
As the Justices said in Opinion No. 289, when they were asked to express their separate opinions on the constitutionality of the budget isolation bill, while the constitutionality of the legislation was being raised in a case on appeal, "It is also instructive to note that advisory opinions are not binding precedents as are decisions on appeal to this Court." 410 So. 2d at 392.
With those principles firmly in our minds, we now express our opinion on your request, that is, whether the Legislature is required to comply with the order of the circuit court in the consolidated cases. Our opinion is that the order has the force of law unless modified by the trial court, until it is modified or reversed on appeal, and the Legislature, like other branches of government, must comply with it.
Under our State constitution, "[t]he powers of the government of the State of Alabama [are] divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." Art. III, § 42.
*110 The executive and legislative branches of the State have broad powers and responsibilities in the area of public education, but the powers of each branch of government are bounded by the mandates and restraints of the constitution of the State of Alabama. This principle of separation of powers of government that is now included in the Alabama constitution was first decided in the famous case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77, 2 L. Ed. 60 (1803). It is the province and duty of the judicial branch of government to interpret the constitution and to say what the law is, and an order issued by a court of competent jurisdiction that interprets the constitution is binding upon the Legislature unless the order is stayed or overturned by a higher court.
Under the provisions of Amendment 328, Section 6.04, "[t]he circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law." Included within the general jurisdiction of the circuit court is the power to decide whether the actions of the executive or legislative branches are consistent with the requirements of the fundamental law of the peopletheir constitution. In short, the circuit court has the power, and indeed the duty, when requested to do so in cases involving justiciable controversies, to interpret the constitution, and its interpretation, unless changed by a competent court having the power to overturn it, must be accepted and followed. See, 21 C.J.S. Courts § 3, pp. 11-12 (1940).
Your inquiry, as we understand it, is whether the Legislature is required to follow the order of the Circuit Court of Montgomery County in the consolidated cases referenced above. Our answer, based upon the principles set out herein, is yes.
Plaintiffs in this action challenge the constitutionality of Alabama's system of public elementary and secondary education, which they contend does not offer equitable and adequate educational opportunities to the schoolchildren of the state, including children with disabilities. They seek declaratory and injunctive relief from the constitutional and statutory violations alleged. Defendants deny that the public school system is unlawful and deny further that this Court is the proper forum for resolution of this dispute.
Pursuant to the findings of fact and conclusions of law which follow, the Court finds and determines that the plaintiffs are entitled to a declaratory judgment that the present system of public schools in Alabama violates the constitutional mandate of art. XIV, § 256, and the provisions of art. I §§ 1, 6, 13 and 22 of the Alabama Constitution, because the *111 system of public schools fails to provide equitable and adequate educational opportunities to all schoolchildren and, with respect to children with disabilities ages three through 21, fails to provide appropriate instruction and special services in violation of Ala.Code (1975) §§ 16-39-3 and 16-39A-2 (hereinafter "Ala. Code").
These consolidated lawsuits were brought on behalf of schoolchildren, parents, and school systems throughout the state of Alabama. Plaintiff Alabama Coalition for Equity, Inc. (ACE), an Alabama non-profit corporation comprised of 25 school systems[1] and a number of individual parents and schoolchildren, filed its complaint on May 3, 1990 (CV-90-883). Plaintiffs Mary Harper, et al. (Harper plaintiffs), a group of public schoolchildren, filed their complaint on January 19, 1991 (CV-91-117). By order dated March 18, 1991, the Court[2] consolidated these cases. Subsequently, on April 21, 1992, the Court certified a statewide class in the Harper action of all children who are presently enrolled or will be enrolled in public schools in Alabama that provide less than a minimally adequate education.
John Doe, a disabled student, moved to intervene as a plaintiff in the ACE lawsuit on August 3, 1990, and the Court granted this motion on January 9, 1991. On July 24, 1992, the Court certified a plaintiff sub-class of all schoolchildren in Alabama aged three through 21 years with identified disabilities.
Plaintiffs in these consolidated actions named as defendants Governor Guy Hunt, State Director of Finance Robin Swift, Lieutenant Governor James Folsom, Speaker of the House of Representatives James Clark, State Superintendent of Education Wayne Teague, and the members of the Alabama State Board of Education. However, the speaker of the Alabama House of Representatives, the Lieutenant Governor, the State Superintendent of Education and all members of the State Board of Education moved in May and June, 1990, to realign as plaintiffs, indicating that they agreed with plaintiffs' claims. The Court granted these motions.
The Mountain Brook, Vestavia Hills, Hoover, Madison, and Huntsville school systems filed petitions to intervene in this action. On January 9, 1991, the Court denied their motions to intervene, but granted them permission to submit amicus briefs, and to resubmit their petitions to intervene at a later date. The Alabama Association of School Boards and the Mobile and Decatur school systems were granted permission to appear as amicus curiae. Shortly before trial, the Mountain Brook, Hoover, Homewood and Shelby County school systems filed a motion to appear as amicus curiae on behalf of plaintiffs. A +, an organization dedicated to reforming and improving public education, filed an application for permission to file a brief supporting plaintiffs as amicus. The Court granted these motions.
On January 22, 1991, plaintiffs moved for partial summary judgment on their claim that § 256 of Amendment 111 of the Alabama constitution was enacted in violation of the fourteenth amendment to the United States constitution. The Court granted plaintiffs' motion by order dated August 13, 1991. In its order, this Court declared that Amendment 111, § 256 was void ab initio in its entirety. The Court declared in the same order that § 256 of the Alabama constitution is in effect to the extent that it provides: "The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years." The Court further held that the second and third sentences of § 256 of the Alabama constitution are without *112 force and effect because they violate the equal protection guarantee of the fourteenth amendment. This order was subsequently certified as a final order, and was not appealed by defendant.[3]
The Court has bifurcated the non-jury trial of this case[4] into liability and remedy phases. Trial in the liability phase began on August 3, 1992 and concluded on August 27, 1992. Plaintiffs presented evidence in the form of live testimony from many expert and lay witnesses, depositions from several other witnesses including that of Governor Hunt, responses to requests for admissions from Governor Hunt, affidavit testimony from additional witnesses, and numerous exhibits. Governor Hunt offered testimony from three expert witnesses as well as a number of exhibits. The parties have filed pre-trial, post-trial and post-trial reply briefs.
The issues now before the Court for resolution may be summarized generally as follows. The ACE and Harper plaintiffs claim that the educational opportunities[5] provided to schoolchildren[6] in Alabama's system of public elementary and secondary schools are: (1) inequitable, because such opportunities vary widely from system to system without constitutionally sufficient justification; and (2) inadequate by virtually any measure of educational adequacy, including the state's own standards and other professionally recognized measures of adequacy. Plaintiffs emphasize, as a factual matter, that the disparities and inadequacies of which they complain are substantial, meaningful and, in many cases, profound. Plaintiffs argue that these educational conditions, however caused, are the responsibility of the state government; that these conditions violate their rights under Ala.Const. art. XIV, § 256 (the state's education clause), Ala.Const. art. I, §§ 1, 6, 13 and 22 (the state equal protection and due process clauses), and the United States Constitution, amend. 14 (the federal equal protection and due process clauses); and that this Court is the proper forum in which plaintiffs' constitutional rights should be declared and vindicated.
The John Doe plaintiffs join the other plaintiffs in their claims and assert two additional claims limited to children with disabilities. The sub-class of schoolchildren with disabilities argues that such children have a right to an "appropriate education and special services" under Ala.Code §§ 16-39-3 (1975) and 16-39A-2. The Doe plaintiffs claim that they are deprived of this right by the state system of special education. The sub-class also asserts a separate claim under Ala.Const. art. 1 §§ 6, 13 (the due process clause), arguing that the mechanism for distributing special education funds based on total pupil enrollment is arbitrary and irrational and results in the denial of an appropriate education to schoolchildren with disabilities.
In response to the ACE and Harper plaintiffs, Governor Hunt admits that "poor physical conditions, inadequate curriculum, insufficient textbooks and inadequate educational services" are present in the state school system, Hunt Pre-Trial Brief at 2, although he maintains that these are isolated cases, which are the result of local taxing choices or local school mismanagement. As to funding disparities among local school systems, Governor *113 Hunt argues that these are not sufficiently large to be deemed inequitable, especially when compared with disparities in some other states. Governor Hunt maintains that, in any case, the conditions of which plaintiffs complain are not unconstitutional, and that the equity or adequacy of public schooling in Alabama is entirely a matter of legislative discretion, to which this Court must defer.[7]
Governor Hunt, in response to the Doe plaintiffs, presented no facts to contradict claims that schoolchildren with disabilities do not receive an appropriate education or that funding is inequitable. He did, however, claim that the failure to provide an appropriate education to individual students does not imply a systemic failure. Hunt Pre-Trial Brief at 33.
The state of Alabama has 129 local school systems, 67 of which are county systems and 62 of which are independent city systems. Student enrollment in these systems ranges in size from 65,956 students in Mobile County to 210 in Florala City; the average enrollment for all systems is 5,530 students. In the 1990-91 school year, total enrollment in Alabama's public schools for kindergarten through twelfth grade (K-12) was 713,909, with an average daily attendance (ADA) of 682,937 students. Attendance at public school or a lawful substitute is compulsory, and truancy is punishable by fines and jail time for persons having charge of any student required to attend school. Ala.Code §§ 16-28-1 et seq. Each of the state's 129 local school systems serves children with disabilities in 13 categories of disability. In the 1991-1992 school year, there were 97,937 of these special needs children enrolled in schools in Alabama.
Public officials at both the state and local levels administer Alabama's public schools. The state legislature from time to time enacts measures directly mandating certain programs and standards in public schools. See, e.g., id. at §§ 16-3-18.4 (performance-based on accreditation), 16-36-34 (textbooks), 16-8-43 (school restrooms). The State Board of Education, which consists of eight members elected statewide, id. at § 16-3-1, exercises "general control and supervision over the public schools of this state." Id. at § 16-3-11; see also Ala.Const. amend. 284. The Board is charged with investigating the educational needs of the state, adopting regulations relating to grading and standardizing schools, courses of study, teacher training and certification, and other aspects of the administration of public schools. Id. at §§ 16-3-12, 16-3-14, 16-13-15, 16-3-16, 16-3-17.
The governor of Alabama is president and an ex officio member of the State Board of Education. Id. at §§ 16-3-1, 16-3-2. Governor Hunt maintains a full-time education advisor on his executive staff. More generally, the governor holds the supreme executive power in the state, Ala.Const. art. V, § 113, and is responsible for seeing that the laws are faithfully executed. Id., art. V, § 120.
The state superintendent of education, with the advice and counsel of the State Board of Education, is in charge of the on-going operation of Alabama's department of education. Ala.Code § 16-2-1. The state superintendent is charged with executing the educational policy of the Board, id. at § 16-4-6, and has the duty "to explain the true intent and meaning of the school laws and of the rules and regulations of the state board of education." Id. at § 16-4-4. Among other responsibilities, the state superintendent must prepare and submit for approval to the Board rules and regulations for grading and standardizing public schools, minimum requirements for diplomas and courses of study, and legislation needed for the further development and improvement of the public schools. Id. at §§ 16-3-15, 16-4-14, 16-4-20.
In the area of special education, Alabama statutes require that all children with disabilities *114 receive an appropriate education and that the state board adopt regulations ensuring such an education. Ala.Code §§ 16-39-3 and 16-39-5.
At the local level, public schools are governed through county and city boards of education. Local boards of education are responsible for the general administration and supervision of the public schools within their respective jurisdictions. Id. at §§ 16-8-8, 16-11-9. These boards establish local educational policies, id. at §§ 16-8-10, 16-11-18, employ administrative, teaching and support personnel for their school systems, id. at §§ 16-8-23, 16-11-17, and perform such other duties and functions as required by law.
The public school budget process also operates at several levels. Local school boards receive a mixture of state, local and federal funds to finance public schools and related programs within their respective school systems. Local funds are primarily raised through ad valorem (property), sales, and other taxes levied under constitutional or statutory authority. These funds are apportioned and expended by local school boards within the school systems in which the funds are raised. Id. at § 16-13-32. Federal funds are allocated by federal authorities directly to the State Department of Education, and distributed by that body to local school boards according to federal mandates.
Funds from state revenues are appropriated for local school boards at the state level. Each county and city board of education submits an annual budget to the state superintendent. Id. at § 16-13-140(b). The state superintendent exercises independent judgment in preparing a state-wide education budget request to offer to the Board, id. at § 16-4-19, which in turn forwards its recommended school budget to the governor. The governor is charged with "formulat[ing] the program and financial plan to be recommended to the legislature" for state government as a whole at his or her own discretion after review of each state agency's proposed budget, including the public school budget. Id. at §§ 41-19-4, 41-19-7.
The department of finance assists the governor in preparing this budget plan, id. at § 41-19-5(1), and administers and implements the budget. Id. at §§ 41-19-5(4), 41-19-10(c) and (f). The legislature considers the plan recommended by the governor and adopts this budget or alternative proposals as it deems appropriate. Id. at § 41-19-8. Budgeted state revenues are allocated to local school boards by a number of methods described more specifically below, as set out in a variety of state laws and regulations. See, e.g., id. at §§ 16-13-1 et seq.
With this background in mind, the Court will first address the ACE and Harper[8] plaintiffs' general factual allegations concerning the operation and effects of the Alabama public school system, and then the Doe plaintiffs' more specific allegations regarding the education of children with disabilities within the state, as well as defendant's responses.
The ACE and Harper plaintiffs (hereinafter, plaintiffs) contend that, as a factual matter, Alabama schoolchildren do not receive substantially equal (or equitable) educational opportunities in the state's public schools. The Court agrees.
The Court understands the term "educational opportunities" to mean, in the broadest sense, the educational facilities, programs and services provided for students in Alabama's public schools, grades K-12, and the opportunity to benefit from those facilities, programs and services.[9] "Equal" educational opportunities need not necessarily be strictly equal or precisely uniform, whether these opportunities are discussed in terms of school funding, of the programs purchased with such funds, or of the actual educational benefits offered. "Equality of benefit does not import identity of benefit, which is obviously *115 impracticable." Southern Railway Company v. St. Clair County, [124 Ala. 491] 27 So. 23, 27 (1899). For example, as testimony at trial indicated, schoolchildren who have different educational circumstances, needs and aptitudes may require different school resources and facilities which, in turn, may entail different costs. This may be most obvious in the case of children with disabilities and children otherwise disadvantaged.
Thus, the Court, in reviewing the evidence, has focused its inquiry broadly on the issue of substantial equity and fairness in the way the state's system of public schools allocates educational opportunity to its students. In this area, the Court finds that Alabama's public school system falls dramatically short.
Although equal educational opportunity cannot be measured exclusively in terms of public school funding, there is no question that educational facilities, programs and servicesfrom field trips to computerscost money to provide, so disparities in school funding must play a major role in the Court's analysis. Indeed, the state of Alabama has itself historically linked equitable school funding to equal educational opportunity. Prominent twentieth century examples are the so-called Equalization Fund of 1927 and its successor, the Minimum Program Fund of 1935 (still in effect, though ineffective, today), which sought to equalize educational opportunity. See Ala.Code §§ 16-13-50, et seq. Accordingly, it is appropriate to begin an analysis of equal educational opportunity in Alabama's public schools by examining the issue of equity in school funding.
Plaintiffs offered trial testimony from a number of nationally prominent school finance experts which indicated that, by virtually any measure, schoolchildren in wealthier school systems in Alabama are allocated considerably more funding per pupil than are children in poorer school systems. For example, the Mountain Brook city school system, which ranked highest in state and local revenues of Alabama's 129 school systems in the 1989-90 school year, had $4,820 available in state and local revenues to spend per pupilmore than double the resources available to the Roanoke city schools, the lowest revenue system, which had only $2,371 per pupil. This disparity of $2,449 (more than 2 to 1) per pupil represented a difference in revenues of $61,225 per classroom of 25 students in a single year. Disparities of this kind in revenues were also reflected in disparities in expenditures.
Governor Hunt argues that it is misleading to assess school funding disparities by looking at the gap between the top and bottom systems. He maintains that a small number of wealthier systems, which he calls "outliers," far outstrip the other systems in revenues and expenditures, and that these less typical systems somehow skew or bias the analysis. The Court disagrees for several reasons. First, children fortunate enough to be enrolled in these wealthier systemsand there are some 31,000 pupils in the "outlier" systems identified by defendant[10]are still state public school students attending state public schools. Clearly, the very best and very worst provision that the state makes for students among schools in its school system is a highly relevant matter for inquiry when the issue is differential treatment within the state system. The fact that some local systems do particularly well compared with others is hardly a reason to exempt those systems from constitutional analysis.
Second, experts testifying on behalf of plaintiffs did not limit their analysis to the extremes of the funding continuum, in any case. On behalf of the ACE plaintiffs, Dr. Kern Alexander, a nationally recognized authority on school finance and a University Distinguished Professor at Virginia Tech, reviewed funding disparities not only in the top and bottom systems in terms of revenues and expenditures but also among what he identified as the five wealthiest and five poorest systems,[11] finding a difference of almost $29,700 *116 per classroom of 25 students in one year between the average total state and local revenues of these five wealthiest and five poorest systems. Dr. Alexander testified further that the 20 percent of students receiving the most funds in Alabama had 78 million more education dollars spent on them in a single year than did the 20 percent of students in the lowest funded systems.
For the Harper plaintiffs, Dr. Margaret Goertz, also a nationally recognized school finance expert and a visiting research professor at the Eagleton Institute of Politics, Rutgers University, analyzed funding disparities among school systems which she grouped by wealth into five quintiles, each containing twenty percent of the students. She found a difference of $790 per student available to those systems in the first and fifth quintiles. This disparity amounted to some 4.4 million additional dollars in a single year for an average-sized system of 5,530 students in the wealthiest quintile compared with the poorest quintile. Dr. Goertz also testified that funding disparities in Alabama schools were, in fact, systemwide, with sizable differences among all the quintiles in her analysis.
The Court finds, based on this testimony, that disparities in public school funding in Alabama do not just affect those students in the very wealthiest and very poorest systems; instead, the effects of these disparities are widespread and systemic.
Governor Hunt, however, argues that plaintiffs overstate the extent of differential treatment among students in another way, by excluding federal aid from their analysisaid which has the effect of reducing wealth-based disparities somewhat in Alabama schools because poorer systems tend to receive more federal funds than do wealthier systems. Defendant maintains that, properly analyzed, funding differences in Alabama schools are not sufficiently disparate to be deemed inequitable either in their own terms, or as compared with school funding disparities in other states. Again, the Court disagrees.
Although the Court is persuaded (and plaintiffs do not dispute) that including federal revenues in an equity analysis would make funding disparities appear somewhat smaller, the Court declines to credit such funds to the state's account. Federal aid represented less than 11 percent of combined federal, state and local school revenues in 1990-91, and it is undisputed that a large portion of this aid is used for non-instructional purposes such as school breakfast and lunch programs.[12] Testimony at trial showed that much of the federal aid that is employed for instruction is categorical aid, targeted toward specific population groups (e.g., Indian education) or programs (e.g., ROTC). Further, some portion of this earmarked instructional aid, such as money allocated for adult basic education or Head Start, is not even spent on grades K-12. And, to the extent that the remaining federal funds do finance instruction within the public schools, the evidence showed that these funds typically do not pay for the schools' basic educational programs, but for remedial or compensatory services aimed at bringing disadvantaged children up to the same starting line, as it were, with their peers.
In short, the Court finds that federal aid does not close the gap between wealthier and poorer school systems by financing basic, system-wide school programs or facilities and, thus, it cannot be held to mitigate the disparities in resources that are of primary concern among these systems. Nor are federal revenues intended to have this effect; by law, these funds may be used only to supplement, not to supplant, the public schools' regular program. See, e.g., 34 C.F.R. § 300.230 (1991). Perhaps most importantly, the state of Alabama does not collect or, for the most part, control these revenues, which are not available to advance state educational goals but rather serve (sometimes transitory) *117 federal mandates. The issue before the Court is whether the state meets constitutional mandates in providing public schools, not the federal government. Accordingly, the Court finds that plaintiffs' equity analyses are proper in excluding federal aid.
Further, the Court finds no merit to defendant's suggestion that the funding differences proved by plaintiffs are not sufficiently great to be deemed significant or inequitable. On their face, the disparities in funding cited above appear to the Court quite clearly to be constitutionally meaningful ones. Dr. Goertz testified, for example, that the $790 per pupil difference between the top and bottom quintiles (that is, taking into account 40 percent, or more than 270,000 students) in her analysisone of the more conservative figures citedamounted to a disparity of some $18,000 per classroom in a single year.[13] Dr. Goertz indicated that this amount would buy new textbooks for six class sections, five laminated wall maps, one globe, four bulletin boards, twelve microscopes, and an increase in the teacher's salary to that paid in the top quintile, with some $11,500 left over. In fact, the expenditure figures provided by defendant's own expert, Dr. Michael Wolkoff, which included federal aid, reflected a $55,575 difference per classroom of 25 between the wealthiest and poorest system in a single year; without the "outliers," this gap was still $33,775. Even Dr. Wolkoff admitted that these amounts might look like a lot of money to the teacher at the bottom.
Further, plaintiffs presented testimony at trial that disparities such as these have been evident for at least the past 20 years. The Court finds that the cumulative and, as Dr. Alexander described it, intergenerational effect of differential funding in Alabama public schools is unquestionably significant. Moreover, defendant's own evidence suggested not only that this funding gap is not closing, but that it has actually widened substantially in the last six years. In addition, the Court finds that the comparatively greater educational need shown by plaintiffs to exist in many of the poorer systems further exacerbates the effect of these funding disparities.
In concluding that the differential school funding of which plaintiffs complain is meaningful and substantial, the Court has considered Governor Hunt's argument that greater disparities than those shown in Alabama exist in some other states. This may indeed be truealthough the Court agrees with plaintiffs that it is misleading to draw dollar-for-dollar comparisons of school funding disparities between states like New Jersey, which ranked first in the nation with $9,447 in expenditures per pupil in 1990-91, and Alabama, which was forty-ninth in spending in the same year, with an average of $3,551 per pupil. In fact, a smaller disparity in a low-spending state like Alabama may make a bigger difference in educational opportunity than a larger disparity in a higher-spending state like New Jersey. The issue is the marginal utility of these dollars in each state. Just as a dollar lost to a poor person may be more meaningful than a dollaror even ten dollarslost to a rich person, the disparities in Alabama can only be understood in the context of this state's very low level of educational spending.[14] In any case, school funding problems in other states do not excuse Alabama's own poor performance. Regardless of how our school funding disparities compare with others outside our borders, they are clearly substantial and of profound concern here at home.[15]
Even if school funding disparities are significant in Alabama, Governor Hunt argues that they are not the state's responsibility, but the result of local mismanagement or local choice not to fund schools. However, in *118 deposition testimony admitted at trial, defendant could not point to any particular local school systems that had mismanaged or wasted money. See Hunt Deposition at 102-03. Certainly, defendant offered the Court no systematic evidence that poorer school systems are more prone to wastefulness than are wealthier systems. Thus, defendant's allegations concerning local mismanagement fail for lack of proof.[16]
Governor Hunt's suggestion that funding disparities are primarily attributable to local choice or preference is also unpersuasive. This argument has taken two forms. First, defendant introduced evidence at trial concerning the defeat of local tax referenda, and offered testimony attributing the variation in school spending to differences in a local millage rates,[17] rather than local wealth, with the implication that citizens in the lower spending school systems just do not try hard enough to tax themselves for schools. Plaintiffs responded that millages alone, considered without regard to tax capacity, do not accurately reflect tax effortthat is, how much local citizens tax themselves for schools in relation to their wealth.[18] Experts testifying on behalf of plaintiffs said that the poorer systems actually put forth more tax effort[19] for schools than did the wealthier systems, and concluded that lower funding in poorer schools is primarily a function of fiscal capacity and wealth, not effort.[20] Plaintiffs also argued that defendant's analyses of the relationship of spending disparities to tax millages and to local wealth were flawed because defendant's expert improperly sought to explain disparities in total school expenditures, which include state and federal funds, by differences in local millages and local wealth, and because he used certain sales tax data incorrectly. After reviewing the testimony, the Court finds plaintiffs' evidence persuasive on this point.
Second, Governor Hunt has suggested that local citizens vote down tax referenda primarily because they do not want better schools, or have no confidence that more money will improve schools. However, defendant presented no evidence in support of this contention. Plaintiffs, on the other hand, offered testimony that local tax referenda are in some cases defeated for racial reasons in systems in which whites have fled the public schools. Testimony at trial indicated that opposition to public school taxes in some parts of the state is led by parents and supporters of all-white private schools schools that the state of Alabama supported at the time of their establishment. Thus, in some areas of the state, opposition to school taxes may be motivated by opposition to integrated education rather than opposition to education generally. Further, tax initiatives have historically failed, according to plaintiffs' experts, for reasons unrelated to the educational needs of schoolchildren: for example, most voters do not have children in the public schools, land-owning interests organize *119 to defeat these referenda, or there is low educational aspiration in some areas.
The point is, in the Court's view, that the state, in framing its school finance system, can easily anticipate differences in local tax decisions for a wide variety of reasons. The Court finds that by setting low requirements for local effort, and failing to equalize local funds with state dollars, the state has allowed educational opportunities for schoolchildren to hinge on local tax decisions. For this reason, the state cannot hide behind the claim that it is local citizens who cause school funding disparities, and deny its primary responsibility for the present system and its results.
This point, which concerns the structure of Alabama's school finance system itself, bears further explanation. It is clear from testimony at trial, particularly that offered by Dr. Ira Harvey, who has written the leading history of school finance in Alabama and who testified on behalf of plaintiffs, that state funds do not today play their intended role in the school finance system. Since Alabama's statewide public school system was established in 1854, revenues for schools collected at the state level have been intended in varying degrees to equalize, or compensate for, differences in local school funds. This concept achieved its greatest refinement in Alabama in 1935, when the legislature enacted the Minimum Program Fund, a so-called "foundation" program which was widely regarded as among the leading equalization plans in America. Such programs require a certain level of local tax effort for schools, and then allocate state funds in inverse proportion to local revenues to equalize funding so as to pay for a state-determined minimum education program for all students. Local revenues beyond the minimum level (not, in concept, a bare minimum, but instead funds sufficient for an adequate education) are not equalized.
Although the Minimum Program Fund remains on the books as the chief allocation mechanism for public school funds in Alabama, see Ala.Code §§ 16-13-50 et seq., with the stated purpose of promoting "equalization of educational opportunity for all children in the public elementary and high schools," id. at § 16-13-51(a)(1), it no longer works as intended. This is true, according to Dr. Harvey, for two reasons. First, less than one percent of local school funds are now equalized with state revenues, in part because the level of required local effort (the local millage designated to be balanced by state funds) has not been adjusted since 1938, and it no longer represents a large portion of total local school revenues. Further, only a small partsome $4.7 million of the limited local effort that the state does require is actually equalized, because of an unusual historical circumstance. The 1939 Alabama legislature, concerned that property values and, therefore, local school funds from ad valorem taxes were decreasing as a result of the depression, decided to freeze the assessed valuation of property in the state at $938,297,005 (the 1938 level) for purposes of calculating required local effort. Although, according to Dr. Harvey's testimony, property values have in the succeeding 53 years increased to approximately $20 billion, the equalization requirement for local funds has never been recalculated.[21]
Second, Dr. Harvey testified that the state equalization program also fails to operate as intended because roughly 60 percent of state school appropriations now bypass the Minimum Program Fund, which was originally designed as the primary vehicle for distributing state school funds. Similarly, substantial (albeit unquantified) "pork barrel" appropriations from monies controlled by the governor and the legislature go directly to some school systems without regard to local resources. Because they bypass the Minimum Program Fund, these state allocations are not adjusted to take local wealth into account (that is, they are not inversely proportional to local funds).
In particular, two kinds of appropriations from the Alabama Special Education Trust Fund, the primary repository of state school revenues, fall into this category: the financial *120 assistance program and fringe benefits paid by the state to local school employees. In brief, the financial assistance program is a group of line item appropriations earmarked by the legislature for specific educational purposesfor example, to fund guidance counselors or instructional suppliesand allocated directly to local boards of education based either on the number of students or the number of employees in each local school system. If the number of students is the basis of allocation, then every school system receives a pro rata share of the allocation, regardless of wealth; in other words, such funds are not properly allocated in inverse proportion to local revenue. If the number of employees is the basis for allocation, then more of these funds actually go to the wealthier than to the poorer systems, because wealthier school systems can hire more personnel from local funds and thus, draw more state money from the line item appropriations. The same is true for fringe benefits (health insurance, retirement, etc.) paid directly by the state to local school employees which, again, offer the most benefit to wealthier systems that can afford to pay for additional staff with local funds.
The extraordinary result of these departures from the original intent of the school finance system, according to Dr. Harvey, is that not only do state funds now fail to compensate for variations in local funds, the state actually allocates more state dollars to the wealthier systems than to poorer systems, thus exacerbating the inequalities.[22] For example, as Dr. Harvey testified, Hoover, one of the wealthiest systems in the state, collected $2,532 per student in state revenues in 1990-91, while Roanoke, one of the poorest systems, received only $1,985 per student. This result is the direct opposite of the intended effect of state funds. Thus, the Court finds that state school funds are clearly part of the problem, not part of the solution, and the state cannot simply pin the blame for current funding inequalities on local school revenues.
In any case, the distinction urged by defendant between local and state funding for schools is an artificial one. By law, all public school taxes are state taxes, and all public school funds are state funds, whether collected at the state or local level. See Mobile, Ala.-Pensacola, Fla., Bldg. & C.T.C. v. Williams, 331 So. 2d 647, 648 (Ala.1976) (public school funds are state funds whether they come from the state treasury or local taxation); State v. Tuscaloosa County, 233 Ala. 11 [611] 172 So. 892, 894 (1937) ("public school funds, as between the county and the State, are State funds"); Williams v. State, 230 Ala. 395, 161 So. 507, 508 (1935) ("County and district school taxes ... go to the maintenance of state schools, parts of the system of state schools, just as other public school funds."); Hamilton v. Pullman Car Mfg. Corporation, 231 Ala. 7, 163 So. 329, 330 (1935) ("It is true that in a sense a public school tax is a state tax and that a municipality acts as an agent of the state in levying, collecting and disbursing that tax."). For this reason, the appropriate funds to consider in evaluating state funds for education are funds raised for schools from both state and local sources.
Accordingly, the Court finds that funding disparities in Alabama's public schools are substantial and meaningful, that these disparities are strongly related to the relative wealth of local systems, and that the state must shoulder responsibility for the differential treatment of schoolchildren that such disparities represent. What remains to be discussed is whether differences in school funding actually translate into differences in opportunities offered to public school students in the form of educational facilities, programs and services. The Court finds that what common sense suggests in this regardthat school systems with greater resources are generally able to provide more and better educational opportunities than those with fewer resourceswas amply confirmed by plaintiffs' proof at trial.
Evidence to this effect came from several sources: a systematic disparity study of *121 schools in 15 selected school systems, data analyzed by Dr. Goertz and Dr. Alexander, the testimony of State Department of Education and local school officials, and parents, teachers and studentsand, not least, admissions from Governor Hunt himself.
The disparity study introduced at trial by plaintiffs was conducted by three education experts: Dr. Steven Ross of Memphis State University, Dr. Landa Trentham of Auburn University and Dr. James McLean of the University of Alabama. Drs. Ross, Trentham and McLean sent teams to examine school facilities, staff levels, curriculum, and school supplies and equipment in Alabama's seven highest and eight lowest[23] funded school systems as measured by local revenues. In these systems, the observers reviewed 45 elementary, middle and high schools, finding sharp differences in educational conditions and resources between the wealthier and poorer systems. Dr. Ross' testimony was graphic and troubling: for example, he saw "deplorable" restroom facilities in many schools, visited an elementary school gym fashioned from a portable classroom with holes in the floor, and witnessed children at one poorer elementary school playing on imaginary playground equipment. Dr. Ross testified that in his extensive studies of schools he had never before seen conditions as inadequate as those prevailing among some of Alabama's poorest schools.
The Court heard testimony that Dr. Ross' team found an eleven year difference in the mean age of buildings in the state's wealthier and poorer schools, and that the external condition of those buildings, including walkways, parking lots, driveways, and windows, as well as provisions for personal safety and security, were considerably superior in the better funded systems. Photographs showed safety problems in less affluent schools, including deteriorating structures and beer cans, broken glass, mud and even cow manure on school grounds. Safety features such as ramps for students with disabilities, crossing guards, entrance and exit signs and auto pick-up points were also much less in evidence at poorer schools. Further, the condition and appearance of the interior of these facilities such as floors, lockers, water fountains, ceilings and restrooms were considerably better in the wealthier schools, and restroom supplies such as soap, towels and toilet paper were much more likely to be available. Dr. Ross testified that poorly maintained restroom facilities can impair students' sense of well-being andto the extent that students are reluctant to use dirty facilities that do not supply soap, towels and toilet papermay cause anxiety and physical discomfort that adversely affect learning.
Interior lighting levels were also better in more affluent schools, as was the general condition of classroom facilities measured in terms of classroom appearance, student and teacher desks, shelf space, and other resources. For example, 46 percent of poorer schools, compared with nine percent of wealthier schools, had exposed pipes. Less affluent school systems were far more likely to have only window units available for air conditioning, while wealthier schools typically had central air and heat. Better funded schools also enjoyed superior communications resources in the form of public address systems and telephones for public, student and faculty use.
Classroom resources such as student lockers, audio-visual screens, globes, maps, encyclopedias, file cabinets and wall clocks were also more amply provided to students in wealthier schools, as was the case with media center resources such as overhead projectors, VCR players, and carousel projectors. Fifty percent of wealthier schools had audiovisual production facilities, compared with only 17 percent of poorer schools. Science labs were nearly twice as available to students in higher funded schools, and lab equipment was superior in quality and quantity. Similarly, in terms of special classroom facilities set aside for music, band, art and *122 language labs, wealthier schools fared dramatically better than did poorer schools.
Students at more affluent high schools were also consistently offered more and better basketball and tennis courts, running tracks, football, baseball and soccer fields, physical education equipment, spectator stands and player benches, and these facilities tended to be in better condition. At the elementary level, the story was the same: children at the wealthier schools again fared far better than their counterparts in poorer systems.
In terms of attractiveness, spaciousness, and cleanliness, the libraries in the more affluent schools again exceeded those at poorer facilities. Dr. Ross described libraries at low wealth schools that had few books; those books that were available were in poor condition, not properly catalogued and often out of date. At one poorer facility Dr. Ross visited, the latest encyclopedia available was a 1975 World Book. Similarly, disparities were evident in school auditorium facilities, with sound systems, microphones and stage lights far more prevalent in better funded schools. Poorer schools also had inferior health care facilities and first aid supplies.
According to Dr. Ross, in terms of staff levels and staff development, many more wealthy schools than poorer schools had a full-time librarian available, and some of the poorer schools had no librarian at all. Poorer schools had considerably higher pupil-teacher ratios. Principals in better funded schools were paid 26 percent more on average than those with the lowest funding; teachers' salaries exhibited a 13 percent differential. More affluent schools offered teachers appreciably more travel money for professional development, allocated more time for planning, and required less fundraising by teachers. Similarly, Dr. Goertz found systematic disparities among the quintiles she examined in the number of administrators, counselors, librarians, principals, total teachers, regular program teachers, aides and total non-certificated staff available, with the poorest systems experiencing the lowest staffing levels.
From the standpoint of curricular and extracurricular offerings, the more affluent schools also outstripped their poorer counterparts. Students in wealthier schools had more opportunity to participate in extracurricular activities such as the student newspaper, student government, or special enrichment programs, according to Dr. Ross. They were also far likelier to be offered the option of taking instrumental and vocal music, foreign languages, computer training, and courses in drama, debate and psychology.
In addition, the percentage of students enrolled in college preparatory courses such as advanced math, advanced science, foreign language, and advanced placement was greater in the wealthier schools surveyed by Dr. Ross than in the poorer schools. Dr. Alexander confirmed this point, testifying that the five wealthiest school systems in Alabama had at least twice the percentage of students enrolled in advanced math and advanced science than did the five poorest systems in the 1989-90 school year. He found that almost a fourth of the students in the five most affluent school systems were enrolled in advanced foreign language courses in the same period, as opposed to 2.3 percent of students in the five lowest wealth systems. Dr. Goertz also testified that a greater number of students were enrolled in advanced math, advanced science, foreign language, and advanced placement classes in the higher quintiles in her study than in the lower ones.
Further, the Court heard testimony concerning stark disparities in the ability of richer and poorer systems to offer students the advanced diploma program, the requirements of which students must, beginning in 1995, complete to be eligible for admission to the University of Alabama. Dr. Alexander found that 49 percent of high school students in the wealthier systems were enrolled in advanced diploma courses, compared with 29 percent of students in poorer systems, and a vastly higher percentage of graduates of more affluent systems held advanced diplomas than in the poorest systems. DeWayne Key, superintendent of the Lawrence County school system and the initiator of this lawsuit, testified that three schools in his county *123 cannot offer the advanced diploma this year; the same is true for at least one Monroe County high school, according to Homer Williams, the principal of that school. Not a single student graduated from the Lee County school system with an advanced diploma in 1991.
Dr. Ross testified that the educational resources and opportunities available to students in the schools he studied had an impact on student achievement as measured in test scores. He found, for example, that the percentage of students passing the Alabama Basic Competency Test, a test of reading, math and language skills, was substantially greater in the more affluent schools than in the lower wealth schools.
Accreditation records bear out this evidence of disparities among Alabama schools. For example, according to State Department of Education documents, all the schools in the wealthier systems of Mountain Brook City, Homewood City, and Vestavia Hills City are accredited by both the state of Alabama and the Southern Association of Colleges and Schools. In contrast, Lee County, a poorer school system, has no school accredited by the Southern Association. Six of eight schools in Choctaw County, five of eight schools in Lowndes County, and five of seven schools in Wilcox County are not state-accredited.
A number of other witnesses, many of whom actually work or go to school in the state's poorer school systems, confirmed the testimony concerning unequal educational opportunity offered by plaintiffs' experts at trial. Superintendent DeWayne Key, for example, told the Court about deficiencies in educational opportunity in Lawrence County where, of the twelve schools that have libraries, only seven have full-time librarians, while two others have half-time librarians, one is staffed by an aide or volunteers, and two libraries are closed entirely. He cited examples of schools within the Lawrence County system without school nurses, schools that must share guidance counselors, schools that could not offer foreign language or the advanced diploma, schools with more than 40 students per class in some grades, and schools in which teachers had to sacrifice planning time in order to keep up with course overloads.
In the same vein, Superintendent Toreatha Johnson testified concerning problems in Choctaw County with old and inadequate buildings, erosion, unsanitary bathroom facilities and leaking roofs, and told the Court about schools without any gym facilities, central air conditioning, librarians, guidance counselors, music or art programs, or science labs. Alice Lyles, a parent in Choctaw County, and Andrea Dasis and Besstina Lyles, a fifteen year-old and eleven year-old student there, respectively, discussed the shabby and inadequate condition of many buildings in Choctaw County schools, problems with heating and cooling, the lack of counselors, organized sports, music, art, foreign language, computers and science labs in school, and unsanitary bathroom facilities.
Sophia Madison, a parent in Wilcox County, spoke of problems in her county with a lack of counselors, physical education, playground equipment, art, music or drama classes, air conditioning, computers and library books. Morris Moody, a high school principal from Bibb County, testified that his school had poor bathroom facilities, limited space, little playground equipment, no auditorium, inadequate science equipment, and outdated library books.
Jesse Todd, a Dallas County principal, testified that his school had no infirmary, no auditorium, no science equipment, no art, music or foreign language, limited classroom space, and teachers compelled to spend time in fundraising for basic school supplies. And Homer Williams, principal of Monroe Senior High School, testified that his school entirely lacks advanced math, advanced science, science labs, or a certified librarian, and the school's basketball team plays on a half-court gym.
The Court also heard testimony that disparities in educational resources and opportunities exist not just among local school systems, but within these systems as well. Dr. Martha Barton, assistant state superintendent of schools for instructional services, indicated that such disparities are evident among schools within the same system but *124 on opposite sides of the tracksa difference, as she put it, "between the haves and have-nots," which she said frequently in Alabama "means the difference between black and white." Dr. Anita Buckley-Commander, Governor Hunt's education advisor, admitted that intra-system disparities existed among the schools she viewed. And Dr. Ira Harvey told the Court that the boundaries of the separate school tax districts within a local school system have, at times, been used to gerrymander taxable wealth into the predominantly white districts at the expense of black citizens. The Court finds as fact the foregoing undisputed evidence of disparities in educational opportunity offered in Alabama schools.
Finally, according to evidence introduced at trial, the state school system is inequitable because it fails to accommodate the special needs of particular students and schools. The Court received testimony that the current school funding formula is inequitable to students in rural areas because it fails to reflect the costs related to low population density to the detriment of the affected students. Transportation costs and other non-instructional expenses represent a disproportionate share of per pupil expenditures in rural counties. In addition, rural students are disadvantaged because they generally live in areas without large shopping centers and are thus unable to generate substantial sales tax revenues for support of their schools; the state funding formula does nothing to equalize sales tax revenues available to local systems. Moreover, property in rural counties is assessed and taxed at extremely low rates. The Court finds that these inequities in financial resources translate into deficiencies in educational opportunity in such areas as textbooks and library books, computer software, overcrowding and high teacher-pupil ratiosespecially in the lower gradesand poor upkeep of buildings and buses.
In addition to the already overwhelming evidence of differential treatment cited above, the Court finds the testimony of state education officials at the highest levels particularly telling in this regard. In other states facing equity funding lawsuits, these are typically the very officials who have vigorously defended the equity of the system under challenge. Perhaps uniquely, this was not the case in Alabama. Dr. Barton confirmed at trial that there are wide differences in materials, supplies, teachers, teacher training, courses offered and overall resources available among Alabama schools. Superintendent Wayne Teague also testified that some schools have better facilities and educational conditions than others, and that children in Alabama do not receive equal educational opportunity, a point about which his department has repeatedly warned.
As to special education, state officials have forthrightly acknowledged the stark disparities in the opportunities provided to disabled children of this State that are directly attributable to the wealth of the school system these students attend. These disparities exist in spite of state laws requiring appropriate instruction and special services for all disabled children and federal law which places the ultimate responsibility for special education upon the state. The testimony at trial offered by expert witnesses reviewing Alabama's education program and State Department of Education officials who work daily with the program, clearly show that the special education program in Alabama, in their own words, is an exercise in "crisis management." In spite of the efforts of state and local officials, it is clear that the quality of a child's special education programfacilities, instruction, special or related services such as speech, physical and vocational therapydepends entirely upon the system in which the child attends school. It is commendable that wealthier systems direct "local money" into a state program that is inadequately funded, but these efforts only underscore the disparities in special education programs between the wealthy and the poorer systems.
Governor Hunt's witnesses were largely silent on the subject of disparities in educational opportunities manifested among Alabama school systems in course offerings, staff, physical plant, and other facilities and services. Dr. Michael Wolkoff, Governor Hunt's chief witness on the equity issue, had *125 never visited an Alabama public school and declined to speculate as to the point at which funding disparities might have a substantial effect on school programs themselves. Dr. Buckley-Commander, who had viewed some of these facilities, was compelled to acknowledge the disparities she found. And Governor Hunt, for his part, conceded the existence of substantial differences among schools and among school districts in Alabama in the quality of education being provided to students. See Hunt Deposition at 16.
Based on the foregoing evidence, the Court finds that the significant disparities in school funding in Alabama are reflected in meaningful disparities in educational opportunities available to Alabama schoolchildren. The Court finds further that, as a result, the quality of educational opportunities available to a child in the public schools of Alabama depends upon the fortuitous circumstance of where that child happens to reside and attend schoola situation that Governor Hunt himself, according to his own testimony, cannot condone. See Hunt Deposition at 10, 13.
In addition to its general finding of significant school funding disparities, the Court further finds funding disparities in special education. The State of Alabama funds programs for children with disabilities primarily through "additional allocation for special education" and "special education teacher unit" funds.[24] In the 1990-1991 school year, the State of Alabama distributed $98,166,350 in teacher unit money (excluding fringe benefits) and $28,430,144 in additional allocation money to Alabama's public school systems.
Since 1972, the State of Alabama has used a school system's total enrollment to determine how much state money that system receives to educate children with disabilities. Under this "total enrollment method" of distributing special education funds a system receives money earmarked for the education of children with disabilities based on the number of non-disabled and disabled children enrolled.
As Mr. Barry Blackwell, Coordinator for financial and legal support at the division of special education of the State Department of Education testified, the total enrollment method results in school systems with larger percentages of special education students receiving less money per pupil than school districts with fewer special education students. In the 1990-1991 school year, Alabama school systems with enrollments of children with disabilities between five and 9.9 percent averaged $1,756 per child in state funds earmarked for special education. During the same year, systems with special education enrollments between 20 and 24.9 percent averaged only $848 per child. In fact, during the 1990-1991 school year, state funding for special education ranged from a high of $2,087 per pupil in Macon County to a low of $643 per pupil in Carbon Hill City. As long as percentages of special education students vary from system to system, the total enrollment method will result in school districts with high percentages of children with disabilities receiving less per pupil than districts with relatively lower percentages. The Court finds that this is a substantial disparity resulting in inequitable funding for the education of children with disabilities. The total enrollment method is not based on the needs of special education students and does not take into account the number or the cost of educating those children.
Mr. Blackwell further testified that the State Board of Education voted to change the method of distributing funds in a manner to be phased in over the next two years. State funds for special education will be allocated based on a weighted child count. Under this system, school districts with more children who spend the largest part of the school day in restrictive settings separate from their non-disabled peers will receive more funds to defray the greater cost of these intensive placements. School systems which educate children with disabilities with their non-disabled peers will receive less money.
*126 It is undisputed that the effect of this change will be to inject some degree of equity into the funding distribution for children with disabilities. However, the distribution system adopted by the State Board of Education only serves to reduce funding to some systems and to increase funding to other systems. Even with this redistribution of funds there will still be available only 70 percent of the funds needed for special education teacher units and related service personnel to serve currently identified special education students. Even assuming that this system will work as hoped, the testimony is clear that it does not address other fundamental problems with the equity and adequacy of the Alabama special education program. For instance, testimony showed that, at a minimum, approximately 750 additional teacher units are needed for special education students. Important parts of a special education program that are necessary to meet the requirements of state and federal law, such as state administration staffing, monitoring and special education teacher training remain inadequate and, for the less affluent systems, inequitable.
The Board has made efforts to tie special education funding to the cost of providing those services. It is not clear, however, that this change will cure the inequities in funding. First, the new distribution system will take two years to implement. Second, as Dr. David Rostetter, expert witness for the plaintiff sub-class testified, basing revenues on more restrictive placements may encourage school systems to isolate children with disabilities from non-disabled schoolchildren. Such an outcome would result in violation of the obligation under state and federal law to educate children with disabilities in the least restrictive environment appropriate. Dr. Wayne Teague testified that the state will have to monitor closely the impact of the weighted child count method of distributing special education funds on placement of children with disabilities and may change the system again. Therefore, the Court is not prepared to find that the inequities in the total enrollment method of distributing funds have been remedied by the change to the weighted child count method.
Governor Hunt argues that local school boards, rather than the state, are responsible for providing students with disabilities an appropriate education. However, it is clear that substantially all critical decisions regarding allocation of special education funds rest with the state. The state distributes the majority of the total special education revenues used locally. The state altered the mechanism for allocation of this money from total enrollment to weighted child count. The state is the only entity capable of monitoring the effects of this change. As a practical matter, it is clear that meaningful change in special education funding is and must be the responsibility of state, and not local, authorities.
Plaintiffs in this lawsuit presented evidence related not only to whether existing educational facilities, programs and services in Alabama's public schools are equitable, but also to whether these facilities, programs and services are adequate. Adequacy connotes sufficiency for a purpose or requirement. This Court is not empowered to determine whether the Alabama education system is sufficient to meet standards or achieve purposes that the Court might itself prefer. But the essence of plaintiffs' adequacy claim is that the state education system fails to meet the standards or achieve the purposes of public education mandated by the Alabama Constitution.
Leading state and national education experts testified at trial that the Alabama school system is not providing students with an adequate education. For example, Dr. Barton, the state official most familiar with the instructional services provided in the public schools, told the Court that the level of spending on education in Alabama is inadequate. Dr. Alexander testified at trial that Alabama's poorer school systems are among the lowest spending systems in the nation, and include some of the worst schools in the country, some of which he referred to as second world facilities. And, as noted supra, *127 Dr. Ross said that the conditions in the low wealth schools he saw in Alabama were the worst he had seen in his travels to schools across the United States. Consistent with these opinions and based on the evidence discussed below, the Court agrees with plaintiffs that the public school system provides constitutionally inadequate educational opportunity to Alabama schoolchildren.
The plaintiffs allege that the Alabama schools are inadequate in both absolute and relative terms. Plaintiffs argue that Alabama schools are inadequate in the absolute sense whether measured by: (1) state and regional accreditation standards; (2) substantive Alabama educational standards, such as those set out in the Alabama Education Improvement Act, Performance-Based Accreditation, and the Plan for Excellence, described infra; or (3) indicators recognized by state officials as appropriate measures of school quality, such as drop-out rates, college-level remediation rates, and the extent to which students are prepared for the workforce. Plaintiffs maintain that Alabama's schools are inadequate in the relative sense in terms of overall school funding in this state as compared with funding for educational systems in other states. Such comparisons have also been adopted by state officials as measures of educational adequacy. The Court will address the absolute and relative adequacy of Alabama's school system in turn.
The first indicator of absolute educational adequacy pointed to by plaintiffs is accreditationthat is, official certification that Alabama schools meet certain professionally recognized minimum standardswhich schools may secure from two different sources: the Alabama Department of Education[25] and the Southern Association of Colleges and Schools, a respected private regional accreditation body that promulgates standards and reviews schools throughout the South. Alabama Department of Education standards obviously represent state-sanctioned criteria for schools. The Court finds, further, that state officials, including Governor Hunt himself, have set Southern Association accreditation as an additional indicator of adequacy.[26] Governor Hunt testified in this lawsuit that, to be adequate, each school should measure up to the standards of the Southern Association of Colleges and Schools. See Hunt Deposition at 35. Dr. Anita Buckley-Commander, the Governor's chief education advisor, also testified that schools that do not meet the standards for accreditation of the state and the Southern Association are not adequate.
However, many Alabama schools in fact do come up short under these professionally recognized standards. Choctaw County Superintendent Toreatha Johnson testified at trial that six of the eight schools in Choctaw County are not accredited by the Southern Association, and that the Choctaw County system does not have sufficient funds to make improvements necessary to bring these schools up to accreditation standards. Other systems that contain schools not accredited by the Southern Association include Macon County, Marengo County, Mobile County, Tallapoosa County, Decatur City, Bibb County, Opelika City, Hale County, DeKalb County, and Perry County. In Lee County, not a single school is accredited by the Southern Association.
In addition, many students in the state attend public schools that do not meet the state's own accreditation standards. According to the State Department of Education's 1990-91 Annual Status Report, five of Lowndes County's eight public schools, and five of the seven Wilcox County schools (including the county's only high school), are *128 not accredited by the state. Choctaw County Superintendent Johnson testified at trial that six of the eight schools in that county are not approved by the state (the same six that are not accredited by the Southern Association). Further, many other systems throughout the state have at least some schools that are not state-accredited, including Mobile County, Decatur City, Monroe County, Bibb County, DeKalb County, Opelika City, and Perry County.
Plaintiffs also demonstrated at trial that many Alabama schools are unable to meet other substantive state education standards. One source of these standards is the Alabama Education Improvement Act, 1991 Ala. Acts 323, an education reform statute recently enacted by the legislature and signed by Governor Hunt, but never funded.[27] Governor Hunt and Dr. Buckley-Commander testified that they view the Act as necessary for Alabama schools to provide an adequate education, see Hunt Deposition at 83; thus, both sides agree that this Act provides a meaningful reference point for assessing minimal educational adequacy.
The Alabama Education Improvement Act includes requirements for Performance-Based Accreditation, a revised method of state accreditation of schools adopted by the State Board of Education. See 1991 Ala. Acts 323 at 619-24. An additional source of qualitative state standards for Alabama public schools is the Plan for Excellence, a blueprint for improvement of Alabama's schools developed by the State Department of Education in 1984. The Plan for Excellence was commended by the Legislature at the time of its promulgation.
Each of these state documents represents an acknowledgement of the present inadequacy of Alabama schools by the state and speaks of the need for major, structural change according to the standards and requirements outlined therein. The Alabama Education Improvement Act states that "[a]ttainment of these goals will require a serious reexamination of every aspect of Alabama's education system and some profound changes in our public schools." Id. at 607. Performance-based accreditation is presented as "a major change in the way accreditation historically has been obtained." The Alabama Performance-Based Accreditation System Manual at 4. The State Department of Education, in introducing the Plan for Excellence, indicated that its "analyses of problems and recommendations for addressing these problems are extensive, touching on almost every area of public elementary and secondary education." Plan for Excellence at 8.
Although all three of these plans for bringing the Alabama schools toward adequacy have been duly adopted by the State Department of Education or the legislature, testimony at trial indicated that funding has not been provided to implement any of them. According to both Dr. Barton and Dr. Buckley-Commander, not a single school system in the state currently meets all of the requirements of Performance-Based Accreditation. For example, in one school system, no students obtained adequate or proficient scores on the most recent Algebra I exam, which is part of the performance component of Performance-Based Accreditation. The Court finds, based on this evidence and that set out below, that Alabama schools today fall far short of the very educational standards that the state of Alabama has determined are basic to providing its schoolchildren with minimally adequate educational opportunities.
School facilities are one clear area of deficiency. The Alabama Education Improvement Act requires that all public schools "[p]rovide acceptable facilities conducive to an effective teaching and learning environment, including safe buildings having adequate space, heating and air conditioning, restroom facilities and sanitary conditions." 1991 Ala. Acts 323 at 620. The Performance-Based Accreditation standards require *129 all schools to provide "appropriate facilities and equipment necessary to reach instructional objectives," because "[t]eachers cannot be effective teachers and students cannot attain expected levels of achievement if facilities are inadequate and equipment is inappropriate or non-existent." Performance-Based Accreditation Standard (hereinafter, Performance) at 1C. Similarly, the Plan for Excellence says that school bathrooms must be sanitary, playgrounds must be safe, classrooms must be well heated and cooled, roofs must be kept in good repair, and deficiencies in facilities should be surveyed and corrected. Plan for Excellence (hereinafter, Excellence) at 91. "Students cannot be expected to concentrate on learning when the temperature is dangerously hot or cold or with the distractions of leaking roofs." Id.
Southern Association standards for facilities are consistent with the Alabama standards, requiring that schools provide appropriate classrooms that are "spacious, safe, functional ... and appropriately equipped for varied instructional programs." Southern Association Standards for Elementary and Middle Schools (hereinafter, Southern Elementary) at 32. The standards call for appropriate library and media spaces see, e.g., Southern Association Secondary School Standards (hereinafter, Southern Secondary ) at 21, "attractive landscap[ing]," id. at 19-20, and maintenance service that provides "systematic repair and care of the site, buildings and equipment." Id. at 22.
Governor Hunt himself has agreed that schools in serious states of disrepair are not conducive to learning, see Hunt Deposition at 67-68, and has said that education in portable classrooms is intolerable if it lasts for "any extended period of time." Id. at 66. He said further in deposition that leaking roofs in school buildings can cause disruption and are not conducive to learning. Id. at 108.
The Court heard striking evidence that these basic, common-sense standards are not met in many school facilities across Alabama. A 1990 Department of Education study, for example, reported that many Alabama school buildings are "old and dilapidated," and that over 555 school buildings in use at the time of the study were 50 years old or older. In Choctaw County, Superintendent Johnson testified at trial, four of the system's eight schools have main buildings that are more than 60 years old.
There is a serious shortage of classroom space throughout the state. The State Department's Summary of Capital Needs found that more than 3,500 additional regular classrooms are needed. According to Dr. Barton and other witnesses, this shortage means that, in many Alabama schools, spaces inappropriate for teaching or learning are pressed into service as classrooms. For example, Jesse Todd, principal of Shiloh Elementary/Middle School in Dallas County, testified at trial that one math class at his school meets in a vocational education building in which the din of power tools sometimes drowns out their lessons. At times, the teacher told students to wear radios with headphones to muffle the noise. Similarly, in Roanoke's Handley Middle School, a State Department of Education needs assessment team found that two classes were meeting in temporary classrooms set up in the school's auditorium. The school also had two small basement classrooms that were "totally unacceptable for instructional purposes."
A Department of Education report found that over 2,200 portable classrooms are in use throughout the state. Superintendent Johnson testified at trial that Choctaw County had 56 "temporary" portable classrooms, some of which have been in place for more than 20 years. Superintendent Johnson testified that the Gilbertown school in Choctaw County is almost entirely made up of portable classrooms today, because a fire destroyed most of the permanent classroom space in the school and for some time there has not been enough money to rebuild it.
The evidence at trial also showed that many schools in Alabama lack basic facilities such as science, computer, and language laboratories. For example, Homer Williams, principal of Monroe Senior High School in Monroe County, testified that his high school does not have a single science laboratory. The only science laboratory at Tipton Elementary/Middle *130 School in Dallas County was condemned and not replaced.
Some schools also do not have such essential facilities as auditoriums, gymnasiums, and playgrounds. For example, three of the schools in Dallas County do not have physical education facilities, and five of the eight schools in Choctaw County do not have gymnasiums. Alberta Elementary School in Wilcox County does not have a single piece of working playground equipment; the swing set has no swings, the seesaw has no board, and there is broken glass strewn around the playground.[28] This is the school mentioned earlier at which Dr. Ross observed children pretending to play on swings even though there were no real swings in the swing set. No elementary school in the Choctaw County school system, and no school of any kind in the Dallas County school system, has an auditorium. Some schools in Alabama are too poorly lit for proper learning. Both Lisman and Shady Grove schools in Choctaw County have classrooms without lights.
A number of Alabama's school buildings have serious structural and maintenance problems. An assessment team that inspected the Handley Middle School in Roanoke recommended that the entire school building be demolished. The Alberta Elementary School's septic tank was condemned because of frequent backups and overflows. The school's main ball field was contaminated with human waste that drained from the septic tank which was visible in the form of large dark spots on the field. The fields surrounding the W.J. Jones School in Wilcox County were also contaminated with raw sewage from a malfunctioning septic tank. "The children used to use the field in spite of the sewage," according to the affidavit submitted by one teacher.[29] "We could smell the odor of the sewage inside the classroom." Although the situation at W.J. Jones is extreme, Dr. Ross testified that he observed safety and health hazards such as beer cans and bottles and broken glass on the grounds of many schools he visited.
Even as basic an item as potable water is not available in all of Alabama's schools. At the John Essex School in Marengo County, the drinking water "has a terrible chemical taste and is undrinkable," according to one parent, who stated in an affidavit that she sent her children to school with bottled water. Teachers at the Essex School tell the students to wait to drink the water until the end of the day because it is so highly chlorinated. Similarly, at the W.J. Jones Elementary School in Wilcox County, the water is sometimes too chlorinated to drink.
In Macon County, Choctaw County, Dallas County, and many other school systems, leaking roofs are a constant problem. It is common for schools to place trash cans under these leaks to collect water that pours into the schools. In one school, leaking roofs caused classrooms to flood and destroyed maps and charts. A teacher at this school reported, "[s]o far we have avoided any accidents resulting from children slipping on wet floors or tripping over the rain-filled trash cans by carefully monitoring the children" but she believed that the roof leaks "could be a hazard to the children's safety."
Testimony at trial also indicated that in many school systems there is insufficient maintenance staff to keep the buildings clean. For example, Morris Moody, the *131 principal of West Blocton High School in Bibb County, had only one maintenance person at his school which has an enrollment of more than 500 students. The record contains numerous accounts of unsanitary bathrooms. The restrooms at the Tipton Elementary/Middle School in Dallas County school "[o]ften ... smell because they are not cleaned," according to affidavit testimony of one teacher at the school. At one school in Tuscaloosa, an inspection committee found that one "trough type [urinal] is in a deplorable state and looks to be absolutely unhealthy." In Choctaw County, human excrement has soaked into the wooden floors at one school, creating a horrible stench.
Many Alabama schools have broken windows and other unremedied maintenance problems. At W.J. Jones Elementary School, there are broken windows that are never fixed or replaced. Many of Choctaw County's schools have old windows whose panes fall out, sometimes during instructional time. Elementary students in Tuscaloosa have been injured more than once because of broken windows.
Further, a number of schools in Alabama are infested with termites and other insects. At one Wilcox County school, termites have eaten through library books and shelves, classroom shelves, and school records in the principal's office. The library at Tipton Elementary/Middle School in Dallas County is also infested by termites, which have "ruined many books and shelves," and Tipton also has problems with rat and ant infestation. Alberta Elementary School in Wilcox County has fire ants, which come up through the concrete floor and range throughout the building.
Although most Alabama schools are in session in August, not all classrooms are air conditioned. None of the classrooms in the main building at the Alberta School, for example, have air conditioning. Superintendent Johnson testified that Choctaw County cannot afford to air condition all of the classrooms in the county, so the Board of Education passed a resolution allowing teachers who could do so to buy their own window units, which they take with them when they change classrooms. Dr. Ross testified that he observed one class in which the teacher did not turn on the window unit, despite the heat, because the noise was worse than the heat.
Governor Hunt suggests that not all schools have problems this extreme, but he concedes that the school system has fallen into "serious disrepair" in many places. Hunt Deposition at 65. He admits that the school system as a whole has "great capital needs" in many systems. Id. at 69. He admits that many students in Alabama are "attending schools in deteriorating buildings." Id. at 65.
School curriculum is another area in which the Alabama school system fails to meet state standards. The Education Improvement Act calls for all high school students to have four years of science and mathematics, and for all students to achieve computer literacy. See 1991 Ala. Acts 323 at 613, 628. The Act says that "[i]t is the intent of the legislature that, in addition to the required courses, elective courses including but not limited to foreign languages, fine arts, physical education, [and] vocational and technical preparation, be available to all students." See id. at 614.
Performance-Based Accreditation contains similar curriculum guidelines, requiring that all students have equal access[30] to "broad and varied curricular offerings" in grades K-8, including art, music, computer education, and physical education. See Performance at 4D. Another standard mandates that all students in elementary grades receive instruction in art and music from teachers certified in those subjects, and that in all other grades visual arts, music and other arts must be offered as electives. See id. at 13D. Further, Performance-Based Accreditation requires that all students have the opportunity to pursue any diploma offered by the Board of Education, including the college-preparatory advanced diploma. See id. at 5D.
*132 Similarly, the Plan for Excellence prescribes that all students in the state have the opportunity to pursue the advanced diploma, see Excellence at 44, and calls for schools to offer instructional programs in creative writing, foreign language, advanced mathematics, science, art, music, and drama. See id. at 43.
Governor Hunt, as noted earlier, testified that state schools should meet the standards set by the Alabama Education Improvement Act, which includes curriculum standards, to provide an adequate education. Defendant concedes, more specifically, that education that does not include the opportunity to pursue the advanced diploma is inadequate. See Hunt Deposition at 55. He admits that students are disadvantaged if they do not have access to algebra, physics, biology, or science laboratories, see id. at 75-76, and he acknowledges that computer skills are "fundamental." Id. at 74.
The Court finds, based on the evidence adduced at trial, that the curriculum offered in Alabama's public schools fails, in many cases, to meet state standards. A comprehensive State Department of Education assessment of all 129 Alabama school systems reported recently that "what is missing and what is needed are the resources and services that could give the children of Alabama a competitive edge, including computer education, music courses, art courses, enrichment programs, advanced science and mathematics courses, foreign language courses, [and] remedial programs for those in need."
As discussed above, a significant number of high schools in the state are not able to offer the advanced diploma, which indicates successful completion of a college preparatory program, and which diploma will be required (or its course equivalent) diploma for admission to the University of Alabama beginning in 1995.
Some Alabama schools are not able to offer the most basic courses. The evidence showed that at Monroe Senior High School in Monroe County, the highest level courses in the math and science curriculum are algebra I and general science; algebra II, trigonometry, calculus, chemistry and physics are not available. In Dallas County, one high school alternates offering chemistry and physics because of a lack of resources. No school in the Dallas County or Roanoke City school systems offers calculus.
Foreign language offerings are limited across the state. In the Dallas County school system, French is the only language offered and there are not enough spaces for all of the students who want to take it. No foreign language class is offered anywhere in the Choctaw County system, except for a satellite video class in Japanese; French and Spanish, which were once taught in some schools there, cannot be funded.
Many schools are not able to offer art, music or drama classes, including, for example, all schools in Monroe and Choctaw County, although there are students talented in these areas who would benefit from the classes. There is no music program at three of four high schools in Marengo County. Shiloh Elementary/Middle School in Dallas County is also unable to offer art, music or drama courses. Shiloh teacher Juanita Brown stated in an affidavit that "the only way that students are exposed to these things is if the teachers bring them into the system at their own expense." In some schools, there is no enriched curriculum of any kind. Superintendent Johnson testified at trial that there are no gifted programs for students in Choctaw County, although a test has identified students who would be eligible if the system could afford to provide such programs.
Plaintiffs also introduced evidence at trial that state staffing standards are not met in many school systems. Performance-Based Accreditation requires that class sizes "not exceed a number that allows the teacher to manage the instructional program and assure that course objectives are met by each student," and sets maximum class sizes ranging from 25 to 35. See Performance at ID. It mandates that all students have equal access to instructional support services including counseling and guidance, library media, and health related services. See id. at 12D. It requires, further, that each school have a library media specialist, and one aide or technician per 500 students or major fraction *133 thereof. See id. at 17D. Performance-Based Accreditation also provides that schools must employ support staff sufficient to ensure "a safe and clean environment." See id. at 2B. It requires that each school maintain a "comprehensive staff development program ... to ensure continuous growth for all personnel." See id. at 3B.
Governor Hunt, again, has acknowledged that the Alabama Education Improvement Act, which includes staffing standards, provides a touchstone for educational adequacy. He has said that better teachers provide students with a better opportunity to obtain an adequate education, see Hunt Deposition at 64, and expressed the view that Alabama must raise its salaries in order to attract and retain better teachers. See id. at 63.
Evidence at trial demonstrated that Alabama schools have serious shortages of educational staff. Dr. Ross' team found that in the lower wealth systems they observed, the largest class size averaged 37.6 at the elementary and high school levels. Lawrence County Superintendent DeWayne Key testified that some schools in Lawrence County have classes with more than 40 students. In Dallas County, class sizes exceed 35 students and some teachers teach more than 150 students in a day. In one school in Barbour County, the pupil-teacher ratio in the first grade was 43:1.
Many schools lack full-time, or even part-time, librarians. In Dr. Ross' study, 37.5 percent of the low wealth schools examined had no full-time librarian; 8.3 percent of low wealth schools had no librarian at all. Of the less affluent elementary schools studied, 50 percent lacked a full-time librarian, and 25 percent had no librarian. Superintendent Johnson testified that there are no librarians in any of the K-8 schools in Choctaw County, which rely on parents and other volunteers to keep their libraries open. W.J. Jones Elementary School has no librarian, and its library is only open several hours a week when two Catholic nuns volunteer. The Alberta Elementary School also has no librarian.
Many schools have no guidance counselors, or fewer than are needed to serve their students adequately as prescribed in state standards. The evidence showed that at Bibb County High School, there is one guidance counselor for 670 students. The approximately 364 students at Shiloh Elementary/Middle School have only a part-time counselor, who also works at another school. The students at Shiloh need more counseling than is available at the school, according to one teacher at the school. Needs assessment audits report that there are substantial unmet counseling needs in the Tuscaloosa City school system. W.J. Jones Elementary School in Wilcox County has a single guidance counselor who comes to the school only one day a week. Two schools in Choctaw County share a guidance counselor, and one school has none at all.
A number of Alabama schools have no physical education teachers. Further, health care in Alabama's public schools is limited. Charlene McKaig, an associate professor of nursing at the University of Alabama at Birmingham, testified that there are fewer than 200 school nurses employed in the entire state for a student population exceeding 700,000 students. In some cases, she testified, this means that students attend school without basic health screenings. The clinic in Choctaw County that performed health screening for students has closed. No school nurse serves the general school population in the entire Wilcox County system.
The Court heard evidence that many Alabama schools have insufficient maintenance staff. As already discussed, this presents health and safety problems, and also compels principals, teachers, and students to take time away from the educational program to clean school buildings. At Bibb County High School, principal John Pratt and his teachers "spend a lot of time cleaning up the school after hours." The Tipton School in Dallas County employs only one janitor working for two hours each day, who is able to clean only the hallways; teachers and teacher aides must do the remaining cleaning. Some teachers, who are responsible by default for dusting, mopping, sweeping, and waxing the floors of their classrooms, personally pay the *134 janitor for custodial work. Parents cleaned the entire W.J. Jones Elementary School last year, including the bathrooms. Likewise, Choctaw County parents have cleaned bathrooms, made drapes and shades, varnished floors, and sanded desks; one parent cleaned the restrooms herself in her child's school four times in a single year.
The Court also heard testimony that many Alabama schools fail to meet state textbook standards. The Education Improvement Act requires all schools to provide adequate textbooks to all students. See 1991 Ala. Acts 323 at 621. The Plan for Excellence declares that "the textbook is perhaps the most important learning tool in the classroom" and that "[u]p-to-date textbooks must be provided, and adequate numbers of books should be available to all students." See Excellence at 48. The Plan for Excellence calls for homework to be required in every subject area. See id. at 30.
Governor Hunt acknowledged, in response to plaintiffs' requests for admissions, that a lack of adequate, up-to-date textbooks may adversely affect a student's ability to learn and achieve. He agreed that students are at an educational disadvantage if they are required to share textbooks or cannot take textbooks home. See Hunt Deposition at 76.
The Court finds, based on trial testimony, that the Alabama school system does not provide students with adequate access to textbooks. State Superintendent Wayne Teague testified that the state's "free" textbook program is underfunded, and that funds allocated for textbooks for grades one to twelve run out by the eighth grade. Dr. Barton testified that there are school systems in Alabama in which the supply of textbooks ranges from "inadequate to woefully inadequate."
Some Alabama schools cannot afford to purchase enough textbooks for every student to have his or her own. For example, at the John Essex School in Marengo County two or three students had to share a single social studies textbook. In high school physics, there were not enough new textbooks for all students so at least one student had to use a different text that was out-of-date. In other counties, scarce textbooks must remain in the classroom, and students cannot take them home to read or do homework. Students may be required to buy their own textbooks in elective courses, since the schools spend their limited textbook money on required courses first. In some schools, a shortage of textbooks means that students are not assigned homework. And some classes are conducted entirely without textbooks.
Although new textbooks may be due in some courses according to the State Department of Education's regular textbook cycle, some systems cannot afford to purchase them. Choctaw County employs some social studies books that date to the Carter Administration, and textbooks are in use at the Bibb County High School that are outdated by as much as 15 years. Some textbooks that are available are in unacceptable condition. A teacher at Shiloh Elementary/Middle School in Dallas County stated in an affidavit that when she taught fifth and sixth grade, she was "ashamed to give some of the science and social studies textbooks to the children; they were falling apart and had masking tape holding them together. There were often pages missing." Schools may assign less expensive paperbacks meant to supplement textbooks as substitutes for the actual textbooks. Although these supplemental books are intended to be "consumed" in the course of the school year, children are in some cases prevented from writing in them so that the books can be reused.
Plaintiffs, further, presented evidence that many Alabama schools are deficient in supplies and equipment. The Education Improvement Act requires that all public schools must provide "adequate resources for instruction ... including ... instructional supplies." 1991 Ala.Acts 323 at 621. The Act calls for all elementary schools to have approved science laboratory facilities for the proper teaching of elementary science courses. See id. Similarly, Performance-Based Accreditation requires that all schools be "properly equipped," providing "[a]dequate material, equipment, and supplies." See Performance at 1C. The Plan for Excellence states that "[f]unds should be provided *135 at a significantly increased rate for the purchase of needed classroom materials, including books, audiovisual instructional materials and the new technology." Excellence at 76. It further says that "[a]ll the supplies and equipment needed to promote excellence in education should be available in every school so that teachers can do the very best teaching job possible," id. at 76, and notes specifically that "the teacher should not be expected to make personal expenditures in order to provide instructional aids for students." Id. at 75.
Governor Hunt has himself admitted that teachers should not have to spend their own money on classroom supplies, see Hunt Deposition at 61, and that they must have the tools necessary to teach. See id. at 62. Governor Hunt has agreed that a shortage of desks and chairs in a classroom can be disruptive to the educational process, see id. at 105, and that lack of access to library books can affect achievement. See id. at 78. He has also said that instances of parents having to send toilet paper and other necessities to school with their children must be brought to an end. See id. at 62.
The Court finds that supplies and equipment in many Alabama public schools do not meet minimally adequate standards. The Plan for Excellence declares that "[m]aterials provided to Alabama's classrooms are woefully inadequate." Excellence at 17. Students at some schools are asked to bring soap and towels to school with them. Dr. Ross' study found that a significant number of low wealth systems lacked toilet paper, soap, and paper towels.
Other important instructional supplies necessary for a minimally adequate education are also not available in many Alabama public schools. All the students at one elementary and middle school must share two microscopes, which were bought with money raised by teachers. One teacher stated in an affidavit that when she taught sixth grade science at this school, she had to show students a picture of a microscope because none were available for use. In Choctaw County, audiovisual equipment, manipulables, and computers are scarce and there are no science laboratories, few microscopes, and only two bunsen burners in the entire county. In Wilcox County, W.J. Jones Elementary School has no general-use computers, and Camden Middle School has only one computer for 500 students.
Furniture at many schools is old and dilapidated. In one classroom in Wilcox County a table at which students sit collapsed after frequent repairs and is now held up by milk crates. In some schools, teachers scavenge for school supplies. One teacher testified that she had furnished her classroom with a discarded projector screen, card catalog, and a set of encyclopedias that she retrieved from the garbage. The encyclopedias are "incomplete, very outdated, and ... falling apart," she said, "but we only go to the library once a week for 45 minutes, so this encyclopedia is often our only research tool."
Libraries in many schools contain old and dilapidated books. The encyclopedia at the Alberta Elementary School library dates from the 1970s. The Silas Elementary School relies on donations of books from a local paper company. Library books in some schools in Marengo and Wilcox Counties are far out-of-date. Some school libraries have no periodicals.
The Court heard testimony that teachers and parents at many schools must conduct candy sales and other fundraisers to raise money for school supplies. Dr. Ross' study found that in the low wealth schools surveyed, close to 70 percent of teachers participate in school fundraising activities. Evidence showed that teachers and classes at some schools are asked to contribute $100 a year from fundraisers. Some schools have monthly candy sales, which detract from teaching time.
Teachers in Alabama also expend extraordinary amounts of their own money on supplies for their classes. Dr. Ross' study found that close to 90 percent of teachers in both lower-and higher-wealth schools spend personal funds on school supplies. Teachers in Dallas County and Tuscaloosa testified that they spent from $500 to $1,400 a year of their own money on supplies including books, pens, paper, batteries, wiring and light bulbs for science projects, games, computer programs, *136 science materials, teaching resource guides, and motivational materials.
Parents are also required to raise money for items such as air conditioners in many schools. One parent's affidavit states that at East Choctaw Junior High School, a child in a wheelchair whose only exercise was crawling on the floor had no carpeted area on which to crawl because the floors were made of cement. The school had no money to carpet the floors, so the child's mother had to hold a bake and rummage sale to pay to carpet a small area for her son.
Student transportation is another area in which Alabama schools fall short of standards. The Education Improvement Act requires that all school systems "[c]omply with the requirements of federal and state governments and agencies and the state board of education with respect to the condition and safety of vehicles, scheduling of routes, training and licensing of drivers and load capacity of buses." 1991 Ala.Acts 323 at 620. The National Transportation Safety Board recommends that all school buses built before 1978 be removed from service.
Governor Hunt has conceded that there is a need for new school buses. See Hunt Deposition at 69. He acknowledged, in response to plaintiffs' request for admissions, that as of January, 1992, Alabama schools were using 1,473 school buses built before 1978that is, buses that do not meet national safety standards.
The Court also heard testimony that Alabama's school transportation system is not funded sufficiently for schools to bring their transportation programs up to standards. Dr. Teague testified at trial that in his tenure as state superintendent of education, the school transportation system has been fully funded only twice. As a result, Dr. Teague said that about 90,000 Alabama students ride buses each day that are older than the National Transportation Safety Board advises.
Superintendent DeWayne Key testified that in Lawrence County, there are school buses in use with up to 300,000 miles on them that he regards as unsafe, but has no funds to replace. All but about 10 of the 52 buses in Choctaw County are 15 years old, and a significant percentage of the buses are 1970 models.
Shortages of working school buses and long bus routes in some school systems lead to rides for children that are more than 100 miles and five hours long in some rural areas. Some buses must drive double routes, which also results in long waiting periods for children. Mechanical problems with buses cause students to miss substantial periods of class time. Students at one Alabama elementary school arrived at school more than an hour late for about one month, and left substantially before the end of the school day, because of a shortage of functional buses. Another elementary school asked parents to leave work and pick up their children at the roadside when one school bus broke down.
In summary, the Court finds the evidence is compelling that many Alabama schools fall below standards of minimal educational adequacy for facilities, curriculum, staffing, textbooks, supplies and equipment, and transportation that have been adopted by the state itself. The Court now turns to evidence offered by plaintiffs related to several other indicators of educational inadequacy in the absolute sense: rates for school drop-outs and college remediation, and students' overall preparation for the workforce.
Plaintiffs offered affidavit testimony from Dr. William Spencer, a professor at Auburn University who conducted a study on the drop-out problem in Alabama for the Governor's own Education Reform Commission, that "high school students in Alabama drop-out at an extraordinarily high rate in comparison with other states." According to Dr. Spencer, Alabama ranked 49th of the 50 states in its ability to graduate students after twelve years in the public school system. He also found that 48 percent of Alabama's adult population does not have a high school diploma. Dr. Spencer testified that the failure to obtain a high school diploma has grave economic consequences for Alabama students; for example, males who do not graduate from high school will earn at least $200,000 less than those who have.
Dr. Spencer's study found that Alabama's high drop-out rate is directly related to the *137 inadequacy of the school system. It found that additional counseling, assistance with academics, and drop-out prevention programs could help reduce Alabama's drop-out rate, and that the absence of such services is the result of inadequate funding.
Governor Hunt admitted the seriousness of Alabama's drop-out problem. He conceded that Alabama's drop-out rate is about 35 percent, and that it is among the highest in the nation. See Hunt Deposition at 57. The Court finds that on this measure of educational adequacy, Alabama again falls short.
Plaintiffs argued that the inadequacy of Alabama schools is shown further by the high number of students who must take remedial courses when they arrive at college. James Purcell, director of matriculation and retention at Shelton State Community College in Tuscaloosa, Alabama, testified at his deposition that at his school, 82 percent of incoming students must take remedial math classes, 68 percent take remedial English classes, and 64 percent take remedial reading classes. Mr. Purcell related his observation that many Alabama students are not prepared to do college-level work, which he attributed to "a poor education system."
The Court is cautious about making generalized findings based on the experience of a single community college. However, Shelton State's service area covers a seven-county region, including Hale, Bibb, Marengo, Sumter, Pickens, Tuscaloosa, and Greene Counties. Additional evidence concerning Alabama students' preparation for higher education came from Dr. Harvey, who indicated that professional schools at the University of Alabama at Birmingham must rely on out-of-state recruiting to generate sufficient numbers of qualified applicants for their programs. Further, Governor Hunt himself has testified that more than 40 percent of all of Alabama's graduating high school seniors need some kind of remediation before they can begin college-level work. See Hunt Deposition at 56. The Court agrees that this evidence confirms inadequacies previously discussed in Alabama's public school system.
Similar confirmation came from trial testimony concerning Alabama students' preparation for the workforce. Dr. Malcolm Portera, vice chancellor for external affairs at the University of Alabama, testified at trial that Alabama's schools are an obstacle to attracting business to the state because of business leaders' perceptions of the inadequacy of Alabama schools and the low skills of its workforce. Dr. Portera cited as an example the decision of General Motors to locate the Saturn automobile manufacturing plant in Tennessee rather than Alabama, which he said was in part due to a poor perception of Alabama schools.
In addition, Jay Garner, senior vice president of economic development for the Mobile Area Chamber of Commerce, testified based on his experience in recruiting business and industry for Mobile that if Alabama's schools were improved the state would be better able to attract quality jobs. John Woods, the chairman of the board and chief executive officer of AmSouth Bancorporation, echoed this sentiment, saying that "[n]o longer are industry investors interested in a `low-skill,' `low-wage' work force. This is not a sales point for our state anymore." John W. Rouse, president and chief executive officer of Southern Research Institute, a contract research organization which provides products and services in engineering, environmental and life sciences, testified by affidavit that the growth and development of his business has been "impeded by the lack of skilled labor in Alabama, and by the widely-held belief by many outside the state that Alabama has sub-standard primary and secondary education and a weak cultural/intellectual environment."
Elmer B. Harris, president of Alabama Power Company, the state's principal electric utility, said that "Alabama's economic development is significantly hampered by an inferior education system in the elementary and secondary grades." He testified by affidavit that "[c]ompanies considering moving to Alabama are acutely aware that, at both the state and local levels, funding for education in Alabama is at or near the bottom compared to other states; that the State's work force is relatively undereducated, resulting in *138 a shortage of skilled labor; and that quality education has been a low priority in our state." Mr. Harris indicated that some 35 percent of job applicants for a broad range of jobs at Alabama Power do not pass pre-employment tests. Similarly, R. Neal Travis, president of BellSouth Telecommunications in Alabama (South Central Bell), testified that his firm must process ten applicants to find one who is eligible for employment. Winton M. Blount, III, chairman and chief executive officer of Winton Blount and Associates, also called the quality of public education in Alabama "a survival issue for business," and said that "our education system in Alabama is not producing the kind of workers necessary to compete in [the] world economy."
Governor Hunt conceded that Alabama's schools are producing large numbers of students who are not prepared to enter the job market, including students who cannot read. See Hunt Deposition at 58. He acknowledged, as an example, that in 1990, Gulf State Steel, a steel corporation in Gadsden, Alabama, announced that it would no longer hire local high school graduates because 70 percent tested below the 8th grade level. See id. Defendant also agreed that without an adequate education it will be difficult for Alabama schoolchildren to compete equally with people from outside Alabama who did receive an adequate education. See id. at 23.
The Court finds, based on the foregoing testimony concerning a variety of measures of absolute educational adequacy, that Alabama's public schools again clearly fall short.
The adequacy of Alabama schools may also be measured in relative terms, compared with other state systems. In this regard, plaintiffs focused their testimony primarily on school funding. The Alabama Department of Education compared spending on schools in Alabama with that prevailing in the nation generally, in the Southeastern states, and in Alabama's neighboring states. It concluded from these comparisons in a 1989 document called Alabama Where Do We Stand?: A Comparative View of Key Educational and Financial Statistics, that "Alabama has failed to adequately finance its public school system." The study found that in 1986-87 Alabama ranked last in the Southeast and last in the nation in per capita spending on education. The report also found that Alabama ranked 11th of the 12 Southeastern states in terms of state and local revenues per pupil in average daily attendance. Updated figures from the Educational Testing Service indicate that in 1990-91, Alabama was 51st in the nation and last in the southeast in state and local revenues per pupil.
Further, the State Department of Education report indicated that the funding gap between Alabama and other states has widened in the past decade, a period in which Alabama's rate of increase in spending was below that of the nation, the Southeastern states, and Alabama's contiguous states. The study concluded that Alabama "is not just stagnant but actually retreating."
Governor Hunt conceded that "more money is needed for education." See Hunt Pre-Trial Brief at 1-2. He acknowledges that the time has come for funding education in Alabama at the proper level. See Hunt Deposition at 83-84.
Based on the foregoing testimony, the Court finds that, in terms of school funding relative to other states, a measure of adequacy adopted by Alabama officials, Alabama's system of public schools has lagged far behind.
Several witnesses for plaintiffs testified to the social and economic costs of the state's failure to provide adequate educational opportunities for its children. Dr. Wayne Flynt, University Professor of History and former chairman of the history department at Auburn University, called Alabama's record of investment in its public schools "abysmal." Both Dr. Flynt and Dr. Harvey testified that Alabama's history is marked by decades of failure to fund its public schools adequately, all too often in this century as a result of racial conflict. According to these experts, repeated educational crises in the state have invariably been followed by a flurry of studies that recommend better funding for public schools; when these go unheeded, they are succeeded by further crises and additional studies. This cycle of failure to *139 invest in education, according to Dr. Flynt, has denied the state the pool of talent necessary to make it competitive in the global economy (or even in the Southeast), and helped create an underclass of citizens who are either incarcerated or dependant on costly welfare, medicaid, or other government social programs.[31]
Alabama's economy, in particular, has suffered as a consequence of low spending on education, according to plaintiffs' witnesses. Dr. Flynt cited a Jacksonville State University study that reviewed state educational expenditures from 1945-85, finding that the level of such expenditures correlated directly with economic growth in those years. In a study conducted in Alabama, Dr. Harold Elder, professor of economics at the University of Alabama, found a definite and consistent positive relationship between funding levels for elementary and secondary schools and state income and employment growth and concluded that greater educational support generally leads to larger incomes and higher employment. Dr. Flynt warned that the South is becoming, economically speaking, two Southsthe Gulf South and the Atlantic Southwith the former, to which Alabama belongs, experiencing a net decrease in the education of its workforce even as the latter improves the job skills of its workers.
Governor Hunt disputes little of the evidence offered by plaintiffs concerning the inadequacy of public schools in this state. He does suggest in trial briefs that the problems cited by plaintiffs are confined to a few isolated school systems. See Hunt Post-Trial Brief at 3. However, defendant has admitted elsewhere that "the overall quality of education [in Alabama] is inadequate." Hunt Deposition at 53-54 (emphasis added).[32] Further, according to Dr. Alexander and Dr. Goertz, even the wealthiest school systems in Alabama have unmet needs and are hardly rich compared with systems in other states. See also Motion For Leave to File Amici Curiae Brief of Mountain Brook City, Homewood City, Hoover City, and Shelby County Board of Education at 3. In any case, plaintiffs challenge the constitutionality of a statewide school system; the Court finds that if inadequate educational opportunities exist in some systems, then the system as a whole must be deemed inadequate.
In addition, Governor Hunt maintains that "plaintiffs' criteria for `adequacy'" are "unreasonable, even impossible, to meet," given the state's "lack of a sufficient tax base." See Hunt Post-Trial Brief at 5. However, the Court notes again that the criteria of adequacy reviewed above originate not from the plaintiffs, but from the state itself. Further, Governor Hunt presented no evidence delineating specifically the limits on the state's tax base to which he refers. In contrast, plaintiffs offered expert testimony that Alabama has substantial unused revenue capacity, that investment in education would likely generate growth in the state's tax base; and that a lack of such investment has high hidden social and economic costs, as discussed abovenone of which are directly disputed by the Governor. Thus, as a factual matter, the governor's assertion that the state cannot afford better schools is doubtful, at best; as a matter of law, it is no defense to a claim of constitutional infringement because individual rights do not obtain only when the state believes that it can afford them, as discussed infra.
Governor Hunt also maintains that "the `adequacy' in funding that plaintiffs seek will not solve the problems that plague Alabama's *140 schools." Hunt Post-Trial Brief at 6. He argues that increased funding of public schools will not translate into increased student performance as measured primarily by certain standardized test scores. This argument relies on the testimony of Dr. Eric Hanushek, a University of Rochester economics professor, who offered the opinion based on his review of multiple "production function" studies[33] performed nationwide by educational researchers, as well as his own study using Alabama datathat there is no systematic relationship between spending on schools and student achievement. Dr. Hanushek did not testify that spending can never positively affect student achievement on tests; his point was, instead, that to date experts have been unable to measure a systematic relationship between expenditures and achievement. He concluded that school money must be spent inefficiently (that is, in ways that do not improve achievement) in this state and elsewhere.
Plaintiffs countered with testimony on this point from Dr. Ronald Ferguson, a professor of public policy at Harvard University, who conducted his own analysis in Alabama and found a systematic positive correlation between student achievement and certain expenditures (that is, money spent to secure smaller class sizes above a certain threshold, teachers with more experience, and teachers who themselves had better test scores). Dr. Ferguson's Alabama study was structured differently from that of Dr. Hanushek in several important respects: (1) Dr. Ferguson did not include all school expenditures in his analysis (eliminating, for example, spending on maintenance, school lunch, and transportation), but focused instead on those instructional expenditures that might be expected to affect student scores directly; (2) Dr. Ferguson used actual test scores, while Dr. Hanushek used only average test scores; (3) Dr. Ferguson used a methodology that simulated gains in achievement over time, while Dr. Hanushek reviewed only levels of achievement in a single year; and (4) Dr. Ferguson controlled for many more variables that could affect student scores (such as race, socio-economic status, and parental education) than did Dr. Hanushek.
On balance, the Court finds that Dr. Ferguson's analysis of the relationship between school spending and student achievement in Alabama is superior in terms of data and research design to that of Dr. Hanushek and, thus, it accepts the view that there is a positive correlation between spending on education and student performance in this state.[34] But, this battle of the experts aside, the Court finds that the results of production function studies alone are in any case not an appropriate basis for concluding that additional funding for public schools is unnecessary or misguided. These studieswhich, as Dr. Alexander testified, were designed for use in ordinary business and manufacturing contextsare rightly controversial when applied to the education field, in which inputs and outputs are complex, data are limited, and some goals designed to be served by public education entirely escape analysis, such as socialization, the protection of public health and safety, the inculcation of moral and civic values, athletic achievement and aesthetic appreciation.
Further, the Court does not, in any case, regard the hypothetical question of whether additional funds, if allocated to Alabama schools, will be spent "efficiently" to secure improvements in test scores as one that is relevant to the matters before it at this time.[35] The question prematurely contemplates imposition of a particular remedy one that defendant characterizes as "throwing money at schools," which Superintendent Teague testified has never happened in this stateand assumes that state officials responsible *141 for school funding, including the Governor, will not take pains to ensure that any additional funds are well spent. The Court is certainly not prepared to presume future inefficiency on the part of the executive and legislative branches. Nor is the Court inclined to accept the self-serving defense that schoolchildren are not entitled to sue for additional school funding and opportunities because the government cannot spend education money properly; if this is true, it is hardly the fault of the students.
Finally, Governor Hunt argues in response to plaintiffs' claim that educational opportunities are provided inequitably and inadequately that this situation is rationally justified by the state's desire to foster "local control" of schools. By local control, defendant means "delegation to the various school districts of a measure of control over what taxes the residents should pay and what level of funding they desire for their schools." See Hunt Post-Trial Brief at 17. Whether or not the present state school system, including the school finance system, is structured so as to be rationally related to the purpose of promoting local control is, in large part, a question of law which will be examined infra.
However, the Court must also address certain factual issues to resolve this question. Specifically, the Court heard testimony from several of plaintiffs' witnesses that, under the present school finance system, many poorer districts do not experience local control they cannot reasonably be said to exercise autonomy to determine "what level of funding they desire for their schools," to "judge for themselves the needs of their children," or "to raise taxes to secure the level of education they wish for the children in their districts." See Hunt Post-Trial Brief at 17; Hunt Pre-Trial Brief at 19, 23; see also Hunt Post-Trial Reply Brief at 18. These systems have severely limited local tax capacity; wish though they may for better educational opportunities for their children, many simply cannot afford them. Indeed, if local tax effort reflects the desire for a higher level of education, citizens in the poorest systems seem to want the most for their childrenbut their hands are tied by the very system that defendant argues is designed to enhance their ability to realize their aspirations. The Court does not understand local control to refer only to local control for the wealthy. Thus, to the extent that school opportunities are dependent upon wealth in this stateand the Court is satisfied that they are in large partthe Court finds that local control is defeated, rather than promoted, by the present state school system.
In addition to claims of inadequacy in educational opportunity asserted by all the plaintiffs, the sub-class represented by John Doe argues that children with disabilities do not receive an appropriate education. Dr. Martha Snell and Dr. David Rostetter, special education experts with years of experience in assessing special education programs, testified on behalf of the sub-class. Their testimony, as well as the testimony of Dr. Kenneth Wilson and Mr. Barry Blackwell, state officials who work in the Division of Special Education Services of the Department of Education, confirmed that many children with disabilities in Alabama are not receiving an adequate or appropriate education.
Along with a graduate student and Dr. David Rostetter, Dr. Snell conducted a five-day review of special education programs throughout Alabama. They visited schools in ten school systems including poorer and wealthier systems. Dr. Snell spent one week observing students with disabilities and their educational programs, including children with a variety of disabilities ranging from mild learning disabilities to those with severe multiple handicaps.
Dr. Snell described, based on her years of experience in special education, seven components that are essential for an appropriate education for children with disabilities: (1) inclusion (the education of children with disabilities with their non-disabled chronological peers); (2) program support (resources needed to support special education statewide); (3) curriculum (the educational goals and objectives in each child's individualized education program (IEP)); (4) instruction (the methods used to teach curriculum); (5) peer support (encouragement and opportunity to socialize with non-disabled peers); (6) preparation for adult life; (7) and collaborative *142 teaming (opportunities, formal and informal, for special education teachers to meet with regular education teachers concerning each child's program and needs).
An appropriate education must be designed to provide educational benefit to a child with disabilities through individualized programs and instruction tailored to the needs of that child. For the child to benefit from these programs, related services such as speech therapy and transportation must be provided. As Dr. Snell testified, the measure of the success of a program is the outcome for that particular child.
In assessing these factors, Dr. Snell found that children with disabilities in Alabama do not receive an appropriate education. The Court agrees, based on the undisputed testimony in this case. Dr. Snell described several deficiencies that she observed in special education programs. Among the most troubling are the complete absence of meaningful transition programs (that is, preparation for adult life), the lack of individualization in instruction, and teacher in-service training and development so poor that teachers do not know enough to ask for help. In a system with the purpose of preparing children with disabilities for adult life, these shortcomings are intolerable.
Dr. Snell also found that disparities in the educational programs of children with disabilities are related to the wealth of local school systems. Children in the poorer systems receive lower quality educational instruction and special services than do children in wealthier systems. This disparity is as meaningful and substantial as the differential treatment of children in regular education programs. Governor Hunt argues that deficiencies observed by Dr. Snell cannot be generalized to the statewide system of special education. While the Court acknowledges that Dr. Snell's study addressed only ten of 129 school systems, testimony from Dr. Wilson and Mr. Blackwell confirmed that these problems are not isolated but widespread in Alabama. Both state officials described a system limited to crisis management and frankly confirmed that the solution to one crisis creates another, because the poorer systems often must take money previously assigned to one area of special education to pay for another service to solve the immediate problem.
Dr. David Rostetter, who was responsible at the United States Department of Education for reviewing and monitoring states to ensure compliance with federal special education laws in 1976-1986,[36] evaluated the second of Dr. Snell's seven components of an appropriate education: program support. Dr. Rostetter visited schools, interviewed education staff at the state and local level, examined documents, and observed programs. The Court accepts Dr. Rostetter as an expert on the requirements of an appropriate education and on the program support needed to implement an appropriate education. In Dr. Rostetter's opinion, program support is essential for effective implementation of the other six factors. Program support consists of four components: (1) policy development and implementation, (2) staff and program development, (3) resources (human and financial), and (4) monitoring and evaluation. Dr. Rostetter's opinions about what constitutes program support are reinforced by the state's own plan for operation and administration of special education programs. The state plan is consistent with state special education statutes and requires the state to implement all the features of program support that Dr. Rostetter addressed.
Dr. Rostetter concluded that Alabama does not provide an appropriate education to children with disabilities. The Court agrees. Deficiencies exist in all four areas of program support which prevents the provision of an appropriate education to children with disabilities.
The Board is responsible for developing policies concerning the content and direction of special education programs. In order to provide an appropriate education, local school systems must implement these policies. *143 However, Dr. Rostetter testified that local authorities do not follow state policy. For example, the state has created guidelines on providing transition services designed to enable children with disabilities to move successfully from school to the community. None of the school systems observed had transition plans for their children with disabilities. Further, in the 1991-1992 school year, the only identifiable money spent on transition programs was $103,566.72, which represented a portion of federal appropriations to 26 school systems for pilot transition programs. Clearly, the failure to provide adequate transition programs is a statewide problem.
One of the most important parts of any educational program is the quality of the teachers who staff it. The Court finds that local authorities are unable to provide the staff and program development needed to ensure even minimum standards in instruction for children with disabilities in Alabama. Dr. Wilson testified that the State Department of Education provides technical assistance to local school systems and offers special education training programs when possible. He also said that money often restricts the availability of these services to school systems. In the 1991 calendar year, state funds financed only one training program in special education. Few school systems have local funds available to provide in-service training to regular and special education teachers and support personnel. This failure adversely affects the education of children with disabilities. As an example, one special education teacher was not even aware of the need to integrate children with disabilities into regular classes and school buildings.
In the area of resource deficiencies, Dr. Rostetter testified that in addition to poorly trained teachers, the state of Alabama has a critical shortage of teachers and support staff. For the 1990-1991 school year, the state reported that it needed several hundred more teachers and related services personnel. Mr. Blackwell testified that some school systems cannot offer programs for children with certain disabilities because they do not have anyone trained or certified to teach in those special education areas. This lack of resources, both human and financial, results in an inappropriate education for many of the state's children with disabilities and contravenes the state's own plan for administration and operation of special education programs.
Dr. Rostetter also found deficiencies in the fourth component of program support: monitoring and evaluation. The state is required by state law and its own state plan to ensure that the local systems are providing an appropriate education to children with disabilities. To enforce compliance, the state department is required by law to withhold funds from school systems that are not in compliance. However, the state is reluctant to take away funds from local systems because lack of money is often already part of the reason school systems are not providing an appropriate education.
Dr. Rostetter testified that the absence of an effective monitoring system has resulted in an inability to identify, investigate, and resolve potential problems revealed during compliance reviews. For example, there are disparities in the number of children identified as disabled in some school systems. In predominantly black districts, 51.77 percent of the disabled population is identified as educable mentally retarded while in predominantly white school districts only 16.32 percent of disabled students are so identified. Conversely, in predominantly black school systems only 10.4 percent of disabled students are identified as learning disabled, while 42.9 percent of disabled students in predominantly white school systems are so identified. These differences in identification illustrate that the state has been unable to correct a problem that should be resolved through its monitoring and evaluation activities.
This Court finds that children with disabilities are not receiving the appropriate education and related services to which they are entitled by state law, regulations, and the state's plan for administration and operation of its special education program. Further, the Court finds that Alabama cannot at present offer an appropriate education to such children because of deficiencies in program support.
*144 In summary, the Court finds that the ACE, Harper and John Doe plaintiffs have proved the inequity and inadequacy of the Alabama public school systems. The Court now turns to the legal consequences of these findings.
Although he concedes the inequity and inadequacy of educational opportunity in Alabama's public schools to a large extent, Governor Hunt contends that this Court "is not the forum to solve the educational woes of this state." Hunt Post-Trial Brief at 2. A ruling in favor of plaintiffs, the Governor argues, "would constitute an encroachment upon the separation of powers doctrine" and invade the legislature's discretion in this area. Id.
This Court acknowledges the broad authority of the executive and legislative branches in the area of public education. However, it is black-letter law that such authority is bounded by the constitution, which is the fundamental and paramount law and represents the supreme will of the people. See Marbury v. Madison, 5 U.S. (Cranch) 137, 176-77 [2 L. Ed. 60] (1803); Gilbreath v. Wallace, 292 Ala. 267, 292 So. 2d 651, 655 (1974); State v. Skeggs, 154 Ala. 249, 46 So. 268, 270 (1908); Ballentyne v. Wickersham, 75 Ala. 533, 542 (1883). When, as in this case, constitutional rights are at issue, "[i]t is emphatically the province and duty of the judicial department to say what the law is," even though the judiciary may interpret the constitution "in a manner at variance with the construction given the document by another branch." See United States v. Nixon, 418 U.S. 683, 704 [94 S. Ct. 3090, 3105, 41 L. Ed. 2d 1039] (1974) (citing Marbury, 5 U.S. (Cranch) at 177 (emphasis added)). As the Alabama Supreme Court put it in an analogous case, "[w]e are not persuaded that the legislature has the unbridled authority to govern all aspects of our social and economic life. The legislative discretion is limited by the Constitution to the enactment of laws which do not deny to persons of this state the equal protection of the laws," Peddy v. Montgomery, 345 So. 2d 631, 636-37 (Ala.1977) or, this Court would add, any other constitutional right.
Courts in other states faced with education reform lawsuits have rejected separation of powers arguments similar to that offered here by Governor Hunt. The Kentucky Supreme Court said:
Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 209 (Ky.1989); see also Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71, 87 (1978) ("the judiciary has the ultimate power and the duty to interpret, construe and give meaning to words, sections and articles of the constitution"). The Court agrees with courts in sister states that it clearly has the authority and responsibility to rule on the constitutional questions before it. See Helena Elementary School District No. 1 v. State, 236 Mont. 44, 769 P.2d 684, 685 (1989); Dupree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90, 94 (1983); Robinson v. Cahill, 62 N.J. 473, 303 A.2d 273, cert. denied, 414 U.S. 976 [94 S. Ct. 292, 38 L. Ed. 2d 219] (1973); Serrano v. Priest, 5 Cal. 3d 584, 487 P.2d 1241, 96 Cal. Rptr. 601 (1971) (rejecting separation of powers objections in education reform litigation). This is particularly true when, as in the instant case, the evidence is clear that the legislative and executive branches have repeatedly failed to address the problems of which plaintiffs complain despite many opportunities to do so.
*145 Governor Hunt also maintains that if the Court decides in favor of plaintiffs, it would improperly interject itself into the affairs of coordinate branches by ordering tax increases and setting priorities for government spending. See Hunt Post-Trial Brief at 6. This misconstrues the judicial role. The Court neither taxes nor spends, but simply decides the case before it, declares constitutional rights and, where necessary, enjoins their violation, as it must in our constitutional system. Many (perhaps most) constitutional decisions in practice have budgetary implications, but the actual fiscal effects of such decisions are controlled not by the Court, but by policymakers, who establish budgetary and tax policy in the first instance, and who must reckon the potential cost of unconstitutional acts in that balance.
Almost 20 years ago, a court in Alabama rejected an argument by then-Governor George Wallace that was virtually identical to that raised by Governor Hunt here. Governor Wallace contended in 1974 that a federal court order entered by Judge Frank M. Johnson, Jr., requiring Alabama's mental institutions to provide minimum levels of psychiatric care and treatment to civilly committed patients would "require heavy expenditures of state funds; that these funds will have to come from other state programs; and that the duty of compromising and allocating funds among the many programs competing for them is a duty which must be discharged by the state governor and legislature alone." Wyatt v. Aderholt, 503 F.2d 1305, 1314 (5th Cir.1974). The Fifth Circuit Court of Appeals found this argument unpersuasive:
Id. at 1314-15. This Court, presented with a similar argument in the education context by an Alabama governor in 1992, agrees with the Fifth Circuit.
Governor Hunt's claim that the state of Alabama cannot afford to fund its schools adequately, see Hunt Post-Trial Brief at 5-7 (citing limited tax base and "impossible" state standards for adequacy), also offers no defense in this case. As noted supra, the evidence at trial concerning the state's overall low tax effort based on national standardsand Dr. Flynt's testimony that what the state does not pay for now in quality education, it pays for later in welfare, lost jobs, and prison costsdid not support this allegation. As Dr. Flynt indicated, the state's view of what it can afford to invest in the education of its children historically has changed according to shifting perceptions of educational need, even in the space of a few years. Certainly, the argument that Alabama is too poor to educate her children has been raised before; however, the prevailing view at the turn of the century, during debates surrounding the framing of the 1901 Constitution, was that the state is too poor not to invest adequately in public education.[37]
In any case, "[i]t is a fundamental principle of constitutional law that constitutional obligations cannot be avoided because of a lack of funding." McCarthy v. Manson, 554 F. Supp. 1275, 1304 (D.Conn.1982), aff'd, 714 F.2d 234 (2nd Cir.1983). As the Court put it in Wyatt:
Wyatt, 503 F.2d at 1315; see also Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 399 (2d Cir.1975); Rhem v. Malcolm, 507 F.2d 333, 341 (2d Cir.1974), aff'd, 527 F.2d 1041, 1043-44 (2d Cir.1975); Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir.1974); Pugh v. Locke, 406 F. Supp. 318, 330 (M.D.Ala.1976), aff'd, 559 F.2d 283, cert. denied, sub nom., Newman v. Alabama, 438 U.S. 915 [98 S. Ct. 3144, 57 L. Ed. 2d 1160] (1978); Hamilton v. Love, 328 F. Supp. 1182, 1194 (E.D.Ark.1971).
Neither does this Court view the possibility that school funds may be inefficiently or unproductively spent, which was raised by the testimony of Dr. Hanushek, as a valid defense to plaintiffs' constitutional claims. Governor Hunt's argument in this regard is tantamount to a contention that the state is not compelled to offer plaintiffs a constitutionally adequate and equitable education because it is no good at doing so, a position which this Court declines to endorse.
After addressing these preliminary matters, the Court turns now to plaintiffs' constitutional claims.
Plaintiffs argue first that the failure of the state's system of public schools to provide equitable and adequate educational opportunities to Alabama schoolchildren runs afoul of the state constitutional mandate found in Ala. Const. art. XIV, § 256, which provides: "The Legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years." The Court agrees.
In interpreting and applying § 256, this Court is guided by several broad principles of constitutional construction. "[A] constitution must be liberally construed, with the view of effectuating the intention of its framers; and ... the history of the times in which it was framed, the manner most efficient in securing its objects, and the restraints intended to be imposed and the privileges intended to be granted, must all be taken into consideration in giving a construction to these instruments." State v. Adams, 2 Stew. 231, 238-39 (Ala.1829). A more recent statement of this general standard confirms that "[i]n ascertaining the purpose and intent of [a] constitutional provision or statute, courts may look to [the] history of the times, [the] existing order of things, [the] state of [the] law when [the] instrument was adopted, and [the] conditions necessitating its adoption." Standard Oil Company v. State, 55 Ala.App. 103, 313 So. 2d 532, 537 cert. denied, 294 Ala. 770, 313 So. 2d 540 (1975).[38]
With these principles in mind, the Court first examines the question of whether § 256 guarantees to Alabama schoolchildren a constitutional right to an education in the terms provided therein.[39] This provision is clearly mandatory: "[t]he Legislature shall establish," the system of public schools. See Elsberry v. Seay, 83 Ala. 614, 3 So. 804, 805 (1888); see also State v. Tuscaloosa County, 233 Ala. 611, 172 So. 892, 893 (1937) (this section called a "mandate"); Schultes v. Eberly, 82 Ala. 242, 2 So. 345, 346 (1887) (1875 prototype of this section "commands," and "enjoins" a "duty"). The Court notes in particular here that the duty imposed is a state rather than a local duty, rendering defendant's argument that localities are responsible for inadequate or inequitable educational opportunities untenable as a matter of law. See Mobile, Ala.-Pensacola, Fla. Bldg. & C.T.C. v. Williams, 331 So. 2d 647, *147 649 (Ala.1976) (§ 256 "plac[ed] the primary responsibility for providing education upon the state government"); Williams v. State, 230 Ala. 395, 161 So. 507, 507-08 (1935) ("Every public school is a state school, created by the state, supported by the state, supervised by the state, through statewide and local agencies, taught by teachers licensed by the state, employed by agencies of the state."); see also Lee v. Macon County Board of Education, 267 F. Supp. 458, 466 (M.D.Ala.), aff'd, 389 U.S. 215 [88 S. Ct. 415, 19 L. Ed. 2d 422] (1967); State v. Tuscaloosa County, 233 Ala. 611, 172 So. 892, 894 (1937); Southern Railway Co. v. St. Clair County, 124 Ala. 491, 27 So. 23, 25-26 (1899).
Further, the obligation imposed upon the state is a current and continuing one, because the liberal system of public schools commanded in § 256 must not only be established and organized, but also "maintained." Ala. Const. art. XIV, § 256. This duty runs to a specific beneficiary: the statewide public school system mandated by § 256 is intended "for the benefit of the children thereof." Id.
Under these circumstances, there can be no question that Alabama schoolchildren have an enforceable constitutional right to an education as guaranteed by § 256.[40] This view is confirmed by the text of the 1956 constitutional amendment, recently struck down by this Court under the fourteenth amendment to the United States constitution, which read: "[N]othing in this Constitution shall be construed as creating any right to education at public expense." Ala. Const. amend. 111 (1956). As the Alabama Supreme Court explained, "Amendment 111 modified the original educational provision to eliminate any implication that there is a constitutional right to public education in Alabama." Mobile, Ala.-Pensacola, Fla., 331 So. 2d at 649.[41] This Court will not presume that the legislature and the people ratifying Amendment 111 did a futile act; clearly, they believed, and this Court agrees, that § 256 guaranteed Alabama schoolchildren a constitutional right to an education[42]a guarantee which is now in effect.
The parties, however, disagree over the content of this constitutional right. Governor Hunt argues that the right guaranteed is merely one "to attend free public schools." See Hunt Post-Trial Brief at 19. According to the Governor, § 256 requires "only that... school[s] will be open to common and general use and `liberally maintained' by the Legislature, which retains great discretion in achieving these goals." See Hunt Post-Trial Reply Brief at 9. "The adjective `liberal,'" the Governor says, "is simply an exhortatory word that conveys the wishes, not the dictates, of our Constitution's framers." See Hunt Post-Trial Brief at 28. "[O]ur constitution merely requires the maintenance of a public school system, with no qualitative standards of adequacy nor any financial duty regarding education." Id.
Plaintiffs argue, for their part, that § 256's mandate that the legislature "shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof," Ala. Const. art. XIV, § 256, is not, as the Governor would have it, devoid of substantive or normative content. Instead, plaintiffs maintain, § 256 guarantees Alabama schoolchildren a right not just to attend any kind or quality of school that their government happens to provide but, instead, a right to go to a school which offers them equitable and adequate educational opportunities. Again, the Court agrees with plaintiffs for the reasons set out below.
*148 As discussed supra, "`[t]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute." John Deere Co. v. Gamble, 523 So. 2d 95, 99 (Ala.1988) (citation omitted). This is equally true for constitutional interpretation. Hunt v. Hubbert, 588 So. 2d 848, 862 (Ala.1991) (Houston, J., concurring in the result). The first step that this Court must take in construing § 256 is to examine the text itself. See John Deere Co., 523 So. 2d at 99-100 ("`If possible, the intent of the legislature should be gathered from the language of the statute itself.'") (citations omitted). In this regard, "[w]ords or terms used [in the constitution] must be given their ordinary meaning common to the understanding at the time of its adoption by the people." McGee v. Borom, 341 So. 2d 141, 143 (Ala.1976).
The first matter for inquiry here is whether the language of § 256 supports plaintiffs' contention that the intent of its framers was to provide equal educational opportunities to Alabama schoolchildren.
The Court holds that several critical words and phrases in the text of § 256 justify this view. For example, the fact that public schools are to be provided "throughout the state for the benefit of the children thereof" suggests that not just some, but all children are meant to enjoy the advantages offered by these schools. But, most important for our purposes is the phrase "system of public schools," which the legislature is directed to establish, organize and maintain. What, precisely, is meant by a "system of public schools"? Dr. Alexander, a professor of education who has extensively investigated the history of public or common schools in the United States, has written that "[t]he spirit of public schools is that they be `free' and `equal'." Alexander, The Common School Ideal and the Limits of Legislative Authority: The Kentucky Case, 28 Harvard Journal on Legislation 341, 357 (Summer 1991) (citations omitted). This view of public schools is confirmed by a 1938 American Law Reports (A.L.R.) annotation under the title, "What is common or public school within contemplation of constitutional or statutory provisions[?]," which concluded that "[t]he terms `public schools' and `common schools' have in various cases been regarded, broadly speaking, as meaning schools which are free and open to all on equal terms," citing, inter alia, cases in Arkansas, Kentucky, Maryland, Mississippi, Missouri, Montana, New York, Oklahoma, South Carolina, Virginia and Washington. See 113 A.L.R. 697, 698-99 (1938) (emphasis added).
This understanding of the meaning of a system of public schools finds ample support in Alabama. Dr. Harvey testified that Alabama's first state-wide system of public schools, established in 1854, at the outset declared its intent "to extend, upon equal terms, to all the children of our State, the inestimable blessings of liberal instruction." 1853-54 Ala. Acts 6 at 8 (emphasis added). Further, prominent among the cases abstracted in the A.L.R. annotation is Elsberry v. Seay, 83 Ala. 614, 3 So. 804 (1887), which specifically construed the meaning of the system of public schools guaranteed by the prototype of § 256, appearing in the 1875 Alabama constitution, as follows:[43]
Id., 3 So. at 806-07 (emphases added).
Three years after the Elsberry case was decided, in 1890, State Superintendent of Schools Solomon Palmer wrote, in an essay addressing "The Legal Status of the Public Schools," that:
Palmer, "The Legal Status of the Public Schools," Thirty-sixth Annual Report of the Superintendent of Education of the State of Alabama (1890) (hereinafter, Palmer Report) append. H at xcv (emphasis added).
Thus, under the 1875 constitution, there is little doubt that the "system of public schools" there mandated was intended to provide equal educational opportunity. Did the "defined popular signification" of these terms, Elsberry, 3 So. at 805, change in the 11 years between the time of Superintendent Palmer's report and the 1901 constitutional convention? The Governor offered no direct historical evidence that it did so, and the framers certainly retained the phrase "system of public schools" intact in § 256 of the 1901 constitution.[44] However, Governor Hunt contends that because the framers struck the word "equal" as a modifier for "benefit" from the education clause in 1901, it cannot be argued that § 256 was intended to provide the equality of educational opportunity for which plaintiffs sue.[45]
Section 256, on its face, offers no explanation of the significance of this change. In *150 such a case, "[t]he proceedings of constitutional conventions are valuable in determining the meaning and purpose of constitutional provisions." Hunt, 588 So. 2d at 854. It is evident from these proceedings, as plaintiffs and defendant essentially agree, that "equal" was stricken from the constitution for racial reasons, apparently to avoid any explicit requirement for equal treatment of the races other than for school terms of equal duration.[46] However, if this deletion were intended to discontinue equal educational opportunity for whites, or otherwise to alter the common understanding of the equitable operation of a system of public schools, it is not apparent from the constitutional proceedings.[47]
Instead, President Knox's opening address called for a system of public schools that would place an adequate education "within the reach of every child of the state, both rich and poor." Official Proceedings at 15. Perhaps most telling, even as he introduced the Education Committee's proposed education article, from which "equal" had been excised, John Brown Graham, the chair of that committee, summarized the consensus of the convention in the strongest possible terms:
Id. at 4162-63.
Further, subsequent to the ratification of the 1901 constitution and § 256, the Alabama Supreme Court in In re Opinions of the Justices, 229 Ala. 98, 155 So. 699 (1934), held that the same egalitarian definition given by the Ellsberry Court to the constitutional system of public schools in 1875 applies to § 256 of the 1901 constitution, which the Court construes today:
Id. 155 So. at 701 (emphasis added).
Governor Hunt argues that In re Opinions of the Justices is not authority for plaintiffs' claims because opinions of this kind are advisory only; further, he says, the "essential features" of the education clause did change with the striking of the modifier "equal" from the text, so as to render the Court's previous definition of public schools inapplicable. See Hunt Post-Trial Reply Brief at 7-8. As to the former argument, this Court is, of course, aware that opinions of the justices are non-binding. Alabama Education Association v. James, 373 So. 2d 1076, 1081 (Ala.1979). However, the constitutional interpretation offered by a unanimous Supreme Court some 34 years closer than we to the constitution at issue is highly persuasive. Further, the same Supreme Court in Tucker v. State ex *151 rel. Poole, 231 Ala. 350, 165 So. 249 (1935), reaffirmed in a non-advisory opinion that the system of public schools mandated by § 256 must operate in favor of all children equally. Id. at 356 [165 So. 249].
As to the latter argument that the "essential features" of the education clause changed when "equal" was excised, the Opinions and Tucker Court, which itself set this test, appeared in construing § 256 as a guarantee of equal opportunity to believe to the contrarythat the deletion of "equal" did not at all change the essential features of that clause, a point much to plaintiffs' benefit. Furthermore, even if these essential features were not preserved, "it seem[ed] clear to [the Court] as an independent proposition that the public schools [were] thus correctly defined." Opinions, 155 So. at 701 (emphasis added).
The facts adduced by plaintiffs at trial many of which were, again, undisputed or even affirmatively admitted by defendant demonstrate profound and systematic inequities in the educational opportunities offered to schoolchildren in this state. The present system of public schools cannot be said to offer education to Alabama schoolchildren on equal terms or with equal benefit, or "to operate upon, and in favor of, all children equally, without special local privileges to any." Opinions, 155 So. at 701 (citing Schultes v. Eberly, 82 Ala. 242, 2 So. 345 (1887)). Educational opportunities in this state do not "fall, as the dews and gentle rain, upon all alike, without reference to their condition." Official Proceedings at 4162-63. Accordingly, the Court holds that Alabama's present system of public schools violates the constitutional right of plaintiffs to equal educational opportunity as guaranteed by Ala. Const. art. XIV, § 256.
Plaintiffs raise a related, but distinct, claim that they have the right to an adequate education under the Alabama constitution. It would, of course, be possible for the state to offer plaintiffs equal educational opportunity but still offer them virtually no opportunity at all. The question, thus, is whether the right to a public education guaranteed by Section 256 has any substantive content aside from any requirement of equality. The Court holds that such content is fairly inferred from this provision.
Education has long held a special place in Alabama's constitutional order. Every constitution since statehood has recognized the importance of public education and expressly imposed responsibility on the state to take affirmative steps to provide education to Alabama's children. Each of the six Alabama constitutions since 1819 has contained express provisions relating to education, and with each new constitution Alabama's stated commitment to education has become stronger.
The Constitution of 1819, Alabama's first constitution after statehood, declared in Article VI: "Schools, and the means of education, shall forever be encouraged in this state." Ala. Const. of 1819, art. VI. This education clause further provided that:
Id. Article VI of the 1861 constitution was identical to this provision. With these provisions, both the 1819 constitution and the 1861 Constitution acknowledged the importance of education and imposed a strict duty on the legislature to see that funds raised from federal lands granted for the use of schools (one sixteenth of each township was so designated) were applied in conformity with this purpose.
Beginning with the 1865 Constitution, the state was expressly directed to enact laws for the encouragement of education and the promotion of schools. The 1868 Constitution created a state board of education, and in Article XI, § 6 imposed a duty on the state:
Ala. Const. of 1868, art. XI, § 6. In addition, one-fifth of total state revenues were dedicated exclusively to the maintenance of public schools. Ala. Const. of 1868, art. XI, § 11.
The 1875 constitution continued to impose upon the state an obligation to provide Alabama's schoolchildren with a public education. For the first time, the constitution spoke of the obligation to organize a "system" of public schools:
Ala. Const. of 1875, art. XIII, § 1. In addition to the funds derived from federal land grants and certain other earmarked revenues, the 1875 constitution mandated an annual legislative appropriation of $100,000 for the support and maintenance of public schools and further provided that "it shall be the duty of the General Assembly to increase, from time to time, the public school fund, as the condition of the treasury and the resources of the state will admit." Ala. Const. of 1875, art. XIII, § 5.
The drafters of the 1875 Constitution promoted public education as one of the highest duties of government. The President of the Constitutional Convention opened the proceedings by stating: "Republican institutions rest upon the common intelligence of the people; therefore, one of the highest duties of Republican Government is the education of the massesfor there can be no progress without education as there is no civilization without intelligence." Journal of the Constitutional Convention of 1875 at 5-6. Writing in the years after the adoption of the 1875 Constitution, Superintendent of Education Solomon Parker wrote that the demand for free public schools sustained and controlled by the state was
Palmer Report.
The 1901 Constitution continued and broadened the state's responsibility for assuring Alabama schoolchildren the right to an education at public expense. This constitution declared that it was the obligation of the state to "establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years." Ala. Const. art. xiv, § 256. And it strengthened the language of the education article of the 1875 constitution to read, in part: "[I]t shall be the duty of the legislature to increase the public school fund from time to time as the necessity therefor and the condition of the treasury and resources of the state may justify...." Id., § 260.
The history of the 1901 constitution makes clear the framers' strong commitment to education. President Knox declared in his opening statement the importance of "a well regulated system of public schools, so as to place within the reach of every child in the state.... such instruction as will qualify him for the responsible duties of life." Official Proceedings at 15. Dr. Harvey provided additional evidence at trial that the framers were firmly committed to the education of Alabama's schoolchildren.
The framers' firm commitment to education is reflected in the strong language that they employed in the education clause of the 1901 constitution. Section 256, the education provision now in effect, directs that the state's system of public schools must be a "liberal system." Ala. Const. art. XIV, § 256. The Court accepts as the prevailing interpretation of "liberal" at the time of the framing of the 1901 constitution that offered by Dr. Harvey and Dr. Flynt at trial as historically correct: "generous," "bountiful," and "broad-based" in the sense of preparing one for future citizenship. See Vincent v. County Board of Education, 222 Ala. 216, 131 So. 893, 894 (1931) ("Liberal ... [a]s applied to the public school system ... intends *153 a system as generous and bountiful as a just consideration of the limited power of taxation and the varied needs of the state will in reason justify.") (emphasis added). This Court finds that the "ordinary meaning" of these words, "common to the understanding at the time of its adoption by the people," McGee, 341 So. 2d at 143, is a system of public schools that is generous and broad-based in its provision of educational opportunity and that meets evolving standards of educational adequacy.
American statesmen and political theorists have long used the word "liberal" to connote an education that is broad and generous in its provision. For example, John Adams, our second President and a thoughful commentator on the nation's government and institutions, declared that "laws for the liberal education of youth, especially of the lower classes of people, are so extremely wise and useful, that no expense for such a humane purpose would be extravagant." Palmer Report at xcvi.
Thomas Jefferson, in Public and Private Papers, A Bill for the More General Diffusion of Knowledge, Section I (Vintage 1990) at 39, cited illumination of the minds of the people as "the most effectual means" of preventing tyranny; the representatives who make and administer laws, he said, "should be rendered by liberal education worthy to receive and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and ... they should be called to that charge without regard to wealth, birth or other accidental condition or circumstance." Id. Here in Alabama, the preamble to the 1854 Act to Establish and Maintain a System of Free Public Schools in Alabama stated that one of its purposes was to extend to all the children of the state "the inestimable blessings of liberal instruction." 1853-54 Ala. Acts 6 (emphasis added).
The history of the 1901 constitution supports plaintiffs' contention that a "liberal system" of education is a generous one. As sentiment in Alabama grew for calling what became the 1901 constitutional convention, State Superintendent of Education John O. Turner urged that provision of a liberal education be foremost in any new constitution:
Superintendent John O. Turner, "Speech Before the Southern Education Association," Annual Session 1896 Mobile, Alabama, December 30, 1896 (hereafter, Turner Speech) (emphasis added).
Governor Joseph F. Johnston's message to the General Assembly on December 1, 1896, addressing the need for a new state constitution, also emphasized the importance of a renewed and strengthened state commitment to public education. Speaking not long before the constitutional convention was held that produced the current Alabama constitution, Governor Johnston remarked:
Printed with Turner Speech at 23.
In addition to the word "liberal," it is significant that Section 256 mandates not only the "establishment," but also the "organization" *154 and "maintenance" of a "system" of public schools "throughout the state." By imposing upon the state a duty to organize and maintain a system of education, § 256 also implies a continuing obligation to ensure compliance with evolving educational standards. Section 256's requirement that the system operate "for the benefit" of school-age children likewise obligates the state to provide its children with an education that will in fact benefit them by offering them appropriate preparation for the responsible duties of life.
The Alabama courts have long emphasized that the Alabama constitution is to be given a broad and generous reading. The Alabama Supreme Court has stated that unlike statutes, "[c]onstitutions are always intended to lay down general principles." State v. Adams, 2 Stew. at 238. As the Adams Court stated:
Id. at 238-39.
In the instant case, the factors that must guide this Court in the construction of § 256 all point to the same conclusion. This Court finds that the state of Alabama has a strong historical commitment to education that it has expressed with increasing force in each of its six constitutions. And this Court finds that § 256 of the 1901 constitution, in its requirement that the state "establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof," requires the state to provide schoolchildren with an education that "will qualify [them] for the responsible duties of life." Official Proceedings at 15. A system of public schools that provides all children with a minimally adequate education is the only kind of system that conforms with a liberal reading of the constitutional text, comports with the intent of the provision's framers, and grants the intended beneficiaries of this provision "the privileges intended to be granted."
Governor Hunt suggests that the right to education contained in the constitution is a weak one that is almost devoid of substantive content. This Court finds that this view is not supported by the text and history of § 256. To the contrary, the Court finds that the Alabama constitution's education guarantee is one that accords schoolchildren of the state the right to a quality education that is generous in its provision and that meets minimum standards of adequacy.[48]
In reaching the decision that it does today, this Court is mindful that courts in numerous other states have found that their own state constitutions contain substantive rights to education. See, e.g., Rose, 790 S.W.2d at 210; Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979); Seattle School District No. 1 v. State, 90 Wash. 2d 476, 585 P.2d 71 (1978); Abbot v. Burke, 119 N.J. 287, 575 A.2d 359 (1990). Opinions such as these are of course not binding upon Alabama courts, but other courts' interpretations of their respective state constitutions can provide useful guidance to the courts of this state. As the Kentucky Supreme Court has noted, opinions of this kind "show that courts may, should, and have involved themselves in defining the *155 standards of a constitutionally mandated educational system." Rose, 790 S.W.2d at 210.
In Seattle School District No. 1, the Washington Supreme Court approved the trial court's conclusion that "ample" in the education clause of the state's constitution means "liberal, unrestrained, without parsimony, fully sufficient," and noted that what is "ample" changes with the times:
Seattle School District No. 1, 585 P.2d at 94.
In Abbott v. Burke, 119 N.J. 287, 575 A.2d 359, 410 (1990), the New Jersey Supreme Court defined a constitutionally sufficient education under its state constitution's education clause as "one that will equip all the students of this state to perform their roles as citizens and competitors in the same society."
In Rose, the Kentucky Supreme Court considered other state court decisions such as Pauley v. Kelly, along with Kentucky constitutional history and case law and opinions of experts, and concluded that the Kentucky constitution mandated that the state provide schoolchildren with an adequate education. See Rose, 790 S.W.2d at 212. The West Virginia Court defined the education required by its state constitution's education clause as one that: "develops, as best the state of educational expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically." Pauley, 255 S.E.2d at 877. The Rose Court defined an adequate education as one that has as its goal the development of the following seven capacities:
Rose, 790 S.W.2d at 212.
The Court, after careful consideration of the text, history, and purpose of § 256, and the expert evidence and the record in this case, concludes that § 256's mandate of a "liberal system of public schools" dictates certain standards of adequacy for Alabama schools, as set forth in the Court's order.
Plaintiffs in this case have presented a stark record of educational deficiencies in schools across Alabama. They have shown serious shortcomings in facilities, curriculum, staffing, supplies, textbooks, transportation, special education, and other areas. They contend that the education that they are being provided by the state of Alabama deprives them of adequate educational opportunity and does not comport with the substantive requirements of a "liberal system" of education. For the foregoing reasons, this Court agrees that the education provided to plaintiffs is not adequate to meet the requirements imposed upon the state by § 256 and is therefore not in conformity with the Alabama constitution.
Plaintiffs contend that the state's failure to provide public schoolchildren with equal educational opportunity violates not only § 256, but also §§ 1, 6, and 22 of the Alabama constitution. "Sections 1, 6, and 22 of Article I, Constitution of Alabama 1901, combine to guarantee the citizens of Alabama equal protection under the laws." Plitt v. Griggs, 585 So. 2d 1317, 1325 (Ala.1991); see also Moore v. Mobile Infirmary Association, 592 So. 2d 156, 165 (Ala.1991).
In order to analyze an equal protection claim, the Court first must determine the level of scrutiny that it should apply to the differential treatment at issue under the Alabama constitution. Federal equal protection jurisprudence traditionally employs three tiers of scrutiny (sometimes referred to as strict, intermediate, and deferential or rational basis review) depending upon the character of the rights at stake, the individuals disadvantaged, and the reasons asserted for the differential treatment. Although in certain fact situations, the Alabama Supreme Court has found no reason that its analysis of the equal protection issues under the United States constitution was not equally applicable to those same issues under the Alabama constitution, Jefferson County v. Braswell, 407 So. 2d 115, 119 (Ala.1981), the Court has plainly stated that it does not view cases interpreting the federal constitution as controlling or compelling the results it reaches under analogous clauses of the Alabama constitution. See, e.g., Peddy v. Montgomery, 345 So. 2d 631 (Ala.1977).
As a plurality of the Alabama Supreme Court recently indicated, "[s]tate courts, in determining the scope of rights guaranteed by their own constitutions, are not compelled exactly to correlate their standards of review to the `three-tiered scrutiny' employed by the federal courts and may, in fact, provide more protection for private rights than the United States Constitution requires." Moore, 592 So. 2d at 170.[49] In Moore, the Court struck down a statutory cap on punitive damages as an impermissible infringement on the right to trial by jury, determining that this exercise of legislative power was unreasonable. The test of reasonableness applied by the Court was whether the differential treatment at issue is "reasonably related to the stated objective, and ... the benefit sought to be bestowed upon society outweighs the detriment to private rights occasioned by the statute." Id. at 166. The plurality did not "find it necessary or useful to identify precisely which of the two lower levels of federal scrutiny [this] standard of review corresponds with." Id. at 170. However, this standard does appear to be something more searching than federal "minimum scrutiny"; the opinion itself suggested that the Court's review was "heightened" and that the Court acted with "vigilance on behalf of individuals encroached upon by government regulation." Id. (quoting Mt. Royal Towers, Inc. v. Alabama Board of Health, 388 So. 2d 1209, 1214 (Ala.1980)) (emphasis added).
In any event, this Court holds that the Alabama system of public schools fails to provide plaintiffs the equal protection of the laws under any standard of equal protection review. For the reasons set out below, the Court holds that plaintiffs are entitled to strict scrutiny of the differential treatment at issue here. The Court also reviews the challenged inequalities under the more deferential standard of mere rationality. In each instance, the result is the same: the present system of public schools in Alabama cannot survive equal protection scrutiny.
Plaintiffs argue that education is a fundamental right under the Alabama constitution and, therefore, that rigorous or strict scrutiny is appropriate. To this Court's knowledge, the Alabama Supreme Court has not explicitly set out the criteria by which courts should determine whether a right is fundamental for purposes of equal protection review under the Alabama constitution. Some state courts that have held education to be a *157 fundamental right under their constitutions have done so based on the emphasis placed within those documents on the state's mandatory duty to educate its children. See Washakie County School Dist. Number One v. Herschler, 606 P.2d 310, 333 (Wyo.), cert. denied, 449 U.S. 824 [101 S. Ct. 86, 66 L. Ed. 2d 28] (1980) ("In the light of the emphasis which the Wyoming Constitution places on education, there is no room for any conclusion but that education for the children of Wyoming is a matter of fundamental interest."; Pauley, 255 S.E.2d at 878 ("the mandatory requirement of `a thorough and efficient system of free schools' ... demonstrates that education is a fundamental constitutional right in this state.") Other courts have looked, in addition, beyond the four corners of their constitutions to such matters as the "fundamental importance placed on education by the founders of our state," Serrano II, [18 Cal. 3d 728] 557 P.2d at 950 [135 Cal. Rptr. at 365], the view that education is one of the "rights and liberties which lie at the core of our free and representative form of government," id. [557 P.2d] at 952 [135 Cal. Rptr. at 368] and n. 48, and the historical significance and legal status of education as a "basic and fundamental" state institution, see Horton v. Meskill, 172 Conn. 615, 376 A.2d 359, 373 (1977).
Given the history and text of Alabama's education article, the Court determines that the right to education in Alabama is fundamental under any of these criteria. This right is at least implicitly guaranteedand, at one point in our constitutional history, was explicitly taken awayby the state constitution[50] itself. See Ala. Const. art. XIV, § 256; id., amend. 111.[51] Governor Hunt warns, however, that if the question of whether a right is fundamental turns on its explicit or implicit guarantee in the constitution, this test may sweep too broadly.[52] The Court is not entirely persuaded by this "floodgates" argument; it does not perceive, within the Alabama constitution, a great many rights so positively, clearly, and emphatically guaranteed as to give rise to colorable claims that these are fundamental. However, assuming that an explicit or implicit constitutional guarantee is a necessary, but not sufficient, characteristic of a fundamental right, the Court finds ample additional evidence of the fundamental character of the right to education in the constitution, laws, history, and practice of the state of Alabama.
The 1901 constitution devotes an entire article to public education, and the school laws occupy more than 700 pages of the Code of Alabama. See Laws of Alabama Relating to Education, State Department of Education (1988). The point here, of course, is not the gross number of pages dedicated to schools, but the centrality of public education to the enterprise of the state in Alabama. The preeminence of education is reflected in the state's annual budget, the largest share of which is appropriated for the maintenance of the public schools, and the vast body of state employees at work at this task. "Without question, public education through a system of public schools is, by the Constitution, as well as by statutes, a government function in Alabama; indeed a major activity of state government." Williams, 161 So. at 507 (emphasis added).[53]See also Brown v. Board of *158 Education, 347 U.S. 483, 493 [74 S. Ct. 686, 691, 98 L. Ed. 873] (1954) ("Today, education is perhaps the most important function of state and local governments.") (emphasis added).
As discussed supra, the fundamental character of education in this state has been a prominent theme in all of Alabama's constitutions. See Ala. Const. of 1819, art. VI ("Schools, and the means of education, shall forever be encouraged in this state...."); Ala. Const. of 1861, art. VI (same); Ala. Const. of 1865, art. XI, § 6 (state duty to establish free public schools). The President of the 1875 constitutional convention described education as one of the highest duties of Republican Government. Journal of the Constitutional Convention of 1875 at 5-6. Of the 1875 education clause, State Superintendent of Education John M. McKleroy said: "The principle of the power and propriety of a State to maintain a system of free public education has been affirmed in unmistakable terms by the people of this State, and they have implanted it in the constitution made by themselves, and in the same instrument they have made liberal provisions for its support, thus guaranteeing its permanency and usefulness." S.B. Weeks, History of Public School Education in Alabama at 113 (1915); see also, Palmer Report at xcvi (demand for free public schools so great that their "establishment and maintenance are solemnly enjoined in the fundamental law of the State.")
When concerns again developed about inadequate funding of schools in the years following 1875, many state leaders perceived the need for further constitutional attention to education. See Official Proceedings at 15 ("Nothing has so retarded the rapid growth and development of our State as the absence of a well regulated system of public schools, so as to place within the reach of every child in the State, both rich and poor, the means of obtaining free of tuition fees, such instruction as will qualify him for the responsible duties of life.") (Opening Statement of President John B. Knox). Thus, the task of putting public education on a sound financial and constitutional footing was foremost in the minds of the framers of the 1901 constitution. As delegate William A. Handley put it, "if everything else were to fail, it is the duty of this Convention to take care of the educational interests of the State of Alabama at all hazards." Official Proceedings at 15.
In 1854, when the legislature first established Alabama's statewide system of public schools, see 1853-54 Ala.Acts, No. 6 at pp. 8-18, the committee report accompanying this legislation pronounced that "[t]here can be no doubt that it is the unquestionable right, the highest interest, and the most imperative duty of the State to educate her children." See S.B. Weeks, History of Public School Education in Alabama at 60 (1915) (emphasis added). The legislature in modern times has declared: "Education is fundamental to the development and progress of Alabama and its citizens." Ala.Code § 16-13-61 (emphasis added).[54] Indeed, the legislature in this state has deemed education of such consequence that it has made school attendance compulsory, requiring the sacrifice of individual liberty. Ala.Code § 16-28-1 to 16-28-24.
Public education is the state's chief instrument for stimulating economic growth, fostering civic responsibility, exposing the citizenry to social values, preparing students for professional training, and protecting our democratic form of government. The United States Supreme Court, in Plyler v. Doe, 457 U.S. 202 [102 S. Ct. 2382, 72 L. Ed. 2d 786] (1982), summarized the crucial significance of public schools, citing "the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of a child."
Id. at 221 [102 S. Ct. at 2397] (citations omitted). These statements clearly hold true in Alabama.
For the foregoing reasons, the Court concludes that education is a fundamental right under the Alabama constitution. Defendant contends, however, that the Supreme Court's holding in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 [93 S. Ct. 1278, 36 L. Ed. 2d 16] (1973), that education is not a fundamental right under the federal constitution should control this Court's decision. "While, of course, the decisions of the Supreme Court are justly entitled to great weight, they cannot exert any controlling influence upon the courts of the several states when those courts are proceeding according to their own practice, and within the constitutional limits of their own State Constitution; no federal question being involved." Kraas v. American Bakeries Co., 231 Ala. 278, 164 So. 565, 569 (1935). The question for this Court, self-evidently, is not whether education is a fundamental right under the federal constitution; the question is, instead, the nature of the right to education under the constitution of Alabama.[56] Thus, Rodriguez does not control.
Because education is a fundamental right under the Alabama constitution, the stark inequities in educational opportunity offered schoolchildren in this state must be justified under strict scrutiny by a compelling state interest to pass constitutional muster. While Governor Hunt contends in his briefs that the state's interest in local control justifies the differential treatment complained of by plaintiffs, he does not argue that local control represents a compelling state interest, only a "legitimate state purpose" under rationality review. See Hunt Post-Trial Brief at 17. Nor, for the reasons cited below, does the state's interest in local control satisfy this extremely rigorous standard.[57]
*160 Indeed, the Court cannot conclude that the differential treatment at issue here is rationally related to a legitimate state interest under the least searching tier of equal protection analysis, the rationality standard. See Plitt, 585 So. 2d at 1324. As described by the plurality in Moore, the question here is "whether the connection between the benefit sought to be conferred on society and the means employed to accomplish it, when weighed against the inequities created by the statute's classifications, is so attenuated and remote as to constitute an unreasonable exercise of the police power." Moore, 592 So. 2d at 167. As discussed supra, the interest in local control asserted by the Governorthat is, local autonomy to secure the level of education that citizens desire for the children in their districtsis actually defeated, rather than promoted, in many poorer school systems in Alabama by differentials in school funding. These systems cannot be said to exercise meaningful choice about the kind of education they desire or dream about for their children; they face, instead, a daily Hobson's choice whether, for example, to do without library books or to leave the roof unmended in order to meet the budget. See Horton, 376 A.2d at 373 (the option of local control "to a town which lacks the resources to implement the higher quality educational program which it desires and which is available to property richer towns is highly illusory."); see also Serrano II, [18 Cal. 3d 728] 557 P.2d at 953 [135 Cal. Rptr. at 368]. "The poor district cannot freely choose to tax itself into an excellence which its tax rolls cannot provide. Far from being necessary to promote local fiscal choice, the present system actually deprives less wealthy districts of that option.").[58]
Thus, the Court holds that the differential treatment in question cannot be sustained under the rational relationship test as a permissible, or even effective, means of promoting local control. Further, the Court cannot conceive any rational justification, educational or otherwise, for school funding and educational opportunity to depend upon the happenstance of local wealth and of students' places of residence.[59]See Horton, 376 A.2d at 373 ("With justification, the trial court found merit to the complaints of plaintiffs about `the sheer irrationality' of the state's system of financing education in the state on the basis of property values, noting that their argument "would be similar and no less tenable should the state make education expenditures dependent upon some other irrelevant factor, such as the number of telephone poles in the district.") (citation omitted). Finally, in this regard, the Court also cannot sustain a school finance system that all parties agree is irrational in the details of its actual operation.[60] This is particularly true where, as here, the state's countervailing interest in providing all its citizens with a quality education *161 is so compelling. See Johnston, Turner speech at 23 (the state `has a vital interest in each citizen, in his morality, his intelligence and his capacities[;] as the average intelligence rises, the value of citizenship increases.")
Accordingly, the Court holds that no matter what standard of equal protection review is employed, the present system of public schools in Alabama violates the constitution of Alabama, article I, §§ 1, 6, and 22.
Plaintiffs have also raised, but not argued, a claim that disparities in educational opportunity in Alabama's system of public schools violate the equal protection clause of the federal constitution. Because the Court holds that such disparities are impermissible under the Alabama constitution, and because plaintiffs have not argued this claim, the Court does not reach this issue.
In addition to their adequacy claim under Section 256 of the Alabama constitution, plaintiffs maintain that Alabama's public school system violates their right to an adequate education under the due process guarantees of Art. I, §§ 6 and 13 of the Alabama constitution and the due process clause of the fourteenth amendment of the U.S. Constitution. It is well-established that the Alabama constitution protects the right of Alabama citizens to due process, apart from any protection they may have under the federal constitution. See, e.g., McCollum v. Birmingham Post Co., 259 Ala. 88, 65 So. 2d 689, 695 (1953) (Alabama constitution due process provision "secures every citizen against arbitrary action of those in authority and places him (or her) within the protection of the law of the land.")[61] It is well-settled in this state that when the state deprives citizens of liberty for the purpose of benefiting them with a service, due process requires that the service be provided to them in an adequate form. See Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala.1971), aff'd in part and reversed in part, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974). In Wyatt, the courts recognized that due process requires that patients hospitalized in Alabama's mental institutions be given adequate treatment in exchange for the liberty that they give up when they are institutionalized. Id.
The state of Alabama deprives students of their liberty by requiring them to attend school under penalty of law. Governor Hunt has conceded that compulsory education places a limitation on individuals' liberty. See Hunt Deposition at 102. Just as providing treatment is the purpose of committing persons to mental hospitals, the purpose of depriving students of their liberty by mandating school attendance is to educate them. See, e.g., Ogle v. Ogle, 275 Ala. 483, 156 So. 2d 345 (1963).[62] It would be a tragic mistake to deny that Alabama's schoolchildren have the same type of right to services adequate to meet the purposes of their confinement that Wyatt held mentally ill and mentally retarded persons are entitled to by due process.[63] Governor Hunt acknowledged in deposition testimony, and the Court agrees, that compulsory attendance places a limitation on individuals' liberty and thus, as a matter of fairness, the state ought to have to provide *162 an adequate education. See Hunt Deposition at 102.
Plaintiffs have made a clear showing in this case that the education that they are receiving is not adequate; it falls short in facilities, staff, curriculum, textbooks, supplies, special education, and other areas. Just as a course of treatment that falls short of adequacy fails to justify state deprivation of the liberty of the mentally ill, the inadequate education that plaintiffs are receiving does not justify the deprivation of their liberty. If the state is to continue to make education compulsory and, thereby, to deprive children of their liberty, due process requires that those children be accorded an adequate education.
In addition, Alabama schoolchildren have a due process property interest or entitlement with respect to public education under Alabama law. See Smith v. Dallas County, 480 F. Supp. 1324, 1337 (S.D.Ala.1979). As the Fifth Circuit explained in Debra P. v. Turlington, 644 F.2d 397, 404 (5th Cir.1981), once a state establishes a system of education and requires school attendance, an "understanding" is created between the state and the student "that secures certain benefits and that supports claims of entitlement to those benefits." Id. at 404.[64] The contours of plaintiffs' due process property interest in this case are evidenced in state law in terms of the standards or requirements set forth by the Alabama constitution and state laws and regulations governing public education. Again, the Court agrees that plaintiffs have shown that in many cases they are being deprived of an education that even comes close to meeting these standards or requirements.
Governor Hunt argues that plaintiffs are not being deprived of a due process property interest because the Alabama constitution "grants only the right to attend a free public school." Hunt Post-Trial Brief at 19. But the Court is convinced that the text of the constitutional right guaranteed by the Alabama constitution's education clause and its history refute this narrow interpretation and that Alabama laws and regulations governing public education likewise support a broader entitlement to public education. Section 256 mandates a "liberal system of education," one that is generous and bountiful in its provision of educational opportunity; the right that is protected is to an adequate educationnot merely a right to "attend a free public school." Plaintiffs have established that many Alabama schoolchildren are deprived of their state law entitlement to public education arbitrarily and without any constitutionally sufficient justification in violation of due process.
With regard to the Doe plaintiffs' claims, the Court emphasizes that schoolchildren with disabilities have the same constitutional right to an equitable and adequate education as all other schoolchildren in Alabama. In addition, however, the sub-class represented by John Doe asserted two additional claims unique to children with disabilities: (1) that children with disabilities are deprived of their statutory right under Ala.Code §§ 16-39-3 and 16-39A-2 to an appropriate education and special services, and (2) that the Alabama system of funding for special education is irrational and violates the due process clause of the Alabama constitution. As discussed below, the Court rules in favor of the Doe plaintiffs on both claims.
The sub-class argues that Alabama law[65] entitles children with disabilities to an appropriate education. Since this is a case of first impression, the Court must decide if the statute obligates the state to educate children in special education programs appropriately. As noted earlier, the focus of the *163 Court's examination must be on the intent of the legislature. The first step is to look at the text of the statutes.
The statutes require that: "Each school board[66] shall provide not less than 12 consecutive years of appropriate instruction and special services for exceptional children." Ala.Code § 16-39-3. "All county and city local education agencies are required to provide free appropriate public education for all eligible children with disabilities." Ala.Code § 16-39A-2. According to the plain meaning of the statutes, children with disabilities have a right to appropriate instruction and special services. Defendants have cited no authority to the contrary. Therefore, the Court rules that Alabama statutes require the state to provide an appropriate education and special services to children with disabilities.
Next, the Doe plaintiffs assert that the term "appropriate" defines a specified level of quality in education. Although there are no reported state court cases interpreting the term "appropriate" in this context, the sub-class argues that federal cases construing this word have been adopted by the state. After considering the circumstances surrounding passage of both statutes and the testimony of Dr. Kenneth Wilson, the Court agrees.
Before enactment of Act 106 in 1971, a school board was permitted to exempt children with disabilities from mandatory school attendance. 1947 Ala.Acts, 676 at 517. At that time, it was common to exclude disabled school-aged children from educational requirements. Board of Educ. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 180 [102 S. Ct. 3034, 3037, 73 L. Ed. 2d 690] (1982). Concerned about this practice, Congress enacted a federal grant program, The Education of the Handicapped Act, to encourage the education of children denied an education. See P.L. 91-230, 84 Stat. 1204. Observing little progress in education of the handicapped, Congress later adopted The Education For All Handicapped Children Act in 1975 (the "EHA"). See 20 U.S.C. §§ 1400 et seq.[67]
In order to receive federal funds available under the EHA, Alabama must have in effect a policy guaranteeing children with disabilities a "free appropriate public education." See 20 U.S.C. § 1412(1). To carry out this task, Alabama has adopted the language used in federal lawan "appropriate" education. Dr. Kenneth Wilson testified that, for the most part, state regulations mirror the language of the federal law. The Court cannot construe the Alabama statutory and regulatory language differently from the federal meaning without ignoring the clear intent of the Alabama legislature to benefit from federal aid to special education.
This conclusion is bolstered by the recent adoption of the Special Education of Preschool Handicapped Children Act. See Ala. Code § 16-39A-1 to 16-39A-3. The Act expressly incorporates the federal definition of a free appropriate public education as "[t]hat program as defined by federal statute under Public Law 91-230 [the original EHA], and all regulations and amendments thereto." Ala.Code § 16-39A-3(4). It is clear that the legislature intended the term "appropriate" in the Alabama statutes to have a meaning identical to the same language in the federal law.
The next step is to examine federal law for the meaning of an appropriate education. In Rowley, the United States Supreme Court articulated a test to determine if a child is receiving an appropriate education. A child with disabilities is receiving such an education if the program is composed of specialized *164 instruction and related services which are individually designed to provide educational benefit to the child with disabilities. Rowley, 458 U.S. at 201 [102 S. Ct. at 3048]. Several of plaintiffs' witnesses, including Dr. Wayne Teague, Mr. Barry Blackwell, Dr. Martha Snell, and Dr. David Rostetter, testified that Alabama fails to meet this standard.
Alabama's system of special education does not and cannot provide an appropriate education to children with disabilities. Virtually all the testimony of the sub-class' witnesses catalogued deficiencies in the state's provision of instruction and services. To reiterate only the most obvious, the Court notes Mr. Blackwell's testimony that some school systems do not offer certain programs to children with disabilities because they lack the staff qualified to teach students with some disabilities. Further, Dr. Rostetter pointed out that the problem is statewide because Alabama cannot give local school systems the support needed to hire, train, and retain qualified staff. Alabama's inability to provide any services to children with certain identified disabilities and the other deficiencies noted in the findings of facts clearly fail to meet the Rowley test.
The sub-class also argues that Alabama's system of funding special education violates the due process clause of the Alabama Constitution. See Ala. Const. art. 1 §§ 6 and 13. Under the state due process clause, the funding scheme must be reasonable and bear a substantial relationship to the public need. Baldwin County Board of Health v. Baldwin County Electric Membership Corp., 355 So. 2d 708, 710 (Ala.1978). The total enrollment method of funding special education is based entirely on the total number of students in regular and special education. Because the funds available per special education pupil are not tied to the cost of educating those pupils, the system penalizes school systems which try to serve all children with disabilities. As the number of special education students increases, the money per pupil decreases. The Court concludes that such a scheme is irrational and has no relationship to the public interest in appropriately educating students with disabilities.
Further, the argument that a change in the system of funding to a weighted child count method moots this issue is not persuasive. The state may again alter the method of funding education if the weighted child count system is unsatisfactory. In addition, since the weighted child count system is not fully implemented and in use in Alabama, it is impossible to determine whether this method will result in a constitutional funding scheme. The public interest at stake and the rights of children with disabilities justify relief in this case. See Payne v. J.T.N., 568 So. 2d 830, 831 (Ala.Civ.App.1990). The Court rules that the total enrollment method of funding special education is irrational and arbitrary in violation of the due process clause of the Alabama constitution.
Governor Hunt does not argue that the Doe plaintiffs' interpretation of the Alabama statutes' definition of an appropriate education is incorrect. Instead, the defendant attacks the sub-class's method of challenging the state system of funding special education. The Governor maintains that the proper vehicle for enforcing the right to an appropriate education is by administrative remedy, or, in the alternative, by petitioning the state attorney general to file suit. For the reasons outlined below, the Court rejects both these arguments.
The requirement of exhaustion of administrative remedies applies to individual children seeking relief under the federal EHA. See Smith v. Robinson, 468 U.S. 992 [1015-16 n. 17], 104 S. Ct. 3457, 3470-71 n. 17 [82 L. Ed. 2d 746] (1984). However, the sub-class advances its claim on behalf of all children with disabilities solely under Alabama statutes. The administrative actions designed to provide redress of federal rights for individual schoolchildren do not apply in a challenge to statewide funding and systemic inequities. Further, a series of individual suits could exacerbate the educational disparities by diverting already scarce resources to educate those children with the means to bring administrative actions. Finally, it is axiomatic that when, as here, the exhaustion of administrative remedies would be futile in attempting to remedy a systemic deficiency, an exhaustion requirement does not apply. See *165 Smith v. Robinson, 468 U.S. 992 [1015-16 n. 17], 104 S. Ct. 3457, 3470-71 n. 17 [82 L. Ed. 2d 746] (1984).
Defendant Hunt also argues that the sole remedy under state law is suit by the Alabama attorney general. Act 106 allows an exceptional child to petition the attorney general for assistance in enforcing the right to an appropriate education. See Ala.Code § 16-39-4. However, nothing in the statutes or regulations suggests that this is the exclusive method of enforcing the right to an appropriate education. The Court is unwilling to condition the exercise of that right on an enforcement mechanism that could be construed as a limitation on access to the courts. Further, Act 106 gives no indication that the assistance of the attorney general is required in order to challenge a systemic deficiency such as the entire special education funding scheme under the Alabama constitution. Therefore, the Court rules that when exhaustion of administrative remedies would clearly be futile, a class of aggrieved special education students may properly bring suit in state court to remedy systemic deficiencies in special education without the assistance of the attorney general.
Each of the state law holdings in this decision "rest[s] on an adequate and independent state ground." Michigan v. Long, 463 U.S. 1032, 1044 [103 S. Ct. 3469, 3478, 77 L. Ed. 2d 1201] (1983). The Court's holding that § 256 of the Alabama constitution guarantees schoolchildren equitable and adequate education is based on the unique text and history of that provision. The holding that plaintiffs are deprived of their rights to equal protection and due process rest on this Court's interpretation of the appropriate provisions of the Alabama constitution.[68] This Court's interpretation of those provisions was not "compelled by federal constitutional considerations," id. at 1045 n. 10 [103 S. Ct. at 3479], but rather is based on the text and history of the Alabama constitution and case law interpreting it. The statutory rights found by the Court exist in Alabama law independent of any federal statutes. Although this decision in places refers to federal case law, as it does to cases from states other than Alabama, none of those decisions is necessary to the Court's analysis or compels the results reached.
The Court is mindful of the importance of this case. In reaching its decision, the Court has carefully considered the delicate balance among the three departments of state government under the doctrine of separation of powers, all of the evidence relevant to resolve the important constitutional issues presented by competent counsel for all parties involved, as well as their arguments and written briefs. The defendant, Governor Hunt, through his counsel, has admitted that deficiencies exist in Alabama's public school system and that additional funds are needed to remedy some of the unsatisfactory conditions. The real issue here is whether these deficiencies and conditions rise to the level of deprivations of constitutional and statutory rights. In the opinion of the Court, they do.
Therefore, it is ORDERED, ADJUDGED and DECREED as follows:
1. That, pursuant to Ala. Const. art. I, §§ 1, 6, 13 and 22 and art. XIV, § 256, Alabama school-age children, including children with disabilities, have and enjoy a constitutional right to attend school in a liberal system of public schools, established, organized and maintained by the state, which shall provide all such schoolchildren with substantially equitable and adequate educational opportunities;
2. That the essential principles and features of the "liberal system of public schools" required by the Alabama Constitution include the following:
*166 (a) It is the responsibility of the state to establish, organize, and maintain the system of public schools;
(b) the system of public schools shall extend throughout the state;
(c) the public schools must be free and open to all schoolchildren on equal terms;
(d) equitable and adequate educational opportunities shall be provided to all schoolchildren regardless of the wealth of the communities in which the schoolchildren reside; and
(e) adequate educational opportunities shall consist of, at a minimum, an education that provides students with opportunity to attain the following:
(i) sufficient oral and written communication skills to function in Alabama, and at the national and international levels, in the coming years;
(ii) sufficient mathematic and scientific skills to function in Alabama, and at the national and international levels, in the coming years;
(iii) sufficient knowledge of economic, social, and political systems generally, and of the history, politics, and social structure of Alabama and the United States, specifically, to enable the student to make informed choices;
(iv) sufficient understanding of governmental processes and of basic civic institutions to enable the student to understand and contribute to the issues that affect his or her community, state, and nation;
(v) sufficient self-knowledge and knowledge of principles of health and mental hygiene to enable the student to monitor and contribute to his or her own physical and mental well-being;
(vi) sufficient understanding of the arts to enable each student to appreciate his or her cultural heritage and the cultural heritages of others;
(vii) sufficient training, or preparation for advanced training, in academic or vocational skills, and sufficient guidance, to enable each child to choose and pursue life work intelligently;
(viii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in Alabama, in surrounding states, across the nation, and throughout the world, in academics or in the job market; and
(ix) sufficient support and guidance so that every student feels a sense of self-worth and ability to achieve, and so that every student is encouraged to live up to his or her full human potential.
3. That, pursuant to Ala.Code § 16-39-3 and 16-39A-2, Alabama schoolchildren with disabilities aged 3-21 have the right to appropriate instruction and special services;
4. That the present system of public schools in Alabama violates the aforestated constitutional and statutory rights of plaintiffs;
5. That the state officers[69] charged by law with responsibility for the Alabama public school system, are hereby enjoined to establish, organize and maintain a system of public schools, that provides equitable and adequate educational opportunities to all school-age children, including children with disabilities, throughout the state in accordance with the constitutional mandates of Ala. Const. art. XIV, § 256; art. I, §§ 1, 6, 13 and 22; and to provide appropriate instruction and special services to children with disabilities aged three through twenty-one pursuant to Ala.Code §§ 16-39-3 and 16-39A-2;
6. That this matter is set for status conference on 9th day of June, 1993, at 8:30 a.m. for the purpose of establishing the procedures and timetable for determination of an appropriate remedy in this case.
*167 DONE on this the 31st day of March, 1993.
[1] The plaintiff school systems are: Barbour, Butler, Clarke, Coosa, Crenshaw, Geneva, Hale, Lawrence, Lowndes, Macon, Pickens, Pike, Winston, Greene, Bullock, Conecuh, Henry, Limestone, Perry, Walker, Wilcox, Chambers, Talladega, and Dallas County Boards of Education and the Troy City Board of Education.
[2] Judge Mark Montiel was originally assigned to hear this action. The case was reassigned to this Court in January, 1991.
[3] The Court will, in this opinion, typically use "defendant" in the singular and, by that term, refer primarily to Governor Hunt. The finance director also remains a defendant in this lawsuit, but he has not assumed an active role at trial. The Court assumes that the finance director adopts the positions taken by Governor Hunt.
[4] Although two consolidated actions are before the Court, this opinion uses the term, "case," "action," "suit," etc., for convenience.
[5] Defendant Hunt maintains that plaintiffs complain only about inequitable and inadequate school funding. See Pre-trial Brief of Governor Guy Hunt (hereinafter, Hunt Pre-Trial Brief) at 5. The Court finds, however, that while school funding is a major focus of plaintiffs' case, the issues raised go to the broader question of the educational opportunities offered to Alabama's schoolchildren in the form of educational facilities, programs and services.
[6] As used in this order and opinion, the terms schoolchildren and students mean all school-age children in Alabama, including those with disabilities.
[7] Defendant Hunt also argues that the state cannot afford substantially increased school funding, and that increased funding would not necessarily result in improvement in student performance. These matters, although more relevant to the question of remedy than to the constitutionality of the present system, are also addressed below.
[8] The Doe plaintiffs also join in the ACE and Harper claims.
[9] Governor Hunt himself has described the educational opportunity that the school system must provide as one designed "[t]o give every student... the opportunity to learn to the very limit of their intellectual ability." Deposition of Governor Guy Hunt (hereinafter, Hunt Deposition at 72).
[10] Those systems in 1990-91 were Mountain Brook (3,294 students), Hoover (2,062 students), Huntsville (24,028 students) and Sheffield (1,548 students).
[11] Dr. Alexander determined, for fiscal year 1989-90, the five wealthiest systems were Mountain Brook, Homewood, Hoover, Houston and Huntsville, and the five poorest systems were Thomasville, Elba, Piedmont, Linden and Winfield. Dr. Alexander and Dr. Goertz measured the wealth of school systems using a combination of 100 percent equalized assessed value of property per average daily attendance and total personal income per average daily attendance. Defendant did not dispute the validity of this measurement.
[12] The Court also heard no evidence that non-instructional federal aid typically pays for school facilities or maintenance.
[13] The classroom measurement used by Dr. Goertz was 22.8, the average number of students she found to be served by a regular program teacher.
[14] Some of the states that defendant compares with Alabama also have many more local school districts than does this stateMichigan has 619 school districts, for example, while Alabama has only 129. Testimony at trial indicated that states with relatively high numbers of school districts may be likelier to include small enclaves of exceptional wealth, which attenuate disparities further.
[15] As Dr. Wolkoff admitted at trial, disparities in Alabama's public school funding exceed those deemed acceptable under Federal standards. See 34 C.F.R. § 222.63 (1989).
[16] Testimony suggesting that Wilcox County, a poorer, majorityblack school system, has wasted money by building a swimming pool in its new high school is clearly insufficient alone to condemn all poorer systems. Further, the Court is not in any case inclined to find that a swimming pool is wasteful in a poorer system as long as wealthier systems are not censured for building such facilities. Although Dr. Eric Hanushek did offer more systematic testimony for defendant concerning inefficiency (defined narrowly as waste in producing improved test scores) in Alabama schools, which is discussed further below, he did not attribute such inefficiency to the poorer systems.
[17] A "mill" of tax is equivalent to ten cents of every one hundred dollars of assessed property value. "Millage" rates represent the number of mills of tax collected in a given community.
[18] For example, Dr. Alexander testified that Homewood, a wealthier system, needs only a tax of .45 mills to finance one classroom, whereas a low wealth system like Carbon Hill would have to tax itself at more than ten times that rate, or 5.6 mills, to raise the same amount of money.
[19] Tax effort was defined as the state and local revenue of a school system divided by equalized assessed value of property and personal income.
[20] Dr. Alexander testified that he found a positive correlation between revenue and wealth of.759that is, 57 percent of the variation in school revenues was attributable to wealth, a correlation that he termed "highly significant." Dr. Goertz testified that she also found a distinct relationship between the revenues available per pupil and the wealth of a local school system.
[21] Governor Hunt himself has called this funding formula "hopelessly out-of-date" and "too arbitrary." Hunt Deposition at 92.
[22] Dr. Wolkoff testified on behalf of Governor Hunt that state and local funds, taken together, exhibit less extreme variation among school systems than do local funds alone. But to draw this conclusion, which plaintiffs do not dispute, is not the same as to say that state funding actually has an equalizing or even a neutral effect overall in the present school finance system.
[23] The more affluent systems selected for the study were Hoover, Mountain Brook, Homewood, Opelika, Vestavia, Dothan, Muscle Shoals, and Huntsville; the lower wealth systems were Butler County, Hale County, Bibb County, DeKalb County, Perry County, Dallas County, Wilcox County and Lowndes County. Muscle Shoals, also a high wealth system, refused to participate in the study.
[24] Children with disabilities receive minimum program fund money just as do their nondisabled peers.
[25] State accreditation here refers to approval under the "old" Alabama accreditation system. The Department of Education has adopted a new system of school accreditation, Performance-Based Accreditation, but that system has not been fully implemented because it has not been funded.
[26] The Alabama Department of Education recognizes the value of Southern Association accreditation by including it in annual status reports on the Alabama school system, in addition to state accreditation. Annual Status Reports are documents produced annually by the State Department of Education that report a variety of kinds of data on each of the 129 Alabama school systems.
[27] The Alabama Education Improvement Act of 1991 amended Ala.Code §§ 16-3-1, -15; §§ 16-23-3, -14, -15, & -16; and § 16-28-4; and repealed §§ 16-40-2, -3, -4, -5.1, -5.2, -5.3, -5.4, -6, & -7. Section 25 provides that the Act's provisions are mandatory "only to the extent that funds are appropriated or otherwise made available for the purposes of implementing such mandate." 1991 Ala.Acts 323 at 642.
[28] Dr. Anita Buckley-Commander testified at trial that, after hearing about Alberta Elementary's condition during the course of this trial and then going to see it for herself, she was so moved by the poor conditions that prevail there that she is working to secure new playground equipment for the school. There is no evidence in the record as to whether any new playground equipment has in fact been installed at the school.
[29] In addition to testimony heard at trial, testimony by affidavits from Linda Albritton, James H. Beardsley, Teresa Beardsley, Juanita Brown, Dinesha Carter, Ethel M. Dasis, John M. Dasis, Dr. Cheryl Deaton, Mary Ann Ezell, Mary Fields, Mary Harper, Marjorie Freyer, Andra Johnson, Carrie Lewellen, Frizzette LaDrell Lyles, John Pratt, Gay B. Slay, Thad Eugene Slay, Jeanie Ward, Marvin Key Warren, Ada Phillips, Carol Damsky, Lisa Preston, and Nancy Large tell similar stories about a wide range of shortcomings in facilities, staff, curriculum, and other areas in schools in Tuscaloosa City, Wilcox County, Dallas County, Choctaw County, Bibb County, Marengo County, and other Alabama school systems. These affidavits were admitted into evidence in lieu of trial testimony by consent of the parties.
[30] Equal access means that "no student will be denied access to a broad and varied educational program because of his/her assignment to a particular school or classroom." See Performance at 4D (Definitions).
[31] Dr. Flynt testified that 65 percent of food stamp recipients, 70 percent of Medicaid recipients and 90 percent of state prisoners in Alabama are not high school graduates.
[32] Other similar comments about the adequacy of Alabama's educational system may be found in the Governor's deposition. See Hunt Deposition at 55-56 (the system is "fundamentally flawed"); id. at 52-53 (the Alabama school system is failing its students, and for that reason is inadequate); id. at 52 (Alabama schools are not performing up to the level that the future demands); id. at 54 (reforms are necessary in the Alabama education system for the children of Alabama to receive an adequate education).
At trial, the Governor's chief education advisor, Dr. Buckley-Commander, also did not defend the adequacy of the Alabama school system. She agreed that Alabama schools are not providing an adequate education, that there are school facilities that are not conducive to learning, and that Alabama schools need more money.
[33] An education production function study seeks to quantify the relationship between educational inputs (funding, teacher student ratios, etc.) and educational outputs (student test scores, graduation rates, etc.).
[34] The Court notes in this regard that when Dr. Ferguson reanalyzed the Hanushek data using actual rather than average test scores, he found a statistically significant positive correlation between expenditures and achievement.
[35] Interestingly, Governor Hunt himself has said that Alabama public schools need more money.
[36] Dr. Rostetter has also supervised or personally reviewed the special education programs in all 50 states. He wrote the manual used by the federal government in monitoring state special education programs.
[37] In 1896, Superintendent of Education John O. Turner declared, in advocating strong constitutional support of education, that "[t]he only way to make Alabama able to support a public school system is to educate her people and they will become prosperous. This will have to come first, poverty or no poverty." Superintendent John O. Turner, "Speech Before the Southern Education Association," Annual Session 1896, Mobile, Alabama, December 30, 1896. At the 1901 constitutional convention itself, convention president John B. Knox said: "[I]t will not do to say you are too poor to educate the peopleyou are too poor not to educate them." Opening statement of President John B. Knox, Official Proceedings of the Constitutional Convention of 1901 at 15.
[38] See also Opinion of the Justices, 263 Ala. 158, 81 So. 2d 881, 888 (1955) ("[C]onstitutions are made for practical purposes and look to practical ends, and in the construction of them, we are to take into consideration the conditions which confronted the constitutional makers, and, if possible, give the instrument such construction as will carry out the intention of the framers ...")
[39] The Court will analyze the question of whether this right is a "fundamental" right for equal protection purposes, infra.
[40] Governor Hunt appears to agree that § 256 guarantees children of school age at least some kind of constitutional right, although he reads the right at issue narrowly. See Hunt Post-trial Brief at 22 (§ 256 is the source of a "constitutional right of Alabama citizens to be educated in a state-funded school.").
[41] This, of course, was done for racial reasons which compelled the invalidation of the amendment.
[42] Interestingly, one federal district court concluded that Alabama's constitution "provides all children with an entitlement to a public education," even with Amendment 111 still in effect. See Smith v. Dallas County, 480 F. Supp. 1324, 1337 (S.D.Ala.1979) (citing art. XIV, § 256, only).
[43] This article provided: "The General Assembly shall establish, organize, and maintain a system of public schools throughout the state, for the equal benefit of the children thereof, between the ages of seven and twenty-one years...." 1875 Ala. Const., art. XIII.
[44] "When words and phrases are employed which have acquired a defined popular signification, the manifest inference is that they are used in their known and defined meaning and sense, no intention being apparent, from the nature and manner of use or otherwise, to attach any other signification. In order to give the terms employed such operation and force, according to their legitimate meaning as generally and ordinarily understood, so as to fully accomplish the object intended, resort may properly, and should, be had to the history of the subject of the constitutional provision, especially in reference to the preceding state constitutions and legislation, and to the condition of the subject at the time of the adoption of the constitution under construction. Elsberry, 3 So. at 805.
[45] The Governor also argues that "[i]f educational equity had been the goal of the delegates to the 1901 constitution, they would have stated that goal with greater clarity." See Hunt Post-trial Brief at 29. However, the Elsberry decision is clear that the equitable aims of the constitutional system of public schools were commonly understood, so this Court looks only for some textual or interpretational change that would indicate a departure from that understanding.
[46] One group at the convention argued that state school funds should be divided among white and black children according to how much in taxes each race paid, a system with clearly unequal funding consequences. See 2 Official Proceedings of the Constitutional Convention of the State of Alabama (hereinafter, Official Proceedings ) at 1607-08. Apparently in response to concern that such a division would not survive federal equal protection scrutiny, "equal" was removed from the constitution as a modifier for "benefit," but "school terms of equal duration," were guaranteed for both races. See id. at 203, 2033-41. This provision, although not strictly equal, was "equitable" (and, therefore, constitutional), some argued, because "[t]here [was] no necessity for paying a teacher for a colored school the same amount you pay to white school teachers, because you get them at much less salary. Under the present laws of Alabama, if the law is carried out, the colored pupil gets the same amount of money per capita as the white pupil, and that is not justice." Id. at 1608. Thus, perversely, there is a sense in which the removal of "equal"which was thought to compel equal expenditures despite unequal costsin favor of the requirement of equal school terms, can be read to restore rather than to remove a requirement of equity from this clause.
[47] Of course, this Court cannot today give effect to any racial limitation on the equality of educational opportunity promised by § 256.
[48] The case of Vincent v. County Board of Education, 222 Ala. 216, 131 So. 893 (1931), is not to the contrary. In Vincent, the Alabama Supreme Court interpreted the word "liberal" to mean "generous and bountiful" and declared that: "No doubt a liberal system of public education will be so framed as to give every child between the ages of seven and twenty-one years a chance." The schools that plaintiffs now attend are not generous or bountiful in their provision of opportunity and do not give them a fair chance at success in later life.
The Vincent Court stated that "when details of school management are considered, something must be left to legislative discretion," and indeed a considerable amount must be. But the legislature may not, any more than any other governmental actor, utilize its discretion to deprive plaintiffs of their rights. It does not detract from the legislature's legitimate discretion to hold, as this Court does, that it cannot be exercised to deprive Alabama schoolchildren of an adequate and equitable education.
[49] See also Lujan v. Colorado State Board of Education, 649 P.2d 1005, 1016 n. 11 (Colo. 1982) ("State courts are, of course, free to consider the merits of a constitutional challenge under their own constitutional provisions, and they are free to do so independently of United States Supreme Court opinions....") (citing Cooper v. California, 386 U.S. 58 [87 S. Ct. 788, 17 L. Ed. 2d 730] (1967)).
[50] The Court does not regard the location of this rightwhether in the Article I declaration of rights, or in an entirely separate article (art. XIV) devoted exclusively to educationin the constitution as material, despite the Governor's contention to the contrary. See Edmonson v. Brewer, 282 Ala. 336, 211 So. 2d 469, 475 (1968). In any event § 36 of the Declaration of Rights, expressly states that, "[t]his enumeration of certain rights shall not impair or deny others retained by the people...."
[51] The Governor's own Education Study Commission expressed its conviction in 1991 that if Amendment 111 were repealed, public education would be restored as a "fundamental right."
[52] As an example, Governor Hunt suggests that Ala. Const. Amend. 509, which designates English as the official language of the state of Alabama, might give rise to a fundamental right to sue to enforce this amendment. See Hunt Pre-trial Brief at 13. This amendment confers standing for enforcement upon residents and those doing business within the state, and directs legislative enforcement "by appropriate legislation," providing that state officials "shall take all steps necessary to insure" that the role of English as the common language of the state of Alabama is preserved and enhanced. Id.
[53] Governor Hunt argues that education cannot be a fundamental right under the Alabama constitution because it is not an "essential government function" under Section 19 of the Budget and Financial Control Act of 1932. See Abramson v. Hard, 229 Ala. 2, 155 So. 590, 599 (1934). However, the question of whether education is constitutionally fundamental does not depend upon whether or not public school appropriations were held to be subject to proration under a budget statute, in a case decided by five members of the bar sitting as a special court in which neither § 256 nor equal protection claims were raised.
[54] Governor Hunt has agreed that Alabama's future depends upon education and that it is "fundamental." See Hunt Deposition at 25, 33.
[55] The Plyler Court also said: "`[E]ducation prepares individuals to be self-reliant and self-sufficient participants in society.'" Id. [457 U.S.] at 222 [102 S. Ct. at 2397.] "The public schools are an important socializing institution, imparting those shared values through which social order and stability are maintained." Id. at n. 20. "What we said 28 years ago in Brown v. Board of Education ... still holds true:
'Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."
Id. at 222-223 [102 S.Ct. at 2397-2398] (citations omitted).
[56] Other state courts have read Rodriguez not to be dispositive under state equal protection guarantees. E.g., Washakie County School Dist. No. 1 v. Herschler, 606 P.2d 310, 333 (Wyo.1980); Horton v. Meskill, [172 Conn. 615] 376 A.2d 359, 373 (1977).
[57] As the author of a leading casebook on constitutional law has put it, strict scrutiny is generally "`strict' in theory and fatal in fact." Gunther, Cases and Materials on Constitutional Law (10th edition 1980) at 671.
[58] Further, although the Court agrees with Governor Hunt that local control is presumptively a legitimate state interest, too often in Alabama local control has actually been synonymous with local discrimination. Plaintiffs showed that in some parts of the state, white flight from school desegregation has siphoned support from the public schools. Parents and other promoters of all-white private academies, which were often begun with the state's assistance in defiance of the Supreme Court's desegregation mandate, see, e.g., Lee v. Macon County Board of Education, 267 F. Supp. 458, 461 (M.D.Ala.) aff'd 389 U.S. 215 [88 S. Ct. 415, 19 L. Ed. 2d 422] (1967), have campaigned against public school taxes and successfully resisted efforts to improve the public schools. Given the state's role in fostering polarization along racial lines in these school systems, it cannot now wash its hands and abandon public schools to unfettered local control not friendly to their interests.
[59] Governor Hunt agreed in his deposition that educational opportunities provided to school age children in Alabama should be entirely unrelated to the place of residence of the child. Hunt Deposition at 10.
[60] Dr. Harvey testified for plaintiffs that the Minimum Program Fund and other state appropriations for education today accomplish the opposite of what was originally intended, see supra, and that the school funding system is entirely irrational and arbitraryfrom its use of the 1938 assessed property valuation to determine required local effort, to the failure to use up-to-date census counts for Public School Fund allocations, to the use of outdated wealth indices in the Minimum Program Fund calculations. For his part, Governor Hunt has admitted that the school funding formula is hopelessly out-of-date and too arbitrary in the sense that it lacked reasonable or rational basis. Hunt Deposition at 92.
[61] Moreover, the Alabama Supreme Court has expressly adopted a standard of "more rigorous judicial scrutiny" in state substantive due process review than that applied under the federal due process clause. See, e.g., Mount Royal Towers, Inc. v. Alabama State Bd. of Health, 388 So. 2d 1209 (Ala.1980).
[62] Likewise, just as the existence of private psychiatric facilities does not affect the state's obligations to mentally ill patients confined to state hospitals, the fact that Alabama's compulsory attendance law permits (if certain criteria are met) attendance at private schools does not relieve the state of its duty to provide an adequate education to children who attend public schools.
[63] The recent opinion in D.R. v. Middle Bucks Area Voc. Tech. Sch., 972 F.2d 1364 (3rd Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1045 [122 L. Ed. 2d 354] (1993) (en banc) refusing to impose an affirmative due process duty upon schools to protect students against harm inflicted by private actors is inapposite to the stark situation presented in this case where the harm suffered by Alabama schoolchildren is being inflicted by the state itself. The Third Circuit distinguished the case before it from a case involving a violation by state actors, "since the Due Process Clause itself imposes limitations on the state's conduct." Id. at 1376.
[64] Although the Smith and Debra P. cases were decided under the federal constitution, this Court's reading of the Alabama constitution's due process provision leads it to the conclusion that this provision also protects the property interest in education and that it entitles Alabama students to the benefit of an adequate education.
[65] The two statutes are the Education of Exceptional Children Act, Ala.Code §§ 16-39-1 to 16-39-12, often referred to as Act 106, and the Special Education of Preschool Handicapped Children Act, Ala.Code §§ 16-39A-1 to 16-39A-3. Act 106 also provides for the education of gifted children.
[66] Although the statutes are addressed to local boards, the Court is persuaded that the ultimate authority and responsibility for provision of special education services lies with the state. These services are provided in the state system of Alabama public schools. See discussion of state responsibility supra. See also Ala.Admin.Code, Part B of the Individuals with Disabilities Education Act (IDEA) Application for FY 92-94, Part I, Right to Education Policy Statement.
[67] Congress changed the name of the EHA to the Individuals with Disabilities Education Act in 1990. See P.L. No. 101-476, § 901, 104 Stat. 1103, 1142. However, since most case law refers to the statute as the EHA, the Court will use this term.
[68] The holding that the Alabama constitution violates plaintiffs' right to due process under the Fourteenth amendment of the United States Constitution is the only holding in this case that does not rely on independent and adequate state constitutional grounds. But whatever the result under federal due process law, this Court has made an independent assessment that plaintiffs are being deprived of their right to due process under the Alabama constitution.
[69] This includes, but is not limited to, all parties who were originally defendants to this lawsuit and their agents, successors and assigns. The Court will take up the issue of possible realignment of parties for remedy purposes at the status conference set herein. | April 27, 1993 |
eee953d2-b833-45ae-8aae-166a2fed2ee5 | Ex Parte Carter | 627 So. 2d 1030 | 1910887 | Alabama | Alabama Supreme Court | 627 So. 2d 1030 (1993)
Ex parte Bennie Mack CARTER.
(Re Bennie Mack Carter v. State).
1910887.
Supreme Court of Alabama.
April 23, 1993.
Rehearing Denied June 4, 1993.
*1031 John A. Lentine of Sheffield, Sheffield, Sheffield & Lentine, P.C., Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted certiorari review in this case to examine one question: Is a Batson violation established if the defendant can show that one black veniremember was struck because of her race?[1] We affirm.
Bennie Mack Carter was indicted and was convicted on four counts of first degree robbery and one count of attempted murder. During his trial, after the voir dire examination, his counsel made a timely Batson challenge to one of the prosecutor's peremptory strikes:
(R. at 101-05; emphasis supplied.)
The record clearly shows that the trial court erroneously concluded that a single instance of racial discrimination (i.e., the prosecutor using one peremptory strike in a racially discriminatory manner) is insufficient to establish a Batson violation. We hold that a single instance of purposeful racial discrimination in the use of peremptory strikes does violate Batson.
In Harrell v. State, 555 So. 2d 263, 267 (Ala.1989) this Court cited United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986), United States v. Hughes, 864 F.2d 78, 79 (8th Cir.1988), and United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989), and stated:
(Emphasis supplied.) (Citation omitted.)
Also, recently, in Huntley v. State, 627 So. 2d 1013 (Ala.1992), this Court stated: "Upon the exercise of the prosecution's first peremptory challenge to a black veniremember, a defendant is entitled to a Batson hearing." (Emphasis supplied.) Furthermore, other courts have stated the law similarly. See, e.g., United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987), vacated, rev'd and remanded in part on other grounds on reh., 836 F.2d 1312 (11th Cir. 1988), cert. dismissed, 487 U.S. 1265, 109 S. Ct. 28, 101 L. Ed. 2d 979 (1988) (stating that "under Batson, the striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when there are valid reasons for the striking of some black jurors."); United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987) (same); Tolbert v. State, 315 Md. 13, 19, 553 A.2d 228, 230 (1989) (stating, "A new trial will be mandated if any one of the peremptory challenges to black jurors was exercised with a discriminatory purpose, as the State will not be allowed `one free discriminatory strike.' Any violation requires a new trial."); United States v. Matha, 915 F.2d 1220, 1221 (8th Cir.1990) *1033 (stating, "It is a violation of the equal protection clause to strike even one black juror if the strike was made for a racial reason."); and United States v. Ferguson, 935 F.2d 862, 865 (7th Cir.1991) (stating, "It is the striking of a single black juror for racial reasons that invokes the shelter of the Equal Protection Clause, even though other black jurors are impanelled.").
Thus, a single instance of purposeful racial discrimination in the use of peremptory strikes can establish a prima facie case under Batson. The trial court, therefore, incorrectly concluded that the striking of just one juror is insufficient to establish a Batson violation.
The trial court's statement that one strike was insufficient, however, must be considered in light of the particular facts of this case. The record shows that the State and the defense used three strikes each to remove black veniremembers and that six blacks were left on the jury. In view of those facts, we conclude, as did the Court of Criminal Appeals, 627 So. 2d 1027, that the trial court's finding of no purposeful discrimination by the State is due to be affirmed.
In Ex parte Bird, 594 So. 2d 676, 679 (Ala. 1991), this Court took the "opportunity to underscore the rule and policies that we announced in [Ex parte Jackson, 516 So. 2d 768 (Ala.1986),] and Ex parte Branch, 526 So. 2d 609 (Ala.1987)." Also, in Bird, we discussed the strengths and weaknesses of a prima facie case when significant numbers of blacks serve on the trial jury. We stated:
594 So. 2d 676, 680-81. (Emphasis supplied.)
Here, the fact that 50% of the trial jury was black sustains the trial court's determination that the petitioner failed to make a prima facie showing of purposeful discrimination in the prosecutor's use of peremptory strikes. Although we conclude that the trial judge incorrectly stated the law relating to the use of one peremptory strike to remove a prospective juror solely because of race, we nevertheless affirm the judgment of the Court of Criminal Appeals. Given the facts *1034 and circumstances of this case, we cannot say that the trial judge's determination that there was no purposeful discrimination was "clearly erroneous." Ex parte Branch, 526 So. 2d at 625 (wherein this Court said that "`[w]e may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous.'") Consequently, we affirm the judgment of the Court of Criminal Appeals.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
STEAGALL, J., concurs in the result.
HOUSTON, Justice (concurring specially).
It is not necessarily a Batson violation for a party not to be able to give race-neutral reasons for every peremptory strike made by that party. See Bui v. State, 627 So. 2d 855 (Ala.1992); In re DeMunn, 627 So. 2d 1010 (Ala.1992). The trial court's inquiry and the reviewing court's inquiry should "focus solely upon the `propriety of the ultimate finding of discrimination vel non.'" Huntley v. State, 627 So. 2d 1013, 1016 (Ala.1992), quoting United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987). However, a party's being unable to give race-neutral reasons for a particular strike is different from an established single instance of purposeful racial discrimination in the use of peremptory strikes.
[1] The petitioner presented another issue in his petition for writ of certiorari: whether age alone is a sufficiently race-neutral reason for exercising a peremptory strike. Although we did not grant certiorari review to address this issue, we note our discussion of age as a race-neutral reason in Ex parte Bird, 594 So. 2d 676, 683 (Ala.1991):
"[W]e realize that in certain cases age may serve as a legitimate racially neutral reason for a peremptory strike. However, the age rationale is highly suspect because of its inherent susceptibility to abuse.... A mere summary declaration that age was a factor in the decision to strike is, therefore, constitutionally deficient and warrants reversal."
(Citations omitted; emphasis supplied.) | April 23, 1993 |
624d3072-8e47-4e1f-80a4-aae9cf9967ed | TEXTRON FINANCIAL CORP. v. Hayes | 619 So. 2d 1363 | 1911558 | Alabama | Alabama Supreme Court | 619 So. 2d 1363 (1993)
TEXTRON FINANCIAL CORPORATION
v.
J. Walter HAYES, as receiver for The Finch Companies, Inc.
1911558.
Supreme Court of Alabama.
April 16, 1993.
Mark J. Everest of Collins, Galloway & Smith, Mobile, for appellant.
Jerry A. McDowell and David R. Quittmeyer of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
STEAGALL, Justice.
Textron Financial Corporation (hereinafter "Textron") appeals from an order enjoining it from drawing on an irrevocable letter of credit issued by AmSouth Bank, N.A., on behalf of The Finch Companies, Inc. (hereinafter "Finch").
On December 21, 1989, Finch and Textron entered into a master lease agreement wherein Finch agreed to lease seven Kenworth trucks from Textron. On December 29, 1989, Finch applied to AmSouth Bank for an irrevocable standby letter of credit in favor of Textron; a credit memorandum indicates that the issuance of the letter of credit to Textron is associated with the lease agreement. On that same day, AmSouth issued an irrevocable standby letter of credit for Finch's account in the amount of $116,500 in favor of Textron. The letter of credit provided, in part:
On November 12, 1991, the trial court, in a related case, entered an order appointing J. Walter Hayes as receiver and trustee for Finch and granting Hayes unlimited power and discretion as to the management of the company. Hayes, as receiver for Finch, then sued AmSouth Bank and Textron, seeking an injunction enjoining AmSouth Bank from paying any amount to Textron *1364 pursuant to the letter of credit and enjoining Textron from collecting any amount from Finch. Hayes also asked the trial court to declare that Finch has no further liability to Textron. The trial court entered an order 1) permanently enjoining Textron from drawing under the letter of credit or from collecting on any claim against Finch until such time as Textron's claim is established in another proceeding and 2) enjoining AmSouth from paying Textron any amounts under the letter of credit until Textron's claim is established. The trial court denied Textron's motion to alter, amend, or vacate; this appeal followed.
Textron argues that the letter of credit is independent of the underlying contract and that, because there is no evidence of forgery or fraud in the issuance of the letter or fraud in the underlying transaction, the trial court erred in enjoining payment under the letter of credit. Textron also argues that Hayes is not entitled to the injunctive relief because, it contends, Hayes has failed to show the absence of an adequate remedy at law. Hayes contends that even though a letter of credit is generally independent of the underlying transaction, Textron was bound to a warranty of presentment under the terms of the letter of credit and that Textron could not comply with the warranty of presentment.
In Benetton Services Corp. v. Benedot, Inc., 551 So. 2d 295 (Ala.1989), this Court, holding that there was no evidence of fraud and no showing of irreparable harm, because Benedot had an adequate remedy at law, i.e., an action for breach of contract, reversed the trial court's order granting a preliminary injunction enjoining Benetton from drawing upon a letter of credit. In this case, as in Benetton, there is no evidence of fraud and no showing of irreparable injury. Specifically, Hayes has an adequate remedy at law, i.e., an action on Finch's behalf for breach of warranty. Accordingly, we hold that the trial court erred in granting the injunction enjoining payment under the letter of credit. On the authority of Benetton, supra, the trial court's judgment is reversed and the injunction is hereby dissolved.
REVERSED AND INJUNCTION DISSOLVED.
HORNSBY, C.J., and MADDOX, HOUSTON and INGRAM, JJ., concur. | April 16, 1993 |
efaba983-8db1-444a-a269-54c83fa902a8 | Namislo v. Akzo Chemicals, Inc. | 620 So. 2d 573 | 1911648 | Alabama | Alabama Supreme Court | 620 So. 2d 573 (1993)
Ricky E. NAMISLO, individually and as parent of Amber Namislo, a minor; and Mary C. Namislo, individually and as parent of Amber Namislo, a minor
v.
AKZO CHEMICALS, INC., et al.
1911648.
Supreme Court of Alabama.
February 19, 1993.
As Modified on Denial of Rehearing April 30, 1993.
*574 J. Barry Abston, Christopher E. Peters and Don Siegelman of Cherry, Givens, Tarver, Peters, Lockett & Diaz, P.C., Mobile, for appellants.
Carroll H. Sullivan and W. Pemble DeLashmet of Clark, Scott & Sullivan, Mobile, for appellees.
Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n, in support of appellants.
STEAGALL, Justice.
During the course of her employment with Akzo Chemicals, Inc., Mary C. Namislo was exposed to mercury. During that employment, she became pregnant with Amber Namislo. As a result of the exposure to mercury, Mary and Amber both suffer from mercury poisoning.
Mary and her husband, Ricky E. Namislo, both of them acting individually and as parents and next friends of Amber, sued Akzo Chemicals, several co-employees, and Minnesota Mining and Manufacturing Company, alleging that Akzo Chemicals and the co-employees had negligently and wantonly caused the mercury poisoning and had negligently failed to warn the Namislos that the mercury created a dangerous condition at the plant. The Namislos also alleged fraud on the part of Akzo Chemicals and the co-employees, and they alleged the tort of outrage and "willful conduct" (as defined under the Alabama Workers' Compensation Actsee Ala.Code 1975, § 25-5-11(c)) against the co-employees. Ricky's claims were for Amber's medical expenses, loss of Amber's services, and loss of consortium. Mary's claims against Akzo Chemicals were for Amber's medical expenses and loss of Amber's services; Mary's claims against the co-employees were for Amber's medical expenses, loss of Amber's services, and her own personal injuries. The claim against Minnesota Mining and Manufacturing Company was based on the Alabama Extended Manufacturer's Liability Doctrine, but that claim is unrelated to the issues in this appeal.
The trial court dismissed all of the claims against Akzo Chemicals and all claims against the co-employees except for the willful conduct claims. The judgment of dismissal was made final pursuant to Rule 54(b), A.R.Civ.P. The Namislos appeal.
*575 The Namislos argue that the exclusivity bar of the Alabama Workers' Compensation Act is not applicable to a minor plaintiff who is injured in utero and thus does not preclude the minor's cause of action against the employer of the minor's mother. Specifically, the Namislos argue that the Alabama Workers' Compensation Act is an exclusive remedy only where an employee is suing the employer for an injury sustained during the course of employment and that if an incident is outside the coverage of the Workers' Compensation Act, then the exclusivity provisions of the Act do not apply. The Namislos also contend that the exclusivity provisions of the Alabama Workers' Compensation Act do not bar their claims alleging fraud and outrage; and that Ala.Code 1975, § 25-5-11, does not apply to nonemployees and, therefore, that Mr. Namislo's and Amber's negligence and wantonness claims against the co-employees are not barred.
This Court has never addressed the issue of whether the exclusivity provisions in the Workers' Compensation Act apply to a minor injured in utero during the course of its mother's employment; however, in Thompson v. Pizza Hut of America, Inc., 767 F. Supp. 916 (N.D.Ill.1991), the court held that the Illinois worker's statute (which is similar to the Alabama Workers' Compensation Act) does not preclude a minor's personal injury action against the employer of the minor's mother for injuries sustained by the minor in utero, and in Brewer v. Monsanto Corp., 644 F. Supp. 1267 (M.D.Tenn.1986), the court, in construing an exclusivity provision similar to the ones in the Alabama Workers' Compensation Act, held that where the claims of the family-member plaintiffs (who, like the worker, were also allegedly exposed to toxic chemicals) do not arise from personal injury to the employee, but are based on their own personal injury, the claims are not within the scope of the Workers' Compensation Act and, therefore, that a common law suit is not within the workers' compensation exclusivity provisions.
767 F. Supp. at 918-19 (citations omitted; emphasis original).
Amber's claims, like the claims of the plaintiffs in Brewer and Thompson, do not arise from personal injury to Mary Namislo, the employee, but are based on her own alleged personal injury. Like the minor plaintiff in Thompson, Amber is not an employee, and her claims are not within the scope of the Alabama Workers' Compensation Act. Therefore, the exclusivity provisions of the Act do not bar Amber's personal injury action against Akzo Chemicals for injuries she claims to have sustained in utero.
We agree with the Thompson court and hold that the Alabama Workers' Compensation Act, like the Illinois Workers' Compensation Act, does not alter an employer's liability to nonemployees who are injured as a result of the employer's alleged negligence. Likewise, we hold that the exclusivity provisions of the Alabama Workers' Compensation Act do not bar the Namislos' fraud claims against Akzo Chemicals and do not bar Amber's claims against the co-employees based on fraud, outrage, negligence, and wantonness or Mary's or Ricky's claims against the co-employees for Amber's medical expenses and loss of Amber's services.[1] The trial court's judgment is reversed and this cause is remanded for further proceedings.
REVERSED AND REMANDED.
*576 HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] Mary Namislo does not argue that the trial court erred in dismissing her claims relating to her own alleged personal injuries against the co-employees other than those based on "willful conduct." | April 30, 1993 |
e3f90b19-201f-4e26-b811-b3a3ad2358e9 | McDaniel v. French Oil Mill MacH. Co. | 623 So. 2d 1146 | 1920685 | Alabama | Alabama Supreme Court | 623 So. 2d 1146 (1993)
Rose Mary McDANIEL, dependent widow of Larry Joe McDaniel, deceased
v.
FRENCH OIL MILL MACHINE COMPANY, et al.
1920685.
Supreme Court of Alabama.
July 30, 1993.
*1147 R. Bradford Wash and Thomas Marshall Powell of Emond & Vines, Birmingham, for appellant.
G. Steven Henry of Clark & Scott, P.C., Birmingham, for appellees.
HORNSBY, Chief Justice.
The plaintiff, Rose Mary McDaniel, as the dependent widow of Larry Joe McDaniel, appeals from a summary judgment in favor of the defendant, French Oil Mill Machine Company ("French Oil"), in a wrongful death action alleging liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). We affirm.
Mr. McDaniel worked for Bunge Corporation ("Bunge") in its soybean solvent extraction facility ("the facility") in Decatur, Alabama. He was responsible for lubricating the gears of a rotary soybean conditioner used to toast soybeans. The conditioner is a cylindrical drum, 60 feet long and 15 feet in diameter; it is rotated by two gears turned by a 75-horsepower motor. One gear, a pinion gear, is attached to the motor. It meshes with and turns a ring gear that encircles the drum's exterior. To lubricate these gears, Mr. McDaniel would spread grease on them with a spatula as they turned. On March 11, 1988, while Mr. McDaniel was lubricating the gears, he was pulled into them at the point where the ring and the pinion gears mesh, called the "nip point," and was crushed to death. There were no witnesses to the accident.
Mrs. McDaniel sued French Oil, and several others, under the AEMLD, alleging that French Oil had negligently, wantonly, and defectively designed, manufactured, fabricated, distributed, and assembled the soybean conditioner that caused her husband's death. The trial court entered a summary judgment for French Oil, and Mrs. McDaniel appealed.
"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., *1148 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).
To establish liability under the AEMLD, the plaintiff must show:
Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132-33 (Ala.1976); Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976).
In 1972, Gold Kist, Inc., hired French Oil to design and supervise the construction of the facility in which Mr. McDaniel was working when he died.[1] French Oil purchased the soybean conditioner for the facility from Superior Welding Company, Inc. ("Superior"). Superior designed, manufactured, fabricated, and assembled the conditioner and shipped it to the facility for installation. French Oil sold the conditioner to Gold Kist under the contract to construct the facility, and French Oil supervised the installation of the conditioner in 1974.
In its motion for a summary judgment, French Oil contended, that it was not liable for Mr. McDaniel's death, because, it said, his death was caused by defects in the conditioner that were created by substantial alterations to it after it had left French Oil's control. The trial court apparently agreed.
The mere fact that a product has been altered subsequent to its sale does not necessarily relieve the seller of liability. Johnson v. Niagara Machine & Tool Works, 555 So. 2d 88, 91 (Ala.1989). Instead, the question of a seller's liability under the AEMLD for injuries caused by a defective product altered subsequent to its purchase turns upon whether the defect causing the injury existed in the product as sold or was created by the alteration. Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 451 (Ala. 1982) (citing Annotation, Products Liability: Alteration of Product After It Leaves Hands of Manufacturer or Seller as Affecting Liability for Product-Caused Harm, 41 A.L.R.3d 1251, 1253 (1972)). When a defect created by an alteration to a product after it left the seller's control is the factual and proximate cause of an injury, and the alteration was not foreseeable, the alteration amounts to an intervening or superseding cause of the injury and relieves the seller from liability under the AEMLD. See *1149 Clarke Industries, Inc. v. Home Indemnity Co., 591 So. 2d 458, 462 (Ala.1991) (replacing the disposable dust collection bag on floor sander with a bag not manufactured by the seller was a foreseeable alteration that would not relieve the manufacturer of liability for injuries caused by spontaneous combustion of the dust collection bag attached to the sander); Burkett v. Loma Machine Manufacturing, Inc., 552 So. 2d 134, 136 (Ala.1989) (modifying the blade guard on a billet saw to expose an additional 15 inches of the blade was a substantial change that relieved the manufacturer of liability); Fenley v. Rouselle Corp., 531 So. 2d 304, 306 (Ala.1988) (removing the safety devices from a machine press constituted a superseding cause of employee's accident that relieved the press's manufacturer of liability); Williams v. Michelin Tire Co., 496 So. 2d 743, 746 (Ala.1986) (recapping a tire was a substantial alteration that relieved the tire manufacturer of liability); Bullen v. Roto Finishing Systems, 435 So. 2d 1256, 1258 (Ala.1983) (adding a catwalk and platform to an embossing/printing machine did not relieve the manufacturer of liability when there was evidence that the nip point was unsafe as originally designed); Banner Welders, Inc. v. Knighton, 425 So. 2d 441, 451 (Ala.1982) (adding grounding blocks to a shuttle welder would not relieve the welder's manufacturer of liability when the blocks merely increased the frequency of malfunctions); Beloit Corp. v. Harrell, 339 So. 2d 992, 996 (Ala.1976) (removing doctor blades from a paper-making machine would not relieve the manufacturer of the machine of liability when the blades would not have prevented the accident).
Through affidavits, depositions, and photographs, submitted to the trial court with its motion for a summary judgment, French Oil established that when the facility began operating in 1974 a steel mesh screen guarded the nip point of the conditioner's gears to prevent accidents such as the one that caused Mr. McDaniel's death. French Oil and Gold Kist were jointly responsible for providing this screen after the conditioner had been installed at the facility. The screen was manufactured at a local machine shop. Employees from the maintenance department at Gold Kist installed it, and French Oil's employees supervised the installation. The screen was designed so that it could be removed for maintenance, but it could not be removed while the conditioner was operating.
French Oil further established that, when installed, the conditioner had an automatic oil-drip system for lubricating its gears. A light weight oil ran from a cylinder through a copper tube and dripped onto the nip point of the gears. No manual lubrication was required.
After the facility had been operating for approximately one year, Gold Kist altered the conditioner's lubrication system so that it could use a heavier weight of lubricating oil on the gears and thereby reduce the speed at which the conditioner's gears were wearing out. There is no evidence that the gears were wearing out faster than they should have been. Apparently, Gold Kist sought to delay replacing the gears because they were expensive.
When Gold Kist removed the oil-drip lubrication system, it placed a sheet metal trough filled with lubricating oil beneath the pinion gear. It also placed a sheet metal trough beneath the ring gear to catch oil as it dripped off that gear and to route the oil back to the trough beneath the pinion gear. In order to situate the trough beneath the ring gear, Gold Kist permanently removed the steel mesh screen guarding the nip point of the conditioner's gears. It constructed a two-rung, metal pipe barricade, 40 to 45 inches high, around the motor, to serve as a guard. An individual performing maintenance on the conditioner would have to climb over the barricade to reach the motor. Although no safety device ensured that the conditioner would not be operating during maintenance work, the trough beneath the ring gear prevented an individual from having direct contact with the nip point of the gears and, therefore, would have prevented injuries such as the one that caused Mr. McDaniel's death. No manual lubrication was required with the oil-trough lubrication system.
Sometime after Bunge purchased the facility from Gold Kist in 1982, but before 1984, Bunge changed the lubrication system again. *1150 Bunge's reason for changing was the same as Gold Kist'sto use a heavier lubricant that would further reduce the speed at which the conditioner's gears were wearing out and, thereby, to delay the need to purchase new gears. Bunge removed the oil troughs and began using a lubricating grease that had to be applied manually. Mr. McDaniel used a spatula to apply the grease to the gears while the conditioner was operating. To reach the gears, he could attach a broom handle to his spatula and stand outside the pipe barricade, or he could climb over the barricade and stand within arm's reach of the gears.
According to French Oil's evidence, Mr. McDaniel would not have been pulled into the conditioner's gears if the original steel mesh screen had not been removed, because the nip point of the conditioner's gears would not have been exposed while the conditioner was operating. Also, Mr. McDaniel would not have been in a position to be pulled into the gears if the original automatic oil-drip lubrication system had not been removed, because Mr. McDaniel would have had no need to be lubricating the gears manually. Thus, French Oil made a prima facie showing that the defects created by the alterations to the conditioner after its installation, not any defects existing in the conditioner when it was installed, were the factual and proximate cause of Mr. McDaniel's death.[2]
In her brief, Mrs. McDaniel argues that the summary judgment was improper because, she says, there exists a genuine issue of material fact as to whether French Oil and Gold Kist fulfilled their responsibility to supply a guard for the nip point of the conditioner's gears when the conditioner was installed. In support of her argument, she presented the original affidavits of William Davis and Tommy Raney, employees of Bunge who had worked for Gold Kist in 1974 and 1975. Initially, neither Davis nor Raney recalled the existence of a screen at the nip point in 1974. However, after looking at pictures of the soybean conditioner taken in 1974, both men recalled the screen's existence and amended their affidavits accordingly.
Mrs. McDaniel also presented incomplete testimony from the deposition testimony of Ralph Hutchins, an employee of French Oil who supervised the construction of the facility. Hutchins stated that French Oil and Gold Kist would have been jointly responsible for designing and installing a guard for the nip point of the conditioner's gears, but the portions of his testimony provided do not address whether French Oil and Gold Kist actually supplied such a guard. However, Wayne Ray Pressley, an employee in Gold Kist's maintenance department in 1974, stated specifically in his affidavit that employees from Gold Kist's maintenance department, under the supervision of employees of French Oil, installed the screen at the nip point of the conditioner's gears shortly before the facility began operating.
We conclude that Mrs. McDaniel presented no substantial evidence to rebut French Oil's showing that there were no genuine issues of material fact as to the existence in 1974 of a steel mesh screen guarding the nip point of the gears. Because the presence of the steel mesh screen and the automatic lubrication system would have prevented Mr. McDaniel's accident, we must conclude that the removal of the screen and the change to a manual lubrication system were substantial changes that relieved French Oil from liability. Accordingly, the summary judgment for French Oil is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Gold Kist operated the facility until 1982 and then sold it to Bunge.
[2] Mrs. McDaniel does not argue, and there is no evidence, that French Oil could reasonably have foreseen that Gold Kist and Bunge would change the lubrication system, particularly to a manual lubrication system, in order to delay incurring the cost of replacing the conditioner's gears. | July 30, 1993 |
2ca28093-aad0-4db8-a79e-2b3635a25263 | Burroughs v. JACKSON NAT. INS. CO. | 618 So. 2d 1329 | 1911250 | Alabama | Alabama Supreme Court | 618 So. 2d 1329 (1993)
John W. BURROUGHS
v.
JACKSON NATIONAL LIFE INSURANCE COMPANY, et al.
1911250.
Supreme Court of Alabama.
March 26, 1993.
*1330 John F. Whitaker and Stephanie R. White of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellant.
Thomas A. Woodall and Jeff W. Parmer of Woodall & Maddox, P.C., Birmingham, for appellees.
INGRAM, Justice.
Burroughs sued Jackson National Life Insurance Company and its agent, Robert O. Curtis, alleging fraudulent misrepresentation regarding a Jackson National product known as "Enhanced Ultimate," which Burroughs claims he was induced to purchase. Burroughs appeals from a summary judgment for Jackson National and Curtis.
Burroughs alleged that Curtis, an agent of Jackson National, told him that "he could `get his money out' when he wanted to, though the policy had no cash value for the first two years." He testified in his deposition that he thought the "Enhanced Ultimate" product sounded "too good to be true"; and, therefore, that he took the documents to his accountant, Michael O. Tidmore. Burroughs stated in his deposition that he would not have bought the product if Tidmore had not said that it was "on the up and up."
Jackson National moved for a summary judgment, claiming that Burroughs had not relied on the alleged misrepresentation. Jackson National argued that Burroughs's ultimate reliance on Tidmore's opinion barred Burroughs's claim of fraud.
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 present action was filed in May 1988; therefore, the applicable standard of review is the "substantial evidence rule." See § 12-21-12, 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). "In determining whether there is substantial evidence to defeat a summary judgment motion, this Court reviews the record in the light most favorable to the nonmovant and resolves all reasonable doubts against the movant." Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403, 404 (Ala.1990).
In his brief to this Court, Burroughs alleges several instances of misrepresentation; however, his deposition testimony clearly limited his claim to the alleged misrepresentation that he could get back his "investment" of $10,000, less a small amount, at any time after the money was invested. Therefore, we will limit our opinion to addressing the issue of whether Burroughs presented sufficient evidence to show a question of material fact regarding this alleged misrepresentation.
In his deposition, Burroughs testified that Curtis had "told me I could get my money back, which I can't do." Burroughs testified that at the time Curtis allegedly misrepresented the "Enhanced Ultimate" policy to him, Burroughs received several documents describing the product. One of the documents, entitled "Creating the Non-taxable Dollar," contains a subsection, "Long-term Benefits." That section contains the following description of the product:
Burroughs testified that Curtis explained the chart accompanying this document, which showed that the policy had no "cash surrender value" at the end of the first year, but had $9,700 in an "accumulation account." The accumulation account, as explained in the document, was the amount upon which Jackson National would pay interest.
Burroughs also testified that the policy or investment sounded "too good to be true" and that he asked Curtis to meet with his accountant, Tidmore, because Burroughs "wanted to make sure [the Enhanced Ultimate policy] was on the up-and-up." Burroughs testified that he set up the meeting with Tidmore and that Tidmore told him that the policy was "on the up-and-up." Burroughs testified that he made the decision to invest in the product, and, when asked whether he was relying on "what Tidmore [had] told [him] when he made his decision," he replied, "I'm sure that had a bearing on it." He also stated that he "certainly wouldn't have bought" the policy if Tidmore had told him he did not like the way the policy looked.
Tidmore, in an untimely affidavit that was considered by the trial court,[1] stated:
*1332 Although Burroughs does not clearly state in his deposition what exactly he was told regarding his ability to get back his "investment," we will assume, for purposes of this appeal only, that he was told by Curtis that he could get some portion of his "investment" returned within the first year, when the policy had no cash surrender value. The question, then, presented by this appeal is whether Burroughs presented substantial evidence that he justifiably relied upon this alleged misrepresentation in purchasing the "Enhanced Ultimate" policy.
Restatement (Second) of Torts § 547 (1965), states the generally accepted common-law rule:
This rule has also been stated as:
37 Am.Jur.2d Fraud and Deceit § 230 (1968).
The standard under which we examine Burroughs's reliance is the standard of justifiable reliance, first adopted in Hickox v. Stover, 551 So. 2d 259 (Ala.1989). That standard is as follows:
551 So. 2d at 263. When the plaintiff brings in an expert, in this case an accountant, the particular facts regarding the plaintiff's knowledge, understanding, and ability to comprehend change significantly. The knowledge and understanding of the plaintiff's expert are attributed to the plaintiff. Given the facts of this case and the knowledge and understanding of Burroughs and his accountant, Tidmore, Burroughs's burden of presenting substantial evidence to establish an issue of fact as to justifiable reliance increases significantly.
In this case, there is no dispute that the documents given to Burroughs before he signed the insurance contract with Jackson National are accurate and contain no misrepresentation. Further, it is not disputed that Burroughs investigated this policy to the extent that he had his accountant, Tidmore, meet with Curtis. The brochures and the detailed charts included therein that describe the "Enhanced Ultimate" policy clearly show that the policy had no cash value at the end of the first year; in other words, these documents showed that Burroughs could not get back his "investment" until the policy had accumulated a sufficient cash surrender value.[2]
Tidmore's statement reveals that he recognized that "Enhanced Ultimate" was a life insurance policy. Burroughs testified *1333 in his deposition that Curtis explained the chart that showed that the policy had no cash value at the end of the first year. Based upon Burroughs's testimony that he made his own investigation of the policy before he invested his money and based upon the documents he received before he purchased his policy, we hold that Burroughs failed to produce substantial evidence that he justifiably relied upon Curtis's alleged statement that he could get a substantial portion of his investment returned to him at any time after the policy was issued. His claim of reliance directly contradicts the information available to him.
Therefore, we affirm the defendants' summary judgment.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., concurs specially.
ALMON, J., concurs in the result.
MADDOX, Justice (concurring specially).
I write separately to state that I believe that the rule of law set out in Hickox v. Stover, 551 So. 2d 259 (Ala.1989), should be modified and that the "justifiable reliance" standard should be replaced with the tried and true "reasonable reliance" standard, which, by its very nature, would allow the factfinder to take into consideration the bargaining power of the parties, whether there was an independent investigation, as there was here, and whether, in view of all the facts and circumstances, the aggrieved party reasonably relied on the alleged misrepresentation to his or her detriment. See McCullough v. McAnalley, 590 So. 2d 229 (Ala.1991) (Maddox and Almon, JJ., dissenting).
Whether the standard is described as "justifiable reliance" or as "reasonable reliance," I believe, is not important, but I do think that the standard set out in Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983), is substantially the standard set forth in § 547, Restatement (Second) of Torts, quoted in the majority opinion. The "reasonable reliance" standard, as I understand it, would be easier to apply and would apply in every situation, like this one, where the person who claims he was defrauded had made an independent investigation. The basic holding of the trial court, and this Court, as I view it, is that it was unreasonable for the plaintiff, in view of his own investigation, to claim that he relied on the alleged fraudulent representation to his detriment.
[1] This Court has held that the trial court, in its discretion, can consider affidavits that are untimely filed. Nolen v. Peterson, 544 So. 2d 863 (Ala.1989).
[2] The "Enhanced Ultimate" policy, as described above, did provide that the policyholder could take out an interest-free loan each policy year, including the first year. | March 26, 1993 |
79631093-174f-40a3-b839-cfa0cf3a7e99 | Ex Parte Dept. of Human Resources | 620 So. 2d 619 | 1920532 | Alabama | Alabama Supreme Court | 620 So. 2d 619 (1993)
Ex parte DEPARTMENT OF HUMAN RESOURCES OF the STATE OF ALABAMA.
(In the Matter of F.P., a child under 18 years of age).
1920532.
Supreme Court of Alabama.
April 30, 1993.
William Prendergast and Stephen K. Simpson, Asst. Attys. Gen., for petitioner.
Edgar W. Greene, Deputy Dist. Atty. for the Fourth Judicial Circuit, for respondent.
HOUSTON, Justice.
The Alabama Department of Human Resources ("the Department") has petitioned this Court for a writ of mandamus directing the Honorable James M. White, judge of the Juvenile Court of Bibb County, to vacate his order requiring the Department to pay for the treatment of a delinquent child at a private, residential mental health facility. The writ is granted.
The parties in this case agree that the child in question, who was adjudged delinquent after engaging in certain acts of sexual misconduct, desperately needs the treatment that he is presently receiving in the Three Springs Sexual Offender Program. The parties also agree that someone must pay for this treatment. The parties disagree, however, as to exactly where the financial responsibility for the child's treatment lies. Judge White and the assistant district attorney for the Fourth Judicial Circuit contend that the Department, which presently has legal custody of the child, is responsible for the cost of his treatment. The Department contends, however, that Judge White had no legal authority to require that its funds be used to pay for the child's treatment. It argues that Bibb County is statutorily obligated to pay for the kind of treatment that is being provided to the child. We agree with the Department.
Initially, we note that orders of the kind entered by Judge White are subject to mandamus review. See In re McCain, 348 So. 2d 780 (Ala.1977). Mandamus is an extraordinary writ that will issue only when the following four requirements are met: 1) there is a clear legal right in the petitioner *620 to the relief sought; 2) there is an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) there is no adequate remedy at law; and 4) the jurisdiction of the court is properly invoked. Martin v. Loeb & Co., 349 So. 2d 9 (Ala.1977).
Section 12-15-71(c)(4), Ala.Code 1975, authorizes a juvenile court to "[m]ake such... order as the court in its discretion shall deem to be for the welfare and best interests of the [delinquent] child." Article IV, § 88, of the Alabama Constitution states that "[i]t shall be the duty of the legislature to require the several counties of this state to make adequate provision for the maintenance of the poor." Section 12-15-70 specifically provides:
(Emphasis added.) As was noted in In re McCain, supra, § 12-15-10 clarifies the phrase "unless otherwise provided for":
(Emphasis added.) Sections 12-15-9 and 12-15-11 provide a means for assessing the cost of a child's medical treatment against the parents or other persons legally obligated to care for and support the child. Section 12-15-11 also authorizes payment from the child's estate in the hands of a guardian or trustee. Neither of these sections would appear to apply in this case.
In Ex parte Department of Mental Health, 511 So. 2d 181 (Ala.1987), the Juvenile Court of Houston County placed a child in the custody of the Department of Mental Health and Mental Retardation and then ordered the Department to pay for the child's treatment at Charter Woods Hospital. This Court held that the trial court's order violated § 12-15-10 by placing the financial responsibility for the maintenance and care of the child on a department of the state instead of on the county. It is clear, therefore, that the Department in the present case is not legally obligated to pay for the child's treatment out of funds allocated to it by the legislature.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] The provision in § 12-15-10 making attorney fees valid charges and preferred claims against the county and directing that such fees be paid by the county treasurer was specifically repealed. See § 12-15-10.1 | April 30, 1993 |
9b994b69-30e3-469a-946b-ba15ce583f49 | Dauphin Island v. Point Properties | 620 So. 2d 602 | 1911398 | Alabama | Alabama Supreme Court | 620 So. 2d 602 (1993)
TOWN OF DAUPHIN ISLAND
v.
POINT PROPERTIES, INC.
1911398.
Supreme Court of Alabama.
April 27, 1993.
*603 John M. Tyson, Sr. of Tyson & Tyson, and James C. Wood and J. Randall Crane of Simon, Wood & Crane, Mobile, for appellant.
Vincent F. Kilborn III of Kilborn & Roebuck, Mobile, for appellee.
SHORES, Justice.
The opinion of February 26, 1993, as amended on April 23, 1993, is withdrawn, and the following opinion is substituted therefor.
The Town of Dauphin Island ("Town") appeals from a judgment declaring that the vacation of Pirates Cove Street was a legal and valid vacation pursuant to Ala.Code 1975, § 23-4-20(a). Because the trial court did not abuse its discretion in so ruling, we affirm the judgment.
The Town was incorporated in 1988. Before that, Mobile County had maintained Pirates Cove Street, as well as the other dedicated public streets within the Dauphin Island subdivision, which are now public streets maintained by the Town. Point Properties, Inc., owns land adjacent to and on either side of Pirates Cove Street, and plans to build a commercial development along the beach on Dauphin Island. The proposed development borders West Surf Beach, a private beach owned and maintained by the Dauphin Island Property Owners Association ("Association"), a nonprofit corporation, for its subdivision members. Pirates Cove Street provides access from Bienville Boulevard, a major east-west thoroughfare of Dauphin Island, to the east end of West Surf Beach. Raphael Semmes Street, 2065 feet west of Pirates Cove Street, is the next nearest roadway providing access to West Surf Beach from Bienville Boulevard. The 1953 plat of the Dauphin Island subdivision shows seven 10-foot-wide walkway easements between Bienville Boulevard and West Surf Beach.
Point Properties and the Association on September 14, 1987, obtained from the Mobile County Commission the vacation of that portion of Pirates Cove Street lying south of Bienville Boulevard, by proceeding under § 23-4-20(a). The proposed vacation of the street had been the subject of long and heated discussion at a meeting of the members of the Association on May 9, 1987. The vacation was not voted on by the Association members, but they did vote to change the Association's "Building Restrictions and Protective Covenants" in order to provide for condominium development in the Beach Commercial Area South. After vacation of the street, the Association transferred its title and interest in Pirates Cove Street to Point Properties on October 19, 1987, by quitclaim deed.
In May 1989, the Town's council denied Point Properties permission to remove the asphalt from Pirates Cove Street. In the opinion of the Town's attorneys, the 1987 vacation was void because some of the owners of lots in the original 1953 subdivision plat containing Pirates Cove Street had not joined in the vacation of the street. Point Properties sued the Town on December 3, 1990, seeking a judgment declaring that the street had been properly and legally vacated in 1987.[1] The trial court entered a declaratory judgment on March 27, 1992, made final pursuant to Rule 54(b), Ala. R.Civ.P., holding that Pirates Cove Street had been legally vacated pursuant to § 23-4-20 and that Point Properties was, therefore, the owner of the former street. The trial court based its holding in part on its conclusion that other lot owners in the 1953 Dauphin Island subdivision "still had convenient and reasonable access to the beach after vacation." C.R. 88.
The Town raises numerous issues in its appeal from the declaratory judgment. Under § 23-4-20, all owners of land that abuts that portion of a street to be vacated have a right to join in the written declaration of intent to vacate. The Town contends that the vacation is invalid because Odia Pesnell, the owner of lot 78 at the southern end of Pirates Cove Street, is an abutting landowner but did not join in the *604 vacation. The trial court found that Pesnell was not an abutting owner because a 10-foot-wide walkway easement separated his property from Pirates Cove Street.
Because a lot separated from a street by a walkway does abut that street, see City of Bessemer v. Brantley, 258 Ala. 675, 681, 65 So. 2d 160 (1953), the trial court erred in finding that Pesnell was not an abutting landowner. To hold that the presence of an easement or right-of-way, such as a walkway or sidewalk along the boundary between a lot and the street, prevents a lot adjacent to a street from "abutting" that street would contradict the clear intent of § 23-4-20(a). To so hold, whenever such an intervening easement or right-of-way exists, would remove the requirement that the owner of abutting land having a common boundary with a street must join in the vacation of the street. However, as we indicate below, this finding by the trial court constitutes harmless error, because Pesnell supported the vacation, and the trial court correctly found that, in this case, the Association had acted, constructively, on behalf of Pesnell and any other of its members that were abutting owners required by § 23-4-20(a) to consent to the vacation.
Mr. Pesnell testified that he was present at the May 9, 1987, meeting of the Association members, that he had no objection to the vacation of Pirates Cove Street, and that he would have joined in the vacation but that he "just didn't get that far," apparently because he did not believe that his lot abutted on the street. T.R. 260. Thus, Point Properties, the Association, and Mr. Pesnell all believed that all of the abutting owners had joined in the vacation pursuant to § 23-4-20(a). Because Pesnell did not oppose the vacation, the purpose of the vacation statute in protecting the property rights of abutting land owners is not violated by allowing the Association to act constructively on behalf of Pesnell in consenting to the vacation. Our determination that the Association consented to the vacation on behalf of Mr. Pesnell must be narrowly construed under the facts of the case, and it cannot be interpreted as compromising an abutting owner's right to personally object or consent to vacation under § 23-4-20. We do not imply that a property owners' association, or other similar entity, can consent to the vacation of a street on behalf of a member who owns abutting land when, in fact, the member objects to the vacation.
The Town next raises a related contention, that the individual lot owners did not consent to the vacation of Pirates Cove Street. The Town bases its argument on the property interest, held individually by subdivision lot owners, in access to a private beach. See Jackson v. Moody, 431 So. 2d 509, 513 (Ala.1983). Because of this property right, the Town contends that Booth v. Montrose Cemetery Ass'n, 387 So. 2d 774, 776-77 (Ala.1980), requires consent by all nonadjacent subdivision lot owners for the vacation to be valid. Booth does not control this case. Here, the trial court found that the constitution of the Property Owners Association gave the Association authority to consent to the vacation on behalf of all Association members who were lot owners within the Dauphin Island subdivision.
The Town also contends that the Association could not dispose of its members' individual rights in access to West Surf Beach as provided by Pirates Cove Street. As indicated above, the issue is not whether the Association may dispose of its members' access rights. Rather, the issue is whether any of these members oppose and desire to set aside the vacation of Pirates Cove Street. Nothing in the record indicates that any lot owners desire to set aside the vacation.
The Town contends that, because the trial court recognized in its judgment "that access to West Surf Beach is a valuable property interest belonging to [the] non-abutting Subdivision lot owners on Dauphin Island," C.R. 88, then the declaratory judgment is void for failure to join these nonabutting lot owners as indispensable parties under Rule 19, A.R.Civ.P.
The Town first raised the failure to join indispensable parties in its motion to alter, amend, or vacate the declaratory *605 judgment or, in the alternative, for a new trial. However, failure to add a necessary and indispensable party is subject to review on appeal, even if the issue was not raised before the trial court. Boles v. Autery, 554 So. 2d 959, 961 (Ala.1989). "There is no prescribed formula for determining whether a party is a necessary one or an indispensable one. This question is to be decided in the context of each particular case." Holland v. City of Alabaster, 566 So. 2d 224, 227 (Ala.1990) (citation omitted).
Under the facts and circumstances of this case, Pesnell, as an abutting lot owner, and the nonabutting lot owners in the Dauphin Island subdivision, were not indispensable parties. We base this conclusion upon careful consideration of the record and upon analysis under Rule 19(b), A.R.Civ.P. See Geer Bros., Inc. v. Walker, 416 So. 2d 1045, 1049 (Ala.Civ.App.1982); Byrd Companies, Inc. v. Smith, 591 So. 2d 844, 846 (Ala.1991). The interest in beach access is held in common by all subdivision lot owners and is not an individualized property interest rising to the level that would require joinder of the nonabutting lot owners. See Byrd Companies, supra, at 846-47.
Pesnell was a witness in the proceedings below; he testified that he did not object to the vacation; and he made no attempt to join as a party to the action. His actions estop him from later challenging the vacation; thus, the failure to join Pesnell will not lead to the possibility of contradictory judgments that might be prejudicial to Pesnell or to the existing parties in the declaratory judgment action.
We note that "when the issue of nonjoinder is raised for the first time after the trial has concluded, `considerations of judicial economy and fairness dictate that the court closely examine the merits of any assertion of nonjoinder to be certain that it really will have prejudicial effects.' 7 C. Wright & Miller, Federal Practice & Procedure § 1609 at 90 (1972)." Geer Bros., supra, at 1050.
Careful consideration of the record indicates that, all things considered, the trial court's judgment is not prejudicial to Pesnell or to those already parties, that the judgment rendered in Pesnell's absence is adequate, and that the plaintiff-appellee would have no adequate remedy if the action were dismissed for nonjoinder. In light of the facts and circumstances of this case, in particular Pesnell's support for the vacation and the absence of any nonconsenting lot owners, we find that there was no violation of Rule 19, A.R.Civ.P., that would require us to remand or reverse for failure to join an indispensable party.
The Town next challenges the constitutionality of the vacation statute. We do not address this issue, because the Town failed to preserve its constitutional objections for appeal. Olympia Spa v. Johnson, 547 So. 2d 80, 86 (Ala.1989); Nationwide Mut. Ins. Co. v. Clay, 525 So. 2d 1339, 1344 (Ala.1987), cert. denied, 488 U.S. 1040, 109 S. Ct. 863, 102 L. Ed. 2d 988 (1989). It did not serve the attorney general with notice of the constitutionality issue, as required by § 6-6-227, until a month after trial. See Cole v. Sylacauga Hosp. Bd., 269 Ala. 405, 409, 113 So. 2d 200 (1959).
The Town contends that the trial court applied an incorrect test in determining whether the 1987 vacation was valid. The court's judgment, in holding the vacation valid, follows the "convenient and reasonable" requirement set forth in the vacation statutes, which our cases have applied to the rights nonabutting lot owners have in convenient and reasonable access to a private beach. See Jackson v. Moody, 431 So. 2d at 513-14. The Town contends that the "rule of remoteness" must be applied and that the trial court erred by not applying it. Because there are no non-consenting lot owners here, there is no fact situation in this case that would invoke the rule of remoteness. See Jackson v. Moody, supra, at 513; Booth v. Montrose Cemetery Ass'n, supra, at 777.
We will not reverse the judgment of the trial court on this record, which shows that no lot owner objected to the vacation of the street. The evidence was conflicting as to whether there was a convenient means of ingress to and egress from the beach after *606 the vacation. The trial court determined that such access remained, holding:
The judgment of the trial court is affirmed.
OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] The court postponed consideration of the other counts raised in Point Properties' complaint pending the outcome of the declaratory judgment request. | April 27, 1993 |
901582e9-69ae-4d3c-a981-666af32d653e | White Consol. Ind. v. American Liberty | 617 So. 2d 657 | 1911560 | Alabama | Alabama Supreme Court | 617 So. 2d 657 (1993)
WHITE CONSOLIDATED INDUSTRIES, INC., et al.
v.
AMERICAN LIBERTY INSURANCE COMPANY and Mary Evans McKinney.
1911560.
Supreme Court of Alabama.
April 2, 1993.
*658 William Dudley Motlow, Jr. and Gary L. Weaver of Porterfield, Harper & Mills, P.A., Birmingham, for appellants.
John D. Richardson and James Lynn Perry of Richardson, Daniell, Spear & Upton, P.C., Mobile, for appellees.
SHORES, Justice.
White Consolidated Industries, Inc. ("WCI"), appeals from a judgment based on jury verdicts in favor of American Liberty Insurance Company ("American") and Mary Evans McKinney. We affirm.
McKinney and American, as subrogee to McKinney's interest, sued WCI for damages, based on a fire that occurred in McKinney's home on March 9, 1988. McKinney and American alleged that the fire started in McKinney's Gibson clothes dryer (before this action was filed, WCI had acquired the company that manufactured the Gibson clothes dryer). The complaint alleged negligent or wanton design, manufacture, distribution, and sale of the clothes dryer and claimed liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). McKinney amended the complaint before trial to claim damages for personal injury and emotional distress.
The record shows that McKinney discovered a fire in her basement on March 9, 1988. Her clothes dryer, washing machine, furnace, and water heater were in the basement *659 near where the fire started. She went upstairs to telephone the fire department; after telephoning, she escaped from her house by dropping from a window to the ground. The fall caused a compression fracture of McKinney's lower back and because of that fracture she had to spend four days in a hospital and then had to wear a back brace for several months.
The jury returned verdicts in favor of American for $50,775.42 and in favor of McKinney for $150,000. WCI filed a motion for a judgment notwithstanding the verdict, for a new trial, and for a remittitur; the trial court denied that motion. WCI appeals from the judgment based on the verdicts.
WCI makes five contentions on appeal. It first contends that the trial court erred in overruling WCI's objection to American's use of its peremptory challenges to remove six whites from the venire "without providing an acceptable race-neutral explanation in each and every instance."
The venire panel contained 11 blacks and 13 whites. The jury selected after voir dire consisted of 7 blacks and 5 whites. The trial court held a hearing and found that WCI had shown a prima facie case of discrimination by American's striking only whites. However, the trial court, after hearing explanations for the strikes, held that American had provided specific nondiscriminatory race-neutralreasons for each challenge.
The United States Constitution prohibits a prosecutor from using peremptory jury strikes in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The principles of Batson, as interpreted by this Court, are set forth in Harrell v. State, 555 So. 2d 263 (Ala.1989), Ex parte Branch, 526 So. 2d 609 (Ala.1987), and Ex parte Jackson, 516 So. 2d 768 (Ala.1986). The Batson safeguards apply to civil cases, Thomas v. Diversified Contractors, Inc., 551 So. 2d 343, 345-46 (Ala.1989), and, for purposes of responding to WCI's argument, we assume that these safeguards apply to the striking of white venirepersons. See Edmonson v. Leesville Concrete Co., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991). See also Ray Sumlin Constr. Co. v. Moore, 583 So. 2d 1320, 1321 n. 1 (Ala.1991) (constitutional prohibition against striking jurors because of their race applies to civil cases in Alabama state courts).
This Court "`may only reverse the trial judge's determination that the ... peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous.'" Ex parte Branch, supra, at 625 (citing United States v. Mathews, 803 F.2d 325, 330 (7th Cir.1986), reversed on other grounds, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988)). After thoroughly and carefully reviewing the record, we conclude that the trial judge's denial of WCI's Batson motion was not clearly erroneous.
WCI next contends that the trial court erred in sustaining the plaintiffs' objection to WCI's attempt to introduce medical records of McKinney's former physician, a Dr. Farmer, which were offered to impeach Mrs. McKinney.
On direct examination, in response to a question by her attorney, McKinney testified that she had never "had any problems with [her] back whatsoever" before she dropped from her window to escape the fire. WCI did not cross-examine her about this testimony. It sought instead to introduce notes made by a doctor consulted by McKinney long before she was allegedly injured by the jump from the window. Such records, if made in the regular course of business, are admissible as an exception to the hearsay rule. A.R.Civ.P. 44. However, if those records are offered for the purpose of putting into evidence a prior inconsistent statement of the witness, as these were, then the party offering the records is required to lay a predicate for their introduction. The colloquy between counsel and the trial court establishes that the records of the medical clinic were offered by WCI to show that McKinney, contrary to her testimony on direct examination, had told a physician that she suffered from back pain. Although these records were kept in the regular course of business by the medical clinic and are admissible by *660 an exception to the hearsay rule, they may not be used to impeach the witness with a prior inconsistent statement unless the proper predicate is laid.[1] Because the proper predicate was not laid, the trial court did not err in disallowing this hearsay evidence of a prior inconsistent statement made by the witness and reflected in the records of Dr. Farmer, even though those records were kept in the regular course of business.
The sound legal principles behind the requirement that an adequate predicate must be laid before a witness may be properly impeached by a prior inconsistent statement are given in McElroy's Alabama Evidence:
C. Gamble, McElroy's Alabama Evidence, § 157.01(1)-(4) (4th ed. 1991) (footnotes omitted).
This Court has held that "[t]o impeach a witness with a prior inconsistent statement counsel must ask [her] specifically about the statement at issue, with reference to the time and place at which [s]he allegedly made it and the person to whom it was made, and give [her] an opportunity to admit or to deny having made it." Perry v. Brakefield, 534 So. 2d 602, 606 (Ala. 1988). Although the rule is not to be rigidly applied, the witness must be given such notice of any prior inconsistent statement as should be necessary to jog her faulty memory, thus allowing her to recognize, and to either deny or explain, the earlier inconsistency. We note that the trial court had the discretion to allow McKinney to be recalled for the purpose of laying the proper predicate, Lewis v. State, 231 Ala. 211, 164 So. 92 (1935), cited in McElroy's, supra, at § 157.01(8), but that WCI did not attempt to recall her.
Without the proper foundation, evidence that in the past McKinney had told Dr. *661 Farmer that she suffered back pain was inadmissible as impeachment evidence.
An act of a witness that is inconsistent with the witness's present testimony is admissible as contradicting that testimony. McElroy's Alabama Evidence, § 155.02(3). Here, however, the fact that the witness had consulted Dr. Farmer is not an act inconsistent with her testimony. Consultation with a physician prior to being injured is not, in itself, inconsistent with a statement that the witness had never suffered a similar injury.
The fact that Dr. Farmer's notes would show that she complained of back pain at a time before the incident that is the basis of this action would establish a prior inconsistent statement by the witness and could be used to impeach her if the proper predicate had been laid. Dr. Farmer's notes could show that she complained of back pain only because she made to him a statement indicating that she was suffering back paina statement inconsistent with her present testimony. Although we have not before today dealt with the use of medical or business records for purposes of impeachment, we note that other courts have dealt with this question before, and that they likewise have held that a proper foundation must be laid for that use.
The Texas Court of Criminal Appeals has indicated that, although an offense report is admissible as a business record, it cannot be used to impeach a witness's testimony unless a proper foundation is laid for that use. Trussell v. State, 585 S.W.2d 736, 738-39 (Tex.Crim.App.1979).
Id. (Citations omitted.)
Similarly, hospital records are admissible to impeach a witness when the proper foundation is laid for impeachment. Wursthorn v. Zolten, 186 N.E.2d 491, 493 (Ohio Ct.App.1962) ("The records were also admissible for the purpose of impeachment" and "The foundation for their use for that purpose was properly laid in the cross-examination of the appellant."). See also Cheek v. State, 118 Ga.App. 385, 163 S.E.2d 856, 857 (1968) (court did not err in excluding evidence in police report offered as business record to impeach witness; failure of reporting officer to remember who made impeaching statement prevents laying of proper predicate, and thus precludes its admissibility for purposes of impeachment); Prince v. State, 677 S.W.2d 181, 185-86 (Tex.Ct.App.1984) (hospital record admissible as prior inconsistent statement for impeachment purposes where witness on cross-examination could not recall giving statement and no objection was made to its use); Palmer v. State, 158 Ga.App. 743, 282 S.E.2d 201, 202 (1981) (transcript of interview not admissible to attack the credibility of witness where witness was not cross-examined about her alleged statement contained in transcript and proper foundation was not laid for introduction of transcript as a business record). We adopt the reasoning of these jurisdictions that, when the impeachment evidence is contained within a business record and consists of prior inconsistent statements by the witness, the party offering that evidence must lay a proper predicate for it.
Third, WCI contends that, because it had less than two weeks' notice before trial to depose and prepare for cross-examination *662 of American's expert witnesses, Richard Henderson and Lt. Ben Garrett, the trial court erred in denying its motion to preclude their testimony, or, alternatively, to continue the case. "The decision whether to allow the testimony of such witness[es] is generally a matter within the sound discretion of the trial court and will not be reversed on appeal absent any abuse." Childs v. Huff, 586 So. 2d 939, 940-41 (Ala.Civ.App.1991). Childs upheld a trial court's decision to allow the testimony of an expert witness, even though the name of the witness had not been disclosed before trial, as directed in a pretrial order. Id. Rule 26(c), A.R.Civ.P., "vests the trial court with discretion in the discovery process" and "gives the court broad power to control the use of the process and to prevent its abuse by any party." Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 103 (Ala.1981) (citation omitted).
There is no merit to this third contention. Although we do not approve counsel's tardiness in releasing information regarding its expert witnesses in the case before us, we find no evidence that the trial court erred in admitting their testimony. Because there is no indication in the record that the trial judge abused his discretion by denying WCI's motion, and because the trial judge is in the best position to fully appraise the situation and the adverse impact, if any, on WCI, we conclude that the trial court did not err in denying WCI's motion.
WCI's fourth contention is that the jury's verdict was against the overwhelming weight of the evidence. The expert witnesses gave conflicting testimony as to the possible cause and point of origin of the fire in McKinney's basement. McKinney testified that, when she first discovered the fire, she saw flames coming out of the back of the clothes dryer. It was well within the province of the jury to decide which testimony to believe.
"A jury verdict is presumed to be correct, and this presumption is strengthened by the trial court's denial of a motion for a new trial. A judgment based on a jury verdict will not be reversed unless it is plainly and palpably wrong." Whisenant v. Nationwide Mut. Fire Ins. Co., 577 So. 2d 909, 911 (Ala.1991) (citations omitted). The jury heard conflicting expert testimony and the direct testimony of McKinney that she saw flames coming out of the clothes dryer. Each juror decided how much weight and credence to give to the testimony and other evidence adduced at trial, and the jury found for both plaintiffs. We cannot say, based on a careful review of the record, that the jury's verdict was plainly and palpably wrong.
WCI's final contention is that the $150,000 verdict for McKinney is excessive. We can find no evidence in the record to support this contention, especially in light of the trial court's denial of WCI's motion for a new trial, a judgment notwithstanding the verdict, or, alternatively, a remittitur.
Whether a jury award is excessive depends upon the facts of the particular case. Coca-Cola Bottling Co., Montgomery v. Parker, 451 So. 2d 786, 788 (Ala. 1984). A trial court's refusal to order a new trial because of excessive damages is presumed to be correct and will not be reversed absent an abuse of discretion. See id. This presumption strengthens the validity of the award of damages. Given the facts of this case, the amount of the verdict does not seem shocking or excessive. After carefully considering the record, we cannot "find the amount allowed by the verdict [to be] so excessive as to plainly indicate it was produced by mistake, inadvertence, or failure to comprehend and appreciate the issues." Id.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
MADDOX and KENNEDY, JJ., dissent.
*663 MADDOX, Justice (dissenting).
The majority holds that the defendant could not introduce the business records of a doctor who treated the plaintiff for a back problem without having confronted the plaintiff about the fact sought to be proved. I think that the majority is wrong in its holding, and I must respectfully dissent.
On direct examination, the plaintiff testified that she never "had any problems with [her] back whatsoever" before she dropped from her window to escape the fire. Her testimony tended to prove that her back problem was caused by the negligence of the defendant. In view of this substantive evidence, why could the defendant not introduce a business record of the plaintiff's former physician that showed that she had previously consulted him about a back problem to rebut or contradict the testimony of the plaintiff? I think that the trial court properly allowed the notes made by the doctor, which had been properly authenticated, to be admitted under the provisions of Rule 44(h), Ala.R.Civ.P.[2]
The doctor's record of the plaintiff's visit to his office during which she complained of back trouble, in my opinion, was a memorandum of an "act, transaction, occurrence, or event" that was made contemporaneously with her visit and in the regular course of the doctor's business, and that, therefore, was admissible to rebut or contradict the plaintiff's testimony that she had had no back problems before the accident. I believe that the majority's classification of these notes in a business record as a "statement" is misplaced. While I recognize that all entries made in business records are not admissible merely because they are included in a business record (they may be excludable, if, for example, the entry is an opinion), I do not believe that the entry in this case should be excluded on the ground that the witness was not confronted with the fact of her visit to the doctor. The basic reason for requiring a predicate in cases where a witness is being impeached by a prior inconsistent statement is "to enable the faculties of the mind of the witness [being impeached] to be put in motion and his memory aided by the train of ideas which such circumstances would be likely to suggest with reference to the subject matter under inquiry and thereby be aided in recalling to memory whether he made the statement." Charles Gamble, McElroy's Alabama Evidence § 157.01(2), p. 416 (4th ed. 1991).
It appears to me that the business record that was admitted in this case was a memorandum of an "act, transaction, occurrence, or event" that was recorded at the time of the plaintiff's visit to the doctor and in the regular course of the doctor's business, and was not a "statement" of a witness that would be excludable without the laying of a proper predicate. In short, the record here was admissible under Rule 44(h), and there was no need to ask the witness whether she visited the doctor because she was having problems with her back. The record contained proof that the plaintiff visited a doctor with complaints about back problems before the accident and it was admissible as substantive evidence to rebut the plaintiff's testimony to the contrary.
It seems to me that the majority unduly restricts the meaning and purpose of Rule 44 by requiring the laying of a predicate before the admission of such records, at least under the facts of this case. I believe that Rule 44 should be construed as a rule of "admissibility" rather than as a rule of *664 "exclusion."[3] For the above-stated reasons, I respectfully dissent.
[1] At a hearing on this issue, WCI's attorney stated, "I'm not going to be offering them [the medical records] for anything but quite frankly impeachment purposes." T.R. 441-42. Nothing in the record indicates that WCI meant to use these records as substantive evidence to mitigate the damages for personal injury claimed by McKinney.
[2] In pertinent part, Rule 44(h) provides:
"Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if it was made in the regular course of any business, profession, occupation, or calling of any kind, and it was the course of the business, profession, occupation or calling to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter."
Rule 44, Ala.R.Civ.P., superseded the Alabama Business Records Act (Ala.Code 1975, § 12-21-43) as to civil proceedings. See, Appendix II to the Alabama Rules of Civil Procedure and the annotation to § 12-21-43. The Alabama Business Records Act was modeled after the Uniform Business Records as Evidence Act.
[3] In pertinent part, Rule 1, Ala.R.Civ.P., states: "These rules shall be construed to secure the just, speedy and inexpensive determination of every action." My good friend, Judge James Haley, who labored so long and hard in favor of the adoption of the Alabama Rules of Civil Procedure, once said that this portion of Rule 1 should be read into every one of the Alabama Rules of Civil Procedure. I agree with him, and I think that imposing a predicate requirement for the admission of a statement made to a doctor in connection with a visit to that doctor that is recorded in his business records fails to follow the mandate of Rule 1 and the spirit of the Rules of Civil Procedure. | April 2, 1993 |
29ecad69-0942-4738-ab2d-a75ffe3ec236 | Ex Parte Chandler | 615 So. 2d 111 | 1920430 | Alabama | Alabama Supreme Court | 615 So. 2d 111 (1993)
Ex parte A.A. CHANDLER.
(In re A.A. CHANDLER v. STATE).
1920430.
Supreme Court of Alabama.
March 19, 1993.
William H. Atkinson of Fite, Davis & Atkinson, Hamilton, and William H. Mills of Redden, Mills & Clark, Birmingham, for petitioner.
James H. Evans, Atty. Gen., for respondent.
Prior Report: 615 So. 2d 100.
STEAGALL, Justice.
WRIT DENIED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
INGRAM, J., dissents.
INGRAM, Justice (dissenting).
I respectfully dissent from the majority's decision to deny A.A. Chandler's petition for certiorari review.
The opinion of the Court of Criminal Appeals states that "it is clear from the policy behind [§ 36-25-5, Ala.Code 1975,] that the term `gain' is not intended to be a precise or comparative term, because it is the appearance of impropriety that this statute seeks to avoid." 615 So. 2d at 106-107. (Emphasis added.) That court went on to state that the facts presented by the State sufficiently proved gain by showing that Chandler "had owned the property since 1948 and, although how he acquired the property and what, if anything, he paid for it is not included in the record, he most likely received gain in terms of taxable income upon the sale of the property." 615 So. 2d at 107. (Emphasis added.) I believe this Court should have granted Chandler's petition in order to determine if the State had indeed proved, beyond a reasonable doubt, that Chandler received "direct personal financial gain" from the transaction. See § 36-25-5(a).
67 C.J.S. Officers § 257 (1978). "In criminal proceedings against public officers and *112 employees, the offense charged must be proven beyond a reasonable doubt." 67 C.J.S. Officers § 262 (1978).
Section 36-25-5 forbids a public official or employee from using his position "to obtain direct personal financial gain." A knowing and willful violation of this statute is punishable as a felony. See § 36-25-27(a)(1), Ala.Code 1975. However, the opinion of the Court of Criminal Appeals seems to sustain Chandler's conviction on the ground that the State was required to prove merely that Chandler "appeared" to have received direct personal financial gain from the sale of his property to the City of Vernon. I believe this is an incorrect statement of the State's burden of proof; I believe that under § 36-25-5 the State was required to prove that Chandler, knowingly and willfully, received actual, direct personal financial gain and to prove it beyond a reasonable doubt.
By dissenting from the denial of the writ, I should not be understood as saying that Chandler's conviction should be reversed. Rather, because Chandler alleges that the evidence submitted by the State was insufficient to prove that he received any gain and because I believe the Court of Criminal Appeals incorrectly stated the burden of proof, I believe this Court should grant the writ in order to examine the record and to determine if indeed Chandler's conviction was supported by sufficient evidence. | March 19, 1993 |
34cbac26-bc44-4ab7-aea6-a6ef1f107926 | Ex Parte Williams | 642 So. 2d 391 | 1911197 | Alabama | Alabama Supreme Court | 642 So. 2d 391 (1993)
Ex parte Barry Lewis WILLIAMS.
(Re Barry Lewis Williams v. State).
1911197.
Supreme Court of Alabama.
April 16, 1993.
Rehearing Denied June 4, 1993.
Jacob A. Walker III of Walker, Hill, Adams, Umbach, Meadows & Walton, Opelika, for petitioner.
James H. Evans, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
ALMON, Justice.
This Court has granted Barry Lewis Williams's petition for certiorari review of the judgment of the Court of Criminal Appeals, which affirmed, by an unpublished memorandum, Williams's conviction in the Lee County Circuit Court of first degree robbery. 602 So. 2d 1234 (1992). Our review is limited to one issue: whether the State's failure to produce certain exculpatory evidence for the defense after the trial court had entered a discovery order pursuant to Rule 16, Ala.R.Cr.P., violated Williams's rights to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Ex parte Brown, 548 So. 2d 993 (Ala.1989).
The pertinent facts of this dispute are as follows:
Joe Tolbert was robbed outside Flowers Bakery, his place of employment, in Opelika, Alabama, by four young black men. Tolbert testified at trial that one of the men wore a white shirt and blue jeans, and that this man placed a gun to his head and demanded that Tolbert give him his money. Tolbert also testified that another man, wearing a black raincoat and black hat, placed a knife at his throat; at the trial, Tolbert identified Williams as that second man. Both of these men, Tolbert said, rummaged through his pockets and removed his wallet, his keys, a lighter, and various other items. Another man, according to Tolbert, stood in the background and brandished a brick or cinder block. After the men had run away, Tolbert summoned the police; the police quickly captured near the scene a young man whom Tolbert identified as the brick wielder. Tolbert's supervisor at the bakery also recovered *392 a black hat; this hat was turned over to the police.
The police discovered the name "Joe Bean" written inside the hat. "Joe Bean" is the "street name" of Barry Williams's brother, Derrick Williams; for this reason, Derrick Williams's picture was included in a photographic lineup presented to Tolbert soon after the incident. At this photo lineup, Tolbert identified Derrick Williams as one of the robbers. Because of this identification, the Opelika police subsequently arrested Derrick Williams.
Eva Mae Williams, the mother of Derrick and Barry, later came to the police station and stated that it was not Derrick, but Barry, who had been present at the robbery. The police subsequently searched the home of Barry Williams and recovered a black raincoat that Tolbert later testified was worn by the man who placed the knife at his throat. Barry Williams was then arrested, and he was indicted by the grand jury for the offense of first degree robbery.
Before trial, Williams moved to compel the State to produce all exculpatory evidence pursuant to Brady and Rule 16.1(c), Ala. R.Cr.P.; the trial court granted the motion by entering a mandatory discovery order. When defense counsel went to the police station approximately a week before the trial, Detective E.D. Abernathy showed him the black raincoat recovered from Williams's home and showed him some photographs; these were not the photographs used in the lineup. Detective Abernathy failed to show him the black hat. Also, the police failed to provide defense counsel with a copy of a statement made by Tolbert to Detective Abernathy shortly after the incident, in which Tolbert described the man with the knife as wearing "camouflage" coveralls; Tolbert did not mention a black raincoat at all in this statement. It is undisputed that the State never produced the statement, the hat, or the photographs used in the lineup, before the day of the trial.
At trial, Williams moved to exclude the black hat and certain other State exhibits that had not been produced pursuant to the discovery order; the court initially granted this motion. The hat was admitted into evidence, however, after the defense had questioned a witness about it. Also, at trial Williams again asked the State to produce the lineup photographs; Williams particularly wanted to show the physical disparity between himself and his brother in order to illustrate that Tolbert did not actually have a clear idea as to the identity of the knife-wielding assailant. The State produced the photographs only after the defense had questioned Tolbert on cross-examination regarding the misidentification in the lineup.
Williams argues that the State's failure to produce the potentially exculpatory evidence violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In Brady, which dealt with the suppression of a confession of a codefendant in a murder case, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith of the prosecution." 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. The Brady decision was grounded on concerns for the right of the accused to be tried fairly and on the special role of the prosecutor in assuring that justice be administered. The Court elaborated on these concerns by stating:
373 U.S. at 87-88, 83 S. Ct. at 1197, 10 L. Ed. 2d at 218-19.
The State argues that Williams simply was not harmed by its actions; it contends that because Williams knew before trial that his brother had been arrested, he was not prejudiced by the delayed disclosure of the photographs, the hat, and the statement.
*393 The State is correct in arguing that, in order to show a Brady violation, some prejudice to the defendant must have resulted from the nondisclosure of potentially exculpatory evidence. See Ex parte Raines, 429 So. 2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S. Ct. 1804, 76 L. Ed. 2d 368 (1993); Breeding v. State, 523 So. 2d 496 (Ala. Cr.App.1987). The proper test in assessing whether the State's failure to produce such evidence upon motion of the defendant constitutes reversible error was enunciated in Ex parte Kennedy, 472 So. 2d 1106 (Ala.1985), cert. denied, 474 U.S. 975, 106 S. Ct. 340, 88 L. Ed. 2d 325 (1985). In Kennedy, this Court held that the defendant must demonstrate: 1) that the State suppressed the evidence; 2) that the evidence suppressed was favorable to the defendant or was exculpatory; and 3) that the evidence was material. 472 So. 2d at 1110.
Here, the materiality of the photographs and the black hat is beyond question. Williams asked the State to produce the photographs so that he might illustrate the physical differences, apparent in the photographs, between himself and his brother and thus impeach Tolbert's anticipated identification at trial. Moreover, the black hat was of paramount importance and was referred to in the State's opening argument, for it provided the direct link to Williams: if the hat had not been found, the picture of Williams's brother would have not been included in the lineup, and the identity of Williams may not have become known. Williams had no way of knowing that this crucial piece of evidence was to be used against him at trial, because the detective failed to produce it when Williams's counsel visited the police station to inspect the State's evidence.
Perhaps the greatest amount of prejudice to Williams occurred because of the State's failure to turn over a copy of the statement made by Tolbert to Detective Abernathy concerning the incident. In that statement, Tolbert completely failed to mention a black raincoat, even though he admitted at trial that the raincoat would have been the most obvious identifying characteristic of the knife-wielding assailant. In fact, it appears that Tolbert never mentioned a black raincoat at all until such a coat was recovered from Williams's home. (Of course, the coat was not recovered until Williams's mother appeared at the police station and exonerated his brother Derrick, the man originally identified by Tolbert as the knife-wielding robber). The production of such an exculpatory piece of evidence before the trial would have greatly assisted the defense in attempting to impeach Tolbert at trial.
The State counters by asserting that Williams had the opportunity to cross-examine Tolbert at trial regarding these items of evidence; it also argues that nondisclosure that merely hampers the defendant's preparation for trial is an insufficient quantum of prejudice to constitute reversible error. It is true that the United States Supreme Court has endorsed such a view in United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (noting that knowledge of the prosecution's evidence, both incriminating and exculpatory, could always be said to assist the defense in preparing its case). Here, however, the failure to disclose the evidence totally prevented Williams's counsel from preparing portions of the defense, especially with respect to the inconsistencies between Tolbert's statement and his trial testimony. Counsel should not be forced to improvise at trial simply because the State has failed to comply with a mandatory court order.
Furthermore, this Court has previously rejected the argument now made by the State, that a defendant who has engaged in "thorough and sifting" cross-examination with respect to items not disclosed has suffered no prejudice. In Ex parte Brown, 548 So. 2d 993 (Ala.1989), a case dealing with the State's failure to disclose a pair of pants allegedly worn by the defendant at the scene of the crime, this Court held:
548 So. 2d at 995. (Emphasis added.) The Brown Court reversed the defendant's conviction and remanded the case for a new trial because the defendant had requested that the State produce the exculpatory evidence but the State had failed to produce it at a reasonable time before the trial. Because the situation here is virtually indistinguishable from that in Brown, we conclude that this judgment likewise must be reversed and the case remanded for a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, and INGRAM, JJ., concur. | April 16, 1993 |
e0876ef6-bfd7-48e6-aeb3-d293c905c3d9 | Todd v. Modern Woodmen of America | 620 So. 2d 591 | 1910497, 1911348 | Alabama | Alabama Supreme Court | 620 So. 2d 591 (1993)
Thomas D. TODD
v.
MODERN WOODMEN OF AMERICA.
Thomas D. TODD
v.
Jimmy Douglas CHAMBERS, et al.
1910497, 1911348.
Supreme Court of Alabama.
April 16, 1993.
James P. O'Neal of Gaiser and O'Neal, Birmingham, for appellant.
Ollie L. Blan, Jr. and W. Gregory Smith of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellees.
PER CURIAM.
The plaintiff, Thomas D. Todd, appeals from a summary judgment in favor of the defendant Modern Woodmen of America, made final pursuant to Rule 54(b), Ala. R.Civ.P. Todd also appeals from the denial *592 of his Rule 60(b) motion that was filed during the pendency of the first appeal.
Todd brought an action against Modern Woodmen, a life insurance society, and its agent, Jimmy Chambers, for losses incurred in connection with the sale of fraudulent investment contracts by Chambers to Todd.[1] The complaint set forth four counts, alleging breach of contract, violation of the Securities Act of Alabama, violation of the Alabama Trade Practices Law, and fraud. The primary issues here are: 1) whether the trial court erred in holding that Todd failed to present substantial evidence that Chambers had authority to bind Modern Woodmen to the fraudulent investment contracts; and 2) whether the trial court erred in holding that Todd failed to present substantial evidence that Modern Woodmen could be held liable in tort for Chambers's acts.
The standard of review applicable to a summary judgment is the "substantial evidence" rule. Under this rule, once the movant has shown, prima facie, that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law, the nonmovant must introduce "substantial evidence" to rebut this showing. "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); Ala.Code 1975, § 12-21-12(c).
The evidence in the record before us is limited to certain documentary evidence and the affidavits of the plaintiff Todd and J.V. Standaert, the national secretary of Modern Woodmen; these documents and affidavits were submitted by the parties in support of their positions on Modern Woodmen's motion for summary judgment. Although Modern Woodmen took Todd's deposition and relied on that deposition in its brief in support of its motion for summary judgment and in oral argument on the motion, that deposition was not filed with the trial court. Modern Woodmen filed a motion to supplement the record on appeal with Todd's deposition, but the trial court denied that motion. Therefore, the deposition is not before us for review.
The facts, as recited in Todd's affidavit, are as follows:
Standaert stated in his affidavit, inter alia, that Modern Woodmen did not sell "drop-in" contracts, had not authorized Chambers to do so, did not receive any proceeds or benefits from the sale of the "drop-in" contracts, and did not know of or consent to Chambers's sales of "drop-in" contracts. Each of the "drop-in" contracts in the record shows that Todd gave Chambers $12,000 and was promised payments of $650 per month plus a return of the $12,000 at the end of the year. After receiving a single monthly payment on the "drop-in" contracts from Chambers in cash, Todd received no more monthly payments. Todd cancelled the life insurance policy and brought this action against Modern Woodmen and Chambers.
Todd argues that a jury question was presented on the issue of whether Chambers had authority to bind Modern Woodmen in contract when he sold the "drop-ins" to Todd. The court properly entered the summary judgment on the contract claim, however, because the evidence indicates that Chambers was authorized only to sell insurance policies and to collect premiums for those policies on behalf of Modern Woodmen, and Todd did not offer any pertinent evidence to the contrary. An insurance agent possessing only this type of authority is classified as a "soliciting agent." Our cases are clear that a soliciting agent has no power to bind the principal in contract. Land & Associates, Inc. v. Simmons, 562 So. 2d 140 (Ala.1989), cert. denied, ___ U.S. ___, 111 S. Ct. 1305, 113 L. Ed. 2d 240 (1991); Washington National Insurance Co. v. Strickland, 491 So. 2d 872 (Ala.1985); Watson v. Prudential Insurance Co., 399 So. 2d 285 (Ala.1981). Therefore, Chambers had no authority to bind Modern Woodmen to the "drop-in" contracts, and the judgment for Modern Woodmen on the contract claim is affirmed.
The fact that Chambers is only a soliciting agent does not, however, automatically render Modern Woodmen immune from liability for Chambers's intentional torts. This Court, in Joyner v. AAA Cooper Transportation, 477 So. 2d 364 (Ala. 1985), enunciated a three-part test for determining when a principal is to be held liable for the intentional torts of its agents. We stated:
477 So. 2d at 365.
The evidence that Chambers was not authorized to sell investments such as the "drop-in" contract would support a holding that it was outside the line and scope of his employment to do so. Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So. 2d 638 (1970). Todd has, however, presented substantial evidence to *594 satisfy the second part of the Joyner test, that the actions of Chambers were in furtherance of the business of Modern Woodmen. In his affidavit, Todd states that Chambers required him to purchase a Modern Woodmen life insurance policy to be eligible to purchase the "drop-in" contracts. Nothing in the record controverts this assertion. Thus, a jury could infer that Chambers was using the "drop-in" contracts to sell life insurance policies for Modern Woodmen. Under such a view of the transaction, a jury could find that the actions of Chambers furthered the business of Modern Woodmen. Therefore, the judgment of the trial court with respect to the fraud claim is due to be reversed.
As to count one, the contract count, the judgment is affirmed. The second count, seeking damages under the Securities Act of Alabama, Ala.Code 1975, § 8-6-1 et seq., premises Modern Woodmen's liability on Chambers's authority to sell drop-in contracts. Because he had no such authority, the judgment for Modern Woodmen is also affirmed as to count two. The third count, under the Trade Practices Law, Ala.Code 1975, § 27-12-1 et seq., is essentially similar to a fraud claim, see Guinn v. American Integrity Ins. Co., 568 So. 2d 760 (Ala. 1990). However, some sections of that Law, e.g., § 27-12-10, might support a cause of action different from the fraud claim, but imposing liability on statutory grounds or on the "furtherance of business" principle applicable to the fraud claim. We express no opinion as to these matters except to say that the question was not sufficiently developed to support a summary judgment for Modern Woodmen on this count. The judgment is therefore reversed as to count three. As to count four, alleging fraud, the judgment is reversed for the reasons stated above.
The appeal from the denial of the Rule 60(b) motion is mooted by our reversal on the primary appeal. The second appeal is therefore dismissed.
1910497AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
1911348APPEAL DISMISSED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
Again we deal with the law of agency and the doctrine of respondeat superior. I had this problem when I authored Washington National Insurance Co. v. Strickland, 491 So. 2d 872 (Ala.1985). I distinguished these to my satisfaction in Washington National. Relying on Washington National, I would affirm the trial court's judgment as to the contract claim, but I would reverse and remand as to the fraud claim.
There was substantial evidence that Chambers was a soliciting agent of Modern Woodmen of America. If the trier of fact finds that Chambers was a soliciting agent rather than an independent contractor, then Modern Woodmen of America's liability, if any, would be vicarious and it could be liable for Todd's fraud even if it did not participate in the fraud or even if it forbade the fraud. I need only to read Todd's affidavit to find substantial evidence that Chambers was soliciting insurance for Modern Woodmen of America when he sold the "drop ins" to Todd:
[1] The fraudulent nature of the investment contracts is not at issue here; Chambers pleaded guilty to criminal charges arising out of these transactions. | April 16, 1993 |
a0c993de-5b7e-49ea-a2d6-319ac417c193 | Ex Parte Smith | 619 So. 2d 1374 | 1911820 | Alabama | Alabama Supreme Court | 619 So. 2d 1374 (1993)
Ex parte Mary Ellen SMITH.
(Re Vera Mae HOLLIS, et al. v. Mary Ellen SMITH.)[1]
1911820.
Supreme Court of Alabama.
April 16, 1993.
*1375 T.J. Carnes, Albertville, and W.D. Wilkes, Guntersville, for petitioner.
Stewart Burns, Gadsden, for respondent.
STEAGALL, Justice.
The opinion of December 18, 1992, is withdrawn and the following opinion is substituted therefor.
Mary Ellen Smith petitions this Court for a writ of mandamus directing the Madison Circuit Court to vacate its order removing a will proceeding from the probate court to the circuit court.
Vesta Carr Stone died in February 1992. Smith submitted to the probate court a document purporting to be Stone's will, asking that that court conduct all proceedings and render all orders necessary to make the will effective. That will named Smith as executrix. Before the probate court made any rulings in this matter, Vera Mae Hollis and others petitioned the circuit court for removal of the will proceeding to the circuit court. The circuit court ordered the removal of the case, pursuant to Ala. Code 1975, § 12-11-41. Smith filed a motion challenging the circuit court's jurisdiction to enter the removal order and asking that the circuit court return the proceeding to the probate court; it denied this motion. Smith then petitioned this Court for a writ of mandamus ordering the circuit court to vacate its removal order.
Smith argues that the circuit court's order should be vacated because it was entered before the probate court had admitted Carr's will to probate or had named a personal representative of the estate. Smith contends that the probate court never began the administration of the estate and, thus, that the administration could not be removed to the circuit court.
Section 12-11-41 provides:
(Emphasis added.) Section 12-13-1 provides, in pertinent part:
The circuit court cannot assume jurisdiction over the administration of an estate when the administration has not yet *1376 begun. In the case of Ex parte Kelly, 243 Ala. 184, 8 So. 2d 855 (1942), this Court addressed the issue of when an "administration" begins. There, the deceased's wife and brother filed separate petitions for letters of administration in the probate court and, after the court had issued letters to the wife, the brother appealed to the circuit court. The probate court appointed a special administrator of the estate pending appeal, and the brother then petitioned for removal of the administration of the estate to the circuit court. The court granted that petition, and the wife appealed to this Court, arguing that the matter could not be removed until a general administrator was appointed. This Court held that "when the petition for the appointment of an administrator was filed in the probate court, and that court assumed jurisdiction, appointing the administrator, this constituted it a pending administration subject to removal to the court of equity." 243 Ala. at 187, 8 So. 2d at 857.
From Kelly, we conclude that the mere filing of a petition for the administration of an estate does not in itself begin the administration; rather, the probate court must act upon the petition and thereby activate the proceedings, which may thereafter be subject to removal to the circuit court. The circuit court cannot initiate the administration of an estate, because the initiation of administration is a matter exclusively in the jurisdiction of the probate court. Ala.Code 1975, § 12-13-1; Ex parte Pettus, 245 Ala. 349, 17 So. 2d 409 (1944). In this case, the probate court had taken no action whatever on Smith's petition; therefore, the administration of Stone's estate did not begin and Hollis's petition for removal was premature.
Although mandamus is a drastic and extraordinary remedy, to be issued only where the movant has a clear and indisputable right to the order sought, Ex parte Nissei Sangyo America, Ltd., 577 So. 2d 912 (Ala.1991), Smith has established this right. Thus, the petition for the writ of mandamus is granted.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; WRIT GRANTED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] The style of the proceeding in the circuit court, like the petition in this Court, described Mary Ellen Smith "as executrix of the estate of Vesta Carr Stone, deceased." As our opinion indicates, however, no personal representative has been appointed. Accordingly, we have restyled these proceedings. | April 16, 1993 |
5d276513-5274-4022-a35a-a608c4e31b37 | McLeod v. State | 627 So. 2d 1065 | 1920051 | Alabama | Alabama Supreme Court | 627 So. 2d 1065 (1993)
Ex parte State of Alabama. Re Christopher McLEOD
v.
STATE.
1920051.
Supreme Court of Alabama.
April 16, 1993.
James H. Evans, Atty. Gen., and Gilda B. Williams, Asst. Atty. Gen., for petitioner.
Bobbie S. Crook, Dothan, for respondent.
PER CURIAM.
Christopher McLeod was convicted of a violating § 13A-12-211, Ala.Code 1975, related to his possession of a controlled substance. McLeod appealed his conviction to the Court of Criminal Appeals, arguing, inter alia, that he had been denied effective assistance of counsel at trial. The Court of Criminal Appeals held that McLeod could not properly raise that claim for the first time on direct appeal. 627 So. 2d 1063 (1992). That court remanded the case to the trial court with instructions to hold a hearing on the merits of the claim. We granted certiorari review. Citing Ex parte Jackson, 598 So. 2d 895 (Ala.1992), McLeod argues that the Court of Criminal Appeals erred in remanding this case for such a determination.
The issue is whether the Court of Criminal Appeals can so remand this case, in light of Jackson and in light of the absence of any finding by the Court of Criminal Appeals that justice requires such a remand.
In Jackson, we outlined the proper procedure for making in the trial court a claim such as McLeod's, where, as here, the defendant is appointed new counsel after trial. We stated:
598 So. 2d at 897.
Our initial opinion in Jackson was issued on February 28, 1992, six days after new post-trial counsel was appointed for McLeod. That February 28 opinion was withdrawn on May 8, 1992, and another opinion was substituted on that date. However, the language quoted above was substantially the same in both opinions.
Also, in the substituted Jackson opinion we reiterated that we made no exception "to the rule that a claim of ineffective assistance of [trial] counsel may not be considered on appeal if it was not first presented to the trial court." 598 So. 2d at 897. However, we have held that the Court of Criminal Appeals can remand a case for the trial court to hear an ineffective assistance of counsel claim, where the claim is first raised on appeal "if it determines justice would require it." Thompson v. State, 525 So. 2d 820, 831 (Ala. 1985) (emphasis in original). In the present case, there has not, as yet, been such a determination.
Judge Bowen, dissenting from the opinion of the Court of Criminal Appeals in this case, summed up the situation by stating: "[Appellate counsel's failure to take advantage of the procedure announced in Jackson is understandable in view of the fact that that case had been decided only six days before counsel was appointed. However, the fact remains that the issue of ineffective assistance was never presented to the trial court." Judge Bowen concluded:
627 So. 2d at 1065. (Emphasis original.)
We agree with Judge Bowen's reasoning and, accordingly, reverse the judgment of the Court of Criminal Appeals. This case is remanded to that court for a determination consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur. | April 16, 1993 |
36402f8b-f03e-4e69-89f3-1113bad32be3 | Blount Intern. v. James River-Pennington | 618 So. 2d 1344 | 1911811 | Alabama | Alabama Supreme Court | 618 So. 2d 1344 (1993)
BLOUNT INTERNATIONAL, LTD.
v.
JAMES RIVER-PENNINGTON, INC.
1911811.
Supreme Court of Alabama.
March 26, 1993.
*1345 A.H. Gaede, Jr. and Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, and Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for appellant.
Edward S. Allen and James A. Byram, Jr. of Balch & Bingham, Montgomery, and Wallace H. Lindsey III and John W. Thompson II, Butler, for appellee.
INGRAM, Justice.
The defendant appeals from an order of the Choctaw County Circuit Court denying a stay pending arbitration.
The record reveals the following: In 1984 James River-Pennington, Inc. ("James River"), purchased two woodchip handling systems for its paper mill and hired Blount International, Ltd. ("Blount"), to assemble and install the machinery. This work was completed in 1985. After experiencing three failures with the machinery during 1989 and 1990, James River sued Blount in July 1991, alleging negligence and breach of the construction contract.[1]
In response, Blount, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), filed a motion requesting the trial court to stay the action. Specifically, Blount contended that pursuant to the construction contract, James River's claim was to be submitted to arbitration. James River argued that the arbitration clause in the construction contract was effective only during construction plus a one-year guarantee period after final payment. The trial court denied Blount's motion to stay, and Blount appeals.
The construction contract, in pertinent part, reads as follows:
This construction contract evidences a transaction involving interstate commerce. Therefore, the policies and provisions of the FAA govern all questions of the validity, interpretation, construction, and enforceability of the arbitration agreement. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983); *1346 Ex parte Alabama Oxygen Co., 433 So. 2d 1158 (Ala.1983), after remand from United States Supreme Court, 452 So. 2d 860 (Ala. 1984) (approving Justice Maddox's dissent at 433 So.2d 1168). Here, the only issue concerns a construction of the provisions specifically, whether the provisions set out above require arbitration of James River's claims against Blount.
Agreements to arbitrate are essentially creatures of contract; however, where the contract includes a valid arbitration clause, there is a presumption in favor of arbitration. Moses H. Cone Memorial Hosp., supra; see Ex parte Shamrock Food Service, Inc., 514 So. 2d 921 (Ala. 1987). Whenever the scope of an arbitration clause is fairly debatable or is reasonably in doubt, the court should decide the interpretation question in favor of arbitration. See Moses H. Cone Memorial Hosp., supra.
However, notwithstanding judicial deference to arbitration, the parties will not be required to arbitrate when they have not agreed to do so. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964). "The courts are not to twist the language of the contract to achieve a result which is favored by federal policy but contrary to the interest of the parties." Goldberg v. Bear, Stearns & Co., 912 F.2d 1418, 1419-20 (11th Cir.1990). The controversy must come within the arbitration provision of the contract before the court can order arbitration. Explo, Inc. v. Southern Natural Gas Co., 788 F.2d 1096 (5th Cir.1986).
Construing §§ 16, 17, and 29 of the construction contract together, we find that the construction contract is narrowly drawn so that only certain types of disputes are arbitrable and that those disputes are required to be submitted to arbitration only for a limited time. The contract does not expressly require arbitration of all "disputes arising under or related to the contract." See H.L. Fuller Constr. Co. v. Industrial Development Board, 590 So. 2d 218 (Ala.1991), and Beckham v. William Bayley Co., 655 F. Supp. 288 (N.D.Tex. 1987). Rather, the arbitration clause clearly limits the arbitrable claims or disputes to those specifically listed in the contract. Further, the contract makes it clear that those arbitrable claims are subject to arbitration only during construction or before final payment. See § 17(c) and § 29.
Section 17 sets out the procedure for arbitration, but it does not state which claims are to be arbitrated. It states that there shall be no delay of work during arbitration proceedings and that in no case shall the request for arbitration be made later than the time of final payment, except as provided otherwise (see § 16). The only section that sets out the claims to be submitted to arbitration is § 29. Pursuant to this "Damages" provision, a claim shall be made no later than the final payment (except under § 16, dealing with faulty work or materials, in regard to which a claim may be brought up to one year from the date of acceptance of final payment).
A fair reading of these provisions requires the conclusion that the primary purpose for requiring arbitration in this case was to ensure that the completion of the work would not be interrupted. One cannot reasonably conclude that the arbitration clause was intended to apply after the contract had been completed. According to the express language of the contract, arbitration was required only while the work was in progress (and for a limited time thereafter). See Hussey Metal Division v. Lectromelt Furnace Division, 471 F.2d 556 (3d Cir.1972).
James River did not discover that it had a claim against Blount for improper performance of its duties and obligations under the construction contract until five years after Blount's work had been completed. Therefore, the construction contract did not require that the claim be submitted to arbitration, and the trial court correctly denied Blount's motion to stay.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] James River also sued the firms that had sold and repaired the machinery. | March 26, 1993 |
7534cb41-6b7b-4020-ab5e-78808abaec42 | Baptist Medical Center v. Wilson | 618 So. 2d 1335 | 1911485 | Alabama | Alabama Supreme Court | 618 So. 2d 1335 (1993)
BAPTIST MEDICAL CENTER MONTCLAIR
v.
Myra WILSON, et al.
1911485.
Supreme Court of Alabama.
March 26, 1993.
*1336 William T. Mills II and H.C. Ireland III of Porterfield, Harper & Mills, P.A., Birmingham, for appellant.
Edward L. Hardin, Jr. and Belinda L. Kimble of Hardin & Tucker, Birmingham, for appellees.
HORNSBY, Chief Justice.
The defendant, Baptist Medical Center Montclair (the "Hospital"), appeals from a $600,000 judgment based on a jury verdict against it, and from a denial of a motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial or remittitur, in a medical malpractice action brought by Myra and George Wilson as the parents of Dana Jean Wilson, a deceased minor. We affirm.
The Hospital raises two issues on appeal: (1) whether the Wilsons complied with Ala. Code 1975, § 6-5-551, requiring pleading with specificity in medical malpractice actions, and (2) whether the Wilsons presented substantial evidence that the Hospital's negligent acts or omissions were the proximate cause of Dana Jean's death.
In 1985 Myra Wilson had twins delivered by cesarean section ("c-section"). Thereafter, she became pregnant a second time, and, on the advice of her physician, Dr. Ronald Orso of Birmingham Obstetrics/Gynecology P.A, she chose to attempt a vaginal birth. The risk in having a vaginal birth after a c-section ("VBAC") is the possibility that the scar tissue in the uterus, from the c-section, will rupture during the vaginal birth and cause "fetal distress," meaning injury to the fetus.
When, during the second pregnancy, Myra reported experiencing labor contractions, Dr. Orso recommended to the Hospital that it observe Myra as a VBAC patient to determine whether she was in active labor. The Hospital placed her under observation at approximately 12:55 a.m., November 23, 1987. At 1:00 a.m., nurse Barbara Caslin performed a vaginal examination on Myra and determined that her uterus was "tight finger tipped," meaning her cervix was not dilated. She, therefore, concluded that, even though Myra was complaining of contractions, she was not in active labor. Also at 1:00 a.m., Caslin began monitoring the fetus's heart rate. At that time, the rate was normal.
Caslin examined Myra again at 2:40 a.m. and found no change. At approximately 4:40 a.m., Myra told Caslin that she felt as though she needed to go to the bathroom. Caslin brought a bedpan, but Myra had no bowel movement. Ten minutes later Caslin removed the bedpan. Shortly thereafter, *1337 Myra experienced a sharp pain. Within moments, Myra and her husband noticed vaginal bleeding. He summoned nurse Ann Little from the nurses' station. Myra told Little that she felt as though her stomach had ripped open and the baby had moved up towards the ceiling. At approximately 5:20 a.m. Little performed a pelvic examination on Myra. She determined that Myra's cervix was completely dilated and that the fetus's heart rate had dropped to 60 to 70 beats per minute. She reported the findings of her examination to Dr. Orso, but she did not tell him about the ripping sensation Myra had reported or the vaginal bleeding Myra had experienced.
At approximately 5:36 a.m., Dr. Orso examined Myra. From his pelvic examination, Dr. Orso found that, contrary to Little's report, Myra's cervix was not dilated. He called for an emergency c-section at 5:46 a.m. At that time, nurse Caslin increased the oxygen supply to the fetus. At 5:59 a.m., Dr. Orso delivered Dana Jean by c-section. The surgery disclosed that Myra had suffered a catastrophic rupture of the uterus and fetal distress, meaning her scar tissue had torn and the fetus had been pushed from the uterus into the abdominal cavity, separating the placenta and compressing the umbilical cord.
Dana Jean died on April 22, 1988, as a result of brain damage she sustained during birth. On November 27, 1989, the Wilsons sued the Hospital, alleging that it had negligently failed to render appropriate medical care to Myra and Dana Jean during delivery and post-delivery. The Wilsons also sued Dr. Orso and Birmingham Obstetrics/Gynecology P.A., alleging negligence but, prior to trial, they negotiated a pro tanto settlement with those defendants.
The first issue presented by the Hospital's appeal is whether the Wilsons complied with § 6-5-551. It provides:
The Hospital argues that the judgment against it should be reversed because the Wilsons' complaint did not describe with particularity each act or omission alleged by the Wilsons, at trial, to be negligent. Instead, the Hospital says, the plaintiffs' trial expert, Dr. Michael Cardwell, testified to "a shotgun blast" of negligent acts, none of which had been specifically alleged in the Wilsons' complaint.
The Wilsons' complaint stated:
The Hospital contends that the complaint specifically alleged only that the Hospital was negligent in failing to detect that Dana Jean was in a breech position, and it says, at trial, the Wilsons presented no evidence that the baby was in a breech position. Admittedly, the breech position of the baby was not an issue at trial. However, the *1338 allegation as to Dana Jean's breech position was not the only allegation specified in the complaint. The complaint also alleged that the Hospital "was negligent through its nursing staff in failing to determine that ... Dana Jean ... could not be delivered in the position in which she was in" and in failing "to take appropriate action once the employees learned of the fetal distress." The foremost negligent acts or omissions identified by the plaintiffs' expert at trial were the nurses' failure to detect and report to Dr. Orso the symptoms of uterine rupture, specifically, their failure to notify him of rectal pain and vaginal bleeding, their failure to notify him that the cervix had not dilated, and the nurses' failure to react properly in a fetal distress situation, particularly their failure to increase the oxygen supply to the fetus at 5:20 a.m. when its heart rate dropped. Additionally, the Wilsons' complaint identified the time and place at which the alleged negligence occurred and the resulting harm.
Further, the Hospital does not allege that a detailed specification and factual description of each act and omission alleged was not communicated to it. In its order denying the Hospital's post-judgment motion for a judgment notwithstanding the verdict, the trial court stated: "The defendant BMC was given adequate notice of the issue tried in this case, regarding the negligence of the BMC obstetrical nursing staff, in the pleadings and amplified in the pretrial order. The issues were discussed in detail at the pretrial conference." The pretrial order to which the trial court referred was the amended pretrial order, issued August 2, 1991. It stated: "Plaintiffs' Position. That Baptist Medical Center-Montclair failed to have adequate OB policies and procedures for handling patients such as Mrs. Wilson being permitted a trial of labor after having prior c-section; ... the nursing staff was negligent in that they failed to respond appropriately under the circumstances." On September 20, 1991, the Hospital deposed Dr. Cardwell. The trial began on February 11, 1992. From these facts, we infer that the Hospital knew, well before the 90 days contemplated under § 6-5-551, which acts or omissions Dr. Cardwell would identify as negligent.
For these reasons, we conclude that the Wilsons complied with § 6-5-551.
We therefore turn to the second issue: whether the Wilsons presented substantial evidence that the Hospital's negligent acts or omissions were the proximate cause of Dana Jean's death.
The parties stipulated that Dana Jean died as a result of brain damage sustained during birth. To establish what standard of care was required of the Hospital's obstetrical nurses and how the Hospital's alleged failure to meet that standard caused Dana Jean's injuries, the plaintiffs presented expert testimony by Dr. Cardwell, the chief of obstetrics and director of maternal-fetal medicine at the University of Missouri. As chief of obstetrics, Dr. Cardwell trains nurses in the treatment of VBAC patients. The record shows that the Hospital knew Myra was a VBAC patient when it placed Myra under observation. Dr. Cardwell testified that the following acts or omissions by the Hospital's nurses were negligent:
As to how the nurses' negligence delayed the c-section, he testified:
Finally, as to how the injuries Dana Jean sustained during her birth ultimately caused her death, he stated:
The Hospital argues that it is entitled to a reversal of the judgment against it because, it says, Dr. Cardwell's testimony did not establish, by substantial evidence, that the nurses' failure to detect and report to Dr. Orso the symptoms of uterine rupture was the proximate cause of Dana Jean's death. As support for its argument, the Hospital has extracted from Dr. Cardwell's testimony the following questions and responses and points out that Dr. Cardwell never stated that an earlier c-section would have saved Dana Jean's life:
Admittedly, Dr. Cardwell's response to this particular question was incomplete; however, his testimony, when taken as a whole, provided the jury with adequate evidence to allow it to find that the Hospital's failure to detect and report to Dr. Orso the symptoms of uterine rupture and the Hospital's failure to react properly to a fetal distress situation proximately caused Dana Jean's death.
Because we have concluded that the Wilsons complied with § 6-5-551 and that they presented substantial evidence at trial that the Hospital's negligent acts or omissions were the proximate cause of Dana Jean's death, we affirm the judgment against the Hospital.
AFFIRMED.
SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
HOUSTON and STEAGALL, JJ., concur in the result.
MADDOX, J., dissents.
HOUSTON, Justice (concurring in the result).
The complaint set out in the majority opinion did not comply with that portion of Ala.Code 1975, § 6-5-551, requiring "a detailed specification and factual description of each act and omission alleged by plaintiff *1340 to render the health care provider liable to plaintiff."
A fair reading of the complaint is that the "breech position of the baby" was the sine qua non of the plaintiffs' theory of liability, when it was not at all.
If the plaintiffs' theory of liability had not been modified by the pre-trial order, I would vote to reverse the judgment and remand the case; however, I am persuaded that a complaint can be amended by a pre-trial order to comply with § 6-5-551 and that the pre-trial order in this case was specific enough to comply with § 6-5-551. Therefore, I vote to affirm.
MADDOX, Justice (dissenting).
Amendment 328, § 6.11, Ala. Const. of 1901, provides in pertinent part, "The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts ... These rules may be changed by a general act of statewide application." (Emphasis supplied.)
In 1987, the legislature adopted Act No. 87-189, Ala.Acts 1987, which was later codified as § 6-5-551, Ala.Code 1975. In full, § 6-5-551 provides:
(Emphasis supplied.)
I believe that § 6-5-551 is "a general act of statewide application" that changes the Rules of Civil Procedure as they apply to medical malpractice actions against health care providers. As I see it, the clear legislative intent behind § 6-5-551 is to give defendant health care providers at least 90 days' pre-trial notice of a plaintiff's allegations against which they will be required to defend at trial. I agree with the majority and with Justice Houston, however, that this notice can come through a pre-trial order or amended pre-trial order, as long as that order is served on the defendants at least 90 days before trial.
Section 6-5-551 requires a plaintiff in an action against a health care provider to make "a detailed specification and factual description of each act and omission" allegedly breaching the applicable standard of care. Under § 6-5-551, a defendant is required to object to a complaint that is not clear, either by a Rule 12(b)(6), Ala.R.Civ. P., motion to dismiss or by an objection to the introduction of evidence at trial. My review of the record reveals that Baptist Montclair objected at trial to the Wilsons' introduction of testimony concerning alleged acts or omissions for which no timely advance notice, as required by the statute, was given. I must dissent today because, as I read the record, the trial court allowed the plaintiffs' expert to testify to acts and omissions not covered by the complaint and/or the amended pre-trial order. A comparison of the complaint and the amended pre-trial order with the plaintiff's expert testimony illustrates my point.
The complaint contains four basic allegations. These allegations read:
(R. at 2-4; numbering supplied.)
Additionally, the amended pre-trial order mentions eight other allegations made by the plaintiff. These allegations read:
(R. at 38-39; numbering supplied.)
In its brief to this Court, Baptist Montclair cites 16 alleged breaches of the standard of care to which the plaintiffs' medical expert testified. Basically, these 16 alleged breaches are as follows:
(See, Appellant's Brief at 13-14; R. at 446-47, 476-80, 488-90.)
By interpreting the complaint and the amended pre-trial order liberally in favor of the plaintiffs, I conclude that alleged breaches 1, 2, 6, 8, and 13 were arguably covered by the complaint or by the amended pre-trial order. Clearly, however, alleged breaches 3, 4, 5, 7, 9, 10, 11, 12, 14, 15, and 16 were not covered. I would reverse the judgment here because the trial court allowed the plaintiffs' expert to testify to alleged acts or omissions for which the defendants were not given the timely pre-trial notice required by § 6-5-551. Respectfully, I dissent. | March 26, 1993 |
9d1d2a41-b93d-47f3-8a8c-47e43ee7401c | Triple J Cattle, Inc. v. Chambers | 621 So. 2d 1221 | 1911635, 1911636 | Alabama | Alabama Supreme Court | 621 So. 2d 1221 (1993)
TRIPLE J CATTLE, INC., and Bennie D. Herring
v.
Robert F. CHAMBERS, et al.
1911635, 1911636.
Supreme Court of Alabama.
April 16, 1993.
Rehearing Denied June 4, 1993.
*1222 Bennie D. Herring, pro se.
Joseph E. Faulk of Calhoun, Faulk, Watkins, Clower & Cox, Troy, for appellees.
HORNSBY, Chief Justice.
Triple J Cattle, Inc., and Bennie D. Herring, its president, appeal from the trial court's denial of their motion for a new trial in two cases that had been consolidated and tried together. We affirm.
Herring and Triple J, represented by Herring,[1] tried claims against Billy and Betty Joan Carter based on fraud and conspiracy to defraud and claims against Robert F. Chambers and his mother, Claudean F. Chambers, based on conspiracy to defraud and abuse of process. After Triple J and Herring presented their evidence and rested, the trial court directed verdicts in favor of the defendants, the Carters and the Chamberses, and in favor of Triple J and Herring on the Chamberses' counterclaim alleging abuse of process.
The facts underlying this case involve negotiations for the sale and purchase of real property and a livestock auction company called C.L. Chambers and Son, Inc. (referred to herein as the "stockyard company"). On January 31, 1986, Herring, on behalf of Triple J, entered into an agreement with the Carters in which Triple J agreed to purchase the stockyard company; the agreement called for Triple J to assume two mortgages held by the Carters. The first mortgage had been executed in favor of First Alabama Bank of Troy, Alabama, for $50,000. The second mortgage, for $40,000, secured the unpaid portion of a promissory note the Carters had executed in favor of the Chamberses when the Carters purchased the stockyard company from the Chamberses on November 26, 1984. These mortgages related to the real property on which the stockyard company operated its business. With respect to the second mortgage, the sales agreement provided:
(Emphasis added.)
Triple J made the payments due to First Alabama Bank; however, neither it nor the Carters made any payments on the debt secured by the second mortgage held by the Chamberses, because of a dispute as to *1223 the amount due on the debt. The Chamberses sued the Carters on the promissory note the Carters had executed when they purchased the stockyard company from the Chamberses. The Carters counterclaimed, arguing that their execution of the note had been induced by fraudulent misrepresentation on the part of the Chamberses regarding the amount of the accounts receivable, the inventory, and other assets of the business, and its liabilities.
Triple J and Herring intervened in that action and sought to enjoin the Chamberses from foreclosing on the property subject to the mortgage. The trial court enjoined the Chamberses from foreclosing until such time as the "correct balance of the mortgage debt due [and] owing has been legally ascertained between Robert F. Chambers and Claudean F. Chambers and Billy Carter and Betty Joan Carter by a settlement or final judgment rendered." (Emphasis added.) This Court affirmed the trial court's injunction. Triple J Cattle, Inc. v. Chambers, 551 So. 2d 280 (Ala.1989).
Shortly before the date set for the trial to determine the amount due on the note, the Chamberses and the Carters reached a settlement and stipulated that the debt was $46,500. Triple J and Herring sued the Chamberses and the Carters, claiming that the settlement represented a conspiracy between the Chamberses and the Carters to defraud Triple J by requiring Triple J to pay an inflated amount to satisfy the second mortgage it had assumed.
Triple J and Herring's complaint alleged fraud on the part of Billy Carter. They alleged that Carter had misrepresented to Herring that the amount due on the second mortgage would be reduced by amounts recovered by the Carters on a claim the Carters had against the Chamberses for "shortages" in the custodial checking account, inventory, and accounts receivable of the stockyard company when the Carters bought the company from the Chamberses.
Triple J and Herring later amended their complaint to add a claim against the Chamberses, alleging an abuse of process in their foreclosure. The Chamberses counterclaimed against Triple J and Herring for abuse of process in the current litigation.
Triple J and Herring, represented by Herring, tried their claims against the Chamberses and the Carters. After Triple J and Herring presented their evidence and rested, the trial court directed verdicts in favor of the Chamberses and the Carters on Triple J and Herring's claims. The court also granted a directed verdict in favor of Triple J and Herring on the Chamberses' counterclaim alleging abuse of process.
Triple J and Herring filed a motion to set aside the directed verdict and for a new trial. After a hearing, the trial court denied these motions. Triple J and Herring appeal.
The Chamberses and Carters filed a motion with this Court to dismiss the appeal, arguing that Bennie D. Herring, as assignee of Triple J, lacks standing to appeal.
To have standing to appeal a judgment, one must have been a party to the judgment below. Daughtry v. Mobile County Sheriff's Dep't ex rel. Purvis, 536 So. 2d 953, 954 (Ala.1988). The caption of the complaint indicates the parties to a judgment on that complaint. See Rule 10(a), A.R.Civ.P. (requiring that "[i]n the complaint the title of the action shall include the names of all the parties").
As early as May 20, 1991, the trial court allowed Triple J and Herring, as intervenors in the action between the Chamberses and the Carters, to appear as "Triple J Cattle, Inc., and Bennie D. Herring, as assignee of Triple J." Although no assignment from Triple J to Herring appears in the record, the parties and the court proceeded with the case including parties identified as "Triple J Cattle, Inc. and Assignee, Bennie D. Herring." At the commencement of the trial, the judge stated that he interpreted the action to be one by Bennie D. Herring and Triple J, as plaintiffs, against the Chamberses and the Carters, as defendants.
*1224 The ruling from which Triple J and Herring now appeal, the denial of their motion for a new trial, was entered under the style "Triple J Cattle, Inc. and Assignee, Bennie D. Herring, Intervenor." In addition, the motion for directed verdict and the order granting that motion carried the style "Triple J Cattle, Inc. and Assignee, Bennie D. Herring, Intervenor." Herring was, thus, a party to the judgment and has standing to appeal that judgment. Based on the trial court's finding that Triple J had assigned its interest (and liabilities) to Herring, we conclude that Herring had a sufficient individual involvement in the case to appeal this case.
The appellants argue that the trial court erred in directing verdicts for the Chamberses and the Carters. On appeal, we review a motion for directed verdict by the same standard the trial court uses in determining whether to grant or deny the motion. "Thus, when reviewing the trial court's ruling on the motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the nonmovant." Ogle v. Long, 551 So. 2d 914, 915 (Ala.1989); Bussey v. John Deere Co., 531 So. 2d 860, 863 (Ala.1988).
This action was commenced before June 11, 1987; therefore, the applicable standard of proof is the "scintilla rule." Ala.Code 1975, § 12-21-12. The motion for directed verdict was to be denied if there was a scintilla of evidence in support of Herring and Triple J's claims. Peete v. Blackwell, 504 So. 2d 222, 224 (Ala.1986).
When the trial court directed the verdicts, Triple J and Herring's claims included a claim of fraud against Carter, a claim of abuse of process against the Chamberses, and a claim of conspiracy to defraud against the Carters and the Chamberses. Triple J and Herring argue that they presented sufficient evidence to create an issue of fact warranting jury consideration of each of their claims.
Triple J and Herring argue that they presented sufficient evidence to create a conflict warranting jury consideration of their promissory fraud claim against the Carters. Although Betty Joan Carter was included as a defendant, Triple J and Herring made no allegations or arguments regarding her. Therefore, the court properly directed the verdict in favor of Betty Joan Carter.
The sole evidence presented at trial with respect to the fraud claim was this testimony by Herring:
Billy Carter's alleged misrepresentation constitutes a promise to perform an act in the future contingent on the outcome of litigation or negotiations. Therefore, the claim is one of promissory fraud. See Padgett v. Hughes, 535 So. 2d 140, 141 (Ala. 1988) (holding that the claim that defendant promised that "he would foreclose the mortgage so that Padgett could receive clear, unencumbered title when the [outstanding tax] liens were satisfied" constituted a claim of promissory fraud).
A claim of promissory fraud requires proof of six elements: (1) a false representation, (2) of a material existing fact, (3) that is justifiably relied upon by the plaintiff, (4) that causes damage to the plaintiff as a proximate result of the reliance, (5) "proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised," and (6) "proof that the defendant had an intent to deceive." Padgett v. Hughes, 535 So. 2d at 142; see also Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989) (changing the standard for reliance from "reasonable reliance" to "justifiable reliance").
Herring and Triple J presented no evidence that Billy Carter, at the time he *1225 made the alleged promise, intended to deceive or not to perform. See Russellville Production Credit Ass'n v. Frost, 484 So. 2d 1084, 1086 (Ala.1986) (holding that the failure to perform a promised act is not in itself evidence that the promisor, when the promise was made, intended to deceive). Therefore, the court properly directed the verdict in favor of Billy Carter on the claim of promissory fraud.
Triple J and Herring argue that the trial court erred in directing a verdict in favor of the Chamberses on the abuse of process claim. To establish an abuse of process, one must present evidence of malice, the existence of an ulterior purpose, and wrongful use of process. Drill Parts & Serv. Co. v. Joy Manufacturing Co., 619 So. 2d 1280 (Ala.1993) (holding that "lack of probable cause is not an essential element of [an] abuse of process [claim]").
Triple J and Herring presented no evidence of any of these elements. Accordingly, the directed verdict in favor of the Chamberses was appropriate.
Triple J and Herring argue that the Chamberses and the Carters conspired to defraud Triple J by agreeing to settle the Carters' claim against the Chamberses. "A civil conspiracy requires a combination of two or more individuals to accomplish a lawful end by unlawful means." Drill Parts & Serv. Co. v. Joy Manufacturing Co., 619 So. 2d at 1290 (quoting Nelson v. University of Alabama System, 594 So. 2d 632, 634 (Ala.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 62, 121 L. Ed. 2d 30 (1992)). A civil conspiracy action focuses not on the conspiracy alleged, but on the wrong committed by virtue of the alleged conspiracy. Sadie v. Martin, 468 So. 2d 162, 165 (Ala. 1985). Conspiracy itself furnishes no civil cause of action. Allied Supply Co. v. Brown, 585 So. 2d 33, 36 (Ala.1991). Therefore, a conspiracy claim must fail if the underlying act itself would not support an action. Id.
Because we conclude that Triple J and Herring have made no allegations against either the Chamberses or the Carters that would support a conspiracy claim, we affirm that portion of the judgment based on the directed verdict in favor of the Chamberses and the Carters on the conspiracy claim.
At trial, Triple J and Herring called Billy Carter as an adverse witness and asked Carter if he had ever told Herring that Triple J and Herring would be the beneficiaries of any amount of money that the Carters gained as a result of the suit against the Chamberses. Carter replied that he did not recall making such a statement. Triple J and Herring then attempted to impeach Carter by evidence of a prior inconsistent statement made during a taped telephone conversation.
The telephone conversation that was recorded allegedly occurred over four and one half years after the event to which it related had taken place. Triple J and Herring allege that Herring taped a telephone conversation he had with Billy Carter in September 1990 that related to Triple J's agreement to purchase the stockyard company; that agreement had been entered in January 1986. Triple J and Herring allege that, during this conversation, Carter admitted that he had told Herring that he and Triple J would be the beneficiaries of any amount the Carters recovered on the claim against the Chamberses.
Initially, Triple J and Herring offered an edited version of the original tape recording. Herring admitted that he had altered the original tape by erasing portions of it that he said were irrelevant. The trial court heard the recording outside the presence of the jury and gave opposing counsel an opportunity to object, as required. Wright v. State, 38 Ala.App. 64, 79 So. 2d 66 (1954), cert. denied, 262 Ala. 420, 79 So. 2d 74 (Ala.1955). The trial court then *1226 ruled that the tape was inadmissible in its altered form. See Ex parte Fuller, 620 So. 2d 675 (Ala.1993) (clarifying requirements for admission of sound recording).
Triple J and Herring then presented a tape that Herring contended was the original unedited tape recording. The trial court played this tape outside the presence of the jury and likewise held it inadmissible. Triple J challenges the trial court's rulings. We find no error in those rulings.
Before extrinsic evidence may be used to establish a prior inconsistent statement to impeach a witness, a proper predicate must be laid. Ex parte Pope, 562 So. 2d 131, 134 (Ala.1989), cert. denied, 498 U.S. 841, 111 S. Ct. 118, 112 L. Ed. 2d 87 (1990); White Consol. Indus. v. American Liberty Ins. Co., 617 So. 2d 657 (Ala.1993) (clarifying the law regarding admissibility of prior inconsistent statements used to impeach).
The record reveals that Triple J and Herring failed to lay a proper predicate to impeach Carter's testimony. Herring and Triple J made the following statements, attempting to lay a proper predicate:
Because Triple J and Herring did not lay a proper predicate to impeach Carter's testimony, the trial court did not abuse its discretion in rejecting the tape recording offered for impeachment.
Triple J and Herring argue that the trial court's refusal to lift a protective order it had previously entered denied them adequate discovery. On February 15, 1991, they sought depositions of Billy Carter, Bobby Chambers, and a representative of First Alabama Bank of Brundidge, Alabama. Triple J and Herring also filed a request for production of documents on that date.
The Chamberses then filed a motion for protective order on the ground that the notices for discovery were untimely. The trial court granted this motion and later denied Triple J and Herring's motion to reconsider the protective order.
Rule 26(c), Ala.R.Civ.P., recognizes that the right of discovery is not unlimited. This Court has held that the trial court is vested with discretion in the discovery process and that "[t]he particular details of the discovery process must necessarily be left to the sound discretion of the trial court." Campbell v. Regal Typewriter Co., 341 So. 2d 120, 124 (Ala.1976), modified on other grounds, Sharp Electronics Corp. v. Shaw, 524 So. 2d 586 (Ala.1987). Accordingly, this Court reviews the trial court's discovery orders only for an abuse of discretion.
The Chamberses argued in their motion for a protective order, and in their response to the motion to reconsider, that Triple J and Herring's discovery attempts were untimely. When Triple J and Herring first sought discovery, the case had been pending for approximately five years. Triple J and Herring had been parties to that case for approximately three years. They gave no excuse for their untimely discovery requests.
Triple J and Herring do not argue that the trial court abused its discretion or that it placed an arbitrary limit on discovery. Furthermore, after carefully reviewing the record, we hold that the trial court did not abuse its discretion in denying the motion to reconsider the protective order, given the circumstances of this case.
Triple J and Herring argue on appeal that the trial court erred in denying their "bill of redemption." They do not specify the issues for review. Furthermore, they cite no authority for their arguments. "Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for *1227 it is neither this Court's duty nor its function to perform all the legal research for an appellant." Sea Calm Shipping Co. v. Cooks, 565 So. 2d 212, 216 (Ala.1990); Rule 28(a)(5), Ala.R.App.P.
From a cursory review of the arguments raised by Triple J and Herring with respect to this issue, we find no reason for reversal. The judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] Triple J Cattle, Inc., and Bennie D. Herring submitted only one brief to this Court. It is undisputed that Herring is not an attorney. This Court has recognized the general rule "that a corporation can appear in court only through an attorney; it cannot appear pro se." A-OK Construction Co. v. Castle Construction Co., 594 So. 2d 53, 54 (Ala.1992). Ordinarily, this Court would dismiss an appeal brought by a nonlawyer on behalf of a corporation for failure to file a brief or to prosecute the appeal. Rule 2(a)(2), Ala.R.App.P. Nevertheless, in this case, as in A-OK Construction Co., "we have studied the record and the materials that have been submitted, and we have determined that the judgment is due to be affirmed on the merits." In the interest of expediting the decision, we suspend the rules regarding dismissals, and we affirm the judgment on the merits. | April 16, 1993 |
a71c1c27-8d5e-47c8-8554-bad42f8a33f1 | Ex Parte Barnette | 624 So. 2d 507 | 1920421 | Alabama | Alabama Supreme Court | 624 So. 2d 507 (1993)
Ex parte Antonio BARNETTE.
(In re Antonio Barnette v. State of Alabama).
1920421.
Supreme Court of Alabama.
April 23, 1993.
William R. King and C. Clay Torbert III of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, for petitioner.
James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
Antonio Barnette was arrested for possession of cocaine. He moved to suppress the evidence against him, alleging that his stop by the police was improper because, he argued, a "reasonable suspicion" of criminal activity could not be based on what he termed an "uncorroborated anonymous tip." The trial court denied his motion to suppress. He was convicted. The Court of Criminal Appeals affirmed, without opinion. 614 So. 2d 1063. Barnette petitioned for a writ of certiorari, citing Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), as authority for his claim that "the stop violated the Constitution and the motion to suppress should have been granted," because "the anonymous tip ... lacked significant details that could be independently corroborated by police to provide `sufficient indicia of reliability to justify the investigatory stop.'" Quoting the language of White, 496 U.S. at 332, 110 S. Ct. at 2417.
We issued the writ to determine whether, under the "totality of the circumstances," the anonymous tip had been sufficiently corroborated by independent police investigation to establish the requisite indicia of reliability that would provide reasonable suspicion that Barnette was involved in criminal activity and thereby justify the investigatory stop. We hold that it had not been.
On February 1, 1991, the Montgomery police received an anonymous telephone call indicating that two young black males were selling drugs. The caller described only the clothing worn by the black males (one wearing a brown jacket, blue jeans, and a black hat; the other wearing black "warmup" pants with a red stripe, a black jacket, and a black hat) and their location (the corner of Southlawn and Greensboro Road in Montgomery). The police received no information about the informant. Thereafter, two police officers were dispatched to the area with only *508 the aforementioned information. Upon their arrival, the police did not see two black males in the vicinity but rather saw three black malesBarnette and two others. None of the black males was dressed as described in the dispatch. In fact, the police testified that Barnette was wearing a black jacket, black jeans, and a blue hat. In addition, Barnette was riding a bicycle some distance down the block from the two other black males, a fact that was not mentioned in either the anonymous call or in the dispatch.
According to the police, they had intended to do a "ride-by" to look for any suspicious-looking person in the area or anyone engaging in a drug transaction. However, although they did not do a "ride-by" and although they saw no evidence that the black males were selling drugs, the police nevertheless proceeded to search them. They first searched the other black males but found no weapons or drugs on either of them. They then approached Barnette, who had fallen off his bicycle; they pointed a weapon at him and instructed him to "lean against the car." One of the officers testified: "I didn't know what I had. At the time, I didn't know what, if anything, [Barnette] was wanted for. That's why I placed him on the car and did a weapons search on him because I didn't know if he was wanted and for what."
While frisking Barnette, the police felt something in the crotch of his pants that they said they knew was not a weapon but which they thought was crack cocaine. When they reached in Barnette's pants, their suspicions were confirmed and they arrested Barnette for possession of cocaine.
In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the United States Supreme Court, dealing with an anonymous tip in the probable cause context, abandoned the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), for the "totality of the circumstances" approach in determining whether an informant's tip established probable cause. However, in abandoning the Aguilar-Spinelli "two-pronged test" for the "totality of the circumstances" test, the Court retained the critical factors of an informant's veracity, reliability, and basis of knowledge as factors to be considered in assessing the value of the information.
In Alabama v. White, supra, the Court held that just as veracity, reliability, and basis of knowledge are relevant in the probable cause context, "these [critical] factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet [the reasonable suspicion] standard." 496 U.S. at 325, 110 S. Ct. at 2412. Because the veracity of the person giving the anonymous tip is "by hypothesis largely unknown, and unknowable," Illinois v. Gates, 462 U.S. at 237, 103 S. Ct. at 2331, and because ordinary citizens do not generally provide extensive recitations of the basis of their everyday observations, an anonymous tip, without more, seldom demonstrates an informant's reliability or the basis of the informant's knowledge. Nonetheless, an anonymous tip can provide the reasonable suspicion necessary for an investigatory stop, if the tip is sufficiently corroborated by independent police investigation. See Alabama v. White.
Alabama v. White, 496 U.S. at 330-31, 110 S. Ct. at 2416-17. (Citations omitted.)
The anonymous tip in this case contained merely a range of details relating to easily obtained facts and conditions existing at the time of the tip, i.e., that two black males dressed in a particular manner were at a specific location. Anyone could have predicted the location of the black males, their race, and a general description of their clothes, because that was a condition presumably existing at the time of the call. However, the anonymous tip did not contain facts which are ordinarily not easily predicted but which would have demonstrated a familiarity with Barnette's affairs that the general public would not have had, i.e., Barnette's future behavior. See Alabama v. White, supra. In addition, when the officers stopped Barnette, they had not corroborated the tip by independent investigation sufficient to furnish reasonable suspicion that Barnette was engaged in criminal activity.
Therefore, under the "totality of the circumstances" in this case, we hold that because the anonymous tip was not corroborated by independent police investigation, it was insufficient to exhibit indicia of reliability that would justify the investigatory stop of Barnette. Therefore, we reverse the judgment and remand the case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
Once again this Court is called upon to apply the law of anonymous tips, and once again this Court has failed to apply the law of reasonable searches and seizures, but instead has applied a "laboratory analysis" to the facts surrounding the search, a process criticized in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).[1]
The Court of Criminal Appeals correctly applied the law relating to anonymous tips set forth in Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), in which the Supreme Court, although admitting that the White case was "close," nevertheless, established what I believe has become the rule of law to be applied when dealing with investigatory stops based, in part, upon an anonymous tip.
I realize that Barnette argues that the facts in Alabama v. White are distinguishable from the facts in this case, and clearly there are some differences in the facts, but I believe that the Court of Criminal Appeals correctly determined that the rule of law set forth in White is controlling.
As the United States Supreme Court pointed out in White, 496 U.S. at 326, 110 S. Ct. at 2413, "[u]nder Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612 (1972), an informant's tip may carry sufficient `indicia of reliability' to justify a Terry stop even though it may be insufficient to support an arrest or search warrant."
The majority sets out verbatim the "reasonable suspicion" test established in Alabama v. White, but then proceeds to apply a standard similar to the one that the United States Supreme Court, in Illinois v. Gates, criticized as being a "laboratory analysis" of the facts that was too technical.[2] The majority *510 says that "[t]he anonymous tip in this case contained merely a range of details relating to easily obtained facts and conditions existing at the time of the tip, i.e., that two black males dressed in a particular manner were at a specific location." 624 So. 2d at 509. The majority then says what it would require of a tipster: that "the anonymous tip... contain facts which are ordinarily not easily predicted but which would have demonstrated a familiarity with Barnette's affairs that the general public would not have had, i.e., Barnette's future behavior." 624 So. 2d at 509. The majority then criticizes the police for not "corroborat[ing] the tip by independent investigation sufficient to furnish reasonable suspicion that Barnette was engaged in criminal activity." 624 So. 2d at 509.
The majority holds that the tip lacks credibility because there were three black men on the corner instead of two (the majority makes no allowance for the fact that another person could have joined the two between the time of the tip and the time the police arrived at the scene). The majority also says that "[t]he police received no information about the informant." 624 So. 2d at 507. The word "anonymous" means exactly thatthat the informant is not going to give much information about who he or she is, or where he or she is located, or how he or she obtained the information. The whole theory behind allowing anonymous tips in helping in crime enforcement is that the informant will be anonymous and will remain anonymous. Even under the old Aguilar and Spinelli tests, involving known informants, that is, informants the police knew and knew had given credible information in the past, the identity of the informants and a description of them was not required. The old discarded Aguilar standard did require that they have a "batting average" of supplying credible information. Those old tests have now been abolished.
I recognize that Alabama v. White does require some independent investigation and corroboration to ensure credibility of the anonymous tip, but does the "reasonable suspicion" test require the kind of corroboration and independent investigation that the majority sets out here? I think not. In fact, the requirements set out in the opinion are almost as stringent, in my judgment, as those set out in Aguilar and Spinelli, and clearly the requirements are much more stringent than the credibility requirements for making a Terry v. Ohio stop that the Court set forth in Alabama v. White.
Why do I think that the stop made of Barnette was justified? I think it was justified because under the "totality of the circumstances" test set out in Illinois v. Gates and Alabama v. White, the officers had sufficient information to justify a "reasonable suspicion," when they went to the scene and made the investigatory stop of Barnette, that Barnette was engaged in criminal activity, that is, selling illegal drugs. The totality of those circumstances was as follows: The officers were aware that the location was a popular site from which to sell drugs, because they had arrested drug dealers in the area before. The informant gave the exact location and, as stated in the majority opinion, the caller gave a description of the clothes the suspects were wearing. The majority makes a big point of the fact that the clothing Barnette was wearing did not match the description given, but the facts show that Barnette was black, that he was at the location given by the caller, that he was wearing dark pants, a jacket, and a cap, and that when the officers turned the corner in a marked police vehicle, Barnette saw them and had what the officers described as a startled expression on his face. Barnette then attempted to flee the location, a "furtive" act, and this occurred before the officers made the Terry stop. This Court, during the time it was applying the Aguilar test, recognized that a furtive act can give rise to a reasonable suspicion of criminal activity. See Daniels v. State, 290 Ala. 316, 276 So. 2d 441 (1973), in which Justice Bloodworth, writing for the Court, set out several of the principles of law that authorized a Terry stop and frisk and concluded that the officers in that case had probable cause to search for illegal drugs. In Daniels, officers had stopped a vehicle and arrested the driver for a traffic violation, and at that time the police received a radio broadcast indicating that the *511 vehicle was stolen. As one officer approached the vehicle, the defendant, a passenger in the back seat, was observed tossing a Kleenex box over his shoulder onto the ledge of the back seat of the car. Based on those facts and circumstances, this Court held that there was probable cause for the officers to conduct a search of the car and seize illegal marijuana in the box that was tossed. Daniels stands for the proposition that a "furtive" movement or gesture, when considered with other facts and circumstances, can form the basis of at least a suspicion of criminal activity. I realize that the majority characterizes Barnette's bicycle ride as being of no effect, but I believe the trial judge could consider the officer's testimony about Barnette's leaving the scene as evidence of a "furtive" act that could, along with the evidence of Barnette's startled look when he saw the marked police vehicle, form the basis for holding that the officers had sufficient information to authorize an investigatory stop. Cf. Fields v. State, 582 So. 2d 596 (Ala.Cr.App.1991).
Based on the foregoing, I must respectfully dissent. The majority opinion, especially its references to information the police must have about an anonymous tipster and its criticism of the information in this case is troubling to me. Law enforcement agencies encourage citizens to furnish information about crime anonymously. If information furnished by citizens is so suspect that it must be corroborated as the majority suggests here, then the old stringent test is back, and, as I said in my dissent in Spann v. State, quoting the late Justice Hugo L. Black, who had dissented in Aguilar, "`With all respect to my Brethren who agree to the judgment and opinion of the Court, I am constrained to say that I believe the decision here is a gross and wholly indefensible miscarriage of justice.'" Whiteley v. Warden, 401 U.S. 560, 570, 91 S. Ct. 1031, 1038, 28 L. Ed. 2d 306 (1971) (Black, J., dissenting), as quoted in Spann v. State, 494 So. 2d 719, 722 (Ala.1986) (Maddox, J., dissenting).
STEAGALL, J., concurs.
[1] In Spann v. State, 494 So. 2d 719 (Ala.1986), this Court affirmed a decision of the Court of Criminal Appeals that had excluded evidence obtained as a result of an anonymous tip. I dissented, the basis of my dissent being grounded on my belief that, in Illinois v. Gates, the Supreme Court of the United States had abandoned the strict requirements of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and had adopted a less stringent "reasonable suspicion" test based on a "totality of the circumstances." See Spann, 494 So. 2d at 722-23 (Maddox, J., dissenting).
[2] It should be remembered that Illinois v. Gates involved a search and seizure based on an anonymous tip and that the Court was determining whether there was "probable cause" to search, not "reasonable suspicion" to conduct an investigatory stop. | April 23, 1993 |
04444c84-3a3e-4f78-9b3a-2610d3ef0dc0 | Ex Parte Ellenburg | 627 So. 2d 398 | 1920453, 1920454 | Alabama | Alabama Supreme Court | 627 So. 2d 398 (1993)
Ex parte Marlene ELLENBURG.
Ex parte UNIVERSAL FOREST PRODUCTS, a Corporation.
(Re UNIVERSAL FOREST PRODUCTS, a Corporation
v.
Marlene ELLENBURG).
1920453, 1920454.
Supreme Court of Alabama.
April 16, 1993.
Rehearing Denied June 18, 1993.
Tim R. Wadsworth, Sulligent, for petitioner Marlene Ellenburg.
John W. Clark, Jr. and William A. Austill of Clark & Scott, P.C., Birmingham, for petitioner Universal Forest Products.
C. Harry Green of Green, Wood, Howell & Glenn, Hamilton, for amici curiae C. Harry Green, O. Frederick Wood, R. Wyatt Howell, Jr., J. Tony Glenn, Bill Atkinson, James K. Davis, Todd Atkinson, Jackie O. Isom, Ed Fowler, John Tyra, John Bently, Nelson Vinson, Jerry Guyton, Lionel Leathers and Wade Leathers, members of Marion County Bar Ass'n.
SHORES, Justice.
We granted each party's petition for certiorari review in this workers' compensation case. The Court of Civil Appeals reversed that portion of the trial court's award of benefits to the employee that had been based on a finding that the employee, Marlene Ellenburg, had suffered a 50% permanent disability as a result of an injury occurring on *399 the job.[1] The Court of Civil Appeals affirmed that portion of the trial court's judgment ordering the employer, Universal Forest Products, to pay the expenses of the employee's expert witness, a vocational expert.
The Court of Civil Appeals held that there was evidence to support the trial court's factual finding of a 50% permanent disability, but that no reasonable view of the evidence supported that portion of the trial court's judgment awarding "permanent" disability benefits. The Court of Civil Appeals stated: "The trial court found that Ellenburg sustained a 50% permanent partial disability, despite the statements of two physicians that Ellenburg was not permanently disabled." Universal Forest Products v. Ellenburg, 627 So. 2d 395 (Ala.Civ.App.1992). (Emphasis added.) The inference in this holding is that without positive expert testimony of a permanent disability the court cannot find the employee to be permanently disabled.
Ellenburg contends that the trial court is not limited solely to an expert witness's testimony as to the permanency of the disability, but that it must weigh all the evidence in deciding the question of the extent of any disability. She argues that the review by the Court of Civil Appeals exceeded the scope of review allowed by Ex parte Eastwood Foods, Inc., 575 So. 2d 91 (Ala. 1991), which sets forth a two-step standard of review:
Id. at 93. We agree with the employee that the Eastwood standard does not require positive expert testimony concerning disability in order for the employee to be found to be disabled.
It is settled law that a trial court in a workers' compensation case may make a finding of permanent total or partial disability without even receiving expert testimony. Stewart v. Busby, 51 Ala.App. 242, 284 So. 2d 269 (1973); Bankhead Forest Industries, Inc. v. Lovett, 423 So. 2d 899 (Ala.Civ.App.1982). The reasoning behind this rule is stated in Stewart v. Busby, quoting 3 Larson, Law of Workmen's Compensation, § 79.83, as follows:
51 Ala.App. at 246, 284 So.2d, at 273.
It is further settled that the trial court's findings on disputed evidence in a workers' compensation case are conclusive. As the Court of Civil Appeals said in McKenzie v. American Bread Co. of Alabama, 579 So. 2d 667, 670 (Ala.Civ.App.1991):
In the present case, there is lay testimony and there was medical evidence, in the form of medical records, to support the finding of *400 the trial court. The vocational counselor, who found that a permanent disability existed, assigned Ellenburg a 43% disability rating.
For the reasons stated above, that portion of the judgment of the Court of Civil Appeals reversing the award of "permanent" disability benefits is due to be reversed and the trial court's award of benefits based on a 50% permanent partial disability is due to be reinstated.
We next consider the employer's contention that the Court of Civil Appeals erred in affirming the trial court's order requiring the employer to pay the fee of the employee's vocational expert. The Court of Civil Appeals wrote:
627 So. 2d at 397. There is no showing of abuse of discretion, and the holding of the Court of Civil Appeals is due to be affirmed on the authority of Littleton v. Gold Kist, Inc., 480 So. 2d 1236, 1238 (Ala.Civ.App.1985):
That portion of the judgment of the Court of Civil Appeals reversing the award of permanent disability benefits is reversed and the case is remanded for the entry of a judgment affirming the award of benefits based on the finding of a 50% permanent partial disability; that portion of the judgment affirming the award of an expert witness fee is affirmed.
1920453REVERSED AND REMANDED.
1920454AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in part; dissenting in part).
The Court of Civil Appeals was absolutely correct in finding that no reasonable view of the evidence in this case would support the trial judge's determination that the worker had a 50% permanent partial disability. That court applied the correct standard of review for cases such as this one, and it reached the correct result. I must respectfully dissent from that part of the majority opinion holding otherwise. In all other respects I concur with the majority.
[1] The trial judge awarded Ellenburg temporary total disability benefits for 17 weeks and permanent partial disability benefits for 383 weeks. | April 16, 1993 |
009582e0-fa5e-4159-9d72-d0447a270e37 | Allen v. Gulf Life Ins. Co. | 617 So. 2d 664 | 1912007 | Alabama | Alabama Supreme Court | 617 So. 2d 664 (1993)
Lillie ALLEN
v.
GULF LIFE INSURANCE COMPANY, et al.
1912007.
Supreme Court of Alabama.
April 2, 1993.
*665 Ronald O. Gaiser, Jr. and James P. O'Neal of Gaiser and O'Neal, Birmingham, and J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders, Williams & Pettway, P.C., Selma, for appellant.
Charles D. Stewart, Betsy P. Collins and Edward M. Weed of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for Gulf Life Ins. Co. and American Gen. Corp.
Frank C. Wilson III of Gamble, Gamble, Calame & Wilson, Selma, for Frances Williamson.
MADDOX, Justice.
The issue presented by this appeal is whether an insured can have a cause of action against her insurer and its agent for fraud based on misstatements in the insurance application, even though the insurer never denied a claim under the policy and never sought to void the policy and the policy was incontestable at the time suit was filed. The trial court entered summary judgments in favor of the insurer and its agent on the insured's fraud claim, on the ground that the insured had suffered no damage. We affirm.
On December 2, 1989, Lillie Allen applied for a policy of hospital indemnity insurance with Gulf Life Insurance Company. In her affidavit, Allen alleged that in response to a general question about her health, she told Frances Williamson, an agent for Gulf Life, that she had high blood pressure. Allen also alleged that she was asked no other questions regarding her health, but that further questioning would have revealed that she also had a thyroid condition. The completed application did not mention either of these two preexisting conditions. Allen signed the application as the proposed insured. Williamson, in her affidavit, disputed Allen's claims and stated that she asked all of the health questions on the application and that she accurately reported Allen's responses. According to Williamson, Allen's responses did not include any information about high blood pressure or a thyroid condition.
Allen's complaint can be succinctly stated as follows: 1) that her policy was issued based on an application that contained the agent's misstatements regarding her high blood pressure and thyroid condition; 2) that the policy, therefore, provided no coverage for these conditions during the two-year period of contestability;[1] and 3) that Allen was charged, and paid, a premium based on coverage she did not receive.
It is undisputed that Allen paid standard premiums for a person of her age and sex on a timely basis from the date of the issue, December 1, 1989, through the expiration of the contestability period, December 1, 1991. It is also undisputed that the relevant provisions of the policy are as follows:
Allen made no claims during the contestability period and the insured denied no claims on the basis of the preexisting conditions. After the expiration of the contestability period, Gulf Life could not deny or contest a claim because of a preexisting disease or condition.
Allen, alleging fraud and suppression of material facts, filed this action against Gulf Life and Williamson on April 10, 1992, several months after the policy became incontestable.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering a summary judgment. 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. Rule 56(c); Berner v. Caldwell, 543 So. 2d 686 (Ala.1989); Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985). The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant, Allen, and resolve all reasonable doubts against the movant, Gulf Life.[2]Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990).
Thus, viewing the evidence in the light most favorable to the nonmovant, Allen, we must assume that (1) Williamson failed to properly record Allen's health conditions on the policy; (2) the policy was voidable or limited during the contestability period because of omissions in the application; and (3) during the first two years, the policy provided no coverage as to Allen's pre-existing high blood pressure and thyroid condition. However, the undisputed evidence shows that Allen made no claim under the policy during that period and that Gulf Life made no attempt to void, or in any way to impair, Allen's policy during that period.
Allen contends that she was damaged in two ways by Gulf Life. First, Allen argues that she was led to believe she had full insurance coverage when, in fact, she says, her coverage was arguably voidable or limited during the two-year period of contestability even though in fact she made no claim during this period. Second, Allen states that she paid full premiums for full coverage during a period when the policy was arguably voidable and coverage for her high blood pressure and thyroid conditions was arguably excluded.
Fraud is never presumed, and the party asserting fraud bears the burden of proving each and every element thereof. See Wilson v. Southern Medical Association, 547 So. 2d 510 (Ala.1989); Johnson v. Keener, 370 So. 2d 265 (Ala.1979). In order to establish a prima facie case of fraud, Allen had to establish by substantial evidence: (1) a false misrepresentation; (2) concerning an existing material fact; (3) upon which she detrimentally relied; and (4) that proximately caused her damage or loss or injury. See Pruitt v. Colonial Mortgage Co., 548 So. 2d 1039, 1040 (Ala. 1989); Taylor v. Moorman Mfg. Co., 475 So. 2d 1187, 1189 (Ala.1985). Thus, an essential element of any fraud claim is damage or loss or injury. Lowe v. American *667 Medical International, 494 So. 2d 413, 415 (Ala.1986).
Gulf Life argues that this Court has previously dealt with a fact situation almost identical to the one at issue here, in Moore v. Liberty National Life Ins. Co., 581 So. 2d 833 (Ala.1991). We agree. In Moore, the insureds sued Liberty National and its agent, based on the agent's having taken out loans on the insureds' policies without the insureds' knowledge or authority; Liberty National had restored the policies before any claims were made. The insureds sued under the theory that damage or loss existed in the form of a decreased cash surrender value and decreased death benefit during the period that the policies were encumbered by the loans. As in this case, the period during which the policies were of decreased value had expired before the insureds sued.
In holding that the insureds had suffered no damage or loss, the Moore Court wrote:
581 So. 2d at 835.
Because the Moores never made a claim or tried to make a loan and thus were never denied benefits under the policies, a court could not find that they had incurred damage or loss; thus they could not recover damages. Indeed, as this Court recognized, "the trial court correctly concluded that ... the Moores were never denied the use of their policies and ... they never `suffered a nickel's worth of loss.'" Id.
Allen's allegations of damage or loss, like the allegations in Moore, are "based strictly on speculation." 581 So. 2d at 835. Allen presented no evidence that she incurred damage or loss upon which a recovery can be based.
The summary judgments for Gulf Life and Williamson are due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] On December 7, 1989, Gulf Life issued the policy for which Allen had applied on December 1, 1989. The policy had an effective date of December 1, 1989. Gulf Life admits that the policy is now incontestable.
[2] Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that Allen, the nonmovant, meet her burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). | April 2, 1993 |
a7d772fa-0d95-49f1-b965-be987280c8ca | KROGER BY AND THROUGH KROGER v. Davis | 622 So. 2d 303 | 1911253 | Alabama | Alabama Supreme Court | 622 So. 2d 303 (1993)
Tatum KROGER, a minor, who sues By and Through her father and next friend, James KROGER; and James Kroger, individually
v.
Betty DAVIS and Barbara Miller.
1911253.
Supreme Court of Alabama.
April 9, 1993.
Scott A. Powell of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
Mark S. Boardman and Perryn S. Godbee of Porterfield, Harper & Mills, P.A., Birmingham, for appellees.
ALMON, Justice.
Tatum Kroger, a second grade student, was injured by another student or students *304 on a school playground during recess. She and her father brought an action against the two schoolteachers who were supervising the students during recess. In supervising the students during recess, the defendant teachers were performing a discretionary function and are therefore immune from liability. Nance v. Matthews, 622 So. 2d 927 (Ala.1993). The summary judgment for the defendants is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | April 9, 1993 |
4e2082f9-8485-455c-acbb-ce30583509c9 | Ex Parte Williams | 627 So. 2d 999 | 1911047 | Alabama | Alabama Supreme Court | 627 So. 2d 999 (1993)
Ex parte Herbert WILLIAMS, Jr.
(Re Herbert Williams, Jr. v. State).
1911047.
Supreme Court of Alabama.
April 2, 1993.
Rehearing Denied August 27, 1993.
*1000 W. Gregory Hughes of Hale, Hughes & Teague, Mobile, for petitioner.
James H. Evans, Atty. Gen., and Sandra J. Stewart and Melissa G. Math, Deputy Attys. Gen., for respondent.
ADAMS, Justice.
The defendant, Herbert Williams, Jr., was convicted of capital murder in regard to the 1988 death of Timothy Hasser and was sentenced to death by electrocution. The Court of Criminal Appeals affirmed, Williams v. State, 627 So. 2d 985 (Ala.Cr.App.1991). This Court granted certiorari review. Rule 39, Ala.R.App.P.
The facts of this case, as set out by the Court of Criminal Appeals, are, for the reader's convenience, repeated below:
627 So. 2d at 987-988.
Williams argues that venue was improper in Mobile County, and, therefore, that his conviction must be reversed. We disagree. Although Williams was stopped near Jackson, outside Mobile County, in one of his statements, he said that the murder of Timothy Hasser occurred in Creola, Alabama, which is in Mobile County.
Jackson v. State, 516 So. 2d 726, 738 (Ala. Crim.App.1985), remanded on other grounds, 516 So. 2d 768 (Ala.1987). Thus, venue was proper in Mobile County.
Williams also contends that the statements made by him to the police were not made voluntarily and, therefore, that they were erroneously admitted into evidence.
Jackson v. State, 516 So. 2d 726, 741 (Ala.Cr. App.1985), remanded on other grounds, 516 So. 2d 768 (Ala.1987). It is clear from the record that the defendant was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prior to his making each statement to police and investigators concerning the murder. First, Williams was given the Miranda warnings three times by Officer Harrell at the scene of the crime, with a fourth explanation of his rights in "street language," and he indicated to Harrell that he understood those rights and voluntarily waived them. Then, at the station, he was again informed of his rights, before he made another statement. At one point, Williams stopped the questioning and requested an attorney. Later, his mother and father requested that an investigator speak with Williams; his parents were told that Williams had requested an attorney and that the investigators were not allowed to question him further unless he initiated contact with them. After meeting with his parents, Williams initiated contact with the investigator and indicated that he wanted to make a statement. He was again given the Miranda warnings and was asked to sign a statement indicating that he requested to see the investigator.
Payne v. State, 424 So. 2d 722, 724 (Ala.Crim. App.1982). Clearly, Williams initiated the statement given to the officers and no violation of his rights occurred.
In addition, Williams questions the admissibility of a handwritten statement provided to the State by Golliday Miller, a fellow inmate during Williams's incarceration. An expert testified at trial that the statement was written by Williams; however, Williams argues that the statement was inadmissible because, he says, the State failed to prove that it was voluntarily given. A review of the record reveals that Golliday Miller contacted Officer Richardson with regard to a confession Miller said had been written by Williams. The State offered testimony tending to show that Miller was not an agent of the State when the statement was written and that Miller did not receive any reward from the state for turning over the statement to the State.[1]
Jackson v. State, 502 So. 2d 858, 862 (Ala.Cr. App.1986).
Williams next contends that he was examined by a State psychiatrist without his attorney being present, and that this examination violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The findings of the psychiatrist were not admitted into evidence, and Williams offered nothing to substantiate his claim that the prosecutor used those findings as a springboard for discovery. We find no error in this regard.
We have considered the fact that Williams was only 19 years old at the time of the murder and his contention that the statute allowing the imposition of the death penalty is unconstitutional as applied to him. First, we note the following:
Jackson v. State, 516 So. 2d 726, 756 (Ala. Crim.App.1985), remanded on other grounds, 516 So. 2d 768 (Ala.1987). See also Ex parte Davis, 554 So. 2d 1111, 1113-14 (Ala.1989) (for a discussion as to the constitutionality of imposing the death penalty on defendants who are 16 or 17 when they commit their crimes). Williams's age when he committed the murder was not a bar to the imposition of the death penalty.
Williams also argues that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in using peremptory strikes to remove four blacks from the jury venire.[2] The reasons proffered by the State for those four strikes were that an arrest warrant was pending with regard to one of those veniremembers; that one of them knew a defense witness; that one had been arrested for harassment;[3] and that the other admitted to "[f]ighting, cutting," saying, "I've been cut. I've got cut and I've cut people." In justifying his strike of the latter veniremember, the district attorney stated that the veniremember's statement indicated illegal activity.
Heard v. State, 584 So. 2d 556, 560 (Ala.Crim. App.1991). See also Warner v. State, 594 So. 2d 664, 670 (Ala.Cr.App.1990), reversed, 594 So. 2d 690 (Ala.Cr.App.1992). See also Hawkins v. State, 594 So. 2d 181, 187 (Ala.Cr. App.1991) (race-neutral strike of a black veniremember who knew an expert witness for the defense). We have considered the prosecutor's reasons for striking the four blacks on the jury venire, and we find all the reasons to be race-neutral.
As to the other arguments raised by Williams, we conclude that the Court of Criminal Appeals correctly answered them. In addition, we have searched the record for plain error pursuant to Rule 45, A.R.App.P., and we have found none.
This Court is required by § 13A-5-53, Code of Alabama 1975, to review the propriety of the sentence of death. Our review of the record indicates that the sentence was not the result of "passion, prejudice, or any other arbitrary factor," § 13A-5-53(b)(1). Furthermore, we have considered the single aggravating circumstance, that the murder was committed while the defendant was engaged in a robbery, and have weighed it against the mitigating factors of no prior criminal history, an abusive father, and Williams's age when he committed the crime. We find the sentence of death to be proper and not disproportional to the crime. § 13A-5-53(b)(2) and (3). The judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] According to the State, Miller is presently serving a life sentence for the crime he committed (which was not related to Williams's crime), and he received no reward and no reduction in sentence for turning Williams's statement over to the State. In fact, at trial, Miller "forgot" all facts relating to the written statement, evidently because the State did refuse to give him a "deal."
[2] Three blacks served on the jury.
[3] The prosecutor also stated that a white person had been struck from the venire for a previous arrest. | April 2, 1993 |
a0b6526d-9ed4-43ff-8352-4988b66f9cd5 | Backus v. Watson | 619 So. 2d 1342 | 1911804 | Alabama | Alabama Supreme Court | 619 So. 2d 1342 (1993)
Mary S. BACKUS
v.
Jimmy H. WATSON, et al.
1911804.
Supreme Court of Alabama.
March 26, 1993.
Rehearing Denied April 23, 1993.
Christopher E. Peters of Cherry, Givens, Tarver, Peters, Lockett & Diaz, P.C., and Gregory B. McAtee of Stokes & McAtee, Mobile, for appellant.
James D. Brooks and William W. Watts III of Reams, Philips, Brooks, Schell, Gaston & Hudson, P.C., Mobile, for Jimmy H. Watson.
Barry L. Thompson of Silver & Voit, P.C., Mobile, for Syble L. Watson.
HOUSTON, Justice.
Mary S. Backus sued Carousel Club 90, Inc. ("the club"), seeking to recover damages under Ala. Code 1975, § 6-5-71 (the Dram Shop Act), for injuries she had sustained on or about July 24, 1988, in an automobile accident involving a patron of the club. After obtaining a substantial judgment against the club on September 27, 1990, Backus filed the present action on January 11, 1991, against the club; Jimmy H. Watson, the former owner of the club; and his wife, Syble L. Watson, seeking to set aside an alleged fraudulent transfer of the club's assets and to hold the Watsons personally liable for her judgment against the club. Backus alleged that the Watsons had used the club as their alter ego and she urged the trial court to disregard the corporate form. The trial court entered a *1343 summary judgment for Syble Watson, and the propriety of that judgment is not an issue on this appeal. Jimmy Watson raised the statute of limitations and the doctrine of res judicata as affirmative defenses. The trial court, after conducting an ore tenus hearing, entered a judgment setting aside the transfer of the club's assets, but denying Backus's request to hold Jimmy Watson personally liable for the judgment against the club. Backus appealed from this latter aspect of the judgment. We affirm.
Watson contends that either the two-year statute of limitations set out in Ala. Code 1975, § 6-2-38,[1] or the doctrine of res judicata provides a basis for affirming the judgment. Backus contends that the doctrine of res judicata was not a defense to her action; she makes no argument concerning the statute of limitations.
Initially, we note that the trial court did not clearly state its reason or reasons for entering the judgment for Watson. The trial court did separate its judgment into several parts, including a part entitled "Statement of Facts"; a part entitled "Findings of Fact and Conclusions of Law," in which the court expressed its opinion that Backus should have named Watson as a defendant in her action against the club; and a part entitled "Judgment," in which the trial court simply stated that "Watson [was] not personally liable for the judgment in the dram shop action." The trial court never specifically referred to the doctrine of res judicata; it mentioned the statute of limitations only to show that it had been raised as an affirmative defense. Based on our review of the record, it appears as though the trial court may have based its judgment either on the statute of limitations, on the doctrine of res judicata, or on a finding, based on ore tenus evidence, that Watson did not operate the club as his alter ego.[2]
With regard to the statute of limitations, Watson argues that "[a] claim of alter-ego liability for the torts of the corporation must be brought within the limitations period governing the filing of claims against the corporation for its tortious conduct." Therefore, Watson appears to take the position that the two-year statute of limitations set out in § 6-2-38(n) (pertaining to "[a]ll actions commenced to recover damages for injury to the person or property of another wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant or employee under the doctrine of respondeat superior") controls. However, the record shows that Backus sought to hold Watson personally liable for her judgment against the club. She did not allege, nor attempt to prove, that Watson had breached a duty owed to her personally or that Watson was liable for any reason other than his alleged failure to observe the club's corporate identity. Therefore, in our view, § 6-2-38(n) is not applicable. Instead, we conclude that Backus's action is in the nature of a creditor's bill to enforce a judgment, see R.E. Pilkerton Electric, Inc. v. Westinghouse Electric Supply Co., 444 So. 2d 855 (Ala.1984); 21 Am.Jur.2d Creditors' Bills § 2 (1981), and, therefore, that it is subject to the 20-year statute of limitations set out in Ala. Code 1975, § 6-2-32.
We note Watson's reliance on Ex parte Empire Gas Corp., 559 So. 2d 1072 (Ala. 1990), in support of his argument that a two-year statute of limitations applies. In that case, a parent corporation petitioned for a writ of mandamus directing the trial court to vacate its order amending the plaintiffs' complaint so as to add the parent corporation as a party defendant, in an action that had been filed against the parent *1344 corporation's wholly owned subsidiary in a malicious prosecution action, and on which a judgment had been entered against the subsidiary. We quote from the opinion:
559 So. 2d at 1074. (Emphasis added.)
However, because the amendment to the plaintiffs' complaint in Empire Gas Corp. related back to the filing of the original complaint, the language emphasized above is dictum and, as such, should not be construed as a definitive statement with respect to the statute of limitations. Empire Gas Corp. is not authority for the proposition that the two-year statute of limitations set out in § 6-2-38(n) controls in this case.
Therefore, because Backus filed her action against Watson within 20 years of obtaining her judgment against the club, the judgment for Watson cannot be affirmed on the basis of the statute of limitations.
As to Watson's reliance on the doctrine of res judicata, we note that this Court held in Whisman v. Alabama Power Co., 512 So. 2d 78, 80-81 (Ala.1987), that "[a] valid, final judgment on the merits of an issue extinguishes that issue and operates as an absolute bar in a subsequent suit between the same parties on any issue which was or could have been litigated." Elaborating on this doctrine, Justice Merrill, writing for this Court in McGruder v. B & L Construction Co., 331 So. 2d 257, 259 (Ala.1976), stated:
The record indicates that it was not until she took Watson's post-judgment deposition in an attempt to discover whether the club had any assets from which she could satisfy her judgment against the club, that Backus suspected that Watson might have ignored the club's corporate existence. For this reason, Backus says, she did not name Watson as a defendant in her action against the club and attempt at that time to obtain a judgment against him personally. Backus's present action against Watson was based on a cause of action entirely *1345 different from the one on which her action against the club was based, and in the present action she sought to litigate an issue that was not litigated, and could not have been litigated, under the pleadings in her action against the club, even though Watson appeared at the trial of that action and apparently participated in the club's defense. See Lesley v. City of Montgomery, 485 So. 2d 1088 (Ala.1986); see, also, Denniston & Co. v. Jackson, 468 So. 2d 170 (Ala.Civ.App.1985). The litigation of the central issue presented in this action whether the club was operated as Watson's alter ego and, therefore, whether the "corporate veil" should be piercedhas not been foreclosed by a previous judgment binding as between these parties. Therefore, the trial court could not have properly relied on the doctrine of res judicata as a basis for its judgment.
Finally, we note our well-settled standard for reviewing a judgment based on ore tenus evidence:
Thomas v. Neal, 600 So. 2d 1000, 1001 (Ala. 1992), quoting Sundance Marina, Inc. v. Reach, 567 So. 2d 1322, 1324-25 (Ala.1990).
Also well established are the factors to be considered when determining whether to "pierce the corporate veil":
Simmons v. Clark Equipment Credit Corp., 554 So. 2d 398, 400-01 (Ala.1989).
The evidence in the present case, which was conflicting, does show that Watson did *1346 not always observe the corporate form. This is illustrated by the trial court's findings of fact:
In addition to these facts, the evidence also shows that the club paid no franchise taxes and filed no corporate income tax returns. The evidence further shows that Syble Watson was not an officer of the club. Watson signed his wife's name to the minutes of various club meetings and falsely represented on liquor license renewal applications that she was an officer of the club. On the other hand, there was evidence that Watson did not operate the club as a subterfuge. Although Watson testified that the club kept no formal books or records and that he preferred to handle all of the club's transactions in cash, he did state that there was a corporate bank account. In addition, the club had several employees who were paid out of funds generated by the club. Watson paid himself a salary out of the club's funds. There was also evidence that Watson did not drain funds from the corporation for his personal use. Furthermore, Watson explained that he had only a sixth-grade education and that his "bookkeeper" had prepared his individual income tax return, wherein the club was referred to as a "sole proprietorship." Finally, the various food permits and licenses were issued in the club's name. Suffice it to say that although the evidence shows that Watson dominated the club and that, as the trial court specifically noted, he failed to observe certain corporate formalities, we cannot say that a finding by the trial court that the club was not operated as Watson's alter ego would have been plainly and palpably wrong. We will assume that the trial court found those facts necessary to support its judgment, if such a finding would be supported by the evidence. Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986). We recognize that this is a close case and that we would have affirmed a judgment for Backus based on a finding that Watson had operated the club as his alter ego. However, because we are governed by our ore tenus standard of review, we, as an appellate court, are required to give great deference to the trial court's finding of fact on this issue.
*1347 Because the trial court could have found from the evidence that Watson did not operate the club as his alter ego, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Because § 6-2-39, providing a one-year limitations period, was repealed by Ala. Acts 1984-85, No. 85-39, p. 40, § 3, effective January 9, 1985, we assume that Watson's specific reference in his brief to that section was an oversight.
[2] The parties suggest that the trial court did not make a finding with respect to the alter ego issue. The record, however, indicates that the trial court may have made such a finding from the evidence. If, in fact, the trial court did not reach this issue, but relied, instead, on either the statute of limitations or the doctrine of res judicata, then that fact may be shown by supplementing the record on an application for rehearing. | March 26, 1993 |
d4fd7704-c5b5-4a38-90dc-de4fdcc63fad | Ex Parte SouthTrust Bank | 619 So. 2d 1356 | 1920405 | Alabama | Alabama Supreme Court | 619 So. 2d 1356 (1993)
Ex parte SOUTHTRUST BANK OF TUSCALOOSA COUNTY, N.A.
(In re William C. PRITCHETT, Sr. v. SOUTHTRUST BANK OF TUSCALOOSA COUNTY, N.A., etc., et al.)
1920405.
Supreme Court of Alabama.
April 16, 1993.
*1357 A. Courtney Crowder of Davidson, Wiggins & Crowder, Tuscaloosa, and Truman M. Hobbs, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for petitioner.
Jeffrey W. Smith of Beers, Anderson, Jackson & Smith, Montgomery, and C. Delaine Mountain of Mountain & Renfro, Tuscaloosa, for respondent.
STEAGALL, Justice.
William C. Pritchett, Sr., sued SouthTrust Bank of Tuscaloosa County, N.A. ("SouthTrust Tuscaloosa") in the Montgomery Circuit Court, alleging fraud, conversion, abuse of process, wanton/willful conduct, and malicious prosecution. The claims arose from SouthTrust Tuscaloosa's attempt to recover upon a note executed by Pritchett's son and cosigned by Pritchett. SouthTrust Tuscaloosa filed a motion to transfer the case to the Tuscaloosa Circuit Court, and this motion was denied. SouthTrust Tuscaloosa then petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying the transfer and to enter an order transferring the case.
The burden of proving improper venue is on the party raising the issue and, on review of an order denying a transfer, a writ of mandamus will not be issued unless there is a clear showing of error on the part of the trial court. Ex parte Jones, 582 So. 2d 456 (Ala.1991).
Because SouthTrust Tuscaloosa is a domestic corporation, the venue statute to be applied here is that portion of Ala.Code 1975, § 6-3-7, relating to domestic corporations. It provides:
Pritchett alleges fraud and bad faith, which are "personal injury" claims for the purpose of determining proper venue. Ex parte TranSouth Financial Corp., 608 So. 2d 385 (Ala.1992). See, also, Ex parte First Alabama Bank of Montgomery, N.A., 461 So. 2d 1315 (Ala.1984). We must first determine, therefore, whether the alleged "injury" to Pritchett occurred in Montgomery County.
*1358 The record reveals these facts: In April 1989, Pritchett's son financed the purchase of a BMW automobile through SouthTrust Tuscaloosa. The son resided in Tuscaloosa County and was a student at the University of Alabama, located in Tuscaloosa County. The son bought the car from a Tuscaloosa dealership, which brought a "Conditional Sales Contract and Note" to Montgomery, in Montgomery County, for Pritchett to cosign. The dealership assigned the note to SouthTrust Tuscaloosa. Following a number of defaults on the loan, Pritchett asked SouthTrust Tuscaloosa to send an agent to Montgomery to repossess the car, and the bank complied. SouthTrust Tuscaloosa thereafter informed Pritchett that it had sold the car for $500 and had applied the proceeds to the balance of the loan; however, the bank claimed a deficiency of $4,513.89 and sued Pritchett and his son in the Tuscaloosa Circuit Court to collect this debt. The trial court entered a default judgment against both Pritchett and the son, and SouthTrust Tuscaloosa thereafter filed a garnishment with Pritchett's employer. Pritchett moved to set aside the default judgment, alleging improper service; the court set aside the judgment as to Pritchett, but not as to the son. SouthTrust Tuscaloosa then released the garnishment, and Pritchett subsequently filed this action in Montgomery County.
As the basis for his fraud claim, Pritchett alleges that SouthTrust Tuscaloosa received more than $500 from the resale of the BMW automobile but applied only $500 to the loan balance and thus obtained a judgment for an amount greater than it was due. He also alleges that SouthTrust Tuscaloosa committed a fraud upon the Tuscaloosa Circuit Court during the collection proceeding by falsely stating (1) that service had been perfected on Pritchett, (2) that Pritchett was a resident of Tuscaloosa County, and (3) that he owed a balance of $4,513.89. All of these allegations, however, relate to things that occurred in Tuscaloosa County. Pritchett also claims that the garnishment, which was filed in Montgomery County, was fraudulent because, he says, it was based on misrepresentations by SouthTrust Tuscaloosa concerning the resale value of the car. The representations and the collection proceeding that resulted in the garnishment originated in Tuscaloosa County.
SouthTrust Tuscaloosa's alleged misrepresentations to Pritchett about the actual resale value of the BMW were made through telephone calls and through mail sent from Tuscaloosa; however, Pritchett points out that he received these communications in Montgomery, and he concludes that the "injuries" thus "occurred" in Montgomery County. In Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1922), a libel action, this Court established that the term "injury" for purposes of § 6-3-7 refers to the wrongful act or omission of the corporate defendant, not to the resulting damage to the plaintiff, and thus determined that venue for such an injury is proper where a wrongful act was committed, not where the damage resulted. We note that the Court deviated from its Age-Herald rule in the later case of Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923). There, this Court held that where libelous matters are passed through the mail from one individual to another, the "injury" takes place where the matter is received. Unlike the holding in Age-Herald, however, the Kenney holding did not hinge upon § 6-3-7; rather, it was based upon a libel action between individuals, and its fact-specific rationale is inapposite here.
Because SouthTrust Tuscaloosa made the alleged misrepresentations in Tuscaloosa County, Pritchett's alleged injuries did not "occur" in Montgomery County; accordingly, we must next determine whether SouthTrust Tuscaloosa "does business" in Montgomery County and is therefore subject to being sued there. A corporation "does business" in a county for purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created. Ex parte Real Estate Financing, Inc., 450 So. 2d 461 (Ala.1984); Ex parte Southtrust Bank of Tuskegee, 469 So. 2d 103 (Ala.1985).
In Ex parte Real Estate Financing, Inc., the corporate defendant, REF, moved *1359 for a change of venue from Lawrence County to Morgan County in an action brought by loan applicants alleging fraud and breach of contract with regard to REF's handling of a loan application. When the venue motion was denied, REF sought a writ of mandamus to vacate the denial, arguing that it did not do business in Lawrence County for purposes of § 6-3-7. The plaintiffs argued that REF did indeed "do business" in Lawrence County, because Lawrence County lawyers close REF loans there. This Court rejected that argument, but nevertheless held that REF was subject to venue in Lawrence County for the following reasons:
Ex parte Real Estate Financing, Inc., 450 So. 2d at 463 (emphasis original).
In Ex parte Southtrust Bank of Tuskegee, the plaintiffs sued SouthTrust Bank in Bullock County, alleging fraud and conversion arising from SouthTrust Bank's renewal of a certificate of deposit and its failure to pay the proceeds of the certificate. SouthTrust Bank moved for a change of venue, alleging that it did not do business in Bullock County. The record showed that SouthTrust Bank had previously made loans to Bullock County debtors and that the financing statements from those loans were filed in the Bullock County courthouse. The record also showed that on occasion a SouthTrust Bank agent would travel to Bullock County to collect on a delinquent loan. Although SouthTrust Bank had no corporate office or full-time employees in Bullock County and although the volume of business it conducted there was small when compared to the volume of business it did in the county where it was headquartered, this Court nonetheless determined that the aggregate of SouthTrust Bank's corporate activities in Bullock County ultimately achieved SouthTrust Bank's primary purpose of making loans.
In Ex parte TranSouth Financial Corp., this Court again held that for purposes of determining venue, the performance of procedures ancillary to securing or collecting loans constitutes "doing business" in a county where such procedures are carried out, when the corporation's primary purpose is the lending of money. In that case, the defendant TranSouth Financial Corporation sought to vacate the trial court's order denying its petition to transfer the case from Crenshaw County to Pike County, arguing that the corporation did not "do business" in Crenshaw County. The record showed that TranSouth filed mortgages and foreclosure deeds at the Crenshaw County Courthouse with some regularity, to further its primary purpose of making loans. Observing the rationale of Ex parte Southtrust Bank of Tuskegee, this Court determined that this evidence was sufficient to show that TranSouth "did business" in Crenshaw County for venue purposes.
We find the holdings of those cases instructive here. In this case, the evidence shows that the only corporate activities SouthTrust Tuscaloosa has ever conducted in Montgomery County are its activities in regard to the loan to Pritchett's son and a loan made in 1991 to a state legislator who represents a district that includes Tuscaloosa County and who has a residence in Montgomery County. SouthTrust Tuscaloosa points out that it made the loan to Pritchett's son, a Tuscaloosa County resident, and that Pritchett himself was merely the cosigner. SouthTrust Tuscaloosa also filed an affidavit stating that it does not advertise or solicit loans in Montgomery County and does not send its employees to Montgomery County to collect delinquent *1360 loans. There is no evidence that SouthTrust Tuscaloosa has filed in Montgomery County financing statements or other documents in regard to loans to Montgomery County residents.
Pritchett argues that SouthTrust Tuscaloosa sent a representative to Montgomery with the vehicle so that Pritchett could cosign for the loan; however, the record indicates that it was the automobile dealership, not SouthTrust Tuscaloosa, that brought the promissory note to Montgomery for Pritchett to cosign and that it did that before the note was assigned to SouthTrust Tuscaloosa. Pritchett also argues that SouthTrust Tuscaloosa sent mail and made telephone calls to him in Montgomery County regarding the loan, that it instituted the garnishment action in Montgomery County, and that it instituted a negative credit report against him in Montgomery County. This argument, and the facts supporting it, indicate only that SouthTrust Tuscaloosa had contact with Montgomery County in regard to this one transaction. It does not show that it is SouthTrust Tuscaloosa's corporate purpose to make loans in Montgomery County or to do business in Montgomery County with any regularity.
SouthTrust Tuscaloosa presented evidence that it made the loan to a Tuscaloosa resident whose cosigner happened to reside in Montgomery County and that, in relation to this loan, it had contacts with Montgomery County that it had not had in the past and that it has not made part of achieving its corporate goals. Pritchett produced no evidence to establish that the aggregate of SouthTrust Tuscaloosa's activities in relation to this loan furthered a corporate purpose to make loans to Montgomery County residents; rather, it merely shows a pattern of activity designed to collect upon a loan made to a Tuscaloosa County resident.
Therefore, we hold that Pritchett's alleged "injuries" did not occur in Montgomery County and that SouthTrust Tuscaloosa has not been shown to "do business" in Montgomery County for purposes of § 6-3-7. Therefore, the trial court erred in denying SouthTrust Tuscaloosa's motion to transfer the case to Tuscaloosa County. The Montgomery Circuit Court is directed to set aside its denial of the transfer motion and to enter an order transferring the case to Tuscaloosa County.
WRIT GRANTED.
MADDOX, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur. | April 16, 1993 |
dd037696-603c-4e61-98a5-e60d36462671 | Cabnetware, Inc. v. Birmingham Saw Works | 614 So. 2d 1034 | 1911420 | Alabama | Alabama Supreme Court | 614 So. 2d 1034 (1993)
CABNETWARE, INC.
v.
BIRMINGHAM SAW WORKS, INC.
1911420.
Supreme Court of Alabama.
March 12, 1993.
*1035 Macbeth Wagnon, Jr. and Stewart M. Cox of Bradley, Arant, Rose & White, Birmingham, for appellant.
Dennis G. Pantazis of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for appellee.
HOUSTON, Justice.
Cabnetware, Inc., appeals from a judgment entered on a jury verdict in favor of Birmingham Saw Works, Inc. We reverse and remand.
Cabnetware is a California-based manufacturer and distributor of computer software that enables a user to produce detailed designs for custom cabinet installations. The software allows the user to visualize on a computer monitor the arrangement, dimensions, and style of cabinets to be installed in a kitchen or other area, thereby largely eliminating the need for sketches, blueprints, etc. The computer image produced by the software is three-dimensional. The software is provided to companies in the cabinet or woodworking industry that wish to act as dealers for the product in various parts of the country. Birmingham Saw Works is an Alabama-based company that sells woodworking machinery and supplies to cabinet makers and others in the woodworking and furniture industry. In May 1987, a representative of Birmingham Saw Works contacted a Cabnetware representative and asked to become a distributor of Cabnetware's software. Cabnetware orally agreed that Birmingham Saw Works could sell its software in a five-state territory. Cabnetware later assisted Birmingham Saw Works in implementing a sales program for the software. Cabnetware and Birmingham Saw Works operated under an oral distributorship agreement from early June 1987 until late September 1987. Sometime before September 29, 1987, Birmingham Saw Works requested that the agreement be reduced to writing. In response to that request, Roy Bingham, Cabnetware's secretary and treasurer, prepared, signed, and submitted to Birmingham Saw Works a one-page statement of their agreement:
This written statement was approved by Birmingham Saw Works.[1]
Although Birmingham Saw Works was successful in marketing Cabnetware's software in its five-state territory, Cabnetware and Birmingham Saw Works eventually encountered problems in their business relationship. The evidence shows that Birmingham Saw Works was late in paying a number of Cabnetware's invoices in 1988 and that Cabnetware requested in December 1988 that future payments be timely. Birmingham Saw Works, which acknowledged that it was having financial difficulty in 1988, paid in a timely fashion thereafter. The evidence also shows that Cabnetware began receiving complaints in September 1988 from certain customers who apparently were not satisfied with the service they were receiving from Birmingham Saw Works.
In December 1988, Cabnetware decided to hire a second distributor to operate within the same five-state territory that had been assigned to Birmingham Saw Works, and it notified Birmingham Saw Works of its decision by letter dated December 27, 1988. The new distributor also sold software for Cabnetware in other parts of the country and accounted for approximately 50% of Cabnetware's sales. Aware that the distributorship agreement did not grant it the exclusive right to sell and service Cabnetware's software in its designated territory, Birmingham Saw Works accepted the increase in competition and continued to operate as a Cabnetware distributor. Even though Birmingham Saw Works had never failed to meet its minimum sales quota, Cabnetware notified Birmingham Saw Works by letter dated March 22, 1989, that it intended to terminate the distributorship agreement effective April 22, 1989. Roy Bingham testified that Cabnetware's agreement with Birmingham Saw Works was terminated primarily because Birmingham Saw Works had been late in making payments in 1988. Birmingham Saw Works, which had remained current in its payments after Cabnetware complained in December 1988, continued to sell and service Cabnetware's software until the agreement was terminated in April 1989.
Birmingham Saw Works sued Cabnetware, alleging breach of contract and fraud, and seeking both compensatory and punitive damages. A jury returned a general verdict for Birmingham Saw Works, awarding it $473,000 in compensatory damages and $100,000 in punitive damages, and the court entered a judgment on that verdict.
Although Cabnetware raises several issues, the dispositive issue is whether the trial court erred in submitting Cabnetware's fraud claim to the jury. If the evidence was insufficient to submit the fraud claim to the jury, as Cabnetware contends, then the judgment must be reversed and the case remanded, for it is evident by the award of punitive damages that the jury found Cabnetware liable for fraud.
Birmingham Saw Works based its fraud claim on allegations that Cabnetware intentionally or recklessly misrepresented in the distributorship agreement that the "agreement [would] remain in effect ... as long as [Birmingham Saw Works sold] a minimum of any six Cabnetware, Inc., programs in a six month period." Although Birmingham Saw Works argues otherwise, we agree with Cabnetware that the fraud claim is based on allegations that Cabnetware *1037 promised to perform, or to abstain from, some act in the future. The language in the distributorship agreement relied on by Birmingham Saw Works constituted a promise on the part of Cabnetware that it would perform under the contract (i.e., that it would not terminate it) as long as Birmingham Saw Works met the minimum sales quota.
Recently, in Centon Electronics, Inc. v. Bonar, 614 So. 2d 999 (Ala.1993), this Court reaffirmed the well-established standard by which claims based on allegations of promissory fraud are to be reviewed:
Because this case was not pending on June 11, 1987, our standard for reviewing the sufficiency of the evidence to support the plaintiff's claim for compensatory damages under the fraud count is the "substantial evidence rule." Ala.Code 1975, § 12-21-12. However, because the cause of action accrued after June 11, 1987, our standard for reviewing the sufficiency of the evidence to support the claim for punitive damages under the fraud count is the "clear and convincing evidence rule." Ala. Code 1975, §§ 6-11-20, 6-11-30. "Clear and convincing evidence" is defined in § 6-11-20(b)(4) as follows:
See, also, Berry v. Fife, 590 So. 2d 884 (Ala.1991).
The undisputed evidence in the present case shows that no discussions took place between any of the representatives of Cabnetware and Birmingham Saw Works with respect to the duration of the distributorship agreement. The only indication of the parties' intent as to the duration of the agreement is found in the agreement itself and in the testimony of Bo Thuston (president of Birmingham Saw Works), and Roy Bingham. The agreement itself contains no expiration date. Thuston testified that he had felt as if his company "would sell Cabnetware forever." Bingham testified that he "didn't have a period of time in mind" and that he believed that "either party could withdraw from the relationship at any time if they became dissatisfied with the other party." It is this last statement by Bingham that Birmingham Saw Works says required submitting its fraud claim to the jury. In other words, Birmingham Saw Works maintains that the jury could have reasonably inferred from Bingham's testimony alone that Cabnetware, when it entered into the distributorship agreement, did not intend to continue its business relationship with Birmingham Saw Works as long as Birmingham Saw Works met the minimum sales quota. We disagree.
Bingham's testimonythat he believed the agreement to be terminable by either party if it became dissatisfied with the other partydoes show that when Cabnetware entered into the distributorship agreement he thought that Cabnetware had the legal right to terminate the agreement for a reason other than a failure on the part of Birmingham Saw Works to meet the minimum sales quota. Although *1038 we agree with Birmingham Saw works that a jury question was presented as to whether Cabnetware breached the contract, we fail to see how, in the absence of other evidence, anyone could reasonably infer from Bingham's testimony that Cabnetware, when it entered into the agreement, did not intend to maintain its business relationship with Birmingham Saw Works as long as the minimum sales quota was met.[2] Clearly, no substantial evidence (and, consequently, no clear and convincing evidence) of fraud was presented in this case. As we have stated many times, the failure to perform, alone, is not evidence of intent not to perform at the time the promise was made. If it were, a mere breach of contract would be tantamount to fraud.
After carefully reviewing the record and the briefs, we hold that the evidence was not sufficient to submit the fraud claim to the jury and, therefore, that the judgment is due to be reversed and the case remanded for a new trial on the contract claim.
We pretermit further discussion of Cabnetware's other issues, except to note that we can find no error on the trial court's part in allowing Birmingham Saw Works to use during closing argument a chart depicting the projected loss of future net profits from the sale of Cabnetware's software. Although, as Cabnetware correctly points out, the trial court refused to allow Thuston to speculate as to specific dollar amounts that he expected Birmingham Saw Works to lose in the years 1990-1996, and although the trial court refused to allow Birmingham Saw Works to use the chart during its examination of Thuston, the trial court did rule that there was sufficient evidence from which Birmingham Saw Works could argue that the amounts depicted on the chart represented the amount of future lost profits (i.e., there was evidence showing the net profits realized by Birmingham Saw Works in 1987, 1988, and the first three months of 1989; its projected marketing period and customer base; and its history of sales performance). Therefore, we are not persuaded that the trial court allowed Birmingham Saw Works to argue facts not inferable from the evidence.
For the foregoing reasons, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
MADDOX, ALMON, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
HORNSBY, C.J., and SHORES, J., concur in the result, but disagree with the rationale.
HORNSBY, Chief Justice (concurring in the result, but disagreeing with the rationale):
I agree with the majority's treatment of the fraud claim as a claim of promissory fraud, i.e., Birmingham Saw Works claimed "that Cabnetware promised to perform, or to abstain from, some act in the future." However, I disagree with the conclusion that there was insufficient evidence of fraud to warrant presentation of that claim to the jury. The majority basically holds that Cabnetware was entitled to a summary judgment on the claim of promissory fraud, but I cannot reach that conclusion, given our rule that on a motion for summary judgment this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable *1039 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). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
Bingham's testimony that he believed, when he wrote the "six month" term in controversy, that he could terminate the agreement if he was dissatisfied with Birmingham Saw Works for any reason, is sufficient to enable a jury to find promissory fraud. I believe that a jury could reasonably infer that Bingham did not intend what he said when he represented that Birmingham Saw Works would have the distributorship agreement so long as it sold six software packages every six months. In other words, I find substantial evidence of fraud.
Had the jury's verdict been based on a finding of no promissory fraud, I would have voted to affirm. However, the record in this case indicates that the jury was not fully instructed as to the elements of promissory fraud. Because I agree with the majority that the fraud claim is based on promissory fraud, I conclude that the trial court's error in failing to instruct in this regard is not harmless. Accordingly, I agree that the judgment is due to be reversed and the cause remanded; however, I believe that on remand, Birmingham Saw Works should be allowed to present its evidence of fraud to a properly charged jury.
SHORES, J., concurs.
[1] At the request of Birmingham Saw Works, Cabnetware later waived the first condition set out in the last paragraph of the agreementthat Birmingham Saw Works not engage in an active effort to sell competing software. The second condition set out in the last paragraph merely represented a minimum sales quota.
[2] The agreement, although indefinite as to its duration, was nonetheless ambiguous as to when and under what circumstances Cabnetware could terminate the distributorship. The question whether a contract is ambiguous is a question of law for the court. If the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court and, when appropriate, may be decided by a summary judgment. However, if the terms within the contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact to be resolved by a jury. McDonald v. U.S. Die Casting & Development Co., 585 So. 2d 853 (Ala.1991). After reviewing the record, we conclude that the trial court properly submitted the contract claim to the jury. The evidence presented a jury question as to whether Cabnetware had a legal basis for terminating the agreement, given the undisputed fact that Birmingham Saw Works was complying with the minimum sales requirement. | March 12, 1993 |
7f4c1c31-3e77-4d35-8d50-e688c26c9666 | Senn v. Alabama Gas Corp. | 619 So. 2d 1320 | 1911171 | Alabama | Alabama Supreme Court | 619 So. 2d 1320 (1993)
Frank J. SENN
v.
ALABAMA GAS CORPORATION a/k/a Alabama Gas Company; and Jeffrey L. Sizemore.
1911171.
Supreme Court of Alabama.
March 5, 1993.
Rehearing Denied May 7, 1993.
*1321 Roger S. Morrow and Joel H. Pearson of Morrow, Romine & Pearson, P.C., Montgomery, for appellant.
Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees.
HOUSTON, Justice.
The plaintiff, Frank J. Senn, appeals from a judgment entered on a jury's verdict in favor of the defendants, Alabama Gas Corporation a/k/a Alabama Gas Company ("Alabama Gas") and its employee Jeffrey L. Sizemore. We affirm.
Senn, a firefighter and paramedic with the City of Montgomery, was injured on November 22, 1989, when the fire medic truck in which he was a passenger was struck from the rear by an Alabama Gas utility truck being driven by Sizemore. The collision occurred under rainy conditions; the point of impact was on a downhill slope, in a 30-mile-per-hour maximum speed zone. Sizemore, whose truck was towing a lightly loaded utility trailer, had been following the fire medic truck for approximately two blocks. Just before the collision, Sizemore was traveling between 20 and 30 miles per hour and was "at least two car lengths" behind the fire medic truck when he noticed that the driver of the fire medic truck had applied and then released his brakes. Sizemore quickly responded by applying and then releasing his own brakes. Almost immediately thereafter the driver of the fire medic truck again applied his brakes and came to an abrupt stop in order to avoid colliding with the rear-end of a vehicle that had suddenly stopped in front of him. In the process of maneuvering out of the way of the vehicle in front of him, the driver of the fire medic truck ran onto the curb and then back into the street. Recognizing that he, too, had to stop, Sizemore "slammed" on his brakes. Sizemore was unable to stop, however, and his truck skidded into the rear of the fire medic truck. Senn, who was wearing a seat belt at the time of the collision, suffered a broken rib and a head injury.
Senn sued Sizemore, alleging that he had negligently or wantonly caused the accident by driving his truck too fast and by driving too close to the fire medic truck; he sued Alabama Gas, seeking to impose liability on it under the doctrine of respondeat superior. Alabama Gas conceded that Sizemore was working within the line and scope of his employment at the time of the accident and, therefore, that it would be liable if Sizemore was found to be liable. Senn sought to recover punitive damages in connection with the wantonness claim. The trial court directed a verdict for Sizemore *1322 and Alabama Gas on Senn's wantonness claim. The negligence claim was submitted to a jury, which found for Sizemore and Alabama Gas. Senn filed a post-trial motion seeking a judgment notwithstanding the verdict on the liability aspect of his negligence claim, and a new trial on the damages aspect of his negligence claim. In the alternative, he sought a new trial on both the liability and the damages aspects of his negligence claim. The trial court denied that motion, and Senn appealed.
The following issues are presented for our review:
Senn argues in connection with the first two issues that the evidence presented no genuine issue of material fact with respect to Sizemore's liability, and, consequently, no such issue with respect to liability on the part of Alabama Gas. Senn maintains that Sizemore, knowing that the road was wet and slick and that he was towing a utility trailer on a downhill slope, violated two well-established rules of the road by driving too fast, in violation of Ala.Code 1975, § 32-5A-170 ("Reasonable and prudent speed"), and by driving too close to the fire medic truck, in violation of Ala.Code 1975, § 32-5A-89 ("Following too closely"). Senn also contends that Sizemore clearly violated an ordinance of the City of Montgomery, § 25-97(a), Montgomery City Code (1980), which prohibits a driver from operating his vehicle in such a careless or negligent manner as to cause or permit it to collide with another vehicle. In the alternative, Senn argues that he was at least entitled to a new trial on his negligence claim because, he says, the jury's verdict was against the weight or preponderance of the evidence.
Section 32-5A-170 provides:
Section 32-5A-89 states in pertinent part:
Both of these sections, as well as the city ordinance relied on by Senn, essentially codified the common law requiring a person to exercise reasonable care in operating a motor vehicle. Whether a person involved in an accident acted reasonably in operating his motor vehicle depends on all of the circumstances surrounding the accident; the question is ordinarily one for the jury. See Wayland Distributing Co. v. Gay, 287 Ala. 446, 252 So. 2d 414 (1971); Horton v. Mobile Cab & Baggage Co., 281 Ala. 35, 198 So. 2d 619 (1967) (both cases involving the construction of Title 36, § 5, Code of Ala.1940, the predecessor to § 32-5A-170); see, also, Couch v. Donahue, 259 F.2d 325 (5th Cir.1958) (construing Title 36, § 15, the predecessor to § 32-5A-89). These cases decided under prior Alabama law merely reflect the well-settled rule that *1323 questions of negligence are for the jury where reasonable people could draw different inferences from the evidence. See, e.g., Tennessee Coal, Iron & R.R. Co. v. Spicer, 206 Ala. 141, 89 So. 293 (1921).
It is equally well settled that a jury verdict is presumed correct and that the presumption of correctness is strengthened where, as here, the trial court denied a motion for a new trial. We are not at liberty to vacate a jury's verdict merely because it does not conform to our personal views of the evidence. Locklear v. Nash, 275 Ala. 95, 152 So. 2d 421 (1963). A decision of the trial court denying a new trial on the ground that the verdict is contrary to the weight or preponderance of the evidence will not be reversed unless, after allowing all reasonable presumptions as to the verdict's correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust. A ruling on a motion for a new trial is within the sound discretion of the trial court and should not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court erred. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So. 2d 725 (Ala.1979).
After carefully reviewing the record, we hold that the negligence claim was properly submitted to the jury. Furthermore, we cannot say that the verdict was against the weight or preponderance of the evidence. The evidence showed that Sizemore was not exceeding the speed limit at the time of the collision. The evidence also showed that the utility trailer Sizemore was towing was not heavily loaded and that Sizemore was traveling "at least two car lengths" behind the fire medic truck when it suddenly stopped. The jury heard all of the evidence pertaining to the weather conditions; the condition of the road; the relative speed at which both vehicles were traveling; and the distance between Sizemore's truck and the fire medic truck. The jury was instructed on the proof necessary to sustain a negligence claim, and it was apprised of the pertinent rules of the road. Simply put, the evidence presented a jury question as to whether Sizemore was negligently operating his truck, and the jury resolved that question in favor of Sizemore and Alabama Gas.
We note Senn's reliance on Glanton v. Huff, 404 So. 2d 11 (Ala.1981); and Gribble v. Cox, 349 So. 2d 1141 (Ala.1977). Those cases, however, are not controlling here. The facts surrounding the collision in Gribble were not reported in detail. This Court did note in that case, however, that the defendants failed to present any evidence tending to show that Cox, the defendant driver, had an "excuse" for allowing his vehicle to strike the Gribbles' vehicle from behind as it sat motionless at an intersection. This Court was justified, therefore, in holding that the verdict for the defendants in that case was due to be set aside on the ground that it was against the weight or preponderance of the evidence. In Glanton, the defendant's vehicle also struck the plaintiff's vehicle from behind as it sat motionless at an intersection. The evidence showed that it was raining at the time of that collision and that the plaintiff, who was towing a trailer carrying a fishing boat, saw the plaintiff stopped a quarter of a mile ahead of him, but nonetheless failed to slow his vehicle sufficiently so as to prevent it from ultimately skidding into the rear of the plaintiff's vehicle. In a split decision, this Court held that the verdict for the defendant was against the weight or preponderance of the evidence and remanded the case for a new trial. Common to both Gribble and Glanton was the occurrence of a rear-end collision under circumstances exhibiting a clear lack of reasonable care on the part of a defendant while approaching an intersection at which the plaintiff's vehicle was stopped. The evidence in the present case, however, shows that the driver of the fire medic truck and, consequently, Sizemore were taken by surprise at the suddenness at which they were forced to stop their vehicles. This evidence, in conjunction with the evidence establishing that Sizemore was not exceeding the legal speed limit and that he was following "at least two car lengths" behind the fire medic truck, provided the basis for a finding that this accident occurred *1324 notwithstanding the exercise of due care. This Court has held that "[evidence] of an unfortunate result does not in and of itself raise an inference of negligence." Horton v. Mobile Cab & Baggage Co., 281 Ala. at 42, 198 So. 2d at 625. In Horton, this Court noted:
See, also, National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So. 2d 492 (1951) (the mere skidding of an automobile on an icy street does not necessarily prove negligence on the part of the driver of the automobile). As Chief Justice Torbert suggested in his dissent in Glanton, to hold that a defendant is always negligent just because he struck the rear of the plaintiff's vehicle would require a summary judgment or a directed verdict for the plaintiff on the issue of liability where, as here, the defendant admits the incident. Such a result would surely usurp the jury's role as factfinder on the question of the defendant's due care where different inferences could be drawn from the evidence. The trial court recognized this in its order denying Senn's post-trial motion.
With respect to the third issue whether the trial court erred in directing a verdict for Sizemore and Alabama Gas on Senn's wantonness claimsuffice it to say that the evidence, even viewed in a light most favorable to Senn, under our standard for reviewing directed verdicts, see Springer v. Jefferson County, 595 So. 2d 1381 (Ala.1992), was not sufficient to create a fact question for the jury. The accident made the basis of this case occurred on November 22, 1989; therefore, the applicable standard for reviewing the directed verdict on Senn's claim for compensatory damages under his wantonness count is the "substantial evidence rule." See Ala.Code 1975, § 12-21-12. Therefore, the directed verdict on this aspect of Senn's wantonness claim was proper unless there was substantial evidence that Sizemore was operating his truck in a wanton manner at the time of the collision. Wanton conduct involves the conscious doing of some act or the conscious omission of some duty with knowledge of the existing conditions and while conscious that from the doing of that act or by the omission of that duty injury will likely or probably result. Before a person can be said to be guilty of wanton conduct, it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty and that the act or omission produced the injury. Hamer v. Nelson, 516 So. 2d 1381 (Ala.1987).
The directed verdict on Senn's claim for punitive damages under his wantonness count is, however, governed by the "clear and convincing evidence" standard. Ala. Code 1975, § 6-11-20; see Berry v. Fife, 590 So. 2d 884 (Ala.1991). Thus, even if there was "substantial evidence" of wantonness on the part of Sizemore, the directed verdict with respect to Senn's claim for punitive damages was nonetheless proper unless there was "clear and convincing evidence" that Sizemore had consciously or deliberately engaged in "wantonness" ("[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others"), § 6-11-20(a).
The evidence in the present case was obviously not sufficient to convince the jury that Sizemore was even negligent in the operation of his truck at the time of the accident. The undisputed evidence showed that Sizemore was not exceeding the legal speed limit or "tailgating" prior to the accident. After carefully reviewing the record, we conclude that the evidence would not support an inference by the jury that Sizemore was wantonly operating his truck at the time of the collision.
*1325 Finally, we conclude that the trial court did not err in refusing Senn's requested jury charges on the collateral source rule. Senn argues that the jury should have been instructed that he could recover damages for his medical expenses even if those expenses had been paid by a collateral source. However, the collateral source rule, insofar as it allowed recovery against a tort-feasor of medical expenses paid by a collateral source, was abrogated by Ala.Code 1975, § 12-21-45. That section provides:
Because Senn's requested jury charges were erroneous as a matter of law, they were properly refused.
We note that the writ in Ex parte Brooks, [Ms. 1911577, August 21, 1992], was denied by this Court without an opinion. Our denial of the writ should not be understood as an affirmance or ratification of the holding of the Court of Civil Appeals in that case (i.e., that § 12-21-45 is somehow irrelevant or inapplicable in civil cases where damages for medical expenses are claimed, see Carver v. Walden, 602 So. 2d 426 (Ala.Civ.App.1992)). To the extent that the decision of the Court of Civil Appeals in Carver is inconsistent with our holding today, it is hereby overruled.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
MADDOX, SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
HORNSBY, C.J., concurs specially.
HORNSBY, Chief Justice (concurring specially):
Although I agree with the majority, I write separately to clarify why the trial court's refusal of the plaintiff's requested jury charges on the collateral source rule was not reversible error in this case. During trial, the defendants elicited testimony from Senn that Blue Cross Insurance Company had paid Senn's hospital bills. For this reason, Senn requested that the trial court give three jury charges on the collateral source rule. The trial court refused, and Senn argues on appeal that its refusal constituted reversible error.
Senn's requested charges on the collateral source rule read as follows:
No. 37:
No. 38:
No. 39:
Because these charges were misleading and inaccurate statements of the law, I agree with the majority that the trial court did not err in refusing to give them.
The common law collateral source rule provided that "benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer." 22 Am.Jur.2d Damages § 566 (1988). In accordance with this rule, evidence that a plaintiff had received any payments from a collateral source was virtually inadmissible at trial, because it lacked relevance as to the plaintiff's right to recover and because it posed an undue prejudice to the plaintiff's ability to recover. See Gribble v. Cox, 349 So. 2d 1141, 1143 (Ala.1977); Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689, 691 (1963); Vest v. Gay, 275 Ala. 286, 289, 154 So. 2d 297, 299-300 (1963); Sturdivant v. Crawford, 240 Ala. 383, 385, 199 So. 537, 538 (1940).
However, effective June 11, 1987, Ala. Code 1975 § 12-21-45, altered the collateral source rule in civil actions in which a plaintiff seeks damages for any medical or hospital expenses. Under § 12-21-45, a defendant has the option of introducing evidence that a collateral source has paid or will pay or reimburse, a plaintiff for his medical or hospital expenses, and if a defendant elects to introduce such evidence, a plaintiff may present evidence as to the cost of obtaining the reimbursement or payment of medical or hospital expenses, including evidence of any right of subrogation claimed by the collateral source. Thus, under § 12-21-45, a plaintiff is not entitled, necessarily, to fully recover medical or hospital expenses, as Senn's requested jury charges indicate. Instead, in such cases a jury must consider all of the evidence introduced at trial regarding payments from collateral sources and determine to what extent the plaintiff is entitled to recover his medical or hospital expenses, and the trial court should instruct the jury that it has this duty. | March 5, 1993 |
4f90dba3-b42e-4c00-9ece-636ecc969ebb | Operation New Birmingham v. Flynn | 621 So. 2d 1316 | 1911927, 1911966 | Alabama | Alabama Supreme Court | 621 So. 2d 1316 (1993)
OPERATION NEW BIRMINGHAM
v.
Timothy William FLYNN.
Timothy William FLYNN
v.
OPERATION NEW BIRMINGHAM.
1911927, 1911966.
Supreme Court of Alabama.
June 4, 1993.
*1317 Demetrius C. Newton, City Atty., and Thomas Bentley III, Asst. City Atty., Birmingham, for appellant, cross-appellee.
Ralph E. Coleman of Coleman & Friday, Birmingham, for appellee, cross-appellant.
STEAGALL, Justice.
Timothy William Flynn filed a complaint for an injunction against Operation New Birmingham (hereinafter "ONB") and the City of Birmingham, seeking to enjoin ONB and the City of Birmingham from interfering with the operation of Flynn's sidewalk vending business; the trial court denied the injunction. ONB had previously issued a permit to allow Flynn to maintain a sidewalk hot dog cart, but it had later forced him to remove the cart after the owner of a nearby restaurant complained to ONB that the cart was interfering with the restaurant's business. In its order denying the injunction, the trial court held that the City of Birmingham had no authority to license or otherwise permit street vendors and that Flynn therefore could not conduct his business in its previous location or on any other street. The trial court thereby revoked the license ONB had issued. ONB appeals; Flynn cross-appeals.
The record reveals these facts: In March 1989, the mayor of the City of Birmingham approved a resolution adopted by the city council authorizing the City to enter into a contract with ONB to provide for sidewalk vending carts. The resolution stated that ONB "must coordinate the vending carts with the overall promotional programs of the City, civic organizations, merchant associations, and downtown businesses...."
In April 1991, Flynn contacted ONB to learn how he could set up a street vending hot dog business. Kay Lorino, development coordinator for ONB, advised him to purchase a cart and have it approved by the Jefferson County Health Department; he did so, at a cost of $4500. Lorino directed him to choose a location for the vending cart and informed him that he was required to be one and one-half blocks away from an "established" business. Lorino thereafter approved Flynn's chosen site on the corner of 6th Avenue South and 21st Street in Birmingham. In issuing a one-year permit to Flynn, Lorino told him that ONB was formulating written rules for issuing permits, but that those rules were still in draft form. One of those rules required street vendors to remove their carts from approved sites if ONB received a complaint about such carts from an established business. Flynn thereafter operated his cart daily for about two and one-half weeks; then the owner of a nearby restaurant complained to ONB that Flynn was impinging on his established business. Lorino informed Flynn that if he did not move the cart, ONB would revoke his license and perhaps have him arrested. Flynn immediately removed his cart and filed his complaint for injunctive relief.
Flynn's and ONB's arguments as to the first issue on appeal are identical. Both contend the trial court erred in holding that the City of Birmingham has no authority under Alabama law to permit street vendors. To support their arguments, Flynn and ONB rely upon the Constitution of Alabama, Art. XII, § 220, which provides:
This constitutional provision is codified in Ala.Code 1975, § 11-49-1:
In its order denying injunctive relief, the trial court held that the City of Birmingham does not have power under § 220 to allow public streets to be used for a private retail business. The trial court relied on a line of earlier cases, including City of Birmingham v. Holt, 239 Ala. 248, 194 So. 538 (1940), wherein the City sought to enjoin an advertiser from maintaining permanent advertising signs on the sidewalks of various intersections. The City had originally contracted with the advertiser to allow the signs, but later determined that the signs obstructed traffic and were a public nuisance and thus sought to rescind the contract. This Court noted the general rule that "a municipality has no inherent power to grant franchises or privileges to use its streets" and, "in the absence of a constitutional provision, charter or statutory provision... no power to authorize the use of its streets for a private purpose." Holt, 239 Ala. at 252, 194 So. at 538. The Court held that the permanent advertising signs were an unlawful obstruction and that the contract permitting them amounted to a subordination of the public right to a private one. 239 Ala. at 254, 194 So. at 543.
The next year, in McCraney v. City of Leeds, 241 Ala. 198, 1 So. 2d 894 (1941), this Court again considered the authority of a city over its streets under § 220. In McCraney, the City of Leeds sought to remove gas pumps installed on the parkway between a street and a sidewalk. The Court first determined that § 220 does recognize the inherent power of towns and cities to withhold consent and to inhibit the use of a public street in any private enterprise; however, citing Holt, the Court held that this inherent power did not authorize a city to issue permits to allow a private business to conduct business in a permanent structure on any portion of a public street. The Court determined that a permanent structure upon any portion of a public street employed in private business could be characterized as a public nuisance, because it would invade the public right to free and uninterrupted use of the street. As in Holt, the Court held that a municipality could not subjugate this public right to accommodate a private interest.
This Court has since reaffirmed that it is wholly within the province of the municipal authorities to grant the municipality's consent or to withhold it from a certain group or individual seeking to use public streets for private or public enterprise. Bush v. City of Jasper, 247 Ala. 359, 24 So. 2d 543 (1945). In Crabtree v. City of Birmingham, 292 Ala. 684, 299 So. 2d 282 (1974), the Court summarized the effect of § 220:
292 Ala. at 689, 299 So. 2d at 287 (citations omitted).
Based on the foregoing principles, we conclude that § 220 does give a municipality *1319 authority to issue permits allowing for street vending, provided that such vending does not constitute a public nuisance.
In its order, the trial court cited two early cases from other jurisdictions to establish that pushcarts or street vending establishments are public nuisances. In Strong v. Sullivan, 180 Cal. 331, 181 P. 59 (1919), the California Supreme Court held that a lunch wagon situated directly in front of an established restaurant and affecting ingress to and egress from the restaurant building constituted a public nuisance. In Commonwealth v. Morrison, 197 Mass. 199, 83 N.E. 415 (1908), the Massachusetts Supreme Court held that a lunch wagon parked in city streets for 10 hours at a time was a public nuisance and, further, was in violation of a local ordinance.
We do not find these authorities persuasive here. There is no local ordinance prohibiting street vending in the City of Birmingham. The rules and regulations promulgated by ONB to regulate the vending carts do not contemplate licensing a permanent structure, nor do they allow carts to hinder public traffic along the sidewalks and into neighboring businesses. The regulations provide, in pertinent part:
From these regulations, it is clear that the City of Birmingham has taken steps to assure that it does not use the authority of § 220 to license a public nuisance. When ONB did receive a complaint concerning Flynn's cart, it immediately sought to abate Flynn's activities before they could become a nuisance. In view of the regulations it has enacted and adhered to, as well as the applicable Alabama law, we hold that the City of Birmingham is properly authorized to license street vendors.
Flynn next argues that ONB's regulations deprive vendors of their constitutional right to due process because, he says, they empower ONB to revoke a vendor's license without notice or an opportunity to be heard. The trial court pretermitted addressing this issue, based on its ruling that the City of Birmingham had no authority to license street vendors. We remand this cause for further proceedings as to Flynn's constitutional claim.
1911927 REVERSED AND REMANDED.
1911966 REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES and ADAMS, JJ., concur. | June 4, 1993 |
94fb27c3-ffe3-40bd-a503-d5bded16c3db | Mims, Lyemance, & Reich v. UAB Research Foundation | 620 So. 2d 594 | 1911674 | Alabama | Alabama Supreme Court | 620 So. 2d 594 (1993)
MIMS, LYEMANCE, & REICH, INC.
v.
UAB RESEARCH FOUNDATION.
1911674.
Supreme Court of Alabama.
April 23, 1993.
*595 Stanley K. Smith, Brent A. Tyra and Perryn S. Godbee of Porterfield, Harper & Mills, P.A., Birmingham, for appellant.
Ina B. Leonard, Birmingham, for appellee.
SHORES, Justice.
The plaintiff appeals from a summary judgment entered in favor of the defendant, UAB Research Foundation ("UABRF"), on claims arising out of an alleged breach of a partnership agreement between UABRF and the plaintiff, Mims, Lyemance, & Reich, Inc. ("MLR). We affirm.
The issues are: 1) whether the trial court erred in holding, as a matter of law, that no partnership existed because the partnership agreement was an executory agreement; 2) whether the trial court erred in concluding that there had been no breach of the confidentiality agreement between MLR and UABRF; 3) whether there was sufficient evidence to support MLR's claim of fraud and misrepresentation by UABRF; and 4) whether there was sufficient evidence to support MLR's quantum meruit claim for reimbursement for services it rendered under the partnership agreement.
Because a statement of the facts of this case is essential to an understanding of the issues, we will set forth the facts, as revealed by the record, in detail. In 1988, *596 representatives of MLR met with representatives of the University of Alabama at Birmingham ("UAB") to explore the concept of developing a geriatric-retirement research center ("the project"). A "working group" of MLR and UAB employees examined the concept, and a confidentiality agreement between UABRF and MLR was signed on February 27, 1989. Those parts of the confidentiality agreement pertinent to this appeal state:
At a meeting on May 30, 1989, between MLR and senior UAB officials, the parties determined that if the financial and market feasibility studies on the project proved positive, then it would be desirable to pursue the evolving partnership between UABRF and MLR. UAB subsequently hired Crown Research Corporation to perform the feasibility analysis.
On July 25, 1989, MLR and UABRF signed an agreement to form a general partnership. Because the trial court's interpretation of this "Partnership Agreement" was critical to its entry of summary judgment, we set it forth in its entirety:
On November 1, 1989, the working group members of UABRF and MLR presented a progress report to senior UAB officials; that report indicated that the project was feasible at that time. This presentation was based, in part, on the market analysis and the economic feasibility study compiled by Crown Research. Although the project was received favorably by university officials, Dr. Charles A. McCallum, the president of UAB, indicated that further exploration into several areas was needed before a final decision on the project was possible.
The record shows that continued meetings and preparation of economic models reflected positively on the project's market feasibility, although there were some unanswered questions about its financial feasibility. Dr. McCallum and the UAB treasurer, *598 Linda Flaherty-Goldsmith, contacted Joan Annett, a representative of Smith Barney, for further consultation. Smith Barney was a potential underwriter of the bond issues that would be necessary for the funding of development and construction of the project. Annett initially indicated that the project seemed feasible, and she provided a list of tasks in further evaluation of the project that she believed should be completed before any final commitment to the project should be made.
Dr. McCallum and Flaherty-Goldsmith travelled to Boston in April 1990, to explore further financing of the project with representatives of Smith Barney. These representatives indicated that tax-exempt financing, which was crucial to the feasibility of the project, could not be obtained if MLR as a for-profit entitywas involved as a partial owner of the project. Although they felt that MLR could remain involved as a developer or manager of the project, the Smith Barney representatives had questions about whether MLR had the expertise necessary to be the lead developer of the project.
At a meeting on May 10, 1990, Dr. Kenneth Roozen, the executive director of UABRF, informed MLR that the university was ready to begin the purchase of land for the project. Throughout the summer of 1990, MLR continued to work on draft proposals for a partnership agreement concerning the development of the geriatric research center. In September 1990, experienced counsel expressed doubts to Dr. Roozen about the willingness of lenders to finance the project, given the higher-than-average development and termination fees proposed by MLR in its draft development agreement. On September 20, 1990, Dr. Roozen sent MLR a confidential letter informing it that UAB would have to complete land acquisition for the project before UAB or UABRF could "negotiate terms of specific development and management agreements."
On November 1, 1990, at a meeting of the UAB board of trustees, Flaherty-Goldsmith requested the board to approve contracts to purchase specific parcels of land within the site for the project. A front-page article in the Birmingham Post-Herald newspaper on November 2, 1990, listed specific parcels of land and stated that Flaherty-Goldsmith had said that UAB was buying the property "for a retirement-geriatric research center," and that a project summary indicated that part of the area was "being considered for use as elderly housing, but if, after a market survey, it is determined not feasible, then the school will use the property for other purposes."
Representatives of UAB, UABRF, and MLR held a meeting in early November to examine continued participation in further evaluation of the project. In response to that meeting, Dr. Roozen, as executive director of UABRF, wrote Robert Reich of MLR on November 29, 1990. Roozen's letter informed MLR that UABRF did not consider it feasible or desirable to continue its participation in the geriatric project; that it wanted to dissolve the partnership created by the July 25, 1989, agreement; and that the parties should release each other from the confidentiality agreement dated February 27, 1989. Representatives of UABRF and MLR continued to discuss the feasibility of the project until February 6, 1991, when Dr. Roozen informed Reich that UABRF considered the partnership with MLR "dissolved due to the termination of the particular undertaking of the partnership." Roozen further informed Reich that UABRF considered the feasibility study to have been completed and that UABRF was abandoning the envisioned project.
On May 24, 1991, MLR sued UABRF for $50,000,000 in damages, based on claims arising out of an alleged breach of the confidentiality agreement; breach of the parties' partnership agreement; fraud and misrepresentation by UABRF; and breach of the obligation of good faith and fair dealing. MLR also sought to recover expenses and to recover the value of services rendered, under the theory of quantum meruit. UABRF moved for summary judgment against all claims. After conducting a hearing and considering both parties' briefs, exhibits, and depositions, the trial court on June 10, 1992, entered a final *599 summary judgment in favor of UABRF. MLR appeals.
A summary judgment is proper when there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; King v. Breen, 560 So. 2d 186 (Ala.1990). In determining whether a summary judgment was properly entered, this Court will view the evidence in a light most favorable to the nonmovant and will resolve against the moving party all reasonable doubts concerning the existence of a genuine issue of material fact. Fincher v. Robinson Bros. 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 nonmoving party has the burden of presenting evidence demonstrating the existence of a genuine issue of material fact. Grider v. Grider, 555 So. 2d 104 (Ala.1989). Because this action was filed after June 11, 1987, the nonmovant must meet this burden by "substantial evidence." Alabama Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test, the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); § 12-21-12(d).
MLR alleged that UABRF breached the parties' partnership agreement by failing to go forward with the development of the geriatric center project. Because the trial court implicitly viewed this issue as dispositive of all the claims made by MLR, we shall address this issue first. The trial court's summary judgment described the July 25, 1989, partnership agreement as, "at best, an agreement to agree."
Careful review of the record indicates that there were, in fact, two separate partnerships under consideration. The first partnership, a "feasibility partnership," was created by the July 25, 1989, agreement "for the purpose of exploring and evaluating the feasibility of the [geriatric research] facility." The evidence shows that it was through this partnership that the parties examined the feasibility of the project and that it was pursuant to this partnership that UAB began to purchase land at the site of the proposed geriatric center.
A second partnership, a "development partnership" for the purpose of developing and constructing the project once it was found to be feasible, was expressly contemplated in the July 25 partnership agreement. The July 25 agreement indicates that this development partnership, if created, would be based on "an amended and restated Partnership Agreement," and would constitute the "formation of the Entity" under the terms of the confidentiality agreement. MLR's claims for damages arise out of the failure to develop the geriatric facility, and are, thus, based on the existence of this second partnership. However, there is no substantial evidence in the record that MLR and UABRF ever formed this second partnership to develop the project.
In Alabama, formation of a partnership rests on the intention of the parties, and the agreement to become partners "may be derived from the expressions of the parties or from the facts and circumstances surrounding their business relationships." Dutton v. Dutton, 446 So. 2d 615, 617 (Ala.Civ.App.1983). "There is no settled test for determining the existence of a partnership. That determination is made by reviewing all the attendant circumstances, including the right to manage and control the business." Vance v. Huff, *600 568 So. 2d 745, 748 (Ala.1990) (citing Ala. Code 1975, § 10-8-20, and McCrary v. Butler, 540 So. 2d 736 (Ala.1989)).
The July 25 partnership agreement, by its terms, provides that MLR and UABRF were partners for the purpose of evaluating the feasibility of the project. The actions of the parties between the signing of this agreement and the end of 1990 support this conclusion.
The acts of the parties and all the attendant circumstances do not indicate, however, that UABRF and MLR ever formed a partnership to develop and build the geriatric center. The language of the July 25 agreement indicates that the parties intended, at some time in the future, to become partners for the development of the center. This language specifically stated that if MLR and UABRF elected to develop the project, then an "amended and restated partnership agreement which will more clearly define [their] relationship as Partners in connection with the development of the Project" would be prepared. We can find in the record no evidence that an amended and restated partnership agreement was ever created, nor is there any indication from the attendant circumstances that the parties acted in the manner necessary to establish such a partnership. Although UAB began to buy land near the tentative site for the geriatric center, the university stopped these land purchases pending the outcome of this action, and there is no evidence that UAB completed the purchase of all the land that would have been required for the project. No bonds were ever issued to finance the project, and no construction ever began. "The enterprise in which the parties were to engage must have been launched under the agreement before the parties became partners. 68 C.J.S. Partnership § 11, [p.] 419." Higgins v. Higgins, 266 Ala. 514, 518, 97 So. 2d 812 (1957). Because development and construction of the geriatric research center never began, the partnership upon which MLR bases most of its claims in this suit never came into existence.
Because the July 25 agreement was an agreement to form a partnership for the purpose of developing the project, "[b]ut the essentials necessary to the real purpose of the partnership were never completed and its operation never begun," Higgins, supra, at 518, 97 So. 2d at 812, we hold that the trial court correctly concluded that the partnership agreement was an agreement to agree. Because the executory agreement was never consummated, there was no partnership agreement for the development of the project upon which to base a claim of breach; the trial court correctly entered the summary judgment as to the claim alleging breach of a partnership agreement.
MLR's claim for damages based on an alleged breach of the confidentiality agreement also depends on the existence of a partnership to develop the project. Because the trial court correctly determined that no such partnership had been created, the summary judgment was appropriate on the breach of confidentiality claim as well. MLR contends that any damage caused by the breach of confidentiality was due to the direct effect on the project's feasibility allegedly caused by the increase in the price of land at the project site that occurred around the time of Flaherty-Goldsmith's presentation to the board of directors in November 1990.[1] A careful review of the record reveals no substantial evidence to support MLR's claim that the project became unfeasible because of an increase in land prices.
MLR contends that the summary judgment was improper on its fraud claim because, it says, UABRF's intent to deceive "is a matter `particularly within the province of the trier of facts.'" Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317, 333 (Ala.1987) (quoting Walker v. Woodall, 288 Ala. 510, 513, 262 So. 2d 756, 759 (1972)). However, when there is no substantial evidence *601 to support the claim of fraud or misrepresentation, a summary judgment is proper. Vance v. Huff, supra at 750. The alleged misrepresentations concern future acts. Therefore, in addition to proving the usual elements of fraudulent misrepresentation, § 6-5-101, MLR must also present substantial evidence that, at the time it made the alleged misrepresentations, UABRF did not intend to do the acts promised, and that the misrepresentations were made with the present intent to deceive MLR. Campisi v. Scoles Cadillac, Inc. 611 So. 2d 296, 300 (Ala.1992); Vance v. Huff, supra at 750.
MLR contends that UABRF knowingly or recklessly continued to represent to MLR that the project was economically feasible and that the project would be continued to its completion with MLR, and, therefore, MLR contends that UABRF fraudulently induced MLR to continue its efforts in evaluating the project. MLR further contends that UABRF withheld from MLR its decision to withdraw from the project while still allowing MLR to continue to work on it.
There is evidence that UABRF intended to examine the feasibility of the project and that it, in partnership with MLR, did examine the project's feasibility. Nothing in the record indicates that UABRF ever promised to develop the project until the parties had agreed that the project was feasible. In fact, once UABRF concluded that the project was not feasible, in late 1990, it tried to dissolve the partnership. After carefully reviewing the record, we can find no substantial evidence to support MLR's claim of fraud. Therefore, the summary judgment was proper as to that claim.
MLR also contends that UABRF intends to continue the project and to exclude MLR from its development, and, thus, that it acted in bad faith and breached the fiduciary duty owed between partners. See Ala. Code 1975, § 10-8-48; Cox v. F & S, 489 So. 2d 516, 518 (Ala.1986). There is no merit to this argument, because there was no partnership for the development of the project on which to base this contention. In fact, the record shows that UABRF attempted to dissolve its partnership with MLR because the purpose of the original partnershipto examine feasibility of the projecthad been concluded and UABRF had determined that development of the project was not feasible. There is no substantial evidence that UABRF acted in bad faith in so doing. In fact, the confidentiality agreement expressly contemplated that the parties could determine that the project was not feasible or desirable, and that neither party should unreasonably withhold such a determination. Neither does any continued purchase of lots at the proposed project site establish an intent to deceive MLR. UAB's board of directors approved the purchase of lots with the understanding that the university would use the land for other purposes should the proposed geriatric project be abandoned before construction of the center began. Because we can find in the record no substantial evidence that UABRF acted in bad faith with intent to deceive MLR, or that, at this time, UABRF intends to continue the project, we affirm the summary judgment as to the issue of breach of fiduciary duty.
Finally, MLR contends that the court erred in denying its claim under the theory of quantum meruit for 1) a recovery to compensate it for expenses it incurred and 2) the value of services rendered during the evaluation of the feasibility of the project. "[U]nder Ala.Code 1975, § 10-8-43(6), `no partner is entitled to remuneration for acting in the partnership business.' " Vance v. Huff, supra at 752. Although "the partners may agree that a partner shall receive compensation, or such an agreement may be implied," Nash v. Vann, 390 So. 2d 301, 303 (Ala.Civ.App. 1980), we find no evidence of such an agreement, implicit or otherwise. Because these services were rendered pursuant to partnership business, there is no merit to this claim. As to the claim for compensation for expenses incurred, this matter should be determined during an accounting following dissolution of the partnership, see Cooper v. Cooper, 289 Ala. 263, 266 So. 2d 871, 881 (1972), and it is therefore not *602 properly before us. The trial court did not err in denying MLR's claim under the theory of quantum meruit.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Her statements were reported in the Birmingham Post-Herald article indicating that UAB was buying specific lots for a retirement-geriatric research center. | April 23, 1993 |
d34a2831-5d03-47f0-af58-f2855787da7d | Holland v. Eads | 614 So. 2d 1012 | 1910387 | Alabama | Alabama Supreme Court | 614 So. 2d 1012 (1993)
Joe A. HOLLAND, et al.
v.
Wayne EADS, et al.
1910387.
Supreme Court of Alabama.
February 26, 1993.
*1013 Leon Garmon, Gadsden, for appellants.
Andrew P. Campbell and S. Lynne Stephens of Leitman, Siegel, Payne & Campbell, P.C., Birmingham, and Steve P. Brunson of Simmons, Brunson & McCain, Gadsden, for appellees.
INGRAM, Justice.
The opinion of September 4, 1992, is withdrawn, and the following is substituted therefor.
Joe and Marcia Holland, Lester Crowder, and John E. Sweat, Jr. (hereinafter collectively referred to as "Holland"), filed a motion to intervene pursuant to Rule 24(a), A.R.Civ.P., for the purpose of unsealing the record in a prior case in the Etowah Circuit Court, Eads v. Sutherlin Toyota, Inc. (CV-88-021) (hereinafter referred to as "Eads)." The trial court denied the motion.
The Eads case was tried before a jury for six days in October 1989, after which the jury returned a verdict in favor of Eads and against World Omni Leasing, Inc. Before the entry of a judgment on that verdict, the parties reached a settlement in lieu of appealing the case. As part of the settlement agreement, the trial court dismissed the case with prejudice and ordered the immediate sealing of the entire court file, including notes and tapes of the court reporter. Further, the trial court ordered that the file and the court reporter's notes not be made available to any person.
In December 1991, two years later, Holland sought to intervene in the Eads case for the purpose of obtaining the Eads trial transcript for use in a similar case against one of the defendants in the Eads case. The trial court denied the motion to intervene, and this appeal followed.
"Generally, trials are open to the public. However, public access must be *1014 balanced with the effect on the parties. Ex parte Balogun, 516 So. 2d 606, 610 (Ala. 1987). Nevertheless, the decision concerning access to the court records has long been recognized as within the trial court's discretion. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). This does not mean that the trial court's discretion should be unfettered; rather, it should be governed by legal rules and standards.
However, neither this Court, nor the legislature of this State, has set out comprehensive rules or standards concerning the sealing of court records or the "enforcement of covenants of silence [which] are becoming increasingly common practices in the settlement of civil lawsuits." Note, Sealed Out-of-Court Settlements: When Does the Public Have a Right to Know? 66 Notre Dame L.Rev. 117 (1990). The lack of such rules or guidelines may be attributable to the fact that there were few cases directly addressing this issue before 1983. "Through media and other public interest group intervention, appellate courts are just beginning to scrutinize sealing orders more closely." Note, supra, at 118.
Here, we are not faced with whether the original Eads case should have been sealed. That decision and the time for appeal have long since run. Rather, in this instance, we are concerned with whether a third party may "intervene" and have a previously sealed record reopened.
Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 786 (1st Cir.1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989), quoting Mokhiber v. Davis, 537 A.2d 1100, 1105-06 (D.C.App.1988).
Unless intervention is liberally applied to third parties seeking access to previously sealed records, the common law presumption in favor of the public's right of access to judicial records will be abrogated. In addition, for the reasons specified in Public Citizen, the ordinary requirements for parties seeking intervention should not apply. Unless a closure order is subject to challenge by a motion to intervene, that order would never be subject to challenge, because no third party would have a procedural mechanism to challenge it. Accordingly, we hold that a motion to intervene is the procedurally correct means to seek the opening of a sealed court file.
As noted above, there are no comprehensive standards to guide the courts of this state in determining whether to initially seal a record, much less in determining when a court should reopen a sealed court file. Therefore, we take this opportunity to address this issue.
The United States Supreme Court has recognized a common law right of public access to judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). "`It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.'" United States v. Criden, 648 F.2d 814, 819 (3d Cir.1981), quoting Nixon, supra, 435 U.S. at 597, 98 S. Ct. at 1312. In fact, this right of the public to inspect and copy judicial records antedates the United States Constitution. Criden, supra.
It has long been the rule of this State to allow public inspection of judicial records. Brewer v. Watson, 61 Ala. 310, 311 (1878). More than a century ago, this Court held that "[a]n inspection of the records of judicial proceedings kept in the courts of the country, is held to be the right of any *1015 citizen." Id. at 311; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala.1987) (holding that "the public generally has a right of reasonable inspection of public records required by law to be kept, except where inspection is merely out of curiosity or speculation or where it unduly interferes with the public official's ability to perform his duties"); Excise Comm'n of Citronelle v. State ex rel. Skinner, 179 Ala. 654, 657, 60 So. 812, 813 (1912). The public's right to inspect court records derives from the "universal policy underlying the judicial systems of this country [that] secrecy in the exercise of judicial power ... is not tolerable or justifiable." Jackson v. Mobley, 157 Ala. 408, 411-12, 47 So. 590, 592 (1908).
In addition to a common law presumption of permitting public inspection of judicial records, which has been recognized by the United States Supreme Court and by this Court, public access to court records is permitted by statute. Ala.Code 1975, § 36-12-40, grants the public the right to inspect and copy "public writings," which term has been interpreted to include judicial records. Ex parte Balogun, supra; Stone v. Consolidated Publishing Co., 404 So. 2d 678, 681 (Ala.1981) (interpreting a "public writing" to be "a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens"); State ex rel. Kernells v. Ezell, 291 Ala. 440, 442-43, 282 So. 2d 266, 268 (1973) (holding that records of the office of the probate judge are "public writings" within the meaning of the predecessor to § 36-12-40 and are "free for examination [by] all persons, whether interested in the same or not"); Excise Comm'n of Citronelle, supra; Brewer, supra.
Limitations of the public's right to inspect "must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure." Chambers v. Birmingham News Co., 552 So. 2d 854, 856 (Ala.1989). The party refusing disclosure bears the burden of "proving that the writings or records sought are within an exception and warrant nondisclosure of them." Chambers, at 856-57; Ex parte CUNA Mutual Ins. Society, 507 So. 2d 1328, 1329 (Ala.1987); Ex parte McMahan, 507 So. 2d 492, 493 (Ala.1987). This Court has held that the following types of records do not warrant disclosure: "[r]ecorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records the disclosure of which would be detrimental to the best interests of the public." Stone, 404 So. 2d at 681.
Most other courts that have addressed this issue have recognized a similar presumption of a right of public access to judicial proceedings and records and have placed the burden on the party seeking secrecy. Brown v. Advantage Engineering, Inc., 960 F.2d 1013 (11th Cir.1992); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988); Bank of America National Trust and Sav. Ass'n v. Hotel Rittenhouse Associates, 800 F.2d 339, 343 (3d Cir.1986); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1595, 80 L. Ed. 2d 127 (1984); In re National Broadcasting Co., 653 F.2d 609, 613 (D.C.Cir.1981); Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla.1988).
The Court of Appeals for the Eleventh Circuit holds that the trial court must apply a balancing test in determining whether to seal a record, "`weighing the competing interests of preserving the district court's authority in encouraging settlement agreements and the public's right to access to public trials'" and records. Brown v. Advantage Engineering, Inc., supra, at 1015, quoting Wilson v. American Motors Corp., 759 F.2d 1568, 1569 (11th Cir.1985).
The Court of Appeals for the Sixth Circuit also recognizes a public right of access to judicial records. Brown & Williamson Tobacco Corp., supra. The Sixth Circuit *1016 has noted that few reasons warrant closure of public records. Id. The court indicated that some of these reasons include a defendant's right to a fair trial, certain privacy rights of participants or third parties, trade secrets, and national security. Id.
The Court of Appeals for the Third Circuit holds that, in balancing the factors for and against access, the interest in settling disputes does not outweigh the common law presumption of open access to court documents and orders. Bank of America National Trust, supra.
We have examined the different approaches used in other jurisdictions. In light of the public policy in favor of public access and the prevailing analysis of this presumption in most American courts, we hold that if a motion to seal is filed, then the trial court shall conduct a hearing. The trial court shall not seal court records except upon a written finding that the moving party has proved by clear and convincing evidence that the information contained in the document sought to be sealed:
If any one of the above criteria is satisfied, then the trial court may seal the record, or any part of the record, before trial, during trial, or even after a verdict has been reached.
This approach limits, but does not abolish, the range of judicial discretion. There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual's privacy interest (as set out above) rises above the public interest in access.
As noted above, the present case does not concern the original "sealing of the court record." That was done two years before any motion for intervention was filed. Rather, this is a case concerning the public right of access once certain records have already been sealed.
Here, the parties to the original Eads case have relied on the court's order of confidentiality, and we will presume that the trial court's decision to deny the intervention motion is correct. However, the question remains, what standard governs the trial court in ruling on such a motion to intervene.
In reviewing decisions of other jurisdictions, we find that some courts impose a heavy burden upon the intervening party and require a showing of extraordinary circumstances or compelling need to modify the order to seal. See Palmieri v. New York, 779 F.2d 861 (2d Cir.1985). In re Knoxville News-Sentinel Co., 723 F.2d 470 (6th Cir.1983); FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir.1982); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291 (2d Cir.1979). This standard gives overwhelming weight to the parties' reliance, and, in effect, creates a presumption in favor of secrecy over access. Mokhiber v. Davis, 537 A.2d 1100 (D.C.App.1988).
A more balanced approach is reached by the Court of Appeals for the District of Columbia. Mokhiber, supra. Under this analysis, the intervening party must produce evidence showing why the opponent's interest in secrecy is no longer sufficiently strong enough to outweigh the public interest in disclosure. This approach recognizes the public's right of access, but also gives stability to previous court orders. We find this approach to be the better reasoned view, so that an order to seal a record is always subject to continuing review and modification upon changed circumstances. See Mary R. v. B & R Corp., 149 Cal. App. 3d 308, 196 Cal. Rptr. 871 (1983).
In applying this standard, the court should look at several factors. See *1017 Public Citizen, supra (trial court discussed factors to be considered in unsealing a record). First, the court should examine the length of time that the intervenor knew or reasonably should have known of its interest in the case before petitioning to intervene. Second, the court should look at the prejudice to existing parties due to the intervenor's delay in petitioning to intervene. Third, the court should consider the prejudice that the intervenor would suffer if he were not allowed to have the record unsealed. Fourth, the court should consider the existence of any extraordinary circumstances suggesting, or cautioning against, intervention.
Applying this approach to the present case, we find no error in the trial court's refusal to unseal the record in question. Although it did not have the benefit of our statement of the standards set out here, the trial court entered a detailed order denying the intervenors' motion to unseal the records. The trial court found that the original action was "protracted [and] expensive and involved over two years of substantial discovery and a lengthy trial," and that "[i]t also involved trade secrets and confidential information." Further, the trial court found that the applicants had "no inherent stake or common interest in the documents or records of the settled Eads action" and that they "now have their own case through which they can obtain much, if not all, of the same material presented in the Eads case through discovery processes." Based upon the trial court's findings, we find that the intervenors have not met their burden of showing why the sealed records no longer need to be sealed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | February 26, 1993 |
d29fa159-c00f-4063-b880-f802672dec9c | Parker v. Ward | 614 So. 2d 975 | 1910578 | Alabama | Alabama Supreme Court | 614 So. 2d 975 (1992)
Jerry PARKER
v.
Charles WARD and Commonwealth Land Title Insurance Company.
1910578.
Supreme Court of Alabama.
August 7, 1992.
As Modified on Denial of Rehearing March 12, 1993.
J.E. Sawyer, Jr., Enterprise, for appellant.
Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellees.
Jeffrey W. Blitz and Jack B. Hinton, Jr. of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, on rehearing, for amicus curiae Lawyers Title Ins. Corp.
John S. Bowman and James A. Byram, Jr. of Balch & Bingham, Montgomery, on rehearing, for amicus curiae First American Title Ins. Co.
SHORES, Justice.
Is a title insurance company liable to its insured for failing to list a recorded timber deed as an exception on a title insurance policy? This is the single issue involved in this appeal. The trial court entered a summary judgment for the defendant, Commonwealth Land Title Insurance Company; Jerry Parker, the plaintiff, appeals. We reverse and remand.
On August 14, 1987, D. Patrick Haney and John P. Russell jointly purchased 589 acres of land in Coffee County. Three days later, Haney and Russell conveyed all the standing timber that was on the property to Flack-Haney Company, Inc., by deed. The timber deed was duly recorded in the Coffee County probate office.
Jerry Parker purchased 335 of the 589 acres in September 1987. A written agreement reserved the timber to the sellers. Thereafter, between September 1987 and March 1988, Haney cut the timber on the 335 acres.
In December 1987, Haney and Russell conveyed their remaining land to C.E.F., Inc., a corporation they had formed. In March 1988, Jerry Parker negotiated with Haney to purchase two additional tracts, consisting of a 10-acre parcel and a 30-acre parcel. Parker did not walk over the land but viewed it from the road, and, at *976 the time, the timber had not been cut on those parcels.
When Parker agreed to purchase the property from C.E.F., he also entered into a contract with Commonwealth Land Title Insurance Company and Charles Ward, individually, d/b/a Coffee County Abstract & Title Company, under which Commonwealth agreed to issue a title insurance policy that insured Parker free and clear title. Pursuant to that agreement, a policy of title insurance was issued; that policy stated that as of 4:10 p.m. on April 5, 1988, fee simple title to the land involved was vested in insureds Thomas G. Parker and his wife, May Rose Parker. The policy then described the land by reference to the Government survey.
Exclusions from Coverage included:
(Emphasis added.)
The policy insured title to the estate in fee simple, subject to exceptions contained in Schedule B, which read as follows:
It is not disputed that when Parker purchased the property and when the title policy was issued there was a timber deed from Parker's grantor to a third party, which was in the recorded chain of title, and which was, in fact, recorded in the public records in the office of the judge of probate at Deed Book 87-A, page 143. However, Parker's title insurance policy did not list the timber deed, nor did the policy exclude the timber from coverage. Flack-Haney, as owner of the standing timber by virtue of the recorded timber deed, cut the timber on Parker's land.
Consequently, Parker sued, alleging that Commonwealth and its agent, Charles Ward, had breached the agreement between them "by not informing or listing on said policy of insurance the exception to the property that the timber located on said property had previously been sold by virtue of a timber deed." Parker subsequently filed an amended complaint substituting C.E.F. for fictitiously named party X in the original complaint. On December 7, 1989, Commonwealth moved for a summary judgment, which was entered on March 14, 1990. Parker appeals from this judgment, which the trial court made final pursuant to Rule 54(b), A.R.Civ.P. Parker's claims against C.E.F. alleging breach of contract and fraud are still pending; C.E.F. is not a party to this appeal.
*977 An outstanding timber deed, under which the grantee acquires a right to enter upon the land, constitutes a defect in the title. "A defect in title exists when the aggregate of rights, privileges, powers and immunities known as ownership [fee simple title] is subject to the claims of others."[1] The policy insures against losses from such defects, unless those defects are excepted from the coverage.
It has been observed that title insurance is not, in fact, insurance, because title policies except any risks apparent after a title search.[2] In this case, Parker admits that Commonwealth had a contractual right to except the timber deed from coverage under the policy, but, because it did not do so, he argues that the policy either affords coverage from loss due to that defect in the title insured or Commonwealth breached an implied agreement to disclose defects in his title that are a matter of public record.[3]
A title insurance company has an obligation to answer for any loss due to a defect in a title if it has not excepted that defect from its coverage. It cannot escape liability when it does not except a defect that is a matter of public record. It is generally assumed that a title defect that appears in the public records but that is not noted is covered by a title policy.[4]
Commentators have urged, and some courts have held, that a title company, in the absence of an express promise to search title, has an implied duty to search the title and disclose any defect found upon the public record.[5] Because the policy itself insures against loss or damage from defects in the title, subject to certain exceptions set out in the policy, it necessarily follows that it insures against any defect that is a matter of public record if that defect is not excepted from the coverage. In this case, the policy excepted certain defects that were a matter of public recorde.g., the mineral deedbut did not except the timber deed. Under these facts, the timber deed should not be excepted from the coverage, and the title company should be held liable for any loss occurring from this defect in the title, or, alternatively, it should be held liable to its insured for failing to disclose this defect. It has been said that the most common error in the title insurance industry is the negligent failure to note a title defect appearing in the public records.[6]
The question presented by this case may be an unsettled one in other jurisdictions, but it has been resolved here. In Upton v. Mississippi Valley Title Insurance Co., 469 So. 2d 548 (Ala.1985), this Court held that a title insurance company had a duty to search the public records and to reveal any defect that such a search might disclose, but that the duty did not extend beyond the title records in the office of the judge of probate to include a search of the circuit court records, as the insured contended. In that case, a judgment granting third parties an easement or right-of-way over the land involved had been entered in a litigated case. It was filed in the office of the clerk of the circuit court, but was never recorded in any record book in the office of the judge of probate. Mississippi Valley Title Insurance Company searched the title to the property before issuing its binder. The search included records in the office of the judge of probate, the tax assessor's office, the tax collector's office, and the United States Bankruptcy Court. It did not include the records in the office of the clerk of the circuit court. The plaintiff claimed that Mississippi Valley's failure to find and list the easement judgment as an exception was a breach of the title insurance *978 binder and policy and that Mississippi Valley had negligently failed to uncover an easement of public record.
This Court held that because the title insurance policy excluded from coverage "any easement not shown by the public records" (emphasis in original) and because the term "public records" was defined in the policy as "those records which by law impart constructive notice of matters relating to said land" (the exact definition of "public records" contained in the policy that is the subject of this action), the title company was obligated only to search the records of the probate court because those were the only public records that, by law, imparted constructive notice of easements.
Thus, this Court held that the title company had a contractual obligation to search (and disclose) at least those records that, by law, impart constructive notice of matters relating to the land. The policy in this case is not materially different from that considered by the Court in Mississippi Valley. In fact, it is identical in all material respects. In this case, the timber deed was in the chain of title and it was recorded in the office of the judge of probate. "Public records" is defined in this policy in exactly the same language as that contained in the Mississippi Valley policy. Commonwealth, therefore, had a contractual duty to search those records and to disclose to its insured a defect in title that those records contained.
The Court in Mississippi Valley held that there was no common law duty on title insurance companies to search circuit court records. It did not hold that there was no common law duty on title companies to search title records in the office of the judge of probate. That was not the issue before the Court. In that case, the title company did, in fact, search the records in the office of the judge of probate. In this case, Commonwealth apparently searched the records in the office of the judge of probate, because it excepted from its coverage some, although not all, of the defects shown by those records. To hold that it is not liable to its insured either for breach of its contractual obligation to search those records or breach of a common law duty to search those records (imposed by the relationship of the parties) is to disregard the law in this state.
In Fox v. Title Guar. & Abstract Co. of Mobile, 337 So. 2d 1300 (Ala.1976), this Court reversed a summary judgment for the title company in a case in which the plaintiffs alleged a negligent failure to discover a tax lien. The Court held that the title company had a duty to discover the tax lien, and that it should not be allowed to profit (to be unjustly enriched) from its failure to do so. Id. at 1303. Justice Jones, concurring specially, noted:
337 So. 2d at 1305.
It is no answer to Parker's contention that § 35-4-363, Code of Alabama 1975, makes standing timber and cutting rights personal property while owned by one other than the owner of land. An outstanding, recorded timber deed constitutes a defect in the title against which Commonwealth contracted to insure Parker. It had a contractual obligation to search the records in the office of the judge of probate and to disclose any defect in those records to Parker, or else to compensate him for any loss suffered as a result of that defect.
The trial court erred in entering the summary judgment in favor of Commonwealth. Commonwealth may have a defense to Parker's action for breach of contract if it can prove to the satisfaction of a factfinder that he knew, as it asserts in its brief, that the timber on the land he bought had been previously deeded away, but that issue was not resolved on the motion for summary judgment.
Some commentators have stated that, under these facts, a title company should be held liable for damages beyond the limits of the title policy. They argue *979 that a title company has a duty to search (as this Court held in Mississippi Valley) and that the negligent failure to disclose a defect that is a matter of public record entitles the insured to damages beyond those contracted for.[7] Our research has disclosed no case where the argument was advanced that the title company was not liable for losses flowing from defects in the title insured against, which is the argument advanced by Commonwealth here. To be sure, Commonwealth rests its argument on § 35-4-363, Code of Alabama 1975. That statute cannot have the effect Commonwealth suggests. Sections 35-4-360 et seq. were passed to permit grantees of timber deeds to remove timber from land without incurring liability to the landowner for trespass. Section 35-4-361 expressly states that the grantee of a timber deed has a right-of-way over and across the lands on which the timber stands for the purpose of cutting and removing the timber. Thus, an outstanding timber deed is a defect on the title, and, if it is recorded in the office of the judge of probate, the title company is obligated to find and disclose it to its insured or else to compensate for any loss suffered as a result of that defect.
For the reasons stated, the judgment is reversed and the case remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
The complaint involved in this case reads in pertinent part as follows:
According to the timber deed (attached to the complaint as Exhibit "B"), Haney and Russell conveyed to Flack-Haney Company on August 17, 1987, "all Merchantable Timber standing, growing and being on the [land in dispute] ... together with all necessary rights of ingress and egress and rights of way for railroads, log carts, teams, employees, machinery and appliances for cutting and removing said timber from said lands ... [for] a period of 36 months."
Under our liberal notice pleading, the language of the complaint is broad enough to sufficiently state a claim based on an encumbrance to the title to the land by virtue of the language of the timber deed that grants Flack-Haney "rights of ingress and egress and rights of way for ... cutting and removing said timber" for approximately 2½ years after Parker purchased the land in question. However, in his deposition testimony, Parker denied a claim based on an encumbrance to the land and specifically limited his claim against Commonwealth to the claim that the title insurance policy insured the timber:
(Emphasis added.)
The purpose of title insurance is to protect the insured against defects in title, not to protect the insured against loss from physical damage to property; and title insurance companies are not required to explain the significance and effect of exculpatory covenants discovered in their title searches. Holmes v. Alabama Title Co., 507 So. 2d 922 (Ala.1987).
According to the declaration page (Schedule A) of the title insurance policy issued by Commonwealth to Parker, "[t]he estate or interest in the land ... which is covered by this policy [and which is described below]" is a "FEE SIMPLE"; and "land" is defined in the policy as "the land described, specifically or by reference in Schedule A, and improvements affixed thereto which by law constitute real property." (Emphasis added.) The policy insured:
Section 35-4-363, Ala.Code 1975, provides:
(Emphasis added.) When timber has been conveyed to and is therefore owned by a person other than the owner of the land on which the timber stands, the timber is considered a chattel, not real property. See Crew v. W.T. Smith Lumber Co., 268 Ala. 628, 109 So. 2d 721 (1959); § 35-4-363.
Based on the foregoing, I conclude that the title insurance policy Commonwealth issued to Parker did not insure the timber on the property, because the policy insured only "land," which was defined in the policy as "real property"; and the timber, which had been conveyed to Flack-Haney, was considered to be a chattel, not real property. Because Commonwealth made a prima facie showing of an absence of a genuine issue of material fact as to whether it breached its contract, the burden shifted to Parker to present substantial evidence to the contrary to defeat the summary judgment motion. This he failed to *981 do. Therefore, the trial court properly entered the summary judgment for Commonwealth.
I note that but for the express waiver of the claim of an encumbrance on the land, I would have voted to reverse, but because of Parker's deposition testimony and his statement in his brief that his only claim was that the title insurance policy insured the timber, I would affirm the judgment for Commonwealth.
MADDOX and STEAGALL, JJ., concur.
[1] Title Insurance: The Duty to Search, 71 Yale L.J. 1161, at 1161 (1962).
[2] Q. Johnstone, Title Insurance, 66 Yale L.J., 492 at 492 (1957).
[3] Parker concedes that the only claim he states in this case is a contract claim.
[4] Id. at 495.
[5] Title Insurance: The Duty to Search, supra, at 1166, n. 32, citing Glyn v. Title Guarantee & Trust Co., 132 App.Div. 859, 861-62, 117 N.Y.S. 424, 426-27 (1909); Dorr v. Massachusetts Title Ins. Co., 238 Mass. 490, 131 N.E. 191 (1921); Ehmer v. Title Guarantee & Trust Co., 156 N.Y. 10, 50 N.E. 420 (1898).
[6] Q. Johnstone, Title Insurance, supra, at 495.
[7] Title Insurance: The Duty to Search, supra.
[8] I note that Parker purchased the land in March 1988 for $350 an acre and sold it in July 1988 for $475 an acre. | March 12, 1993 |
b572f09b-c237-49e8-a938-711661473bcc | Lms v. Angeles Corp., Inc. | 621 So. 2d 246 | 1911413 | Alabama | Alabama Supreme Court | 621 So. 2d 246 (1993)
L.M.S.
v.
ANGELES CORPORATION, INC., d/b/a Forest River Apartments, et al.
1911413.
Supreme Court of Alabama.
March 12, 1993.
Rehearing Denied May 14, 1993.
J. Gullatte Hunter III of Ford & Hunter, P.C., Gadsden, for appellant.
James E. Turnbach of Turnbach & Warren, P.C., Gadsden, for appellees.
STEAGALL, Justice.
L.M.S. was raped by an intruder who came through the living room window of her apartment at the Forest River Apartments complex in Gadsden, Alabama. She sued Angeles Corporation, doing business as Forest River Apartments, and Capital Real Estate Management Company (collectively referred to as "Forest River"), alleging that Forest River negligently failed to maintain her apartment window in a safe condition and that this negligence resulted in the attack on her. The trial court entered a summary judgment for Forest River, and L.M.S. appeals.
A summary judgment is proper and must be affirmed on appeal if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 54(b), A.R.Civ.P. The primary issue on appeal is whether the trial court erred in determining that, as a matter of law, Forest River could not be held liable for the attack on L.M.S.
In Brock v. Watts Realty Co., 582 So. 2d 438 (Ala.1991), this Court held that a landlord who has a statutory duty to maintain the safety of a tenant's apartment may be held liable for an attack on the tenant resulting from the landlord's breach of this duty.
L.M.S. contends that, under the Standard Housing Code of 1985, Forest River had a statutory duty to maintain her apartment windows in a safe condition. The 1985 Code states, in pertinent part:
The City of Gadsden had adopted the 1985 Standard Housing Code as its own municipal housing ordinance; however, the ordinance adopting that Code specifically provided:
The record shows that the Forest River Apartments complex was constructed before the effective date of the ordinance; accordingly, the trial court properly determined that Forest River owed no statutory duty to L.M.S. under the 1985 Standard Housing Code.
Absent such a statutory duty, a landlord may not be held liable for the criminal acts of third persons unless such acts were reasonably foreseeable. Brock. The basis for this rule has been that landlords and businesses should not be held liable for acts that could not have been anticipated. Brock.
In this case, the issue of foreseeability hinges on whether Forest River knew or should have known of the condition of L.M.S.'s window. L.M.S. submitted an affidavit stating that, soon after moving into her apartment, she informed a Forest River Apartments maintenance worker that her window was easy to open. She stated that neither the maintenance worker nor any other Forest River representative looked into her complaint. In her lease with Forest River Apartments was the following provision:
The record shows that L.M.S. never filed a written complaint or otherwise gave formal notice regarding the window to anyone in the Forest River Apartments office. Forest River, however, produced no evidence to dispute L.M.S.'s statement that she gave actual notice to the Forest River agent who would be required to repair any defect in the window. Although she did not formally comply with the notice requirements, we hold that the evidence concerning her actual notice to the Forest River maintenance employee is sufficient to create a question of fact as to whether Forest River knew of a condition that could foreseeably result in the attack on L.M.S. Therefore, we reverse the summary judgment and remand this cause for further proceedings.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS, KENNEDY and INGRAM, JJ., concur.
ALMON, SHORES and HOUSTON, JJ., dissent.
ALMON, Justice (dissenting).
The plaintiff argues only that the summary judgment should be reversed because, she says, the Gadsden housing ordinances impose a duty and foreclose the issue of foreseeability. She relies on Brock v. Watts Realty Co., 582 So. 2d 438, 441 (Ala.1991), in which this Court held that certain ordinances of the City of Birmingham "created a duty ... to maintain the locks ... because the resulting crime... was one the general risk of which was foreseeable." (Emphasis in original.) This Court's holding that the Gadsden ordinances are not applicable to this case should therefore end the matter and result in an affirmance. Even assuming that the appeal is not decided by this holding, the question would be whether the rape was foreseeable, not whether the defendants "knew or should have known of the condition of L.M.S.'s window," as the majority says. The judgment should be affirmed on this question also, because L.M.S. does not contend that the rape was foreseeable because *248 of similar incidents or for any other reason beyond the ordinances.
A defendant should not be held liable for the criminal acts of third parties except in limited, exceptional circumstances. See, e.g., Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala.1990); Ortell v. Spencer Companies, 477 So. 2d 299 (Ala.1985). The ordinances on which L.M.S. relies are not applicable to this case, and she has not attempted to show any exceptional circumstances that would allow her to recover. I would affirm the judgment.
SHORES, J., concurs.
HOUSTON, Justice (dissenting).
I would affirm. No statute, no liability. | March 12, 1993 |
298f4653-c978-414d-928f-8ecd59df2ebc | TALLASEEHATCHIE CREEK WATERSHED v. Allred | 620 So. 2d 628 | 1910968 | Alabama | Alabama Supreme Court | 620 So. 2d 628 (1993)
TALLASEEHATCHIE CREEK WATERSHED CONSERVANCY DISTRICT
v.
Mary Ann ALLRED, as administratrix of the Estate of Camie Jo Allred Headrick, deceased.
1910968.
Supreme Court of Alabama.
May 7, 1993.
James H. Evans, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellant.
J. Gusty Yearout, William R. Myers and Deborah S. Braden of Yearout, Myers & Traylor, P.C., Birmingham, for appellee.
ALMON, Justice.
This is an interlocutory appeal, pursuant to Rule 5, Ala.R.App.P., by Tallaseehatchie Creek Watershed Conservancy District ("TCWCD") from an order of the trial court denying its motion to dismiss the plaintiff's action. The only issue is whether TCWCD is clothed with sovereign immunity by virtue of Ala. Const.1901, art. I, § 14, and therefore is not subject to suit in the courts of this state.
The plaintiff, Mary Ann Allred, as administratrix of the estate of Camie Jo Allred Headrick, deceased, brought an action against TCWCD and other defendants after Headrick died from injuries received in a swimming accident. The complaint alleged, inter alia, that TCWCD negligently and/or wantonly failed to maintain one of its dams and that its negligence or wantonness caused Headrick's death; the complaint also alleged against TCWCD a negligent failure to warn concerning the dangerous conditions related to the dam. TCWCD moved to dismiss the action, and the trial court denied the motion without making findings of fact or conclusions of law. This appeal by permission followed.
The Alabama Constitution of 1901, art. I, § 14, provides "That the state of Alabama shall never be made a defendant in any court of law or equity." TCWCD contends that it is entitled to the protection of sovereign immunity because it is a component in a group of state agencies created by the legislature for the protection and regulation of the natural resources of Alabama. The legislature has stated its policy of preserving the resources of this state in Ala. Code 1975, § 9-8-21(b). That section states:
To further these aims, the legislature created the State Soil and Water Conservation Committee ("Committee"). This nine-member committee is empowered to perform various governmental functions to effectuate the policy of the legislature. Ala.Code 1975, § 9-8-22. The Committee is also given authority to create soil and water conservation districts ("SWCD") upon the petition of at least 25 landowners who reside in the area to be covered by the district. Ala. Code 1975, § 9-8-23. The Committee appoints a separate board of supervisors to govern each SWCD and also pays all expenses incurred in the creation of an SWCD. Ala.Code 1975, §§ 9-8-23 and 9-8-24.
The SWCDs operate under the supervision of the Committee and are engaged primarily in preventing erosion of the soil through proper land use and other measures. Ala.Code 1975, § 9-8-25. Section 9-8-25 provides that an SWCD "shall constitute a governmental subdivision of this state and a public body, corporate and politic, exercising public powers."
Section 9-8-51 authorizes the creation of Watershed Conservancy Districts ("WCD"); a WCD is defined as follows in § 9-8-50:
TCWCD contends that it is inextricably intertwined with entities that are agencies of the state, and that therefore it, too, should be considered an agency of the state. TCWCD points out that its own board of directors can take no action without the prior approval of the board of supervisors of an SWCD, Ala.Code 1975, § 9-8-61, and that the board of supervisors of an SWCD is itself controlled by the Committee. TCWCD relies on Deal v. Tannehill Furnace & Foundry Commission, 443 So. 2d 1213 (Ala.1983), and Armory Commission of Alabama v. Staudt, 388 So. 2d 991 (Ala.1980), to support the assertion that it is an agency of the state.
The appellee Allred responds with the argument that TCWCD is not an agency of the state as such, but is a public corporation exercising normal corporate powers. Allred argues that, because the legislature has expressly authorized TCWCD to sue and be sued, Ala.Code 1975, § 9-8-61(6), and TCWCD is defined in the Code as a corporate body, no justification exists for immunizing TCWCD from suit under the aegis of sovereign immunity. Allred relies principally upon Curtis v. Alabama Elk River Development Agency, Inc., 372 So. 2d 353 (Ala.Civ.App.1979), and Thomas v. Alabama Municipal Electric Authority, 432 So. 2d 470 (Ala.1983), to buttress her assertion that TCWCD is a separate entity and not an agency of the state.
It is true that this Court has held that certain corporations authorized by the legislature to perform beneficent public purposes have been characterized as "separate entities," and therefore considered not strictly part of the state. See Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So. 2d 903 (1971); Edmondson v. State Industrial Development Authority, 279 Ala. 206, 184 So. 2d 115 (1966). These cases, however, dealt with the constitutional limitation on the state's power to create new debt, Ala. Const.1901, § 213 (now amendment 26), and the constitutional proscription against state investment in private enterprise, Ala. Const.1901, § 93; they did not specifically address the sovereign immunity issue.
*630 Three of the four major cases cited by the partiesDeal, Staudt, and Thomas employ a test that emphasizes substance over form for determining whether legislatively created entities are covered by sovereign immunity. This test, which discounts the "corporate" label attached to many such entities in the Code, was enunciated in Armory Commission of Alabama v. Staudt, 388 So. 2d 991, 993 (Ala.1980). There the Court stated:
The application of this test to the present situation yields no unequivocal solution, however. Initially, there are numerous factors suggesting that TCWCD is an agency of the state. WCDs are statutorily authorized to act as agents of the state. Ala.Code 1975, § 9-8-61(7). WCDs have the power of eminent domain to acquire lands necessary to perform their assigned functions, Ala.Code 1975, § 9-8-61(1), and WCDs are exempt from state and local taxation, Ala.Code 1975, § 9-8-67. Finally, the Code authorizes the comptroller to pay all administrative and other expenses incurred by the Committee and the SWCDs to the limit of the appropriation for those entities. Ala.Code 1975, § 9-8-32. This provision is particularly important, for this Court has often held that sovereign immunity will preclude an action for damages against a legislatively created entity or agent of the state, when the state treasury would be adversely affected by an award for the plaintiff. See Druid City Hospital v. Epperson, 378 So. 2d 696 (Ala.1979); Milton v. Espey, 356 So. 2d 1201 (Ala.1978); Gill v. Sewell, 356 So. 2d 1196 (Ala.1978). Indeed, in Thomas, supraone of the two principal cases relied upon by the plaintiff Allredthis Court, in characterizing an electric company as a public corporation, stated:
(Emphasis added.) Here, it is possible that a judgment for the plaintiff would be paid out of the state treasury, at least to the extent of the appropriation. Therefore, this factor militates in favor of characterizing TCWCD as an agency of the State.
On the other hand, several factors seem to favor characterizing TCWCD as a public corporation or separate entity. First, the Code expressly allows both SWCDs and WCDs to sue and to be sued, Ala.Code 1975, §§ 9-8-25(a)(13), 9-8-61(6). Also, the Code provides that WCDs can sell and dispose of property, make contracts, and issue bonds, Ala.Code 1975, § 9-8-61(4) and (5); the Code further provides that all contracts made and bonds issued by the WCDs "shall be solely and exclusively obligations of the district and shall not be an obligation or debt of the state of Alabama or any county or municipality therein," Ala.Code 1975, § 9-8-61(3) (emphasis added). This last provision clearly contemplates that WCDs are entities separate and apart from the State; the provision also introduces an element of ambiguity into the crucial question of the financial responsibility for any judgment adverse to a WCD.
The resolution of this issue is made more difficult by the fact that this Court has never had occasion to characterize a WCD as either a public corporation or a state agency for purposes of sovereign immunity. The United States Court of Appeals for the Sixth Circuit, however, has been squarely presented with the issue in Lenoir v. Porters Creek Watershed District, 586 F.2d 1081 (6th Cir.1978). In Lenoir, the plaintiff brought an action against several defendants, including the United States Department of Agriculture, under *631 the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1976), and the Porters Creek Watershed District ("Porters Creek") under a state tort theory. The Porters Creek WCD was created by Tennessee statutes almost identical to the statutes at issue hereWCDs in Tennessee are bodies "corporate and politic." Tenn.Code Ann. § 70-1818 (1976) (now codified at Tenn.Code Ann. § 69-7-118 (Repl.Vol.1987)). Likewise, the Tennessee statutes allow a WCD "to sue and be sued by its corporate name." Tenn.Code Ann. § 70-1818(b) (1976) (now codified at Tenn. Code Ann. § 69-7-118(2) (Repl.Vol.1987)). The court of appeals, in assessing the sovereign immunity argument propounded by Porters Creek, held that Porters Creek was a political unit sufficiently independent not to be considered an agency of the state. Instead, the Court analogized Porters Creek to a municipal or public corporation. See also Gallagher v. Albuquerque Metropolitan Arroyo Flood Control Authority, 90 N.M. 309, 563 P.2d 103 (App.1977), cert. denied, 90 N.M. 636, 567 P.2d 485 (N.M. 1977) (flood control authority construed as a quasi-municipal corporation); Buchanan v. Los Angeles County Flood Control District, 56 Cal. App. 3d 757, 128 Cal. Rptr. 770 (1976) (flood control district, notwithstanding status as public entity, not immune from liability for nuisance). The court held that Porters Creek was immune from suit nonetheless, because it was exercising a governmental, instead of a proprietary, or private, function. Last, the court determined that Porters Creek had not waived its immunity despite the statutory language allowing it to sue or be sued in its corporate name.
The analysis by the court of appeals in Lenoir is especially useful, given the inconclusive application of the Staudt test to the present situation. This Court is persuaded that the Sixth Circuit Court of Appeals correctly concluded that the Porters Creek Watershed was not an agency of the state under Tennessee law. This treatment accords with our statement in Thomas v. Alabama Municipal Electric Authority, 432 So. 2d 470, 480 (Ala.1983): "This court has held that the use of the word `State' in Section 14 was intended to protect from suit only immediate and strictly governmental agencies of the State. Ex parte Board of School Commissioners of Mobile County, 230 Ala. 304, 161 So. 108 (1935)." Moreover, the ground on which the Sixth Circuit Court of Appeals found immunity in Lenoirthat Porters Creek was engaged in a governmental, as opposed to a proprietary, functionhas been abolished in Alabama with respect to both municipal corporations and counties. Cook v. St. Clair County, 384 So. 2d 1 (Ala.1980); Jackson v. City of Florence, 294 Ala. 592, 320 So. 2d 68 (1975); Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So. 2d 631 (1975). Therefore, TCWCD will be subject to suit unless the language in Ala.Code 1975, § 9-8-61(6), is insufficient to authorize an action against TCWCD. Here, our law supports a result different from that reached by the court of appeals in Lenoir, where it was held that language similar to the "sue or be sued" wording of § 9-8-61(6) was insufficient to authorize actions against WCDs. The Cook, Jackson, and Lorence decisions provide that such "sue or be sued" language supports a holding that actions are authorized against the particular legislatively created entity. The Cook court, in the context of an action against a county, stated that the inclusion of the "sue or be sued" language in the statute was a clear indication that counties were not to be immune from actions merely because of their status as governmental entities. The same reasoning applies here, and this Court will not require any greater authorization from the legislature to subject WCDs to actions.[1] Accordingly, this Court holds that TCWCD is not an agency of the state within the meaning of § 14 of the Alabama Constitution and thus is not *632 immune from actions in the courts of this state.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The conclusion that TCWCD has statutorily consented to suit is buttressed by the fact that TCWCD signed an easement agreement with Kimberly-Clark Corporationthe owner of the property on which the accident made the basis of the action occurredagreeing to indemnify Kimberly-Clark and hold it harmless in case of an accident. | May 7, 1993 |
c4d7e337-762f-4a63-a1cd-9ce9521439fc | Williams v. Delta Intern. MacHinery Corp. | 619 So. 2d 1330 | 1901255 | Alabama | Alabama Supreme Court | 619 So. 2d 1330 (1993)
Ricky WILLIAMS
v.
DELTA INTERNATIONAL MACHINERY CORPORATION, and Powermatic, a Division of DeVlieg-Bullard, Inc.
1901255.
Supreme Court of Alabama.
March 12, 1993.
Rehearing Denied April 9, 1993.
James J. Thompson, Jr., Scott A. Powell and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Craig A. Alexander of Lange, Simpson, Robinson & Sommerville, Birmingham, for appellee Delta Intern. Machinery Corp.
Warren B. Lightfoot and Adam K. Peck of Lightfoot, Franklin, White & Lucas, Birmingham, for appellee Powermatic, a Div. of DeVlieg-Bullard, Inc.
Joe C. Cassady, Sr. of Cassady, Fuller & Marsh, Enterprise, for amicus curiae Sessions Co., Inc.
Jack B. Hood of Crosby, Saad & Beebe, P.C., Birmingham, for amicus curiae Owens-Corning Fiberglass Corp.
Crawford S. McGivaren, Jr. and Richard Eldon Davis of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for amici curiae Alabama Retail Ass'n, Alabama League of Municipalities, Ass'n of County Commissions of Alabama, Alabama Hosp. Ass'n, Alabama Road Builders' Ass'n, Inc., Home Builders Ass'n of Alabama, Alabama Cattlemen's Ass'n, Alabama Branch, Associated Gen. Contractors, Alabama Poultry & Egg Ass'n, Consulting Engineers Council of Alabama, Auto. Dealers Ass'n of Alabama, Inc., Alabama Textile Mfrs. Ass'n, Alabama Asphalt Pavement Ass'n, Alabama Propane Gas Ass'n, Alabama Coal Ass'n, Alabama Concrete Industries Ass'n, Alabama Trucking Ass'n, *1331 Alabama Nursing Home Ass'n, Alabama Farm Machinery Dealers Ass'n, Alabama Hosp. Ass'n Trust and Fund, Alabama Forestry Ass'n, Alabama Ass'n of Life Underwriters, Alabama Cast Metals Ass'n, Alabama Pharmaceutical Ass'n, Alabama Rural Elec. Ass'n of Cooperatives, Inc., Alabama Oilmen's Ass'n/Alabama Ass'n of Convenience Stores, Associated Builders & Contractors of Alabama, Inc., Alabama Hotel & Motel Ass'n, Professional Ins. Agents of Alabama, Alabama Vending Ass'n, Organization Management, Inc., Alabama Funeral Directors Ass'n, Alabama Aggregates Ass'n and Alabama Cable Television Ass'n.
W. Stancil Starnes, W. Michael Atchison, Jeffrey E. Friedman and P. Perry Finney of Starnes & Atchison, Birmingham, for amici curiae Edge Mem. Hosp., Monroe County Hosp., South Baldwin Hosp., Southeast Alabama Regional Medical Center, Vaughn Regional Medical Center, Houston County Medical Soc., Lauderdale County Medical Soc., Marion County Medical Soc., Morgan County Medical Soc., Tallapoosa County Medical Soc. and Tuscaloosa County Medical Soc.
Allen W. Howell, Montgomery, amicus curiae and attorney at law, Montgomery.
Edgar M. Elliott III, Deborah Alley Smith and Rhonda K. Pitts of Rives & Peterson, Birmingham, for amici curiae State Farm Mut. Auto. Ins. Co. and State Farm Fire and Cas. Co.
Jack Drake of Drake & Pierce, Tuscaloosa, and Bruce McKee of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n.
HOUSTON, Justice.
Ricky Williams was a cabinetmaker and woodworker at Madix Cabinet Shop in Goodwater, Alabama. Williams's job was to push boards across a table saw to cut grooves for drawers. On the day of his injury, Williams was pushing a board across an expandable dado blade[2] on a table saw, when the board suddenly "kicked back" and Williams's left hand went into the table saw blade. Williams lost his little finger and much of his thumb and suffered other cuts on his hand. The Powermatic division of DeVlieg-Bullard, Inc. (hereinafter "Powermatic"), manufactured the table saw, and Delta International Machinery Corporation ("Delta") manufactured the expandable dado blade.
Williams sued Powermatic and Delta (and other defendants who are not parties to this appeal and whose absence here in no way affects this appeal), alleging, among other things, negligence and liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"). Powermatic and Delta's answers included general denials and the affirmative defenses of contributory negligence and assumption of the risk. The case went to a jury on the negligence and AEMLD claims, after the trial court had denied Powermatic and Delta's motions for directed verdicts.
Williams had not moved for a directed verdict as to the affirmative defenses of contributory negligence and assumption of the risk. However, he had requested a charge on comparative negligence in lieu of a charge on contributory negligence; the trial court refused to give it, stating: "I have considered that charge and I am consciously electing to reject it and it has been properly raised.... I'm going to [charge the jury on] plain Alabama contributory negligence as a complete defense."
The jury returned a general verdict in favor of Powermatic and Delta, and the court entered a judgment on that verdict. Williams appealed, raising what he called "two issues of pure law": (1) Whether the rule of Dennis v. American Honda Motor Co., 585 So. 2d 1336 (Ala.1991), applies to this case; and (2) if not, whether the doctrine *1332 of contributory negligence should be abandoned in favor of the doctrine of comparative negligence and the comparative negligence doctrine applied in this case.
Powermatic contends that Williams's first issue is not properly before this Court, because Williams did not object to the giving of the contributory negligence charge on the ground that contributory negligence was not a defense to an AEMLD claim. Powermatic is correct. Williams requested that the trial court adopt the comparative negligence standard in lieu of the contributory negligence standard, as some Justices of this Court have urged this Court to do. See Campbell v. Alabama Power Co., 567 So. 2d 1222 (Ala. 1990) (Hornsby, C.J., dissenting). At the conclusion of the trial court's charge, in response to the question "Exceptions for plaintiff?" the attorney for Williams stated to the trial court: "I know you have relieved me of the burden of objecting to the [charge on contributory negligence] and the failure of the Court to give [a charge on comparative negligence, but] just [out of] an abundance of caution ... [sic]." The trial court stated: "Just for the record, we'll consider that you have again requested those charges and objected to my not giving them." Williams's objection was not specific enough with respect to the charge on contributory negligence for us to review the first issue. Rule 51, Ala.R.Civ. P.; Crigler v. Salac, 438 So. 2d 1375 (Ala. 1983).
However, because there appears to be some confusion as to the proper interpretation of Dennis v. American Honda Motor Co., supra, we direct the attention of the bench and bar to the specific holding in Dennis, which involved an AEMLD claim against American Honda Motor Company ("Honda") with respect to an allegedly defective motorcycle helmet. The plaintiff was injured when the motorcycle he was driving collided with a log truck. Honda contended that the accident was caused by contributory negligence on the part of the plaintiffspeeding and in running into the back of the log truck. The trial court instructed the jury, in essence, that if it found that the plaintiff had negligently operated the motorcycle and that his negligence had contributed to cause the accident, then it should return a verdict in Honda's favor.
On the appeal in Dennis, the majority of this Court stated the issue as follows: "[W]hether the trial court erred in charging the jury on contributory negligence as it related to the cause of the accident." If the contributory negligence instruction had been limited to the plaintiff's failure to exercise reasonable care in his wearing of the helmet (i.e., if it had related to an alleged product misuse), then such an instruction would have been proper under this Court's previous interpretations of the AEMLD. See Harley-Davidson, Inc. v. Toomey, 521 So. 2d 971 (Ala.1988). Justice Kennedy, for a majority of this Court, wrote in Dennis: "It would be wholly inconsistent to allow the manufacturer of a safety device such as a motorcycle helmet to design a defective product and then allow that manufacturer to escape liability when the product is used for an intended use, i.e., the very purpose of the helmet." 585 So. 2d at 1340. The trial error in Dennis was in not limiting the contributory negligence charge to the plaintiff's use of the helmet as opposed to the plaintiff's allegedly negligent operation of his motorcycle. Although contributory negligence has been recognized generally as a defense to AEMLD actions, in Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976), this Court seemed to indicate that the defense is available only under certain defensive theories, e.g., "plaintiff's misuse of the product." 335 So. 2d at 143.
We note that in this case, Williams's negligence was predicated solely upon his misuse of productsthe table saw and the dado bladeneither of which was a safety device being used as intended by the manufacturer to protect people from negligent acts. The rule of Dennis v. American Honda Motor Co. does not apply to this case, because the only contributory negligence *1333 alleged in this case involved the use of the table saw and the dado blade.
We next address the second issue of "pure law": Whether the doctrine of contributory negligence should be abandoned in favor of the doctrine of comparative negligence.
We have heard hours of oral argument; we have read numerous briefs; we have studied cases from other jurisdictions and law review articles; and in numerous conferences we have discussed in depth this issue and all of the ramifications surrounding such a change. After this exhaustive study and these lengthy deliberations, the majority of this Court, for various reasons, has decided that we should not abandon the doctrine of contributory negligence, which has been the law in Alabama for approximately 162 years. See Bethea v. Taylor, 3 Stew. 482 (Ala.1831).
AFFIRMED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs specially.
KENNEDY, J., concurs in the result.
HORNSBY, C.J., and SHORES, J., concur as to Part I; dissent as to Part II.
INGRAM, J., recused (because his son had been the plaintiff's attorney at an earlier stage of the proceedings in this case).
HOUSTON, Justice (concurring specially to explain the majority opinion in this case released on December 13, 1991, and subsequently withdrawn on December 20, 1991).
a time for an opinion in this case to be released; and a time for the issue of judicially adopting comparative negligence to be laid to rest.
In footnote eight of Central Alabama Electric Co-op. v. Tapley, 546 So. 2d 371, 381 (Ala.1989), a majority of this Court as then constituted indicated:
In my dissent in Tapley (546 So.2d at 385), I wrote:
The plaintiff in this case accepted the majority's invitation in Tapley to attempt to get the Court to judicially adopt the doctrine of comparative negligence. When the case was assigned to me, I would have affirmed the judgment as to this issue with no more than a citation to Golden v. McCurry, 392 So. 2d 815 (Ala.1981), if it had not been for footnote eight in the majority opinion in Tapley. However, because of that footnote, I approached the *1334 issue of whether to adopt the doctrine of comparative negligence, which would have required this Court first to abandon the doctrine of contributory negligence, as I approach all issues in which the doctrine of stare decisis is challenged. This was in accordance with the above-quoted portion of my dissent in Tapley.
I convinced myself that in accordance with my judicial conscience, I could depart from the doctrine of stare decisis on the issue of contributory negligence, if the majority of this Court determined that we should do so. Because the majority of this Court has determined that we should not abandon the doctrine of contributory negligence, and because the time has come for the Court to release an opinion in this case, I adhere to the doctrine of stare decisis.
HORNSBY, Chief Justice (concurring as to part I; dissenting as to part II):
I concur with the majority as to part I of the main opinion; however, as to part II, I respectfully dissent, as I dissented in Campbell v. Alabama Power Co., 567 So. 2d 1222, 1227 (Ala.1990), and on the same rationale. Since my dissent in Campbell, two additional jurisdictions have abandoned the doctrine of contributory negligence in favor of the doctrine of comparative negligence. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), and Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991). At the time of this dissent, almost every common law jurisdiction in the world and 46 American states have replaced the outmoded doctrine of contributory negligence with some form of the doctrine of comparative negligence.
The bench and the bar in each of the jurisdictions adopting the doctrine of comparative negligence have proved themselves able to overcome the problems attendant to change; they have overcome those problems in order to implement a fairer system of justice. Our bench and bar are no less able to overcome those problems. I believe that our system would fairly and effectively resolve any problems arising out of the change to the doctrine of comparative negligence, as they arose.
Although in each jurisdiction adopting the doctrine of comparative negligence the discussions leading to the adoption have been many and varied, each jurisdiction has recognized that the doctrine of contributory negligence is inconsistent with the legal logic of the common law tort system and leads to unjust results. That legal reasoning applies with equal force to the law of our state. I continue to believe, therefore, that the citizens of the state of Alabama would be more fairly served by a system of comparative negligence.
SHORES, J., concurs.
[1] This Court issued an opinion in this case on December 13, 1991. On December 17, 1991, it put the case on rehearing ex mero motu, and on December 20, 1991, it withdrew the December 13 opinion. The Court heard oral argument on May 14, 1992.
[2] A dado blade is a saw blade that can be adjusted to cut a groove in a piece of wood as narrow as ¼ inch or as wide as 13/16 inch.
[3] Ecclesiastes 3:1-8. | March 12, 1993 |
73720a66-96f8-4818-a101-c29d50e85c32 | Loper v. Odom | 619 So. 2d 1310 | 1911256 | Alabama | Alabama Supreme Court | 619 So. 2d 1310 (1993)
Tallie C. LOPER
v.
Horace ODOM et al.
1911256.
Supreme Court of Alabama.
February 26, 1993.
Rehearing Denied April 23, 1993.
*1311 Tallie C. Loper, pro se.
Joseph S. Johnston of Johnston, Wilkins, Druhan & Holtz, Mobile, and Michael Onderdonk of Turner, Onderdonk, Kimbrough & Howell, Chatom, for appellees.
MADDOX, Justice.
Tallie C. Loper sued Horace Odom (chairman of the Washington County Commission), the Washington County Commission, and the Commission's lawyer, claiming that the defendants trespassed on his land when the county cut some trees to widen a county road. The trial court entered a summary judgment for the lawyer, and, at the close of the plaintiff's evidence, dismissed the plaintiff's action.
The plaintiff appealed, raising three issues: (1) Whether the court erred in entering the summary judgment for the county attorney; (2) Whether it erred in excluding evidence of the plaintiff's expert witness relating to damages; and (3) Whether it erred in granting an involuntary dismissal to the other two defendants. We affirm the summary judgment in favor of the county attorney, because we find no evidence that the attorney had any knowledge of the transaction. In fact, the attorney filed an affidavit in support of his motion for summary judgment, denying that he had any knowledge of the cutting of the timber or trees. We affirm as to the county and the commissioner on the ground that the deed included in the record shows that the plaintiff signed the right-of-way deed conveying to the county, by metes and bounds, a right-of-way covering the land in question.
Loper owns land in Washington County. Along with several other landowners, Loper agreed to convey a right-of-way to Washington County to allow it to widen and pave a road. One of Loper's neighbors, Jimmy A. Thornton, circulated what Loper described as a "petition" entitled "Right of Way for Road to Whatever is Agreeable by Property Owners," which Loper signed, although he claims that he signed the agreement upon the express condition that the County would not remove certain trees when it improved the road.
During the course of the County's work on the road, several trees were destroyed. Loper, acting pro se, sued County Commissioner Horace Odom and the Washington County Commission, seeking damages for the loss of the trees and for "personal harassment." Loper subsequently named Michael Onderdonk, attorney for the Commission, as a defendant. When the parties appeared for a bench trial, the trial court entered a summary judgment for Onderdonk, but allowed Loper to proceed against Odom and the Commission. At the close of Loper's case, however, the trial court granted the defendants' motion for a "directed verdict."
Loper argues first that the summary judgment in Onderdonk's favor was improper. A summary judgment is proper upon a showing that no genuine issue exists as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. Initially, the burden is on the movant, but if the movant makes this prima facie showing, then the burden shifts to the nonmovant to present "substantial evidence" creating a genuine issue of material fact. Hilliard v. City of Huntsville Electric Utility Board, 599 So. 2d 1108, 1110 (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).
Onderdonk supported his motion for summary judgment with an affidavit in *1312 which he attested that he was the Commission's attorney but that he had not advised the Commission to establish the right-of-way or to cut any timber and that he did not know of the plans to widen the road until several days after Loper's timber had been cut. This constitutes a prima facie showing that Onderdonk was entitled to a judgment.
Loper's only response to the motion for summary judgment was to argue at trial that Onderdonk, as the Commission's attorney, was responsible for the Commission's actions. In light of Onderdonk's prima facie showing, the summary judgment was proper, because Loper's response did not "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Ala.R.Civ.P.
The second issue is whether the trial court erred in not allowing Charles Cleveland Formwalt, a State-licensed tree surgeon, to state his opinion at trial regarding the amount of damage to the scenic value of Loper's property. The trial court sustained the defendants' objections on the grounds of form and foundation.
"The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose decision will not be disturbed on appeal except for palpable abuse." Charles W. Gamble, McElroy's Alabama Evidence, § 127.01(5)(b), at 331 (4th ed.1991) (footnote omitted). The measure of damages for trespass to land and cutting of trees is the difference between the value of the land immediately before the trespass and the value of the land after the trespass. Wray v. Mooneyham, 589 So. 2d 181, 183 (Ala.1991); Hammond v. Stephens, 269 Ala. 210, 212, 112 So. 2d 324, 325 (1959); Dollar v. McKinney, 267 Ala. 627, 633, 103 So. 2d 785, 790 (1958). Loper did not establish that Formwalt had an opinion of the property's value before the alleged trespass; therefore, the trial court did not abuse its discretion in excluding his opinion.
The third and final issue is whether the trial court properly granted the defendants' motion for a directed verdict after Loper completed the presentation of his evidence. Because this was a bench trial, we will treat the motion for a directed verdict as a motion for an involuntary dismissal under the provisions of Rule 41(b), Ala.R.Civ.P.[1] Rule 41(b) provides in pertinent part:
In reviewing the trial court's ruling under Rule 41(b), we apply the ore tenus rule. Stroupe v. Beasley, 549 So. 2d 15, 17 (Ala.1989); Hales v. Scott, 473 So. 2d 1028, 1031 (Ala.1985). "The trial court's ruling need only be supported by credible evidence and will not be set aside unless it is clearly erroneous or palpably wrong or unjust." Feaster v. American Liberty Insurance Co., 410 So. 2d 399, 402 (Ala.1982).
Loper presented seven witnesses, including himself, and presented several exhibits. The testimony of Jimmy Thornton, one of the seven, directly contradicted Loper's own testimony regarding whether *1313 Loper had signed the actual deed and whether Loper had conditioned his signature upon preservation of the trees. Although Loper disputes the validity of the deed, he did not allege in his complaint that any defendant had defrauded him. The deed was admitted into evidence, and Loper did not dispute his signature or that the trees cut were within the right-of-way shown on the deed. The terms of the right-of-way deed are clear and unambiguous, and Loper did not allege or prove that a fraud was perpetrated upon him to get him to execute the deed. We conclude, therefore, that the evidence, or the lack thereof, supports the trial court's ruling; consequently, we affirm the trial court's judgment.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The proper method for questioning the sufficiency of the evidence in a case tried without a jury is a motion for an involuntary dismissal under Rule 41(b), Ala.R.Civ.P., not a motion for a directed verdict under Rule 50(a). Stroupe v. Beasley, 549 So. 2d 15, 16 (Ala.1989); Conner v. City of Dothan, 500 So. 2d 1065, 1067 (Ala.1986); Feaster v. American Liberty Insurance Co., 410 So. 2d 399, 401 (Ala.1982). Even though a motion for directed verdict is not the same as a motion for an involuntary dismissal, an appellate court may treat the trial court's order as an involuntary dismissal under Rule 41(b). Stroupe, 549 So. 2d at 17; Hales v. Scott, 473 So. 2d 1028, 1030 (Ala.1985). | February 26, 1993 |
1b22f330-09fa-4341-a63b-ba614668f62d | Capitol Chevrolet, Inc. v. Smedley | 614 So. 2d 439 | 1911352, 1911377 | Alabama | Alabama Supreme Court | 614 So. 2d 439 (1993)
CAPITOL CHEVROLET, INC., and General Motors Corporation
v.
Alfonso SMEDLEY and Auto Owners Insurance Company.
Alfonso SMEDLEY and Auto Owners Insurance Company
v.
CAPITOL CHEVROLET, INC., and General Motors Corporation.
1911352, 1911377.
Supreme Court of Alabama.
March 5, 1993.
*440 Charles Stewart III and William C. McGowin of Hill, Hill, Carter, Franco, Cole, & Black, P.C., Montgomery, for appellants, cross-appellees.
Jeffrey W. Smith and Christopher W. Hughes of Beers, Anderson, Jackson, & Smith, Montgomery, for appellees, cross-appellants.
INGRAM, Justice.
Alfonso Smedley purchased a 1989 Chevrolet "conversion van"[1] from Capitol Chevrolet. Approximately five months later, the van was destroyed by fire. Smedley's insurance carrier, Auto Owners Insurance Company, investigated the fire and paid Smedley $24,567 for the van, pursuant to a policy in effect at that time. Smedley then signed a subrogation agreement with Auto Owners. Smedley and Auto Owners Insurance Company (hereinafter referred to collectively as "Auto Owners") sued Capitol Chevrolet and General Motors (hereinafter referred to collectively as "GM") to recover for the damage to the van and for the personal property that was destroyed in the fire. Auto Owners alleged a breach of warranty (express and/or implied) or liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD). The jury returned a general verdict for $20,000 in favor of Auto Owners and against GM. The trial court denied Auto Owners' petition for attorney fees. GM appeals the holding of liability, and Auto Owners appeals the denial of attorney fees.
GM argues that Auto Owners should not recover because the van was not available for inspection; it had been destroyed before this action was filed. In other words, GM contends that due to "spoliation" of the evidence, the trial court abused its discretion in not dismissing the case. In the alternative, GM contends that it has no liability under the AEMLD because, it says, Auto Owners failed to establish the existence or the source of the alleged defect.
The record reveals the following: In July 1989, Smedley purchased a 1989 Chevrolet conversion van from Capitol Chevrolet. Subsequently, Smedley had additional after-market options placed on the van by entities other than Capitol Chevrolet or GM; specifically, he added a burglar alarm, a trailer hitch, special rear taillights, and a visor on top of the windshield.
Smedley used the van for general use and for traveling around the country, carrying his jazz band members and equipment to various locations. From the time Smedley purchased the van in July 1989, until the time of the fire on December 9, 1989, the van had accumulated over 18,000 miles. During this time, Smedley testified, the van experienced no problems and the only work performed on it consisted of changing the oil every 4,000 miles.
On December 9, 1989, Smedley and four other band members were traveling to Texas for a concert. En route to the concert, the van caught fire and burned. The van was towing a trailer, which also was destroyed in the fire. Smedley testified that at the time of the fire, the stereo, radar detector, CB radio, lights, and windshield wipers were on and were working. He stated that he had had no trouble with any of that equipment and that he had not smelled any gasoline or heard any unusual noises. Smedley stated that he had stopped and filled the tank with gasoline at approximately 1:30 a.m. and then had driven 18 to 20 miles when the van experienced a reduction in power. He stated that he stopped the van and turned off the engine and that when he stopped the steering system was operable and the lights and the windshield wipers were working. During this stop a fire started in the engine compartment of the van.
*441 The van burned the entire time until fireman arrived, between an hour to an hour and a half later. The van, the trailer, and all of the equipment inside the trailer were involved in the fire. The burned van and trailer were towed to Benoit Wrecker Service Company in Louisiana.
Within days of the fire, Auto Owners, as Smedley's insurance carrier, hired an appraisal firm to evaluate the damage to the van. The appraisal firm examined the van but could not determine the cause of the fire. Auto Owners then hired "Bud" Stringer to inspect the van and the trailer to determine the cause and origin of the fire.
Mr. Stringer's report stated that the exact source could not be determined, but that the fire was the result of an unknown defect within the engine compartment. He described the area within which he found the origin of the fire as "somewhere in the engine compartment." He then stated that the engine compartment consists of essentially everything under the hood of the vehicle, running from the right wheel to the left wheel, the front grill to the fire wall, and that it extends beyond the firewall into the area between the two front seats of the van. Further, he agreed that it consists of all that is under the hood, down to the bottom of the oil pan.
On January 11, 1990, Auto Owners paid Smedley $24,567 and Smedley, in turn, signed a subrogation agreement. Eighteen days later, on January 29, 1990, Auto Owners authorized the disposal of the van in order to stop accruing more charges for storing it. Neither Capitol Chevrolet nor GM had had the opportunity to inspect the van or the trailer. The van was destroyed before Capitol Chevrolet or GM was notified of any claim; in fact, this action was filed approximately 11 months after the van had been sold for salvage.
Several times before and during the proceedings, GM requested that this case be dismissed due to the "spoliation" of the evidence. In support of its request, GM presented the affidavit of Jim Nelander, a senior staff analysis engineer who had worked for GM for over 30 years. Nelander stated that one of his primary functions was to investigate motor vehicle fires in an effort to determine their cause and that he had investigated over 500 truck and van fires.
Nelander stated that he had reviewed the available file material in this case to determine the cause and origin mechanics of the fire, including Smedley's testimony and information about the history of the vehicle. He also stated that he reviewed all of Smedley's material regarding the fire, as well as photographs taken by Mr. Stringer. He concluded that because of the limited information available (that information was limited because of the destruction of the van and trailer) he had been placed "in an extreme disadvantage in determining the true cause or origin of this fire." He added: "An important aspect of determining the exact cause or origin of vehicle fires is an examination of the van as well as any trailer involved in the accident and the fire artifacts at the scene."
He further said that the photographs taken by Smedley's expert were inadequate because, he said, they reflected that expert's findings and conclusions and did not present a complete picture of the van in the detail necessary for him to determine the exact cause and origin. He stated that he would normally examine the van and any and all caps and fluid lines, and would thoroughly investigate all wires. He stated that in examining the wires he would actually touch the wiring and would perform microscopic evaluations of the wiring if necessary. Further, he said he would look for stains in the vehicle, as well as burn patterns. He stated that the photographs limited his examination to what Stringer had photographed and that Stringer's photographs "reflect[ed] his myopic point of view only." Mr. Nelander further said:
At the outset we note that the sanction of dismissal is the most severe sanction that a court may apply. Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala.1989). However, we also recognize that in some cases such a severe sanction may be the only appropriate remedy. See Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So. 2d 822 (Ala.1991).
In Iverson, this Court upheld the trial court's sanction of dismissal. There, Iverson sued Xpert Tune, Inc., alleging that Xpert had diagnosed Iverson's automobile as having a defective fuel pump, when, in fact, he alleged, the fuel pump was in good working order. Xpert filed a motion with the trial court requesting production and/or inspection of the fuel pump. Iverson did not produce the fuel pump, and, in fact, allowed it to be destroyed. In Iverson, the trial court, as well as this Court, focused on dismissal of an action for refusal to provide discovery. The trial court specifically found that "Iverson willfully discarded the fuel pump to avoid production." Iverson at 86.
This case is different from Iverson in that in this case no court had ordered discovery. Rather, the destruction of evidence occurred 11 months before this action was filed against GM.
In a factually similar case in Nevada, the trial court dismissed the case because of the plaintiff's failure to preserve evidence. Stubli v. Big D Int'l Trucks, Inc., 107 Nev. 309, 810 P.2d 785 (1991). There, the plaintiff was involved in a single-vehicle accident while driving his tractor-trailer rig. He contended that the accident was caused by misalignment problems with the trailer's suspension system. Following the accident, the plaintiff submitted a claim to his insurer and the insurer retained an expert to inspect the trailer wreckage for mechanical defects. The expert examined and photographed the damaged trailer and submitted a report to the insurer.
The insurer later, when notified that the fees for storing the trailer would soon surpass the trailer's salvage value, removed the basic assembly as it related to the development of a product liability defect and discarded the trailer wreckage as salvage. Several months later, the plaintiff sued the manufacturer of the trailer, alleging defective design. The defendant moved to dismiss, claiming that "[plaintiff's] failure to preserve the trailer ... had made it impossible for [the defendant] to establish [its] defense theory." Stubli, at 787.
This Court also addressed a similar situation in Cincinnati Ins. Co., 585 So. 2d 822. There, the trial court found that the plaintiffs had deliberately disposed of certain items that later became the subject of production. No one alleged a malicious intent in destroying the items. The trial court specifically held that the plaintiff homeowners' conduct "`might be excusable' because of their lack of knowledge of the importance of preserving evidence for future litigation." 585 So. 2d at 827. However, the trial court could find no justification for the conduct of the plaintiff Cincinnati Insurance Company (the homeowner's insurance carrier). The trial court found that Cincinnati Insurance Company had willfully allowed the destruction of the items, with full knowledge of the importance of those items as evidence in future litigation.
Here, Auto Owners' claims revolve around the allegedly defective design of the van, which Auto Owners ordered destroyed *443 (sold for salvage). A reasonable person could have concluded, when Auto Owners dispatched its expert, Mr. Stringer, to inspect the van and to make photographs, that Auto Owners might sue. According to testimony, however, Auto Owners just did not want to accrue any more charges for having the van stored, so it ordered it salvaged. The stark result is that relevant evidence was irreparably lost by the actions of Auto Owners. We conclude that the trial court abused its discretion in not dismissing the case.
Although dismissal precludes an adjudication on the merits, such a consequence is unavoidable in the present case. While the outcome may appear harsh to Smedley, we note that Auto Owners has already paid him over $24,000 for the loss of his vehicle. Further, we note that Smedley's homeowner's policy paid him for the personal property lost in the fire. We point out that this is basically a subrogation claim brought by the same insurance company that ordered the destruction of items that would have been crucial evidence in that company's action.
We pretermit any discussion of the other issues raised by the appeals.
The judgment is reversed and the cause remanded to the trial court with instructions to dismiss the case.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] A conversion van is one that undergoes substantial modification after its original manufacture. The conversion van in this case was purchased from General Motors by Trans-Aire International, Inc., where the van was modified before it was sold to Capitol Chevrolet. Trans-Aire is not a party to this suit. | March 5, 1993 |
bee710ec-2c3c-4987-8148-58033b463981 | Ex Parte Jackson | 625 So. 2d 425 | 1901959 | Alabama | Alabama Supreme Court | 625 So. 2d 425 (1992)
Ex parte Lucy M. JACKSON.
(Re Lucy Mae JACKSON
v.
ALABAMA STATE TENURE COMMISSION).
1901959.
Supreme Court of Alabama.
June 19, 1992.
On Application for Rehearing March 26, 1993.
*426 Gregory B. Stein of Stein and Brewster, Mobile, for petitioner.
Frank G. Taylor of Sintz, Campbell, Duke & Taylor, Mobile, for respondent.
David R. Boyd and Patricia A. Hamilton of Balch & Bingham, Montgomery, for amicus curiae Alabama Ass'n of School Boards.
Edward Still, Birmingham, for amicus curiae Alabama Educ. Ass'n.
Gaile Pugh Gratton and James Pennington of Lange, Simpson, Robinson & Somerville, Birmingham, on rehearing, for amicus curiae Birmingham City Bd. of Educ.
ADAMS, Justice.
Lucy Jackson, a teacher in the Mobile County school system who has attained "continuing service status" ("tenure") pursuant to Ala.Code 1975, §§ 16-24-1 to -13, petitions this Court for certiorari review of a judgment of the Court of Civil Appeals in an action arising out of a decision by the Mobile County Board of School Commissioners ("the Board") to cancel Ms. Jackson's employment contract. We reverse and remand.
On March 14, 1990, the Board adopted a proposal to cancel Ms. Jackson's teaching contract. However, she was not notified of the proposed cancellation until August 1, 1990. On August 20, 1990, at a hearing convened for consideration of the proposal, the Board voted to cancel her contract. After the Alabama State Tenure Commission ("the Commission") affirmed the decision of the Board, Ms. Jackson sought a writ of mandamus from the Mobile County Circuit Court directing the Commission to reverse its order. The circuit court denied her petition, and Ms. Jackson appealed to the Court of Civil Appeals, which, on the authority of *427 this Court's holding in State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 40 So. 2d 689 (1949), affirmed the judgment of the circuit court. 625 So. 2d 425. We granted Ms. Jackson's petition for certiorari review of the judgment of the Court of Civil Appeals in order to reexamine the holding in Fairfield.
All parties agree that the disposition of this case turns on the proper application of § 16-24-12, which provides:
(Emphasis added.) More specifically, Ms. Jackson contends that this section required the Board to notify her of its proposed termination by the end of the school term, so as to provide her the opportunity to secure similar employment for the succeeding school year an opportunity that, she argues, she was effectively denied by the board's four-month notification delay.
In Fairfield, this Court held that Ala.Code 1940, tit. 52, § 360, the predecessor of § 16-24-12, did not apply to tenured teachers, despite the phrase "Any teacher in the public schools, whether in continuing service status or not" (emphasis added). Observing that tenured teachers may be terminated only for cause, while nontenured teachers may be terminated summarily at the end of the school year with "the expiration of the period covered by the contract," the Court reasoned that the phrase "whether in continuing service status or not" was surplusage, or "abortive," as to tenured teachers. Fairfield, 252 Ala. at 258, 40 So. 2d at 692.[1]Fairfield's construction of the predecessor of § 16-24-12, which contains the phrase as it relates to the duties of the board of education vis-à-vis the teacher, thus effectively excised from the statute the express references to tenured teachers.
Ms. Jackson and amicus curiae, the Alabama Education Association ("the AEA"), contend that Fairfield's construction of § 16-24-12 is inconsistent with this Court's interpretation of § 16-24-11, which contains the same phrase in the context of the teacher's duties vis-à-vis the board of education. Section 16-24-11 provides:
(Emphasis added.) In Faircloth v. Folmar, 252 Ala. 223, 40 So. 2d 697 (1949), this Court construed tit. 52, § 359, the predecessor of § 16-24-11, to restrict the right of a tenured teacher to cancel her contract with the employing school board. See also Alabama *428 Ass'n of School Bds. v. Walker, 492 So. 2d 1013 (Ala.1986). Ms. Jackson and the AEA contend that to construe the phrase as applying to tenured teachers in one section while denying its application to tenured teachers in the following section of the same statutory scheme violates certain fundamental principles of statutory interpretation. We agree.
Sections of the Code originally constituting a single act must be read in pari materia in order to "produce a harmonious whole."[2] 2A Sutherland Stat. Const. § 46.05 (5th ed.); see also Ex parte Hayes, 405 So. 2d 366, 369 (Ala.1981) (§§ 16-24-11 and -12 "are in pari materia and must be construed with reference to each other"); Darks Dairy, Inc. v. Alabama Dairy Commission, 367 So. 2d 1378 (Ala.1979); Southern Industrial Inst. v. Lee, 234 Ala. 404, 175 So. 365 (1937). Thus, where a clause or phrase relating to the "same object or subject matter" is repeated throughout an act, such clause or phrase should receive a consistent construction throughout the act. House v. Cullman County, 593 So. 2d 69, 72 (Ala.1992).
Moreover, every clause in an act must be accorded a field of operation if possible. McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378 (Ala.1986); In re Ashworth, 291 Ala. 723, 287 So. 2d 843 (1974). A clause or phrase may be excised from a statute, as one was in Fairfield, only if it is "certain that the legislature could not possibly have intended the words to be in the statute, and that the rejection of them serves merely as a correction of careless language and actually gives the true intention of the legislature." 2A Sutherland Stat. Const. § 47.37 (5th ed.) (emphasis added). A careful reading of the Teacher Tenure Act as a whole compels the conclusion that the de facto elimination of the phrase from § 16-24-12, rather than removing difficulties from the act, has, instead, compounded them.
Specifically, Ms. Jackson and the AEA contend that the Fairfield construction creates a considerable disparity in the protections afforded the parties to a teaching contract in the event of a cancellation by either of them. The AEA insists that a "teacher's contract of employment with a school board is not simply a contract till `death, resignation, or discharge do us part.' Each teacher enters into a yearly contract setting forth her salary and duties." Brief of Amicus Curiae Alabama Education Association, at 9 (emphasis in original). Ms. Jackson and the AEA thus contend, in effect, that the interim between school termsduring which most teaching positions are filledis a crucial period for both the teacher and the school board, tenure notwithstanding.[3]
The legislature's answer to the school board's concerns during this period was to prescribe in § 16-24-11 a 45-day period preceding the pending school term during which the tenured teacher cannot cancel her contract without penalty. Section 16-24-11, which additionally requires the teacher to notify the board of her decision to cancel the contract at least 5 days before that period, thus affords the school board a 50-day "assurance period" during the crucial summer season.
Fairfield, by contrast, denies tenured teachers a corresponding accommodation. Instead, its construction of § 16-24-12 permits school boards to postpone for the entire duration of the critical hiring and negotiation period their notifications of proposed contract cancellations. Thus, a teacher, having been falsely assured of a continuing contract due to the absence of notification of a contract cancellation during the crucial hiring period, may be unable to secure another teaching position for the succeeding year.
Such disparities in the obligations of the parties are repugnant to the policies underlying the Teacher Tenure Act. Ex parte Hayes, 405 So. 2d 366, 370 (Ala.1981) (rejecting a construction of §§ 16-24-11 and -12 that failed to require mutuality of obligations). Through the passage of this act, the legislature intended to provide tenured *429 teachers with a measure of "security and permanence in their employment. Ex parte Wright, 443 So. 2d 40, 42 (Ala.1983); Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So. 2d 233 (1972). This legislative scheme should be liberally construed in favor of tenured teachers. Barger v. Jefferson County Board of Education, 372 So. 2d 307, 309 (Ala.1979)." Alabama Ass'n of School Bds. v. Walker, 492 So. 2d 1013, 1017 (Ala.1986).
Moreover, under Fairfield's construction of § 16-24-12, the school board is required to notify a non tenured teacher of a proposed termination before the end of the school year. Fairfield thus creates the anomalous situation in which the Teacher Tenure Act provides less protection for a tenured teacher than for her nontenured colleagues. Such a result could not have been the intent of the legislature. See Ex parte Hayes, 405 So. 2d at 371 ("non-tenured teacher does not enjoy the full panoply of rights enjoyed by the tenured teacher").
More significantly, however, the Fairfield construction presents serious due process issues. The Commission concedes that without the applicability of the notice provision in § 16-24-12, the Board, having voted on March 14 to cancel Ms. Jackson's contract, was not constrained by any provision of the Teacher Tenure Act to notify her within a specific date. This absence of statutory directive, a phenomenon created by Fairfield's construction of § 16-24-12, was recently noted in Richardson v. State Tenure Commission, 585 So. 2d 49 (Ala.Civ.App. 1991), a case involving similar issues. The court stated:
Id. at 50. (Emphasis added.)
The Commission contends that the provisions in §§ 16-24-9 and -10 prescribing specific time periods for review and appeal following a teacher's notification of the school board's cancellation proposal satisfy due process requirements. We disagree. The timing of the receipt of initial notification may, in reality, seriously impede the teacher's ability to invoke the administrative procedures provided in §§ 16-24-9 and -10. For example, a late-summer cancellation notification may, because of the limited time remaining in which to secure a position, constrain the teacher to forgo the very administrative procedures designed to afford due process. Cf. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); James v. Board of School Comm'rs of Mobile County, 484 F. Supp. 705 (S.D.Ala. 1979); Board of Educ. of Choctaw County v. Kennedy, 256 Ala. 478, 55 So. 2d 511 (1951); Brown v. Alabama State Tenure Comm'n, 349 So. 2d 56 (Ala.Civ.App.1977). Thus, a statutory scheme that is "open-ended" at the threshold, that is, which sets no limitation on the time that may elapse between the initial cancellation proposal and the actual notification, may render nugatory the due process protections intended by the legislature.
In view of these considerations, we cannot accept Fairfield's conclusion that the contested phrase, in the context of a tenured teacher's contract cancellation, constitutes surplusage. Neither can we conclude that the "legislature could not possibly have intended the words to be in the statute." 2A Sutherland Stat. Const. § 47.37 (5th ed.). On the contrary, it appears to us that the legislature included the phrase "whether in continuing service status or not," in order to prevent the very result obtained in this case, that is, the hardship resulting from the Board's four-month delay in notifying Ms. Jackson of the proposed contract cancellation. Fairfield, therefore, to the extent that it holds § 16-24-12 to be inapplicable to tenured teachers, is overruled.
*430 In answer to Fairfield's expressed concern that § 16-24-12, if applied to tenured teachers, would "limit the right of an employing board of education to cancel the contract of a teacher for cause to [a] specific time during the year," Fairfield, 252 Ala. at 258, 40 So. 2d at 693, we emphasize that the result we reach today should not be read to preclude the cancellation of a tenured teacher's contract during the summer if new grounds for cancellation arise after the end of the school term. Moreover, where such new grounds arise, the school board, in considering a cancellation proposal, shall not be limited in its consideration to alleged acts of malfeasance or nonfeasance occurring during the summer, but may consider such acts in light of the teacher's performance throughout that teacher's career. We hold only that where, as here, the school board's proposal to cancel a teacher's contract predates the end of the school term, § 16-24-12 requires that tenured teachers, like their nontenured counterparts, be notified of the decision before the end of the term. Consequently, the judgment of the Court of Civil Appeals is reversed and the cause is remanded for a disposition consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
ADAMS, Justice.
The Birmingham City Board of Education ("Birmingham Board"), as amicus curiae on application for rehearing, has posed a fact situation that it concedes is unlikely to occur, but which, if it did occur, would fairly demand a result different from the one we reach in this case. It is our experience that this Court functions best when addressing real fact situations that present concrete issues properly preserved for review. Thus, although we understand the problems that would be presented by the Birmingham Board's hypothetical and are sympathetic with its concerns, we prefer not to address that hypothetical; until real facts arise and such a case is actually presented, any statements we might offer would amount to an advisory opinion.
APPLICATION OVERRULED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] The Court stated that "the legislature intended merely to emphasize the fact that the provisions of [§ 360] applied to those teachers who were not in continuing service status, for with one or possibly two exceptions all the preceding sections... relate exclusively to tenure teachers." Fairfield, 252 Ala. at 258, 40 So. 2d at 692-93 (emphasis added). It also expressed the concern that § 360, if applied to tenured teachers, would "limit the right of an employing board of education to cancel the contract of a teacher for cause to [a] specific time during the year." Fairfield, 252 Ala. at 258, 40 So. 2d at 693.
[2] Section 16-24-12 originally constituted § 10 of the "Teacher Tenure Act," Act No. 499, 1939 Ala.Acts 759, amended by Act No. 411, 1945 Ala.Acts 646; Act No. 773, 1953 Ala.Acts 1040; and Act No. 1079, 1973 Ala.Acts 1835.
[3] At the August 20 hearing, principal Mona Girby conceded that "most teachers are hired during the summer months." | March 26, 1993 |
edd711e7-84a4-49cd-b4ae-d36b35fd9393 | Baker v. Jones | 614 So. 2d 450 | 1911751 | Alabama | Alabama Supreme Court | 614 So. 2d 450 (1993)
John BAKER
v.
Sylvia JONES.
1911751.
Supreme Court of Alabama.
March 5, 1993.
B. Boozer Downs, Jr. of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellant.
Claude E. Bankester and Daniel T. Bankester of Wilkins, Bankester, Biles & Wynne, P.A., Robertsdale, for appellee.
STEAGALL, Justice.
Sylvia Jones sued John Baker to recover on a promissory note in the amount of $31,973.59, payable to Friday, Inc.; Jones is the sole stockholder and chief officer of Friday, Inc. Jones's complaint was served *451 on Baker on February 6, 1992, and Baker did not answer. On March 19, 1992, Jones moved for a default judgment pursuant to Rule 55, A.R.Civ.P., and the trial court entered a default judgment for Jones. Baker then moved, under Rule 55(c), to set aside that default judgment, supporting his motion with an affidavit stating that after being served with the complaint he had had numerous conversations with Jones's counsel in an effort to settle the matter. After an ore tenus proceeding, the trial court denied Baker's motion. He then moved to set aside the judgment under Rule 60, A.R.Civ.P., alleging that Jones was not the real party in interest because there had been no evidence of an assignment of the note by Friday, Inc., to Jones. The trial court denied that motion and Baker appeals.
Baker argues that the trial court erred in failing to set aside the default judgment and thereby give Baker the opportunity to have a hearing and to challenge whether Jones was the real party in interest in the case.
It is well established that the decision to grant or deny a motion to set aside a default judgment is discretionary with the trial court and that the court's ruling on such a motion will not be disturbed absent an abuse of this discretion. DaLee v. Crosby Lumber Co., 561 So. 2d 1086 (Ala.1990). When exercising its discretion, the trial court should begin with the presumption that cases should be decided on the merits whenever practicable. Kirtland v. Ft. Morgan Authority Sewer Serv., Inc., 524 So. 2d 600 (Ala.1988).
To support a motion to set aside a default judgment, the defaulting party must produce evidence of a meritorious defense that indicates that the case could be decided differently if tried on the merits and thus justifies reopening the case so that justice can be done. Kirtland. A defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion and its supporting affidavits, if proven at trial, would constitute a complete defense to the claims against the movant or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury. Kirtland. The allegations set forth to establish the defense must be more than bare legal conclusions; they must counter the allegations in the complaint with specific legal grounds substantiated by a basis of credible evidence. Kirtland.
In his second motion to set aside the default judgment, Baker alleged as follows:
Baker's conclusion, if proven at trial, would comprise a complete defense to the action against him; however, he failed to submit any factual basis for his claims. The record contains no affidavits or supporting evidence to substantiate the bare legal conclusion that Sylvia Jones did not own the note and mortgage. In his pleading, Baker merely based his conclusions on the fact that Jones herself had not offered evidence to show that her corporation, Friday, Inc., had assigned the note to her; however, Baker never questioned the assignment and never raised this issue until he filed his second motion to set aside the default judgment. It is the burden of the movant, not the opposing party, to provide a "definite recitation of facts" to support the movant's conclusions of law. Kirtland. The movant must first support his own conclusions with facts before the burden shifts to the opposing party to offer evidence in rebuttal. In this case, Baker failed to provide the facts necessary to establish a meritorious defense.
Baker argues that the trial court did not have jurisdiction over Jones and that the judgment is therefore void. Baker points out that Jones, in her pleadings, did not set out facts to establish that Friday, Inc., had assigned the note to her; however, the record contains documents that Jones filed in response to Baker's motion to set aside *452 the default judgment, and those documents show that the assignment did indeed take place.
We therefore find no error in the refusal to set aside the default judgment.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and INGRAM, JJ., concur. | March 5, 1993 |
78a7b197-7c12-495d-9c4f-37759e0c5134 | Tinsley v. Henderson | 613 So. 2d 1268 | 1910750 | Alabama | Alabama Supreme Court | 613 So. 2d 1268 (1993)
Roy TINSLEY and Gloria J. Tinsley, as Administrators of the Estate of Timothy B. Tinsley, deceased
v.
John A. HENDERSON.
1910750.
Supreme Court of Alabama.
February 26, 1993.
*1269 John S. Thrower, Jr. of Thrower & Thrower, Opelika, for appellants.
Stanley A. Martin of Samford, Denson, Horsley, Pettey, Martin & Barrett, Opelika, for appellee.
ALMON, Justice.
The plaintiffs, Roy Tinsley and Gloria J. Tinsley, appeal from a summary judgment in favor of the defendant, John A. Henderson. As the personal representatives of the estate of their deceased son, Timothy B. Tinsley, the Tinsleys brought an action alleging that Henderson negligently and wantonly caused the death of their son when Henderson's pickup truck collided with a bicycle ridden by Timothy. The issue is whether the Tinsleys submitted substantial evidence of Henderson's alleged negligence or wantonness.
Henderson and his wife were the only witnesses to the accident. On July 5, 1989, between 7:00 and 7:15 p.m. Henderson and his wife were travelling south on County Road 23 in Chambers County. County Road 23 is two-laned and paved. The sky was clear, and it was still daylight. County Road 40, a dirt road, runs east and west and intersects County Road 23, which runs north and south. At the intersection of County Roads 23 and 40, Timothy rode out in front of the Hendersons' pickup truck on his bicycle and was struck by the left front portion of the truck. Timothy died from injuries caused by the collision.
Henderson and his wife lived within several miles of the scene of the accident, and Henderson was familiar with the intersection. No traffic signal, stop sign, or other warning sign marked the intersection of County Roads 23 and 40. In his deposition, Henderson said that shortly before the accident he checked his speedometer and saw that he was driving 50 miles per hour. Later in the deposition, Henderson added that he braked after he saw Timothy on his bicycle and that he was travelling 45 miles per hour at the time of impact. The evidence *1270 does not indicate that Henderson was at any time exceeding the speed limit.
In his deposition, Henderson stated that he did not see Timothy until his pickup truck was about to enter the intersection. An embankment, some trees, and some tall grass on the eastern side of County Road 23 obstructed any view that Henderson otherwise might have had of Timothy as he approached the intersection. Henderson testified that he saw Timothy "humped over" his bicycle and that he appeared to be pedaling as fast as he could. Although Henderson's deposition does not explicitly indicate in what direction Timothy was traveling, it appears from the circumstances of the case that the boy was traveling west on County Road 40 toward County Road 23. On the factual question of when he first saw Timothy, Henderson's deposition testimony varies somewhat. Early in his deposition, he testified as follows:
Later in the same deposition, however, Henderson stated:
Henderson stated that, once he saw Timothy on his bicycle at the edge of the pavement, he braked hard, hit the boy and skidded onto the left shoulder of County Road 23.
In January 1990 the Tinsleys filed a complaint against Henderson, alleging that he had negligently or wantonly caused the death of their son Timothy. In June 1990 the Tinsleys amended their complaint to include negligence claims against Chambers County, Alabama, and "the Chambers County, Alabama Highway Department." Based on the pleadings, the depositions of the Tinsleys and Henderson, and interrogatories answered by Henderson, Henderson filed a motion for summary judgment pursuant to Rule 56, Ala.R.Civ.P. In opposition to Henderson's motion, the Tinsleys filed a response, relying on the same depositions, as well as their own affidavits and the affidavit of Hubert Motley. After a hearing, the trial court granted Henderson's motion, holding that the Tinsleys had not produced substantial evidence of any negligence or wantonness on the part of Henderson. Making an express determination that there was no just reason for delay, the trial judge directed the entry of a final judgment in favor of Henderson, pursuant to Rule 54(b), Ala. R.Civ.P.
A summary judgment under Rule 56, Ala.R.Civ.P., is proper only when the trial court determines that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. See Lee v. Clark & Assocs. Real Estate, Inc., 512 So. 2d 42, 44 (Ala. 1987); George v. Federal Land Bank of Jackson, 501 So. 2d 432, 434 (Ala.1986); Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So. 2d 112, 114 (Ala.1983). "On 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 non-movant to show `substantial evidence' in support of his position." Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990). The trial court considers the evidence in the light most favorable to the nonmovant and resolves all reasonable *1271 doubts against the moving party. Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403, 404 (Ala. 1990). Section 12-21-12, Ala.Code 1975, requires proof by "substantial evidence" in order to "submit an issue of fact to the trier of facts." Section 12-21-12(d) defines "substantial evidence" as
This Court has construed this definition to mean "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 also Brooks v. Colonial Chevrolet-Buick, Inc., 579 So. 2d 1328, 1330 (Ala.1991); Thomas v. Principal Financial Group, 566 So. 2d 735, 738 (Ala. 1990), cert. denied, ___ U.S. ___, 112 S. Ct. 649, 116 L. Ed. 2d 666 (1991). "Speculation and conclusory allegations are insufficient to create a genuine issue of material fact." Brooks, 579 So. 2d at 1330.
As they phrase it in their brief, the Tinsleys assert that they have submitted evidence of such weight and quality that fair-minded persons "might reach different conclusions as to the negligence or wantonness of the Appellee, John A. Henderson." First, they argue that there is a dispute about exactly how fast Henderson was travelling both immediately before and at the time of impact. Second, they argue that there is also a dispute about when Henderson first saw Timothy on his bicycle.
We hold that the Tinsleys failed to meet their burden of submitting substantial evidence to prove that Henderson breached a duty of care. The Tinsleys presented no evidence showing wantonness. Furthermore, on the claim of negligence, they failed to present substantial evidence that Henderson did anything a reasonable, prudent person would not do or that he failed to do something that a reasonable, prudent person would have done. See Hayles v. Johnson, 366 So. 2d 260 (Ala.1978) (child struck after darting out into road); Howell v. Roueche, 263 Ala. 83, 81 So. 2d 297 (1955) (pedestrian child struck by automobile in parking lot).
In asserting that they presented genuine issues of material fact, the Tinsleys merely point to minor ambiguities and inconsistencies in Henderson's deposition testimony. They did not present any physical evidence or any expert testimony reconstructing the accident from the truck's skid marks or other circumstances of the collision. Although the record includes photocopies of some photographs of the intersection and of Mr. Henderson's truck, there is no argument that anything in these photographs provides evidence of negligence by Mr. Henderson.
Their arguments about Henderson's speed and when he first could see Timothy do not demonstrate genuine issues of material fact. First, the Tinsleys failed to produce substantial evidence that Henderson was travelling at a rate of speed that would constitute negligence or wantonness. Henderson stated that he was driving 50 miles per hour before he reached the intersection and that at the time of impact his speed had slowed to 45 miles per hour. Even assuming this to be an inconsistency, as the Tinsleys argue, it does not suggest that Henderson was travelling at an excessive or unreasonable speed.
Second, the Tinsleys also failed to submit substantial evidence that Henderson saw or could have seen Timothy in time to avoid hitting him. The Tinsleys argue that a genuine issue of fact exists because at one point in Henderson's deposition he states that he first saw Timothy in the middle of the road, while at a later point he testifies that he first saw the boy two feet from the pavement. Even if the Tinsleys established that Henderson first saw Timothy two feet from County Road 23, we still would conclude that they had not submitted enough evidence for a fair-minded person reasonably to infer negligence or wantonness. In his deposition Henderson *1272 states that when he first saw Timothy the boy was on his bicycle pedaling fast toward County Road 23. The evidence indicates that because of the embankment, the trees, and the tall grass, Henderson was unable to see Timothy until the pickup truck was virtually in the intersection. There was no evidence to the contrary, and this failure of proof is underscored by the absence of any expert testimony or physical evidence other than the photographs. The Tinsleys simply did not produce enough evidence to permit the inference that in these circumstances Henderson could have prevented the accident with the exercise of due care and that he negligently or wantonly failed to exercise such care.
This case is analogous to cases decided by this Court involving injuries to youthful pedestrians who dart out in front of moving automobiles. See, e.g., Hayles v. Johnson, supra; Howell v. Roueche, supra. In Howell v. Roueche, this Court reversed a judgment holding a defendant liable for injuries suffered by a child who was struck by the defendant's automobile in a parking lot. The defendant in Howell was driving slowly between lines of parked cars in a bank's parking lot, as he moved behind a line of cars trying to get to a drive-through teller window. A bystander shouted "stop, a child." The defendant braked immediately, but the defendant's bumper hit a four-year-old child. The defendant never saw the child, even though he was looking ahead in all directions as he proceeded through the parking lot. This Court reversed the judgment for the plaintiff, holding that it was error to deny the defendant's request for an affirmative charge. The Court stated:
Howell, 263 Ala. at 87, 81 So. 2d at 302.
In Hayles, supra, this Court affirmed a judgment based on a directed verdict in favor of the defendant. The evidence showed that the defendant, who was driving 5 to 10 miles an hour, struck a 6-year-old child who had darted out into the road. Citing Howell, this Court held that the plaintiffs had failed to prove any negligence on the part of the defendant. This case is like Hayles and Howell; the Tinsleys failed to submit substantial evidence of any negligence or wantonness. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C. J., and ADAMS, STEAGALL and INGRAM, JJ., concur. | February 26, 1993 |
1b22ff51-af88-4a0c-aa37-0028005bfb52 | Smith v. King | 615 So. 2d 69 | 1911860 | Alabama | Alabama Supreme Court | 615 So. 2d 69 (1993)
Jack Carlton SMITH, as administrator of the Estate of Derryl Adus Smith
v.
Kent KING, et al.
1911860.
Supreme Court of Alabama.
March 19, 1993.
*70 Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellant.
Clifford W. Cleveland of Cleveland & Colley, P.C., Prattville, and G.R. Trawick, Asst. Atty. Gen., for appellees.
SHORES, Justice.
This negligence action raises questions of sovereign immunity. The plaintiff, Jack Carlton Smith, as administrator of the estate of Derryl Adus Smith, sued various defendants. Smith appeals from a summary judgment for certain of those defendants: Kent King, Verlee Young, Calvin Campbell, and Von Gibson. Jack Smith initially named 12 individuals as defendants: Glenn Ireland II (commissioner of the State Department of Mental Health), Dr. J.E. Condom (associate commissioner), Charles E. Wells (director of the Thomasville Adult Adjustment Center), Parker Edwards (director of programs at the Thomasville Center), Dr. Margaret Henry (the physician employed by the State to provide medical treatment to patients at the Thomasville Center), Dr. A.G. Arnold (the psychiatrist who examined Derryl Smith), Kent King (a counselor and qualified mental health professional ["QMHP"]), Verlee Young (a counselor and QMHP), Calvin Campbell (counselor), Mary McGee (practical nurse at the Thomasville Center), Ginger Glenn (social worker at the Thomasville Center), and Von Gibson (aide supervisor). As of May 29, 1992, 4 of those 12 were out of the case, either by summary judgment or by dismissal upon agreement of the parties. On May 29, 1992, the trial court granted a motion for summary judgment as to defendants Glenn Ireland II, J.E. Condom, Charles E. Wells, and Parker Edwards, but reserved ruling on the motion for summary judgment as to defendants King, Young, Campbell, and Gibson. Oral arguments were heard regarding these four remaining defendants on June 22, 1992; and on July 27, 1992, the trial court granted these four remaining defendants' motion for summary judgment. The plaintiff appeals from the summary judgment for those four defendants. We affirm.
*71 Derryl Smith committed suicide while he was a patient at the Thomasville Adult Adjustment Center, Thomasville, Alabama. The Thomasville Center is a state-owned mental health facility operated by the Department of Mental Health; it provides selected patients an opportunity to be treated in a low-restrictive environment. The plaintiff alleged that the defendants, knowing, or while they should have known, that Derryl Smith was suicidal, negligently placed him in a seclusion room and allowed him there to hang himself with his pajama bottoms. The plaintiff initially framed his complaint as a medical malpractice action based on the allegations that Dr. Arnold negligently failed to properly diagnose Derryl's suicidal tendencies and that the other defendants negligently failed to realize that Derryl was suicidal and/or negligently failed to make Dr. Arnold aware of what the plaintiff contends were clear indications of Derryl's suicidal tendency.[1]
The plaintiff contends that Derryl had, on several occasions, threatened to harm himself and had, in fact, made such a threat after becoming violent and being secluded on November 15, 1981. He contends that because of those prior occasions these defendants should have been able to predict that, on this particular occasion, Derryl would carry out that threat. The record reveals that on several occasions Derryl had made threats to harm himself and that he had been placed in seclusion several times because of such threats, but the record contains no evidence that Derryl had ever attempted suicide before. The record indicates that such threats are sometimes used as a manipulative device, and the record indicates that Derryl had admitted that he sometimes used such threats to manipulate his parents and the staff at the Thomasville Center.
The Thomasville Center was staffed by mental health professionals, including a psychiatrist, several psychologists, and professional counselors, who were supported by nonprofessional mental health workers. The staff and support personnel possessed a wide range of qualifications and expertise. Derryl was being treated in accordance with an individualized treatment plan developed and monitored by a treatment team that included a counselor, the defendant Calvin Campbell. Campbell's work was continually reviewed by a supervising "QMHP," the defendant Verlee Young, and the entire treatment team met periodically to assess and evaluate the implementation of Derryl's treatment plan. In addition to the day-to-day implementation and assessment of Derryl's treatment plan, there was in effect a policy requiring that a patient's treatment be reviewed every 90 days by a reviewing QMHP, who, in this case, was the defendant Kent King. In addition, Derryl's day-to-day personal needs were provided for by nonprofessional aides responsible for his unit and dormitory. These aides were supervised by the defendant Von Gibson.
On November 15, 1981, Derryl spoke by telephone with his mother, and following that conversation he became extremely agitated and destructive and said that he "would just kill himself." Employees of the Thomasville Center, pursuant to the Center's standard operating procedures, took Derryl's street clothing from him and gave him a pair of pajama bottoms, and confiscated all personal effects with which Derryl might harm himself. The employees placed him in a seclusion room to allow him to calm down and to protect him, the staff, and other patients. When Derryl was placed in seclusion, the implementation of these measures was initially begun by Gibson, the nonprofessional aide supervisor on duty in Derryl's unit. The Center's procedure required that the professional on-call ("POC") be notified immediately when a patient was secluded. In compliance with that procedure, someone notified Ginger Glenn, who came to the dormitory and, after observing Derryl, concluded that seclusion was warranted. Procedures in effect at the Thomasville Center also required that a qualified nurse examine a *72 patient immediately after he is placed in seclusion, to be certain that he is uninjured and that he is not in need of medical treatment. This function was performed by Mary McGee, a licensed practical nurse (LPN). There was yet another procedural/policy requirement, that the QMHP oncall be notified of a patient's seclusion and the circumstances that necessitated it. The QMHP on call was required, within one hour, to come to the Center and to personally examine the patient, investigate the circumstances surrounding the incident, and either validate the seclusion or order that the patient be released from seclusion. Kent King was the QMHP on-call, and he was notified at about 8:45 a.m. on November 15, 1981, of Derryl's seclusion. He arrived at the Center about 30 minutes later. When he arrived, McGee and other staff members were administering CPR to Derryl. At about 9:20 a.m., the medical doctor, Dr. Margaret Henry, arrived, and, after examining Derryl, she pronounced him dead.
These four defendants contend that at the time of Derryl's death they were employees of the State Department of Mental Health engaged in the performance of duties and functions clearly characterized as discretionary, and, therefore, that they are entitled to claim substantive governmental immunity from tort liability. They further contend that they did not negligently perform their respective duties and that none of them breached any duty owed to Derryl. These defendants argue that they were exercising a discretionary function and, under our caselaw involving state officials, are immune from suit.
It is a generally accepted proposition of law that the State of Alabama and its officers and agents cannot be made defendants in any court, see Ala. Const. art. I, § 14, and Hickman v. Dothan City Bd. of Educ., 421 So. 2d 1257 (Ala.1982). The concept of qualified or substantive governmental immunity as a defense against tort liability under certain circumstances is well established in the law of this State. "[W]hether a particular defendant is engaged in a protected discretionary function and is thereby immune from liability for injuries he causes is a question of law to be decided by the trial court." Grant v. Davis, 537 So. 2d 7, 8 (Ala.1988). In regard to this immunity defense, this Court has adopted the tort liability rule for public officers found in Restatement (Second) of Torts § 895D, "Public Officers" (1977):
(Emphasis added.) See Phillips v. Thomas, 555 So. 2d 81, 84 (Ala.1989); Barnes v. Dale, 530 So. 2d 770, 783 (Ala.1988); and DeStafney v. University of Alabama, 413 So. 2d 391, 393 (Ala.1981).
The discretionary function standard is often difficult to interpret. See Smith v. Arnold, 564 So. 2d 873 (Ala.1990), citing Barnes, supra; Hickman, supra; Bell v. Chisom, 421 So. 2d 1239 (Ala.1982), and DeStafney, supra. In determining what is a discretionary function, we have recognized certain factors that may be considered, including the following:
Barnes, 530 So. 2d at 784 (citing Restatement, § 895D, comment f). See Phillips v. Thomas, supra, at 84.
In Smith v. Arnold, supra, citing Barnes, supra, we recognized that the mental health profession, by its very nature, necessarily involves discretion and difficult decision-making. The Thomasville Center had a comprehensive set of institutional policies, which set out in detail the steps and procedures required whenever it became necessary to place a patient in seclusion. The record reveals that these institutional policies and procedures were followed and were carried out to the letter by these defendants. However, it does not follow from the fact that there were institutional policies in place and that the defendants complied with them, that the defendants were not also involved in discretionary functions.
Von Gibson was required to make a subjective assessment of the situation and to determine whether Derryl could be calmed down or whether seclusion might be necessary. From the record, it appears that Gibson attempted, without success, to get Derryl calmed down by talking to him and that he finally resorted to ordering the aides on duty to escort Derryl to a seclusion room. Clearly Gibson was performing a discretionary function. It was within Gibson's discretion not to seclude Derryl at that time but to simply require him to sit in the dayroom until he calmed down. Having concluded that seclusion was called for, Gibson followed established procedures. Institution procedures required that Gibson "carefully select" the clothing that Derryl was to be allowed to wear in the seclusion roomanother discretionary function. Gibson notified nursing personnel of the necessity for Derryl's seclusion, and Mary McGee came over to examine him. Von Gibson likewise followed institutional procedures by notifying the POC, who in this instance was Ginger Glenn. After observing and examining Derryl, Ginger Glenn concurred with Gibson's assessment that seclusion was necessary and she took the next step, which was to notify Kent King, the QMHP on call.
The trial court carefully examined the particular functions performed by the defendants King, Young, Campbell, and Gibson and concluded that the critical functions performed by them in regard to their treatment of Derryl and/or their involvement with him, were discretionary functions and that they are entitled to the defense of substantive immunity from the plaintiff's tort claim. We agree.
Even if that defense was not available, we note that there is no evidence in the record that these defendants either should have or could have foreseen that Derryl Smith would take his own life. In Popham v. City of Talladega, 582 So. 2d 541, 543 (Ala.1991), we said, "The controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated that the deceased would attempt to harm himself." The trial court correctly concluded, based on all the pleadings and evidence, that, at the time and place it occurred, Derryl Smith's suicide was not reasonably foreseeable by these defendants.
Because these defendants were entitled to the defense of substantive, or qualified, immunity from civil liability, and because the plaintiff presented no evidence that these defendants could reasonably have foreseen Derryl's suicide, the summary judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] See Smith v. Arnold, 564 So. 2d 873 (Ala.1990), wherein we affirmed the summary judgment for Dr. Arnold. | March 19, 1993 |
14fb9e07-33c9-4ddc-9f53-b8777368611d | Stewart v. Jones | 614 So. 2d 1023 | 1910621 | Alabama | Alabama Supreme Court | 614 So. 2d 1023 (1993)
Harris W. STEWART, Jr.
v.
Richard O. JONES and S.C.B., Inc.
1910621.
Supreme Court of Alabama.
March 12, 1993.
*1024 Charles E. Pearson of Pearson & Smithart, P.C., and Wayne Randall of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellant.
William P. Gray, Jr., Tuscaloosa, for appellees.
*1025 INGRAM, Justice.
The plaintiff, Harris W. Stewart, Jr., appeals from a judgment based on a directed verdict for the defendants, Richard O. Jones and S.C.B., Inc., in an action on a promissory note and for contribution. This case presents one issue of first impression in Alabama and another question that has not been addressed by this Court since 1910. Accordingly, we granted oral argument to address both issues: 1) whether an action on a promissory note is barred by the statute of limitations when the note contains clauses stating that the note can be extended by the holder without the consent of the other parties and the holder has extended the term of the note several times pursuant to those clauses and the extensions run beyond the time allowed by the statute of limitations if the time ran from the original due date of the note; and 2) whether a guarantor's cause of action for contribution against his co-guarantor arises only when the guarantor is called upon to pay the debt.
Through a complex series of transactions, Harris W. Stewart, Jr., transferred a parcel of real estate to Richard O. Jones. Jones, in turn, transferred the property to S.C.B., Inc., a now dissolved corporation owned by Jones. In order to meet the obligations owed on another parcel of real estate, Jones borrowed $22,000 from the Bank of Moundville.
On March 9, 1981, Jones, in his capacity as president of S.C.B., executed a promissory note to the Bank of Moundville in the amount of $22,000. The note was secured by a mortgage on a parcel of real estate owned by S.C.B. Jones signed the note as president of S.C.B. and as a guarantor in his personal capacity. Stewart signed the note as a co-guarantor. The maturity date of the note was March 9, 1982.
The promissory note contained clauses stating that it could be extended by the holder without notice to the maker or the guarantors. Specifically, the note provided:
The guaranty clause provides:
When the note came due, Stewart made payments on the accrued interest. The bank granted an extension of the note on March 26, 1982, and 10 other times until 1987. During each of these alleged extension periods, Stewart paid part of the interest on the note. On March 23, 1987, after the bank made demand on him, Stewart paid the principal amount of the note, as well as all accrued interest, and the bank executed a written assignment of the note to Stewart.
On April 27, 1988, Stewart made demand on Jones to pay the principal and interest that Stewart had paid in satisfaction of the debt. Stewart filed this action on March 20, 1989, against Jones and S.C.B., seeking reimbursement and indemnity from S.C.B., alleging that he had paid the principal and interest on the note upon S.C.B.'s default. Stewart is also seeking contribution from Jones, contending that as a co-guarantor, *1026 he is entitled to be compensated by the other guarantor for the amount beyond his share that he paid in satisfaction of the note. At the close of Stewart's case, the trial court directed a verdict in favor of Jones and S.C.B., holding that because the original maturity date of the promissory note was March 9, 1982, and this action was not filed until March 20, 1989, this action was barred by the six-year statute of limitations set out in Ala.Code 1975, § 6-2-34. The trial court denied Stewart's motion for new trial.
The standard of review applicable to a directed verdict is whether the nonmoving party has presented substantial evidence in support of his position. If he has not, then a directed verdict is proper. Bailey v. Avera, 560 So. 2d 1038, 1039 (Ala. 1990). Moreover, whether to direct a verdict is not a matter within the discretion of the trial court; on review, no presumption of correctness attaches to such a ruling. McCord v. McCord, 575 So. 2d 1056, 1057 (Ala.1991); Barksdale v. St. Clair County Comm'n, 540 So. 2d 1389 (Ala.1989).
Our function on review of a directed verdict is to review the entire evidence, and all reasonable inferences that a jury might have drawn therefrom, in the light most favorable to the nonmoving party, Thomaston v. Thomaston, 468 So. 2d 116, 119 (Ala.1985), and if we conclude that a jury could have drawn reasonable inferences supporting the nonmoving party's claim, then we must reverse the judgment based on the directed verdict. Zaharavich v. Clingerman, 529 So. 2d 978, 980 (Ala. 1988). 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 Fla., 547 So. 2d 870, 871 (Ala.1989); Rowden v. Tomlinson, 538 So. 2d 15, 19 (Ala. 1988).
Stewart's first claim is that as a guarantor of the note he is entitled to be subrogated to the bank and to enforce the note against the maker, S.C.B. Section 7-3-415(5), Ala.Code 1975, provides that "[a]n accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party." Section 7-3-416(4) further states that "words [of guaranty] added to the signature of one of two or more makers or acceptors create a presumption that the signature is for the accommodation of the others."
Citing Hardy v. McMullan, 547 So. 2d 514 (Ala.1989), Jones contends that as a co-guarantor who was jointly and severally liable on the debt with Jones, Stewart is not entitled to be subrogated to the debt owed to the bank. In Hardy, the creditor obtained a judgment against three of four co-makers on a note. The fourth co-maker, McMullan, satisfied the judgment and took an assignment of it to enforce it against the other makers pursuant to § 6-9-196. Hardy, 547 So. 2d at 515. We held that when McMullan satisfied the judgment, he extinguished the debt owed the creditor by the makers and that he was not entitled to enforce a debt that no longer existed. Hardy, 547 So. 2d at 516. Each of the cases cited by this Court in Hardy dealt with the assignment of a judgment on a debt from the creditor to one of the co-debtors. See, Cameron v. Gunter, 406 So. 2d 964 (Ala.Civ.App.1981); Hogan v. Reynolds, 21 Ala. 56 (1852); Bartlett & Waring v. McRae, 4 Ala. 688 (1843); and Abercrombie v. Conner, 10 Ala. 293 (1846).
In this case, however, Stewart is not trying to take an assignment of a judgment obtained by the bank against Jones or S.C.B. In fact, the bank never obtained a judgment against any of the parties. Rather, Stewart is proceeding as the bank's subrogee under § 7-3-415(5). Hardy v. McMullan and the cases cited therein are distinguished from the present case and are, therefore, not controlling.
Contrary to Jones's argument, the note was not, as a matter of law, extinguished upon Stewart's taking an assignment *1027 of it. Official comment 5 to § 7-3-415 states:
Upon paying the debt owed the bank, Stewart became subrogated to the bank's claim against S.C.B. on the note, and he is entitled to proceed on the note against S.C.B.
As the bank's subrogee, Stewart is subject to the statute of limitations just as the bank would have been had it proceeded directly against S.C.B. However, for the reasons set out below, we conclude that the trial court erred in holding that Stewart's claim against S.C.B. is barred by the statute of limitations.
A cause of action against a maker on a time instrument accrues upon maturity. § 7-3-122. A properly executed extension of the note would, in effect, extend the maturity date and thus postpone the accrual of a cause of action on the note. That is, assuming that the bank executed an extension with the contemporaneous consent of all of the parties, it would not be able to bring a cause of action on the note during that period of extension. The extension of a promissory note is like the holder's promise that it will not sue on the note during the course of the extension.
Jones and S.C.B. argue that § 6-2-16 forecloses Stewart's assertion that the extensions of the note postpone the running of the statutory period of limitations. In support of this contention, they cite Defco, Inc. v. Decatur Cylinder, Inc., 595 So. 2d 1329 (Ala.1992), and McLean v. First Nat'l Bank of Montgomery, 221 Ala. 103, 127 So. 550 (1930).
Section 6-2-16 provides:
In Defco, Decatur Cylinder claimed that Defco's action on an open account or on an account stated was barred by the statute of limitations. In response, Defco argued that Decatur Cylinder's president had repeatedly promised to pay the money owed. We held that under § 6-2-16, the oral promise to pay by Decatur Cylinder's president was not sufficient to toll the running of the statutory period of limitations. Defco, 595 So. 2d at 1332.
That case is distinguished from this case, however, because this case does not involve an oral reaffirmation of S.C.B.'s obligation to pay the bank. The effect of § 6-2-16 is to provide one means of removing the bar of the statute of limitations either after it is in place or while the limitations period is running. We hold that a valid extension of a promissory note postpones the beginning of the limitations period.
McLean presents a situation factually similar to that of the present case. In McLean the promissory note in question contained a clause allowing the holder of the note to extend the note without notice to the maker or indorser. 221 Ala. at 105, 127 So. at 552. We held that such a clause did not permit the maker and holder to extend the promissory note and bind the indorser beyond the limitations period. Id.
We first note that McLean was decided by this Court in 1930well before the enactment of the Uniform Commercial Code (U.C.C.). For the reasons set out below, the U.C.C. provisions dealing with promissory notes lead us to a conclusion different from that reached by this Court prior to Alabama's adoption of those provisions.
Sections 7-3-109(1)(d) and 7-3-118(f) clearly contemplate notes containing exante consent to an extension at the discretion of the holder. Section 7-3-109(1)(d) *1028 expressly states that an instrument is payable "at a definite time if ... it is payable... at a definite time subject to extension at the option of the holder." (Emphasis added.) Section 7-3-118(f) addresses the effect of "a consent to extension, expressed in [the body of] the instrument." (Emphasis added.) Moreover, the stated purposes of the U.C.C. are to "simplify, clarify and modernize the law governing commercial transactions," § 7-1-102(2)(a), and to "permit the continued expansion of commercial practices through custom, usage and agreement of the parties," § 7-1-102(2)(b) (emphasis added). See, Skelton v. Druid City Hospital Board, 459 So. 2d 818 (Ala.1984). Accordingly, we hold that the extension clauses in the promissory note and the guaranty in this case authorize the bank to extend the term of the promissory note at least once and that such an extension postpones the commencement of the limitations period.
Jones and S.C.B. argue that even if the clauses in question authorized the bank to extend the term of the promissory note, the clauses authorize only one extension and that for no longer than the original term of the note. Section 7-3-118(f) provides:
(Emphasis added.) The official comment to this section states that its purpose is to make clear that the holder's exercise of previous consent to extension by, for example, the maker, does not invoke § 7-3-606 to discharge secondary parties. § 7-3-118, comment 5. The section also provides a default rule for the construction of a consent to extension found in the body of an instrument. That is, unless the instrument itself provides otherwise, the holder is authorized to extend the note only once. We conclude, however, that this limitation does not apply in the present case because both the promissory note itself and the guaranty "otherwise [specify]".
The consent to extensions in the promissory note (set out in full, supra) authorizes "any extensions and renewals." Because the clause includes the indefinite term "any" and the plural forms "extensions" and "renewals," we are compelled to conclude that it specifies a departure from the default rule and authorizes multiple extensions without notice.
The intent to depart from the default rule is even more evident in the consent clause in the guaranty (set out in full, supra). That provision authorizes the holder to extend or renew the note "from time to time." It is obvious that that phrase contemplates the possibility of more than one extension or renewal. Moreover, the clause specifically states that the note "may be extended or renewed in whole or in part for any period (whether or not longer than the original period of said Note)."
In his order denying Stewart's motion for a new trial, the trial judge stated that the interpretation of the note proposed by Stewart
We disagree with the trial court's reasoning and conclusion.
In the first place, given the conclusion we reach today, the lender's power to extend or renew the note is not without limitations. The lender will remain bound by the obligation of good faith imposed by § 7-1-203. That obligation cannot be bargained away by the parties. § 7-1-102(3). Moreover, the holder of a note cannot exercise his option to extend the note over the *1029 objection of a party who makes due tender, as defined in § 7-3-604. § 7-3-118(f).
Any extensions or renewals pursuant to consent provisions such as those involved in the present case are not purely "unilateral" acts done without the "participation or agreement" of the parties. Rather, the extensions granted by the bank in this case were done pursuant to the agreement of all of the parties to the note. The fact that the agreement was entered into at the making of the note rather than at the time of the extensions does not defeat the existence or the validity of the agreement.
Finally, the conclusion we reach today furthers, rather than defeats, the purpose of the applicable statutes. One of the important purposes of the U.C.C. is to facilitate more flexibility in commercial transactions. That goal is accomplished in part by providing certain default rules that may be varied by agreement of the parties. To conclude other than we do today would tie the hands of both lenders and borrowers.
In executing the note and its guaranty, Jones and S.C.B. authorized the bank to extend or renew the note from time to time without the consent of the maker or either of the guarantors. We hold that the limitations period for an action on the promissory note did not begin to run until the end of the final period of extension granted by the Bank of Moundville. That is, the bank's cause of action on the note did not accrue until March 1987. As the bank's subrogee, Stewart could bring an action on the note at any time within six years of the accrual of the bank's cause of action. Accordingly, we conclude that the trial court erred in granting a directed verdict in favor of S.C.B. and Jones on Stewart's action on the promissory note.
Stewart also sued Jones in his capacity as a guarantor of the note. As between Stewart and Jones as guarantors of the note, Stewart is a surety for the payment of Jones's principal obligation. In Smith v. Pitts, 167 Ala. 461, 464, 52 So. 402, 403 (1910), this Court held:
See also, United States v. Baker, 681 F. Supp. 750, 751 (N.D.Ala.1987).
We conclude, then, that Stewart's cause of action for contribution against Jones did not accrue, with regard to the principal of the note, until Stewart actually paid the amount due on the note. However, with regard to the periodic payments of interest made by Stewart, the limitations period began to run at the time each of those payments was made.
For the reasons set out above, the judgment of the trial court is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | March 12, 1993 |
474183b4-3e16-4e9b-9126-434dee4f439d | Turner v. STATE FARM FIRE AND CAS. | 614 So. 2d 1029 | 1911154 | Alabama | Alabama Supreme Court | 614 So. 2d 1029 (1993)
Gary Lee TURNER and Linda C. Turner
v.
STATE FARM FIRE AND CASUALTY COMPANIES.
1911154.
Supreme Court of Alabama.
March 12, 1993.
*1030 Henry H. Self, Jr., and J. Barry Mansell of Self & Self, Florence, for appellants.
Larry B. Moore and Albert J. Trousdale II of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellee.
HORNSBY, Chief Justice.
The plaintiffs, Gary Lee Turner and Linda Turner (husband and wife), appeal from a summary judgment in favor of the defendant, State Farm Fire and Casualty Companies, in an action alleging breach of contract and bad faith refusal to pay insurance proceeds. We affirm in part; reverse in part; and remand.
In November 1988 the Turners purchased a partially constructed house. They insured against casualty to the house during construction by purchasing a State Farm builder's risk insurance policy that would convert to a homeowner's policy upon completion of construction. On February 3, 1990, while the Turners' house was under construction, a basement wall collapsed. The Turners filed a claim under their builder's risk insurance policy, but State Farm denied coverage, because, it said, the Turners' policy excluded both losses to a basement wall and any collapse caused by water pressure, and it said either exclusion would apply in this case.
On December 7, 1990, the Turners filed this action against State Farm, alleging breach of contract and bad faith refusal to pay insurance proceeds. On February 19, 1992, the trial court entered a summary judgment for State Farm on both counts. The Turners appeal.
"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 *1031 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 Turners argue that the summary judgment was improper as to their breach of contract claim for two reasons: (1) the policy, they say, did not exclude loss to a basement wall from coverage, and (2) they say they presented substantial evidence creating a genuine issue of material fact as to whether water pressure caused the basement wall to collapse. This Court has held that an insurance company has the right to limit its liability and write a policy with narrow coverage but that, when doubt exists as to whether an insurance policy provides coverage, the language used by the insurer must be construed liberally for the benefit of the insured and strictly against the insurance company. See Garrett v. Alfa Mutual Ins. Co., 584 So. 2d 1327, 1330 (Ala.1991); Guaranty Nat'l Ins. Co. v. Marshall County Bd. of Educ., 540 So. 2d 745, 748 (Ala.1989).
The builder's risk insurance policy that the Turners purchased from State Farm contained the following provision:
(Emphasis added.)
The parties disagree on whether the term "foundation" in the above-quoted section of the policy encompassed basement walls so that loss to a basement wall would be excluded from coverage. The Turners argue that the term "foundation" would not encompass their basement walls because, they say, the walls were free standing when constructed and formed the interior walls of the first floor of the house. Mr. Turner filled dirt around the walls to make a basement sometime after their construction. The Turners contend that they understood the term "foundation" to mean the three-by-three foot piece of concrete under the basement wall.
In contrast, State Farm argues that the "foundation" of a house includes the basement walls, because, it says, the term "foundation" means "the whole masonry substructure of a building." State Farm cites this Court to definitions that support its contention in Webster's Ninth New Collegiate Dictionary 487 (Merriam-Webster, Inc. 1989) and the United States Department of Agriculture's Handbook on Woodframe *1032 House Construction. However, this Court has held that, in construing the language of an insurance policy, the language should be given the meaning that a person of ordinary intelligence would reasonably think the language had. National Union Fire Ins. Co. v. City of Leeds, 530 So. 2d 205, 207 (Ala.1988).
Although State Farm's assertion that the term "foundation" encompasses the entire masonry substructure of a building may coincide with one of the definitions of "foundation" provided in the dictionary cited, this Court is not convinced that State Farm's definition is the meaning that a person of ordinary intelligence would reasonably give to the term "foundation." Instead, a person of ordinary intelligence could reasonably conclude, as the Turners say they did, that the term "foundation" refers only to the piece of concrete at the base of the wall; this conclusion is the only one possible when a house has no basement. Nothing in the Turners' policy defined the term "foundation" or indicated that it would or would not encompass a basement wall. Because it is this Court's policy to construe an insurance company's language most strictly against the company when doubt exists as to the meaning of that language, we conclude that the term "foundation" in the exclusionary provision of the Turners' builder's risk insurance policy was ambiguous.
When "ambiguity exists in the language of an exclusion, the exclusion will be construed narrowly so as to limit the exclusion to the narrowest application reasonable under the wording." Guaranty Nat'l, 540 So. 2d at 748; see also Amerisure Ins. Companies v. Allstate Ins. Co., 582 So. 2d 1100, 1102 (Ala.1991). Applying this principle, we conclude that the basement wall should not be excluded from coverage under the term "foundation" in the exclusionary section of the Turners' policy.
We therefore turn to the Turners' second contention as to why the summary judgment for State Farm was improper. Apparently, the Turners do not dispute the fact that, if water pressure caused the basement wall to collapse, their policy would not cover the damage. However, they argue that they presented substantial evidence creating a genuine issue of material fact as to whether water pressure caused the basement wall to collapse. We agree.
Although State Farm's expert, structural engineer James A. Durham, testified by affidavit that water pressure was one of the causes for the collapse of the basement wall, Durham did not inspect the Turners' house until five days after the wall had collapsed. However, Mr. Turner and Walter Gillespie, a realtor who inspected the basement on the day the wall collapsed, both testified by affidavit that on the day the wall collapsed the dirt on the basement floor was dry and the dirt behind the wall was dry. When the Turners deposed Durham, Durham admitted that if immediately after the collapse the dirt behind the wall was dry and the dirt on the basement floor was dry, "it would refute [Durham's] theory that ... water pressure caused the [collapse]."
Therefore, we reverse the summary judgment as to the Turners' breach of contract claim and remand this cause for further proceedings.
We turn to the Turners' argument that the summary judgment was improper as to their bad faith claim. "Bad faith is the intentional failure by an insurer to perform the duty of good faith and fair dealing implied in law." Koch v. State Farm Fire & Casualty Co., 565 So. 2d 226, 229 (Ala.1990). An insurer may be held liable for bad faith when it refuses to pay a claim and (1) has no lawful basis for refusing to pay and has actual knowledge of that fact, or (2) has intentionally failed to determine whether it had a lawful basis for refusing to pay. See Weaver v. Allstate Ins. Co., 574 So. 2d 771, 773 (Ala.1990); Jones v. Alabama Farm Bureau Mut. Cas. Co., 507 So. 2d 396, 399 (Ala.1986); Chavers v. National Security Fire & Casualty Co., 405 So. 2d 1, 7 (Ala.1981).
*1033 The Turners' bad faith claim against State Farm falls in the latter category. They argue that State Farm denied their claim before inspecting the property damage. Before addressing the Turners' argument, we point out that, as a general rule, the existence of a fact issue as to the validity of an insurance claim, created by evidence from either side, supplies a reason for an insurer to deny the claim and, necessarily, makes proper a summary judgment for the defendant on a bad faith claim. National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982). However, in Jones, this Court carved out an exception to this general rule, holding that because one of several possible causes of property damage, identified by the insured to his insurance company's claims adjuster, would have supported a finding of coverage under the policy, the insurance company had a duty to examine the property to determine the cause of the damage. Jones, 507 So. 2d at 400-01.
In support of their contention that State Farm denied their claim before an inspection, the Turners presented Mr. Turner's version, contained in his deposition testimony, of a conversation between Mr. Turner and Harrison on February 6, 1990, before Harrison inspected the site. Mr. Turner stated:
However, during his deposition Mr. Turner also admitted that "the day at the house, [February 6, 1990,] ... [Harrison] did not deny the claim; [or] [h]e did at first and then he was gonna send an engineer." Further, the record establishes that on February 8, 1990, State Farm sent Durham, the structural engineer, to the Turners' house to determine the cause of the collapse. On February 19, 1990, Durham submitted to State Farm a report on his inspection of the Turners' house and his opinion regarding the cause for the collapse of the basement wall. On February 21, 1990, Harrison notified the Turners' attorney that State Farm was denying the claim.
At most, the quoted portion of Mr. Turner's deposition testimony establishes that, because Mr. Turner says he told Harrison that the basement was not wet when the wall collapsed, State Farm had a duty, under this Court's holding in Jones, to examine the property to determine the cause of the damage. State Farm fulfilled that duty. Therefore, we conclude that State Farm made a prima facie showing, unrebutted by the Turners, that it was not guilty of bad faith.
We affirm the summary judgment for State Farm as to the bad faith claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, SHORES, HOUSTON and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
ADAMS and STEAGALL, JJ., concur in part and dissent in part.
*1034 STEAGALL, Justice (concurring in part and dissenting in part).
I concur with that portion of the majority opinion affirming the summary judgment as to the bad faith claim. However, I dissent from that portion reversing the judgment as to the breach of contract claim.
The majority states: "[W]e conclude that the basement wall should not be excluded from coverage under the term `foundation' in the exclusionary section of the Turners' policy." I disagree. Mr. Turner himself testified that the block wall that collapsed was one of two walls that rested upon a three-foot piece of concrete, that these walls are below the ground, and that these walls provided support for the floor above the basement. In my opinion, the Turners did not present substantial evidence in rebuttal to show that the loss was a direct result of the collapse of the house and therefore the exception to the exclusion was not applicable. Accordingly, I dissent from that portion of the opinion. | March 12, 1993 |
a5876719-ff80-419d-b2ef-a6d8e2853256 | Henson v. Celtic Life Ins. Co. | 621 So. 2d 1268 | 1910941 | Alabama | Alabama Supreme Court | 621 So. 2d 1268 (1993)
Kerri L. HENSON
v.
CELTIC LIFE INSURANCE COMPANY, et al.
1910941.
Supreme Court of Alabama.
June 4, 1993.
*1270 R. Wayne Wolfe of Wolfe, Jones & Boswell, Huntsville, for appellant.
H. Harold Stephens of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
PER CURIAM.
The plaintiff, Kerri L. Henson, appeals from a summary judgment in favor of the defendants, Celtic Life Insurance Company ("Celtic"), Celtic's claims adjusters Dun & Bradstreet Plan Services and Plan Services, Inc.[1] ("Dun & Bradstreet"), and Celtic's agent Belton Jones III.
On April 4, 1990, Henson brought an action alleging breach of an insurance contract, bad faith refusal to pay an insurance claim, and fraud, misrepresentation, and deceit.[2] On June 6, 1990, Henson amended her complaint to add a claim alleging negligence and/or wantonness on the part of Jones in procuring an insurance contract. On July 26, 1990, Henson again amended her complaint to add a claim alleging fraudulent suppression of a material fact, against all the defendants. The defendants subsequently moved for a summary judgment; the Madison County Circuit Court entered a summary judgment for all defendants. The issues presented require us to consider whether the trial court erred in holding that there was no substantial evidence that: 1) the defendants were guilty of fraud by virtue of Jones's representation to Henson's mother that he would write a health insurance policy for Henson that excluded only Henson's epilepsy; 2) the defendants suppressed a material fact by not disclosing to Henson that employment was a condition of her insurance coverage; 3) the defendants acted negligently and/or wantonly in failing to procure health insurance for Henson after they had promised to do so; 4) Celtic breached the insurance contract by failing to pay the claim at issue here; and 5) Celtic, assuming that it otherwise would have been justified in refusing to pay the claim, nevertheless waived its right to refuse payment on the claim by its actions while reviewing the claim.
The applicable standard for our review of a summary judgment is the "substantial evidence" rule. Under this rule, once the movant has shown, prima facie, that there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law, the nonmovant must introduce "substantial evidence" to rebut this showing. "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); Ala.Code 1975, § 12-21-12(d). Also, all reasonable *1271 doubts concerning the existence of a genuine issue of fact must be resolved in favor of the nonmoving party. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990).
The facts of this dispute, viewed most favorably to the nonmovant, Henson, are as follows: Defendant Jones was approached by Kerri Henson's father regarding the purchase of health insurance for his daughter Kerri. After a discussion of the matter, Henson's father advised Jones to contact Henson's mother regarding the particulars of the policy. Jones did seek out Henson's mother, who told him that she was looking for health insurance for her daughter Kerri Henson, and that such insurance was difficult to obtain because the daughter had an epileptic condition. Jones allegedly responded that he would "write a policy for Kerri, excluding the epilepsy." This statement is the basis for Henson's allegation of fraud. Jones subsequently located a suitable policy at Celtic and gave a policy application to Henson's mother for Henson to fill out.
Henson's mother took the policy application home for Henson to fill out on September 23, 1987; Henson completed the policy application that day and gave it to her mother, who then returned it to Jones. It is undisputed that Jones never explained the policy to her, as he was required to do by the Celtic employee handbook; in fact, he had no direct dealings with Henson at all and communicated with her only through her mother.
The policy application required the applicant to give certain employment information. Celtic viewed this information as crucial, because, according to the testimony of Thomas Stead, the vice-president of Celtic's claims department, one of the eligibility requirements was that all applicants be employed at least 30 hours per week. In the application, Henson represented that she was employed as a ticket salesperson/cashier at the Von Braun Civic Center; in response to a question concerning the number of hours she worked per week, Henson wrote "35 ?". Henson had in fact not received a paycheck from the Von Braun Civic Center since July 3, and the undisputed testimony shows that her last actual day of work was June 27, 1987. Also, the evidence shows that Henson had been fired from her job at the Civic Center on September 21; Henson asserts that she did not know of her termination at the time she filled out the policy application, and that she was only apprised of it on March 18, 1988, when she received notice of termination from Von Braun Civic Center.[3]
Henson was subsequently hospitalized for a depressive condition at Charter Peachford Hospital in Atlanta from January 23 to February 4, 1989, and incurred medical bills of approximately $4,500. Dun & Bradstreet initially denied the claim because it believed the hospitalization was due to Henson's epileptic condition, which was expressly excluded from coverage in a rider to the policy. A review committee at Dun & Bradstreet later reversed the denial, and Celtic agreed with the decision of its claims administrator to pay the claim; Celtic's decision is memorialized in an internal memorandum dated August 14, 1989.
Celtic, upon further review and at a time not explicitly disclosed by the record,[4] refused to pay the claim because it determined that Henson was unemployed. Celtic had, however, paid claims submitted by Henson both before and after the hospitalization at Charter Peachford during the period January 23-February 4, 1989.[5]*1272 Moreover, the bill submitted by Charter Peachford on or before February 9, 1989, for Henson's hospitalization indicated that she was unemployed. There is also evidence that an employee in the cost management department at Celtic, Robin Moss, became aware of Henson's employment status on or before February 7, 1989, and wrote a computer bulletin indicating this status, which was available to Dun & Bradstreet. Celtic maintains that it had attempted to procure employment records from Henson on several occasions both before and after it denied the Charter Peachford claim, and that Henson had not responded to its requests. Celtic contends that as soon as it learned of Henson's unemployed status it denied coverage under the policy.
Henson first contends that the trial court erred in entering the summary judgment on her claim of fraud or misrepresentation, because, she says, there were factual issues to be determined by the jury on this claim. The defendants counter by asserting that Jones cannot be held liable for fraud or misrepresentation, because he did not say anything directly to Henson. They cite Ames v. Pardue, 389 So. 2d 927 (Ala. 1980), as support for this proposition; the trial court also cited Ames in its summary judgment on the fraud/misrepresentation count.
Ames involved an action by a mortgagor against a mortgagee to set aside a sale of the mortgaged property to a third person. One of the plaintiff Pardue's allegations was that the mortgagee had committed fraud by quoting the mortgage balance to the third party, Ames, as less than it actually was. In holding that Pardue had not proved fraud by the bank that would support an action for misrepresentation, this Court stated:
Ames, 389 So. 2d at 931.
This statement, although a correct statement of the law, does not support the theory that direct communication between the representee and the one making the fraudulent statement is an absolute prerequisite to an action for fraud. In Ames, the communication, although perhaps intended to benefit the bank at Pardue's expense, was not directed toward him in the sense that the bank intended Pardue to act upon it. In the present situation, however, it is undisputed that Jones intended and expected Henson's mother to pass his statements on to Henson. In such a situation, Henson was entitled to rely on any statements ultimately directed to her, and it is immaterial that the statements were not made to her personally or by correspondence directed to her personally. See National States Ins. Co. v. Jones, 393 So. 2d 1361 (Ala.1980); 37 C.J.S. Fraud § 60 (1944).
Henson relies heavily on Hicks v. Globe Life & Accident Ins. Co., 584 So. 2d 458 (Ala.1991), for support for her fraud claim. That case is factually distinguishable from the present situation, however, and thus affords Henson no support. In Hicks, the plaintiff was approached by an insurance agent who persuaded her to relinquish the health insurance policy she then held in favor of a policy written by the agent's company. The agent accomplished this by representing to the plaintiff that his policy would cover 80% of her hospitalization costs, with no deductible, and that his policy was cheaper than her existing policy. *1273 The agent meticulously went over the policy with the plaintiff, and provided the plaintiff with a copy of the policy for her inspection. The plaintiff was subsequently hospitalized and incurred substantial medical bills; the insurer then refused to pay 80% of the hospitalization costs. The plaintiff brought an action for fraud, and the trial court entered a summary judgment for the defendant. This Court reversed, holding that the trial court had erred in holding that, as a matter of law, the plaintiff could not have justifiably relied on the statements made by the agent; this Court held that the fraud occurred, if at all, when the agent, by false statements, induced the plaintiff to give up her existing policy.
Henson makes much of the fact that the agent in Hicks followed all the required procedures, such as reviewing the policy with the plaintiff, providing the plaintiff with a copy of the policy, and so on, while pointing out that Jones completely failed to follow similar procedures contained in the Celtic employee handbook. Henson urges that Jones's alleged statement "I will write a policy for Kerri, excluding the epilepsy," when considered in light of his omissions, presents a jury question as to the fraud claim.
Henson, however, misses the essence of the Hicks opinion. The agent in Hicks induced the plaintiff to act by affirmatively misrepresenting a factnamely, the agent told her that the new policy would cover 80% of her medical bills when in fact it would not. Here, Jones made no such affirmative misrepresentation. His statement "I will write a policy for Kerri, excluding the epilepsy" was not an untrue statement; Jones actually did provide Henson with such a policy,[6] and Henson has received benefits from this policy. Therefore, Hicks is of no assistance to Henson, and her argument on this ground must fail.
Henson next argues that the defendants fraudulently suppressed a material factthat employment was a condition precedent for coverage under the policy and that they had a duty to disclose that fact pursuant to Ala.Code 1975, § 6-5-102. The elements of this cause of action have been stated as follows: 1) the existence of an undisclosed material fact; 2) the defendant's duty to disclose the material fact; and 3) the defendant's intentional failure to disclose the material fact when nondisclosure is intended to induce detrimental action. Jim Walter Homes, Inc. v. Waldrop, 448 So. 2d 301 (Ala.1983). The defendant's duty to disclose is particularly important, for ordinarily mere silence in a transaction does not constitute fraud. Chapman v. Rivers Constr. Co., 284 Ala. 633, 227 So. 2d 403 (1969). However, a duty to speak can arise from the particular circumstances of the case, and the test we have often utilized in determining when a duty to speak exists includes the following: 1) the relation of the parties; 2) the value of the particular fact; 3) the relative knowledge of the parties; and 4) other circumstances. Deupree v. Butner, 522 So. 2d 242 (Ala. 1988); Lowder Realty, Inc. v. Odum, 495 So. 2d 23 (Ala.1986). More specifically, we have held that a duty to disclose exists where the parties are not dealing at arm's length. RNH, Inc. v. Beatty, 571 So. 2d 1039 (Ala.1990).
Here, the materiality of employment as a condition to coverage under the policy is obvious, because it is the ground upon which Celtic has denied coverage; it is also clear and undisputed that Jones had far greater knowledge with respect to the policy in question and insurance matters in general than did Henson. In fact, it is quite probable that had Jones utilized this knowledge in accordance with the dictates of the Celtic employee handbook, this entire imbroglio could have been avoided. This unfortunate lack of adherence to Celtic's internal rules, however, cannot control this issue. As the defense notes in its brief, the application contains 32 references to employment on the first page alone. *1274 Also, the application, in "Section VI: AGREEMENTS AND SIGNATURE," contains the language "I am employed as described above and, at present, am gainfully employed and working at least thirty hours per week." While we do not agree that the application was totally unambiguous with respect to the requirement of employment, we do find that the application contained sufficient reference to the applicant's employment status to reasonably put Henson on notice as to its importance. See, e.g., Harlan v. Smith, 507 So. 2d 943 (Ala.Civ. App.1986) (plaintiff bringing action for fraud in connection with the purchase of a mobile home had duty to inquire into existing defects when he had inspected the home); Collins Co. v. City of Decatur, 533 So. 2d 1127 (Ala.1988) (general contractor put on notice by ongoing investigation of Department of Labor so that project engineer's failure to forward EPA letter mandating that payrolls conform to labor standards did not constitute concealment). Also, Jones testified, and Henson's mother admitted, that they had a conversation regarding the employment status of Henson before Henson's mother took the application home for Henson to sign. Therefore, no material fact was undisclosed, and the trial court properly entered the summary judgment in favor of the defendants as to this count.
Henson next argues that the defendants negligently or wantonly failed to procure and provide a policy of insurance that would cover Henson in the manner in which Jones promised. This cause of action has been recognized in Alabama, and is exemplified by our decisions in Cornett v. Johnson, 578 So. 2d 1259 (Ala.1991), and Crump v. Geer Brothers, Inc., 336 So. 2d 1091 (Ala.1976). Henson argues that because Jones totally failed to comply with Celtic's internal rules, which specifically instruct the agents to inform applicants of the employment requirement, the defendants should be liable on a negligence theory. The fact that a policy was not delivered to Henson until six months after the Charter Peachford claim was submitted buttresses this theory, according to Henson.
While Henson may have alleged a substantive basis for a negligence/wantonness cause of action, her claim is barred by the statute of limitations. The statutory period of limitations for negligence and wantonness actions, found at Ala.Code 1975, § 6-2-38, is two years from the date the injury occurred. Here, Henson admits that the injury occurred on September 23, 1987. She did not file her amendment to state a negligence or wantonness claim until June 6, 1991, and, even assuming that the amendment relates back to the filing of the original complaint on April 4, 1990, pursuant to Rule 15(c), Ala.R.Civ.P., her original complaint still was filed more than two years after the injury allegedly occurred. Henson attempts to circumvent the bar of the statute of limitations by alleging that she did not discover the injury until August 1, 1989. There is, however, no "discovery rule" to toll the running of the limitations period with respect to negligence or wantonness actions; the "discovery rule" in Alabama is applicable only to fraud actions. Ala.Code 1975, § 6-2-3. Hence, Henson's claim based on negligence or wantonness is time-barred.
Henson next argues that Celtic breached the contract of insurance by refusing to pay her claim based on services rendered by Charter Peachford hospital. It is fundamental that for a party to have a cause of action on an insurance contract, there first must exist a contractual relationship between the parties. St. Paul Fire & Marine Ins. Co. v. Air Comfort Engineers, Inc., 47 Ala.App. 301, 253 So. 2d 525 (Ala. Civ.App.1971). Celtic contends that this rule precludes recovery by Henson, because, it says, no contract of insurance came into existence, because of Henson's misrepresentation of her employment status on the application for insurance. Celtic alternatively argues that, assuming a contract existed, it was justified in rescinding the contract pursuant to Ala.Code 1975, § 27-14-7. This section provides, in pertinent part:
Henson contends that Celtic is not justified in relying on § 27-14-7(a)(2), the section specifically cited by Celtic in its motion for summary judgment. Henson notes that the internal guidelines of Celtic and Dun & Bradstreet define "risk" as medical or health-related risk; she also asserts that rescission is proper only where the medical risk to the insurer is increased by some misrepresentation of the applicant. Hence, she concludes that, because she says her alleged misrepresentation was not related to a medical or health risk, rescission was not justified.
Henson's argument, constructed from the internal rules of Celtic and cases from the United States Court of Appeals for the Eleventh Circuit,[7] is flawed, because it assumes that Celtic must rely on § 27-14-7(a)(2) for its authority to rescind the contract, whereas § 27-14-7(a)(3) is clearly pertinent and dispositive of the present situation. Therefore, § 27-14-7(a)(2) is immaterial, and the only question is the good faith of the insurer in refusing to issue the policy if it had known of Henson's employment status at the time she applied. Because the practice of not issuing a policy to anyone employed less than 30 hours per week appears to be universally applied by Celtic, and thus not susceptible to a badfaith implementation, we hold that § 27-14-7 provides a ground for rescission and therefore defeats Henson's argument on this issue.
Henson's final contention is that, assuming Celtic had the right to rescind the contract because of Henson's misrepresentation, Celtic waived its right of rescission by its actions during and after the Charter Peachford hospitalization. Specifically, Henson alleges, Celtic and Dun & Bradstreet had notice of her employment status immediately after the Charter Peachford hospitalization (January 23-February 4, 1989), because the bill submitted to Celtic by Charter Peachford on or before February 9, 1989, clearly stated that she was unemployed. Henson also points out that the February 7, 1989, computer bulletin, written by Celtic employee Robin Moss, indicated that Henson was unemployed; moreover, an internal memorandum dated July 20, 1989, concerning the claim in question contained the language "hours worked? waive eligibility," and was directed to Robin Moss by another Celtic employee. (Emphasis added.) Henson also notes that Celtic actually paid smaller claims on the policy in late March and April for medical services rendered to her both before and after the Charter Peachford hospitalization;[8] these payments clearly came after Celtic had knowledge of her employment status. Finally, Henson asserts that Celtic continued to accept premiums on the policy until August 1989 and failed to tender the refund of the premiums until October 4, 1991. Henson argues that this evidence, combined with other proof presented to the trial court, was enough to present a genuine issue of material fact as to whether Celtic had a right to rescind the contract, and that the trial court erred in entering the summary judgment in favor of Celtic on the contract claim.
Celtic responds by asserting that this proof is immaterial, because, it says, this issue (the question of the right to rescind) is controlled by our decision in McGee v. Guardian Life Insurance Co., 472 So.2d *1276 993 (Ala.1985); the trial court agreed with the defendants and based its summary judgment as to the contract claim on that case.
In McGee, a widow brought an action to recover life insurance benefits from three insurers that had issued group life policies to her husband's employer. The first insurer, Guardian, had provided group coverage through the husband's employer until July 1, 1978, when the employer terminated the policy. Before the husband died in February 1979, two other insurers, Banker's Life and Provident, had in turn issued group plans to the employer. All three policies required that the employee be "actively at work" in order to be insured.
The husband became ill and stopped working in January 1978. After his death 13 months later, the insurers refused to pay life insurance benefits. The widow alleged that the insurers had waived the employment requirement by continuing to accept premiums from the husband after he became disabled. The trial court entered a summary judgment for the insurers.
On appeal, this Court held that the insurers, by accepting the premiums after McGee became disabled, had not waived the contractual provision requiring the employee to be "actively at work" in order to be insured. The Court stated the general rule regarding waiver:
472 So. 2d at 996, quoting Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45, 50-51 (Ala.1980). The Court then determined that the "actively at work" provision in the contract was a coverage provision, and thus that waiver was not available to enlarge the coverage, which was expressly limited by the policy. With respect to the later insurersBanker's Life and Providentthe Court held that, because the husband had never been "actively at work" while their policies were in effect, their acceptance of premiums did not constitute a waiver.
Although at first blush McGee appears to control this case because of the similarity of the employment requirements in the two documents, careful scrutiny reveals substantial legal and factual differences between the situation in McGee and the present situation. First, even assuming that an employment requirement in an insurance contract is always a coverage provision, rather than a forfeiture provision, it is still necessary that the employment requirement be unambiguous in order to preclude the plaintiff's invocation of waiver or estoppel. In McGee, the requirement was clearly and unambiguously set forth in the insurance policy. Here, while the application contains sufficient notice of the employment requirement to prevent Henson from holding the defendants liable on a suppression of material fact theory, we cannot say that the application was totally free from ambiguity. Henson correctly asserts that the application nowhere states that employment is an absolute condition precedent to coverage under the policy. Although this requirement may be completely clear to anyone familiar with customary practice in the insurance industry, and is perhaps inferable to anyone with substantial business experience in general, we do not think that the application unequivocally makes the employment requirement an unambiguous coverage provision that is not subject to waiver. This is especially true in light of Jones's failure to explain the policy to Henson as he was required to do. The failure to explain the policy was crucial here, because the ambiguity of the application could have been dispelled with minimal time and effort. In fact, it may well be that Jones simply selected the wrong application form; we note that the application filled out by Henson is styled "Participating Employer Application," *1277 and there was never any indication that Von Braun Civic Center was participating in anything.
Another major difference between McGee and the present case is that the employment requirement in McGee was set forth in the policy itself, while here the requirement was embodied, to whatever extent, in an application for insurance. While it appears that this Court has never decided a case directly on point, it is clear that terms and conditions in an insurance applicationeven conditions precedent to the commencement of the contractmay be waived by the insurer. See 16B John Appleman, Insurance Law and Practice, § 9083 (1981); 44 C.J.S. Insurance § 275(a)(2) (1945). The case for treating an employment requirement as a forfeiture provision subject to waiver, rather than as a coverage provision, is strengthened here because Celtic did not provide Henson with a copy of the policy until six months after she had filed her claim. Henson thus had only an ambiguous application from which to ascertain her rights.
Moreover, it is settled that acceptance of premiums by an insurer, after learning of a breach of a condition or ground for forfeiture, normally constitutes a waiver or estoppel. General Insurance Co. v. Killen, 270 Ala. 604, 120 So. 2d 887 (1960). Also, the insurer must return the premiums within a reasonable time to avoid waiver or estoppel from arising from the acceptance of premiums in such a situation. Killen, 270 Ala. at 615, 120 So. 2d at 897-98.
In light of the foregoing discussion, we hold that the usually critical distinction between a coverage provision which is not generally subject to waiver or estoppeland a condition or a forfeiture provisionwhich is generally subject to such an argumentis unimportant under the facts here. If the employment requirement is characterized as a coverage provision, then the ambiguity of the application and the failure to give Henson a written policy precludes a summary judgment for Celtic because they raise a fact question as to whether the evidence adduced by Henson supports a finding of either a waiver or an estoppel against Celtic. Alternatively, if the employment requirement is characterized as a condition or a forfeiture provision, then it is waivable and a fact question is raised as to whether Celtic, by its actions, waived its right to rescind the contract or is estopped from utilizing that right. Because the trial court erred in holding that McGee controls this case as a matter of law, we reverse the summary judgment for Celtic as to the contract count.
Based on the foregoing discussion of the issues, we affirm the judgment as to all the defendants on the fraud, suppression of material fact, negligence/wantonness, and bad faith counts.[9] We affirm the judgment as to Jones and Dun & Bradstreet on the breach of contract count, because there was no evidence that either of those defendants had a contract with Henson. We reverse the judgment as to Celtic on the breach of contract claim, and we remand for further proceedings on that claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Dun & Bradstreet Plan Services and Plan Services are effectively the same entity, according to the deposition testimony of Thomas Stead, the vice-president of Celtic's claims department.
[2] Henson made each allegation in her complaint applicable to all the defendants. Obviously, the defendant Jones cannot be held liable for the breach of a contract to which he was not a party; also, the decision of whether to pay the claim in question was for Celtic to make and Jones cannot be held liable on the bad faith count.
[3] The record does contain a termination letter from the Von Braun Civic Center addressed to Henson and postmarked March 18, 1988. It is unclear how Henson could have been unaware of her employment status for the approximate six-month interim between the completion of the application and the receipt of the letter.
[4] The record does not reveal exactly when the claim was finally denied by Celtic. Celtic cancelled Henson's coverage on September 30, 1989; Henson did not learn of the cancellation of her coverage until she received a letter dated November 29, 1989.
[5] The record indicates that Celtic paid a claim on April 5, 1989, for medical treatment rendered to Henson by Crestwood Hospital on January 16, 1989. Celtic also paid a claim on March 23, 1989, for medical treatment rendered by the same hospital on March 8, 1989. Finally, Celtic paid a claim on April 5, 1989, for medical services rendered to Henson by Professional Anesthesia on March 21, 1989. The claims paid by Celtic were far smaller than the January 23 February 4, 1989, claim that is the subject of this controversy.
[6] The dispute over whether Jones effectively provided coverage, in view of the issue of Henson's employment status, does not support an allegation of affirmative misrepresentation, because there is no evidence that Jones had any information that Henson might not be employed.
[7] Henson relies upon State Farm Fire & Casualty Co. v. Oliver, 854 F.2d 416 (11th Cir.1988), and Federal Kemper Life Assurance Co. v. First National Bank of Birmingham, 712 F.2d 459 (11th Cir.1983), in her argument.
[8] See footnote 5 for the exact dates of the services rendered and the payments made by Celtic.
[9] From the evidence presented, it is clear that Celtic had at least a debatable or arguable reason not to pay the claim, so that the summary judgment was proper on the bad faith count. Miller v. Preferred Risk Mutual Insurance Co., 572 So. 2d 1260 (Ala.1990); Pierce v. Combined Insurance Co., 531 So. 2d 654 (Ala.1988). | June 4, 1993 |
b310f41d-9f7a-41b8-8ef0-39f86f8f35c5 | Ex Parte Bankhead | 625 So. 2d 1146 | 1911141 | Alabama | Alabama Supreme Court | 625 So. 2d 1146 (1993)
Ex parte Grady Archie BANKHEAD.
(Re Grady Archie Bankhead v. State).
1911141.
Supreme Court of Alabama.
April 16, 1993.
Rehearing Denied June 4, 1993.
Bryan A. Stevenson and Kevin M. Doyle, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
PER CURIAM.
This Court granted Grady Archie Bankhead's petition for a writ of certiorari to the Court of Criminal Appeals, 625 So. 2d 1141 (1992), to review that court's affirmance of a judgment holding that Bankhead's federal and state constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and Ex parte Branch, 526 So. 2d 609 (Ala.1987), were not violated by the *1147 prosecutor's use of peremptory strikes in Bankhead's capital murder trial.[1]
The principal question on this petition is whether at the Batson hearing the State articulated clear, specific, race-neutral reasons for its exclusion of each black veniremember.[2] The facts pertinent to a resolution of this issue are as follows:
The venire in Bankhead's capital murder case consisted of 42 members; 32 veniremembers were white and 10 were black. In the jury selection process, the State excluded 8 of the 10 black veniremembers through the use of peremptory strikes; 2 blacks eventually sat on the jury. The State used its remaining strikes to exclude 7 whites.
At the Batson hearing, the State gave the following reasons for excluding the black veniremembers:
Veniremember 57The prosecutor had an unexplainable gut reaction that he was "bad";
Veniremember 175The prosecutor explained that he "rubbed his face" in apparent disgust when the trial court mentioned the possibility of sequestration;
Veniremember 67The prosecutor explained that he did not fit the "best juror profile" because he was an "older black male";
Veniremembers 54 and 89The prosecutor explained that they were struck because they were women and did not fit the "best juror profile";
Veniremembers 109 and 192The prosecutor explained that they had indicated problems with the death penalty and sitting in judgment of another person;
Veniremember 68The prosecutor explained that he begged for money at night and would therefore have problems with sequestration.
The Court of Criminal Appeals did not address the exclusion of veniremember 57 from the jury. This omission was apparently based on the fact that veniremember 57 served as an alternate and sat with the jury until it retired for deliberations. However, this does not change the fact that veniremember 57 was struck from the venire. See Rule 18.4(g)(3), Ala.R.Crim.P. (the last person or persons struck from the venire serve as alternate jurors). Therefore, this Court must evaluate the State's explanation for striking veniremember 57.
Initially, we note that the State's burden of rebutting a defendant's prima facie case of discrimination increases in proportion to the strength of the prima facie case. Ex parte Bird, 594 So. 2d 676, 680 (Ala.1991). Here, the State's burden is heavy because of the strength of Bankhead's prima facie case of discrimination. This is so because the State struck 8 of the 10 black veniremembers; the lead prosecutor, Bob McGregor, has been found to have systematically excluded black veniremembers in violation of Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), in Jones v. Davis, 835 F.2d 835 (11th Cir.1988), cert. denied, 486 U.S. 1008, 108 S. Ct. 1735, 100 L. Ed. 2d 199 (1988); and the State had failed to conduct any meaningful voir dire of the excluded black veniremembers. All this evidence corresponds perfectly to the factors that this Court enunciated in Ex parte Branch, 526 So. 2d 609, 622-23 (Ala.1987), for determining whether the defendant has established a prima facie case of discrimination.
Bankhead argues with particular force with respect to the exclusion of veniremember *1148 57 from the venire. Bankhead asserts that unexplained "gut reactions," such as that offered for the exclusion of veniremember 57, are constitutionally impermissible, according to the dictates of Batson and Branch. This Court does look very unfavorably on the articulation of such reasons, although they are not per se prohibited; this disapproval is evidenced by Bird, supra, where the Court stated:
594 So. 2d at 684. The State seeks to support its use of the "gut reaction" explanation by relying on Avery v. State, 545 So. 2d 123 (Ala.Cr.App.1988). The Avery court stated that the primary danger in allowing such nonspecific, intuitive explanations to rebut the defendant's prima facie case was that such explanations could become "the standard untestable post-hoc justification for what is in reality an unconstitutional exclusion based on group discrimination." 545 So. 2d at 127 (quoting People v. Charron, 193 Cal. App. 3d 981, 991, 238 Cal. Rptr. 660, 666 (1987)). The State argues that the potential for such reasons to be used in a post-hoc fashion as a pretext for racial bias is absent in this case, because the prosecutor contemporaneously recorded his negative reaction to Falls in his trial notes. Therefore, the State argues, the misuse of the "gut reaction" reason that the courts have warned against is not present here.
The State's reasoning on this point is unpersuasive, and it overemphasizes the post-hoc language of the Avery decision. The thrust of the above-quoted Avery language is that nonspecific "reasons" are generally insufficient because they are inherently untestable; there is simply no way to compare the prosecutor's statement with any objective fact to ascertain whether the prosecutor is truly relying on the reason he articulates. The use of the word "bad" as a reason for striking a black veniremember may mean any number of things; it may embody the constitutionally infirm assumption that the veniremember might favor the defense simply because of his race. See Powers v. Ohio, 499 U.S. 400 at ___, 111 S. Ct. 1364 at 1370, 113 L. Ed. 2d 411 at 424 (1991) ("Race cannot be a proxy for determining juror bias or competency."). The mere fact that the prosecutor wrote the word "bad" in his trial notes does not change this fact in any way; this nebulous reason remains as untestable as if the prosecutor had asserted it for the first time in the Batson hearing. Moreover, the Court of Criminal Appeals, in Henderson v. State, 549 So. 2d 105 (Ala.Cr.App.1987), dealt with a similar situation and held that Branch had been violated. In Henderson, a black veniremember was struck because of a "gut reaction" and because "the potential juror had been marked unfavorably by an assistant district attorney, but no reason was given for the unfavorable indication." Henderson, 549 So. 2d at 108. The present situation is indistinguishable from that in Henderson.
It is well settled that the ruling of the trial court on a Batson hearing is entitled to substantial deference and will not be disturbed on review unless it is "clearly erroneous." Scales v. State, 539 So. 2d 1074 (Ala. 1988). However, the failure to articulate a sufficient race-neutral reason for excluding even a single black veniremember may entitle the defendant to a new trial. Harrell v. State, 555 So. 2d 263 (Ala.1989). As the foregoing discussion illustrates, the State failed to give a sufficient race-neutral reason for striking veniremember 57. Moreover, the reasons given by the State for striking the other black veniremembers, particularly veniremember 175, are also suspect. Because the State did not rebut Bankhead's prima facie showing of racially discriminatory jury strikes, the judgment must be reversed under the principles of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny.
REVERSED AND REMANDED.
*1149 HORNSBY, C.J., and ALMON,[*] SHORES,[*] ADAMS, STEAGALL and INGRAM, JJ., concur.
HOUSTON, J., dissents.
HOUSTON, Justice (dissenting).
Neither Bankhead nor the victim was black; therefore, I see no racial dimension in this case. Two blacks served on the jury. The state peremptorily struck seven white and eight black veniremembers. The trial judge is in a much better position than an appellate court to decide whether the prosecutor's reasons are a sham. We should reverse only upon finding that the trial court's ruling was clearly erroneous. Because I cannot find that the trial court's ruling was erroneous, much less clearly erroneous, I would affirm; therefore, I respectfully dissent.
[1] This is Bankhead's second petition for certiorari review. After Bankhead's conviction was first affirmed by the Court of Criminal Appeals, we granted his first petition because Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991)decided while that petition was pendinggave white defendants standing to raise Batson claims upon the striking of black veniremembers. Because Bankhead is white, this Court remanded the case for a Batson hearing. 585 So. 2d 112 (Ala.1991). The proceedings described in this opinion followed.
[2] Bankhead has also raised issues concerning the applicability of Batson to gender-based strikes and the State's ability to consider race at all in the jury selection process. This Court refused to extend the Batson principles to peremptory strikes based on gender, in Ex parte Murphy, 596 So. 2d 45 (Ala. 1992), cert. denied, ___ U.S.___, 113 S. Ct. 86, 121 L. Ed. 2d 49 (1992). Also, a discussion of the latter issue is unnecessary to a resolution of this case; therefore, we decline to address that issue.
[*] Although Justices Almon and Shores did not sit at oral argument, they have studied the record and listened to the tapes of oral argument. | April 16, 1993 |
0c57d65e-63de-44f3-8af4-62450d64fca7 | Joe Cooper & Assoc. v. Central Life | 614 So. 2d 982 | 1910683 | Alabama | Alabama Supreme Court | 614 So. 2d 982 (1992)
JOE COOPER & ASSOCIATES, INC., et al.
v.
CENTRAL LIFE ASSURANCE COMPANY.
1910683.
Supreme Court of Alabama.
December 18, 1992.
As Modified on Denial of Rehearing March 12, 1993.
*983 James C. Barton, David P. Whiteside, Jr. and David W. Proctor of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for all appellants except Larry W. Morris.
J. Michael Cooper of Tippins, Strickland & Cooper, Birmingham, for appellant Larry W. Morris.
Lewis W. Page, Jr. and Timothy A. Palmer of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
HORNSBY, Chief Justice.
The plaintiffs filed this action against Central Life Assurance Company ("Central"), alleging breach of contract, fraud, intentional interference with business relations, tortious damage to reputation, and *984 breach of fiduciary duty. The plaintiffs are Joe Cooper & Associates, Inc., an Alabama corporation; Joe Cooper Insurance Management, Inc., an Alabama corporation ("JCIM"); Middleton/Vaughan Plans Insurance Agency, Inc., a Texas corporation; Midwest Health Systems, Inc., an Illinois corporation; William Morse Associates, Inc., a Florida corporation; Joseph A. Cooper; Marlene Middleton; Terry Vaughan; William Morse; Edwin J. Becker; James E. Fox, individually and as successor to the American Medical Administration Group, Inc. ("AMAG"); and Larry W. Morris.
Central moved for a summary judgment on all counts. The trial court entered a summary judgment for Central on all claims except the fraud claims and JCIM's breach of contract claim. JCIM alleged that Central had breached two provisions of the parties' agency agreement entered on April 1, 1986: (1) provision 2.1(b), which prohibited Central from "solicit[ing] business from brokers and agents of, or acquired by, [JCIM] during the term of [the] Agreement and ... for a period of one (1) year following termination of [the] Agreement"; and (2) provision 8.5, which required Central to compensate JCIM, even if the parties terminated the April 1, 1986, agency agreement, "so long as [JCIM] continued to perform normal marketing functions and to service in-force business" on Central's behalf.
The trial court permitted all of the plaintiffs to present to the jury evidence that Central had fraudulently induced them not to move their Policy Employers Trust ("PET") business to another insurance carrier. In addition, the trial court allowed JCIM to present evidence that Central had breached the parties' agency agreement by soliciting four of JCIM's agents. Even though Central proved that JCIM received all the commissions due for insurance written by these agents, the trial court determined that JCIM had demonstrated sufficient evidence to establish that it was entitled to nominal damages for this breach.
At the close of the plaintiffs' case, Central moved for a directed verdict. The trial court directed a verdict for Central on Larry W. Morris's fraud claim, but allowed the other plaintiffs' claims to proceed. At the conclusion of all the evidence, Central again moved for a directed verdict. The trial court directed a verdict for Central on the fraud claims asserted by Joseph A. Cooper, Marlene Middleton, Terry Vaughan, William Morse, Edwin J. Becker, and James E. Fox, individually and as successor to AMAG. The trial court denied Central's motion for a directed verdict as to the corporate plaintiffs' fraud claims and as to JCIM's breach of contract claim, and submitted those claims to the jury. The jury found for the plaintiffs, awarding a total of $1,668,328 in compensatory damages for commissions lost as a result of the termination of PET, and $2,000,000 in punitive damages. The trial court entered a judgment accordingly, but, pursuant to Central's motion for a new trial or, in the alternative, a remittitur, the trial court reduced the punitive damages award to $300,000.
The judgment based on the jury's verdict is not in issue on this appeal. Instead, all the plaintiffs, except Fox and Morris, appeal the summary judgment for Central as to their claims alleging intentional interference with business relations. All the plaintiffs, except Morris, appeal the summary judgment for Central as to their claims alleging breach of contract. (The trial court permitted JCIM to present two breach of contract questions to the jury; it appeals the summary judgment as to the other questions.) Fox appeals as to the directed verdict for Central on his fraud claim. Morris appeals the summary judgment for Central as to his claim alleging breach of fiduciary duty, and he appeals as to the directed verdict for Central on his fraud claim. We affirm the summary judgment for Central as to the breach of contract claims and Morris's breach of fiduciary duty claim. We also affirm as to Central's directed verdict on Morris's fraud claim. However, we reverse the summary judgment for Central as to the claims alleging intentional interference with business relations and remand this cause so that the plaintiffs may present to the jury evidence of intentional interference. We also reverse *985 as to Central's directed verdict on Fox's claim alleging fraud, brought in his individual capacity, and remand this cause, authorizing Fox, on remand, to present appropriate evidence as to his individual fraud claim to the trier of fact. The jury's awards and judgments with respect to all other claims are not affected by this decision.
This dispute concerns a group health and life insurance product called "Policy Employers Trust" ("PET"). Marketing Management, Inc. ("MMI"), created PET in 1971 to "receiv[e] contributions from ... [e]mployers for [the purpose of] purchasing and maintaining [group] insurance" for their employees. Maxine Griffith and Lomax Johnson were the original trustees of PET. MMI, as settlor of PET, expressly reserved the power to remove the trustees upon 30 days' notice and to appoint successor trustees. When the events giving rise to this action occurred, AmSouth Bank was the PET trustee. Beginning in 1984, United Pacific Life Insurance Company ("UPL") provided the group insurance policy covering PET insureds.
PET prescribed that a trust administrator be authorized to determine the eligibility of employers and employees to participate in PET and to decide on the allowance of claims and payment of benefits. MMI designated its wholly owned subsidiary, M.M. Administrators, Inc. ("MMA"), as the trust administrator. The corporate plaintiffs are insurance companies whose clients were employer-members in PET. The individual plaintiffs, with the exception of Morris, are licensed insurance agents. Morris is an individual insured under PET. From 1978 to April 1, 1986, the corporate plaintiffs were agents of MMA.
On December 1, 1985, Central purchased the insurance policy on PET members from UPL and assumed the right to be the insurer for PET. On April 1, 1986, Central acquired from MMI and MMA the right to become the settlor and the trust administrator of PET. According to the plaintiffs, Central assumed the role of settlor and insurer of PET to "cherry pick" the plaintiffs' best PET clients for Central's insurance portfolio. The plaintiffs use the term "cherry picking" to mean singling out those insureds that are least likely to file health claims. The plaintiffs argue that Central acquired complete control of PET in order to gain information necessary to categorize PET members according to the health risk that each posed. The plaintiffs further argue that, after completing the categorization process, Central planned to terminate PET and obtain the low-risk PET clients for its portfolio by offering to insure them under Central's product "CLIENT."
At the same time Central acquired the right to be the settlor and the trust administrator of PET, Central entered into an agency agreement with MMA, pursuant to which MMA agreed to sell group insurance issued by Central. This agreement provided that the corporate plaintiffs would no longer be agents of MMA; instead, Central could deal directly with the corporate plaintiffs. The agreement also provided that MMA could not assign its rights and responsibilities under the agreement without prior written approval from Central.
Also on April 1, 1986, Central entered a separate agency agreement with JCIM, a corporate plaintiff. The agreement covered several details of the relationship between the plaintiffs and Central that are pertinent to this case. The agreement referred to the plaintiffs Joe Cooper & Associates, Inc.; Middleton/Vaughan Plans Insurance Agency, Inc.; Midwest Health Systems, Inc.; and William Morse Associates, Inc., as JCIM's "wholesalers." Central promised to pay commissions on employers' premiums directly to the wholesalers. JCIM promised "not to roll the bulk of PET [b]usiness" to another insurer, so long as Central offered a competitively priced product. Central granted JCIM the exclusive right to market a Central product called "GROUP CLIENT" and agreed not to solicit business from JCIM's brokers and agents during the term of the agreement and for one year following termination of the agreement. Either party could terminate *986 the relationship on 90 days' written notice. With the exception of Fox's claims, the plaintiffs' claims alleging fraud and breach of contract rested on oral promises allegedly made to Joseph A. Cooper by officers of Central during the negotiations that resulted in the April 1, 1986, agency agreement between Central and JCIM.
On November 21, 1986, MMA assigned its rights and responsibilities under its contract with Central to American Medical Administration Group, Inc. ("AMAG"). The parties agreed that the assignment would be effective from November 1, 1986. Central approved the assignment in writing on February 11, 1987. James E. Fox was president of AMAG at the time of the assignment and negotiated on AMAG's behalf. Fox's claims alleging fraud and breach of contract rested on promises allegedly made to him by officers of Central during negotiation of the November 1, 1986, assignment agreement. Additional facts pertaining to Fox's fraud claim will be discussed in connection with our analysis of his right to bring that claim.
On March 24, 1987, Central sent a letter to AmSouth, the PET trustee, notifying it that, pursuant to Central's power as settlor, it was terminating PET on June 1, 1987. On March 27, 1987, Central sent letters to participating employers notifying them of PET's termination and informing them about the insurance coverage options available to them. One option Central recommended was coverage under a Central product called "CLIENT," which the corporate plaintiffs were not authorized to sell. This recommendation is the basis for the plaintiffs' claims alleging intentional interference with business relations.
When reviewing a summary judgment or a directed verdict, the applicable standard of review on appeal is the same standard used by the trial court in granting or denying the motion initially. Bussey v. John Deere Co., 531 So. 2d 860, 862, 863 (Ala.1988); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986). For a summary judgment, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was "entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P.; see Wilson, 496 So. 2d at 758; Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986). For a directed verdict, we must "determine whether there was sufficient evidence to produce a conflict warranting jury consideration." Ogle v. Long, 551 So. 2d 914, 915 (Ala.1989); Bussey, 531 So. 2d at 863. 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. Ogle, 551 So. 2d at 915; Bussey, 531 So. 2d at 863; Wilson, 496 So. 2d at 758; Harrell, 495 So. 2d at 1383; see also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Dunklin v. Winn-Dixie of Montgomery, Inc., 595 So. 2d 463, 464 (Ala. 1992).
The plaintiffs argue that the summary judgment for Central was improper as to their claims alleging intentional interference with business relations. "The elements of a cause of action for intentional inference with contractual or business relations are as follows: (1) the existence of a contract or business relation; (2) the defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of the defendant's interference." Century 21 Academy Realty, Inc. v. Breland, 571 So. 2d 296, 297-98 (Ala. 1990) (citing Caine v. American Life Assurance Corp., 554 So. 2d 962, 964 (Ala. 1989); Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590, 597 (Ala. 1986)). In addition, the plaintiff must show some evidence of fraud, force, or coercion, on the defendant's part. Griese-Traylor Corp. v. First National Bank of Birmingham, 572 F.2d 1039, 1045 (5th Cir.1978); Hennessey v. National Collegiate Athletic *987 Ass'n, 564 F.2d 1136, 1143 (5th Cir.1977); Volz v. Liberty Mutual Insurance Co., 498 F.2d 659, 663, reh'g denied, 503 F.2d 568 (5th Cir.1974); Brown v. Chem Haulers, Inc., 402 So. 2d 887, 891 (Ala.1981); Erswell v. Ford, 208 Ala. 101, 103, 94 So. 67, 69 (1922). "Justification for the interference is an affirmative defense that must be pleaded and proved by the defendant." Breland, 571 So. 2d at 298.
The plaintiffs contend that, as part of the overall scheme to "cherry pick" the plaintiffs' best clients who were members of PET, Central intentionally interfered with business relations between the plaintiffs and their PET clients by mailing two letters to the clients, informing them that PET would be terminated on June 1, 1987, and that they could apply for insurance coverage under Central's product "CLIENT." The plaintiffs, except for Fox, were not authorized to sell "CLIENT." Pursuant to the April 1, 1986, agency agreement between JCIM and Central, the plaintiffs had an exclusive right to sell "GROUP CLIENT," another of Central's products.
Central mailed the first letter referring to "CLIENT" on March 27, 1987. The plaintiffs complained to Central about its reference to "CLIENT" in this letter, and Central's director of group marketing, John T. Terry, said to JCIM, by letter dated April 10, 1987, that the reference to "CLIENT" was a mistake. Terry's letter indicated that PET members who contacted Central directly would be advised that "GROUP CLIENT," and not "CLIENT," was available to them. However, on May 15, 1987, Central sent a second letter to PET members, again informing them that they could apply for coverage under "CLIENT." It made no reference to "GROUP CLIENT." According to the plaintiffs, Central's references to "CLIENT" in these letters were the last step in a fraudulent scheme to terminate PET and steal the plaintiffs' best PET clients.
The trial court concluded that the plaintiffs' intentional interference claims were foreclosed by this Court's holding in Cahaba Seafood, Inc. v. Central Bank of the South, 567 So. 2d 1304 (Ala.1990). In Cahaba Seafood we held that a claim alleging intentional interference was not available when a party to the contract allegedly breached the contract and affected the relationship between the nonbreaching party and a third party. Id. at 1306. The plaintiffs alleged that Central intentionally interfered with the business relations between the plaintiffs and their PET clients, not the contract between JCIM and Central. Consequently, our holding in Cahaba Seafood does not apply to the facts of this case. The first element of the plaintiffs' claim is satisfied by the existence of business relations between the plaintiffs and their PET clients, not by JCIM's contract with Central.
Turning to the remaining elements in the plaintiffs' claim of intentional interference, Central does not dispute the fact that it had knowledge of the relationship between the plaintiffs and their PET clients. Central does argue that its references to "CLIENT" were mistakes, not intentional acts of interference. We conclude, however, that because the plaintiffs proved that Central's letter of May 15, 1987, was identical to its first letter of March 27, 1987, the plaintiffs have created a genuine issue as to whether Central's interference was intentional.
Central also argues that the plaintiffs cannot show any damage resulting from Central's references to "CLIENT." In support of its motion for summary judgment, Central presented evidence that none of the plaintiffs' PET clients purchased "CLIENT." In rebuttal, the plaintiffs state that they can identify PET clients who stopped doing business with them as a result of Central's letters dated March 27, 1987, and May 15, 1987. We, therefore, conclude that the plaintiffs have presented substantial evidence creating an issue as to whether they suffered damage as a result of Central's references to "CLIENT."
Finally, Central argues that, even if the plaintiffs have established a prima facie case of intentional interference, they cannot prevail because, Central says, it was *988 merely competing with the plaintiffs to satisfy the future insurance needs of PET members. Although Central correctly asserts that competition is a justification for interference, this case is distinguishable from those cases in which insurance companies have terminated their relationships with insurance agents, solicited business from the agents' clients, and successfully defended the agents' actions alleging intentional interference by relying upon competition for business as a justification for interference. See Cutter v. Lincoln National Life Insurance Co., 794 F.2d 352 (8th Cir. 1986); Caine v. American Life Assurance Corp., 554 So. 2d 962 (Ala.1989); Travelers Indemnity Co. v. Merling, 326 Md. 329, 605 A.2d 83 (1992), cert. denied, ___ U.S. ___, 113 S. Ct. 465, 121 L. Ed. 2d 373 (1992). In those cases the agents' relationships with their clients were not independent of their agency relationships with the insurance companies, and the agents' rights to satisfy their clients' insurance needs were not exclusive.
In this case, the plaintiffs' relationships with their PET clients existed before Central ever became involved with PET; thus, a jury could determine that the plaintiffs' relationships with their PET clients were independent of the agency relationships between the plaintiffs and Central and were independent of the insurer/insured relationships between Central and PET members. Additionally, the April 1, 1986, agency agreement between the plaintiffs and Central stated that Central would not "solicit business from brokers and agents of, or acquired by, [JCIM] during the term of [the] Agreement and ... for a period of one (1) year following termination of [the] Agreement." A jury could find that this provision gave the plaintiffs the exclusive right, vis-a-vis Central, to satisfy their clients' insurance needs. Accordingly, a jury should consider whether Central's references to "CLIENT" were justifiable competition for business. As to this issue, we reverse the judgment for Central and remand this cause.
However, we point out that, because the corporate plaintiffs have already recovered compensatory damages for commissions lost as a result of the termination of PET, on remand the trial court should instruct the jury that, should it decide that the plaintiffs are entitled to some compensation for Central's acts of intentional interference, its award should not include compensation for commissions lost as a result of PET's termination.
However, we direct the trial court that on remand it should instruct the jury that, should it decide that the plaintiffs are entitled to some compensation for Central's acts of intentional interference, then the jury's award should not include compensation for commissions lost as a result of PET's termination. The reason for this instruction is that the corporate plaintiffs were compensated for lost commissions in the compensatory damages portion of the $1.9 million fraud judgment, which Central has satisfied. Although Central contends that the compensatory damages portion of the $1.9 million fraud judgment compensated the corporate plaintiffs for losses other than the commissions lost as a result of PET's termination, we know that these lost commissions constituted the only loss for which the jury awarded compensation, because the compensatory damages award precisely equalled the plaintiffs' estimate, in their exhibit 27, of commissions lost as a result of PET's termination.
The plaintiffs also argue that the summary judgment for Central was improper as to the plaintiffs' claims alleging breach of contract. The plaintiffs alleged that Central was obligated by contract to give the plaintiffs adequate time to find another insurance carrier if Central decided to terminate PET. In support of this claim, the plaintiffs offered an affidavit from Cooper stating that, during the negotiations that produced the April 1, 1986, agency agreement between JCIM and Central, Central's officers induced him to promise not to move the bulk of PET business by stating that Central "had no intention of terminating the PET trust" and that "if it should decide to close the PET block, it would give [the plaintiffs] adequate time to find another carrier for [their] clients." At the time, *989 Cooper was negotiating as an authorized agent for all the plaintiffs except Fox. Fox alleged that Central's officers made the same promises to him during negotiations that resulted in AMAG's assumption of MMA's contract with Central on November 1, 1986.
Neither the April 1, 1986, agency agreement between JCIM and Central, nor AMAG's assignment agreement, dated November 11, 1986, contained a provision obligating Central to give the plaintiffs notice if Central terminated PET. The only provision pertaining to notice of termination was contained in PET. This provision required Central to give insureds 60 days' written notice of termination. The evidence reveals that the plaintiffs received more than 60 days' notice that PET would be terminated on June 1, 1987; however, the plaintiffs argue that this was not "adequate time" to find another insurance carrier.
The plaintiffs advanced two theories that they said would entitle them to recover damages on their breach of contract claims. First, they argued that Central's oral statements constituted evidence of an oral contract between the plaintiffs and Central. The trial court rejected this argument, holding that the oral statements were merely statements of opinion or intention, not binding as promises. We agree. Under general contract principles, "[a] mere expression of intention or general willingness to do something on the happening of a particular event does not amount to an offer." Dillon v. AFBIC Development Corp., 420 F. Supp. 572 (S.D.Ala. 1976), aff'd in part, rev'd in part, 597 F.2d 556 (5th Cir.1979); see Restatement (Second) of Contracts § 2 comment e (1981). The plaintiffs' evidence did not establish that Central's oral statements were anything more than statements of opinion or intention, insufficient as a matter of law to form a contract.
Alternatively, the plaintiffs argued that Central's oral statements constituted a modification to PET's termination provisions that required Central to give 60 days' notice of termination to the insureds. "To be effective as a modification, the new agreement must possess all the elements necessary to form a contract." 17A Am. Jur.2d Contracts § 520 (1991); see Chicago College of Osteopathic Medicine v. George A. Fuller Co., 776 F.2d 198, 208 (7th Cir. 1985); Caffrey Farms, Inc. v. Williams Pipe Line Co., 739 F.2d 1366, 1368 (8th Cir.1984); Nyhus v. Travel Management Corp., 466 F.2d 440, 445 (D.C.Cir.1972). Therefore, the plaintiffs' modification argument also fails, because Central's oral assertions were merely statements of opinion or intention, not promises. Accordingly, we affirm the judgment for Central as to the plaintiffs' breach of contract claims.
Fox argues that the trial court improperly directed a verdict for Central on his fraud claim. Fox was serving as president and chief executive officer of AMAG when, on its behalf, he negotiated an agency relationship between AMAG and Central. The creation of this relationship was a two-step process: (1) AMAG and MMA entered an assignment agreement effective November 1, 1986, whereby AMAG acquired MMA's rights and responsibilities under MMA's agency agreement with Central, dated April 1, 1986; and (2) Central approved MMA's assignment to AMAG on February 11, 1987. Pursuant to the terms of MMA's April 1, 1986, agency agreement with Central, MMA could not assign its rights and responsibilities under the parties' agreement without Central's approval.
Fox contends that Central defrauded him and AMAG by failing to disclose a plan to terminate PET, which Fox says Central formulated at the time it acquired PET. According to Fox's fraud theory, Central pursued an agency relationship with AMAG to gain access to information about AMAG's clients who were members of PET and to categorize them according to risk; then, upon PET's termination, Central could obtain the best clients for Central's insurance products. Specifically, Fox alleged that, during the negotiation of the November 1, 1986, assignment agreement, he was concerned that Central's position, as both the settlor and the insurer of PET, *990 gave it significant control over PET. According to Fox, this concern prompted him to ask Central's officers whether Central planned to terminate PET. Fox stated in his deposition that, in response to his question, Central's officers told Fox "that there were no plans to terminate [PET;]" and that Fox "shouldn't worry about [whether Central intended to terminate PET], that if the decision was made to terminate [PET], [Central] would give ... [Fox] adequate notice and would cooperate with [him] in trying to find another carrier." At least one Central officer did not deny making these statements to Fox. Fox argues that the representations made by Central's officers were false and were calculated to induce him to acquire MMA's rights and responsibilities under its April 1, 1986, agency agreement with Central.
The record reveals that on February 8, 1987, three days before Central accepted MMA's assignment to AMAG, Central's marketing department decided to terminate PET. Central officially terminated PET by a letter, dated March 24, 1987, to AmSouth, the PET trustee. Subsequent to PET's termination, AMAG assigned all its rights under its November 1, 1986, assignment agreement with Central to C.C. Systems, Inc., in an assignment agreement dated June 4, 1987. AMAG filed for bankruptcy. On July 7, 1987, C.C. Systems assigned all its rights under the Central agreement to Fox individually.
Fox brought this fraud action against Central, both as successor in interest to AMAG and in his individual capacity. At the close of all the evidence, the trial court directed a verdict for Central on all the individual plaintiffs' fraud claims, including Fox's, but submitted the corporate plaintiffs' fraud claims to the jury. AMAG never properly entered this action as a corporate plaintiff. Fox is the only individual plaintiff that appealed in regard to his individual action alleging fraud. We infer from the record below that the trial court directed a verdict against Fox on two grounds: first, Fox was not entitled to bring a fraud action as AMAG's successor in interest, because AMAG could not validly assign its fraud claim to Fox; and, second, Fox did not produce sufficient evidence on his individual fraud claim to create a conflict warranting the jury's consideration.
The trial court properly concluded that AMAG could not validly assign its fraud claim to Fox. The validity of an assignment is governed by the law of the place where the assignment took place. Fourth National Bank of Montgomery v. Woolfolk, 220 Ala. 344, 125 So. 217 (1929); New York Life Insurance Co. v. Scheuer, 198 Ala. 47, 73 So. 409, 412 (1916). Both assignments took place in Kansas. Although the Kansas Supreme Court has recognized exceptions to the common law rule that tort claims are not assignable (see Glenn v. Fleming, 247 Kan. 296, 314, 799 P.2d 79, 90-91 (1990), overruling in part Heinson v. Porter, 244 Kan. 667, 675, 772 P.2d 778, 785 (1989)), we infer from Heinson and Glenn that a fraud claim is not assignable in Kansas. Therefore, assuming that AMAG attempted to assign its fraud claim to C.C. Systems, and C.C. Systems to Fox, these assignments would not be valid.
Because we have determined that Fox could not maintain a fraud action as a successor in interest to AMAG, the question that remains is whether the trial court should have submitted Fox's individual fraud claim to the jury. Fox argues that he is entitled to maintain a fraud action against Central in his individual capacity, because Central's officer assured him personally, even though he was acting on AMAG's behalf, that Central did not plan to terminate PET and that, if it decided to terminate PET, it would give Fox adequate notice of termination and work with him to find another carrier.
In order to determine whether Fox should be entitled to submit his individual fraud claim to the jury, we must review the sufficiency of his fraud evidence. The law to be applied in fraud cases is set forth in Ala.Code 1975, §§ 6-5-101, -102, and -103:
Ala.Code 1975, § 6-5-101.
Ala.Code 1975, § 6-5-102.
Ala.Code 1975, § 6-5-103.
This Court held in Hudson v. Moore, 239 Ala. 130, 134, 194 So. 147, 150 (1940), "`[T]he statement of an opinion which is not [a truthful] opinion, made to deceive and which does deceive, may, by reason of [the] peculiar knowledge of facts [possessed by the party giving the opinion] upon which a reliable opinion may be based and [which are] not accessible to the other party, amount[s] to deceit.'" (Citations omitted.) (Quoting Cartwright v. Braly, 218 Ala. 49, 52, 117 So. 477, 480 (1928)); see Scholz Homes, Inc. v. Hooper, 287 Ala. 628, 254 So. 2d 328 (1971); Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782 (1938). "The mere form of the representation as one of opinion or fact is not in itself conclusive, and in cases of doubt the question should be left to the jury." Fidelity & Cas. Co. v. J.D. Pittman Tractor Co. 244 Ala. 354, 358, 13 So. 2d 669, 672 (1943).
Fox stated in his deposition that he specifically inquired about Central's intent with respect to the termination of PET and that Central's officers represented that Central had no intention of terminating PET, but that Central would notify Fox if it later decided to terminate PET. From this evidence a jury could find that Central's officers misrepresented material facts regarding Central's intention, or lack of intention, to terminate PET. The jury could also find that Central owed AMAG and Fox a duty to disclose any decision to terminate PET, and that, by failing to disclose its February 8, 1987, decision to terminate PET before approving MMA's assignment to AMAG, on February 11, 1987, Central fraudulently induced AMAG to enter an agency agreement with Central in order to gain access to information about AMAG's clients and, following PET's termination, solicit only AMAG's best clients for Central's portfolio.
Because Fox was negotiating on AMAG's behalf when Central's officer allegedly made false representations to Fox, Fox's ability to sue Central in his individual capacity is governed by agency law. Under the Restatement (Second) of Agency § 374(2) (1957), an agent cannot bring an action in his own name for a tort by a third party against the principal, unless the third party's actions were intended "for the purpose of harming the agent's interests." Restatement (Second) of Agency § 374(2) (1957). In Steiner Bros. v. Clisby, 103 Ala. 181, 15 So. 612 (1894), this Court stated that an agent can maintain a fraud action against a third party to recover for injuries suffered while transacting business for his principal if the third party intended that the agent act on the fraudulent representations "`in a manner affecting'" the agent. Clisby, 103 Ala. at 192, 15 So. at 615 (quoting Wells v. Cook, 16 Ohio St. 67, 88 Am.Dec. 436 (1865)). The question of whether the third party intended for his conduct to harm the agent personally is a question for the jury to resolve.
Fox presented the following evidence to prove that Central's officers intended for their allegedly fraudulent representations to harm Fox in his individual capacity: Fox was president, chief executive officer, and chief stockholder of AMAG when he negotiated with Central *992 and MMA on AMAG's behalf, and, pursuant to an agreement between Central, MMA, and AMAG, dated November 1, 1986, and accepted by Central on February 11, 1987, Fox received PET commission payments directly from Central and assigned those payments to AMAG. Fox, further, alleges that he lost his position with AMAG and his commission payments as a result of PET's termination. We find this evidence sufficient to establish a question as to whether Central intended to harm Fox personally and whether Fox sustained personal damage as a result of the alleged fraud.
Fox presented evidence that Central's officers specifically represented to him that Central would notify him if it decided to terminate PET. Fox has also shown that Central approved MMA's assignment to AMAG on February 11, 1987, without telling Fox about the February 8, 1987, decision to terminate PET, and that, as a result of PET's termination, Fox lost his commissions. From this evidence a jury could find that Central intended, from the outset, to terminate PET and to conceal its intention in furtherance of a scheme to "cherry pick" from among AMAG's clients, and, further, that Central's acts of concealment harmed Fox individually. It follows that the trial court should have submitted Fox's individual fraud claim to the jury. The judgment is therefore reversed as to the directed verdict for Central on Fox's individual fraud action, and the cause is remanded for a trial on the issue of fraud as to Fox individually. This decision does not grant Fox the right to litigate AMAG's fraud claim against Central.
Morris argues that the summary judgment for Central was improper as to his claim alleging breach of fiduciary duty. He also argues that the trial court improperly directed a verdict for Central on his fraud claim. With respect to both claims, Central argues that Morris lacks standing to bring an action against Central because he was not eligible to participate in PET. PET established two classes of persons eligible to participate: "(1) permanent full-time employees who work 30 hours or more per week; (2) active full-time partners, proprietors, or officers of your firm also working 30 hours or more per week."
Morris became a PET insured while he was a partner in Morris Excavating Company, an employer-member of PET. Morris sold his interest in Morris Excavating Company in 1985. In order to continue coverage under PET for himself, his wife, and his children, he submitted an application for insurance to JCIM under the name of "Morris & Associates." The application stated that Morris & Associates was a company in the business of selling swimming pools. However, in his deposition, Morris admitted that Morris & Associates never did any business. Consequently, we conclude that Morris presented no evidence that he satisfied PET's eligibility requirements.
In response to Central's assertion that Morris lacks standing, Morris argues that Central waived its right to deny him coverage under PET. The gist of Morris's argument is that Central received constructive notice that Morris was not eligible to participate in PET because Morris wrote his monthly premium payments on his personal checking account, not on a business account; therefore, by accepting Morris's premium payments, Morris says, Central waived PET's eligibility requirements as to Morris. We find the fact that Morris paid monthly premium payments from his personal checking account insufficient, as a matter of law, to place Central on notice that Morris was not eligible to participate in PET. See McGee v. Guardian Life Insurance Co., 472 So. 2d 993 (Ala.1985); Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45 (Ala.1980).
The coverage provisions of PET are clear. Because Morris presented no evidence that he was eligible to participate in PET, he lacks standing to bring an action against Central. Therefore, we affirm the judgment for Central as to Morris's claim alleging breach of fiduciary duty and as to Morris's fraud claim.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
*993 SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., concurs in the result in part and dissents in part.
MADDOX, Justice (concurring in the result as to Parts I, II, and IV of the majority opinion; and dissenting as to Part III).
I concur in the result as to Parts I, II, and IV of the majority opinion, but I must dissent from the majority's reversal of that portion of the judgment based on the directed verdict against James E. Fox on his individual fraud claim.
The majority relies on Restatement (Second) of Agency § 374(2) (1957) and Steiner Brothers v. Clisby, 103 Ala. 181, 15 So. 612 (1894), in allowing Fox to sue Central for a fraud allegedly perpetrated on AMAG, Fox's principal. Although, technically, the majority states the pertinent law relating to an agent's action on a tort committed against his principal, a close reading of those authorities, and a review of the evidence Fox presented at trial, convinces me that a directed verdict was appropriate in this case.
Restatement (Second) of Agency § 374(2) (1957) states:
(Emphasis supplied.)
Further, comment b to § 374(2) states:
(Emphasis supplied.)
My research reveals that Steiner Brothers v. Clisby, 103 Ala. 181, 15 So. 612 (1894), cited by the majority, is the only Alabama case directly discussing a suit by an agent in his personal capacity for a fraud perpetrated on his principal. In Clisby, this Court stated:
103 Ala. at 192, 15 So. at 614-15 (emphasis supplied).
The clear requirement of both Clisby and the Restatement (Second) § 374(2) and comment b thereto, in my opinion, is that the agent must prove that the third party (the defendant) intended that the agent act on the false and fraudulent representation *994 in a manner affecting the agent personally. Stated differently, to avoid a directed verdict against his claim, the agent must offer substantial evidence[1] that the third party (the defendant) intended to harm him personally, and not merely to harm him by harming his principal. My personal review of the evidence convinces me that Fox did not offer substantial evidence of this element of his cause of action.
The majority states:
At 992 (emphasis supplied).
Assuming, without conceding, the correctness of the emphasized statement from the majority opinion, this does not mean that Fox offered substantial evidence that Central intended to harm him personally. That is, assuming that Central intended to terminate PET and to conceal this intention from AMAG (i.e., to harm AMAG), and assuming that this concealment harmed Fox, this does not establish that Central intended to harm Fox personally. I have reviewed the evidence in this case and conclude that Fox presented nothing tending to establish that Central intended to harm him personally and not merely to harm him incidentally because of harm done to AMAG. Accordingly, I would affirm as to the directed verdict against Fox on his individual fraud claim.
[1] A motion for 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. Crowley & Bros., Inc. v. Brown, 569 So. 2d 375 (Ala.1990). The ultimate question, of course, on a motion for directed verdict is whether the nonmovant has presented sufficient evidence to allow submission of the case or issue to the jury for a factual resolution. J. Hoffman & S. Guin, Alabama Civil Procedure § 8.37 (1990). For actions filed after June 11, 1987, the standard of review applicable to motions for directed verdict 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. "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); see Ala.Code 1975, § 12-21-12. | March 12, 1993 |
247a2fc4-98be-4a47-9bc6-efb08a039ff1 | Raley v. Spikes | 614 So. 2d 1017 | 1910919 | Alabama | Alabama Supreme Court | 614 So. 2d 1017 (1993)
Sylvia RALEY, as Administratrix of the Estate of George Carrier Blume, deceased,
v.
George Henry SPIKES and Chris Holmes.
1910919.
Supreme Court of Alabama.
March 5, 1993.
Mayer W. Perloff, Mobile, for appellant.
*1018 Barbara Holley Reid and Douglas R. Martin, Coden, for appellees.
ALMON, Justice.
The administratrix of the estate of George Carrier Blume, deceased, appeals from a judgment of the Probate Court of Mobile County holding that two natural sons of Blume, who were later adopted by their mothers' spouses, were entitled to share in Blume's estate. The issue is whether the adoption of Blume's sons by their stepfathers cuts off their right to inherit from Blume.
Blume died intestate in March 1991. At the time of his death, he resided in Mobile County, Alabama. His estate consists entirely of personal property located in Mobile County. Two of Blume's natural children from former marriages, Christopher B. Holmes and George H. Spikes, claim proportionate shares of the estate.
The relevant facts are as follows: Blume married Jane Warfield Breen. Prior to their divorce, they had a son named Christopher, who was born in Jacksonville, Florida. They divorced, and Jane W. Breen later married Dan Newman Holmes, who subsequently adopted Christopher in Florida. Thus, Blume's son by this marriage took the name Christopher B. Holmes. Blume then married Nunna G. Allen. During their marriage they had a child whom they named George C. Blume, Jr. After Blume and Nunna Allen divorced, she married Clayton H. Spikes, who later adopted George in Virginia. His name became George H. Spikes. Blume consented to both adoptions.
The probate court issued letters of administration to Sylvia Raley as administratrix of the estate of George C. Blume. Raley filed a "Petition for Instruction," seeking a judicial determination of whether Christopher B. Holmes and George H. Spikes were entitled to share in Blume's estate. After the administratrix filed that petition, Christopher B. Holmes and George H. Spikes filed a claim seeking proportionate shares of the estate. The administratrix subsequently filed an objection to the claim. After considering the parties' pleadings and arguments, the probate court entered a judgment, made final pursuant to Rule 54(b), Ala.R.Civ.P., holding that the claimants were entitled to share in the estate.
Raley argues that the law of the state of adoption, and not the law of the decedent's domicile, applies to determine whether the natural sons of the decedent, who were adopted in foreign jurisdictions and who have never lived in Alabama, are entitled to share in the estate. The administratrix argues that because Christopher B. Holmes was adopted in Florida, Florida law applies to determine whether he is entitled to share in the estate. Likewise, because George H. Spikes was adopted in Virginia, the administratrix contends that Virginia law applies to the question of his right to share in the estate.
The traditional rule in Alabama has been "that the descent and distribution of personal property (movables) is governed by the laws of the domiciliary state at the time of death." Jones v. Jones, 293 Ala. 39, 42, 299 So. 2d 729, 729 (1974); see also Nora v. Nora, 494 So. 2d 16, 18 (Ala.1986) (Beatty, J., dissenting); McGuire v. Andre, 259 Ala. 109, 117, 65 So. 2d 185, 192 (1953); Hall v. Proctor, 242 Ala. 636, 641, 7 So. 2d 764, 767 (1942); McGhee v. Alexander, 104 Ala. 116, 120, 16 So. 148, 149 (1894); Johnson v. Copeland's Adm'r, 35 Ala. 521 (1860). Because Blume's entire estate consists of personal property and because he was a resident of Alabama when he died, Alabama's laws of intestate succession govern the question of whether the claimants are entitled to a share of Blume's estate.
Raley argues that even under Alabama law, a child adopted by the spouse of one natural parent cannot inherit from the other natural parent. Section 43-8-48, Ala. Code 1975, provides:
(Emphasis added.) Thus, under § 43-8-48(1), the general rule is that after an adoption a relationship of child and parent exists between the adopted child and the adopting parent or parents, but not between the adopted child and the child's natural parents. The statute, however, creates an exception when a spouse of one of the natural parents adopts the child.
The administratrix contends that the statutory language "adoption of a child by the spouse of a natural parent has no effect on the right of the child to inherit from or through either natural parent" does not confer any rights, but merely preserves those rights existing in the adoption statutes at the time of the enactment of § 43-8-48. She argues that before a 1984 amendment, § 26-10-5(c), Ala.Code 1975, granted adopted children the right to inherit not only from their adoptive parents, but also from their natural parents. Section 26-10-5(c) was amended in 1982 and 1984 and repealed in 1991. Citing Barnett v. Beck, 481 So. 2d 348 (Ala.1985), the administratrix asserts that Act No. 84-254, 1984 Ala. Acts, amended § 26-10-5 by removing the language that gave adopted children a right to inherit from their natural parents. In Barnett, this Court stated in dicta:
Barnett, 481 So. 2d at 350 (citation omitted). Although the legislature repealed § 26-10-5 in 1991, 1991 Ala. Acts, No. 91-554, the administratrix contends that § 43-8-48 of the Probate Code merely preserved whatever rights adopted children had under § 26-10-5 before its repeal. The administratrix argues that since § 26-10-5 granted adopted children no right to inherit from their natural parents after 1984, no such right exists now under § 43-8-48.
The administratrix confuses the statutory history and ignores the plain language of § 43-8-48. From 1931 until 1982, adopted children had the right under Alabama's adoption statutes to inherit not only from their adoptive parents but also from their natural parents. See 1931 Ala. Acts, Act No. 405. Like the 1931 act, tit. 27, § 5, of the 1940 Code and § 26-10-5(c) of the 1975 Code stated, "Nothing in this chapter shall be construed as debarring a legally adopted child from inheriting property from its natural parents or other kin." See also tit. 27, § 5, of the 1940 Code as recompiled in 1958 (containing identical language).
In 1982, not 1984, the legislature amended § 26-10-5(c) of the "Adoption" chapter of title 26, deleting the language, quoted above, which had provided for an adopted child's right to inherit from both the adoptive and the natural parents.[1] 1982 Ala. Acts, No. 82-399, § 8-102(b). In the same Act, however, the legislature enacted a modified version of Uniform Probate Code ("UPC") § 2-109, now codified as § 43-8-48.[2] 1982 Acts, No. 82-399, § 2-109. Section 43-8-48 retains, in limited form, that part of former § 26-10-5(c) that, before the amendment in 1982, had allowed adopted *1020 children to inherit from or through their natural parents. See commentary to § 43-8-48, Ala.Code 1975.[3] Thus, contrary to the appellant's argument and the dicta in Barnett v. Beck, 481 So. 2d 348, 350 (Ala. 1985), the legislature did not abolish, either in 1984 or in 1982, the right of adopted children to inherit from their natural parents. Act No. 82-399 merely deleted from § 26-10-5 the language providing for this right in the adoption statutes and inserted it in the modified version of UPC § 2-109, which was later codified at § 43-8-48.
Moreover, a plain reading of § 43-8-48 requires the same conclusion. Immediately after stating that an adopted child is not the child of his or her natural parents for purposes of intestate succession, § 43-8-48 creates an exception for children adopted by a stepparent. To give this latter provision the construction advocated by the administratrix would render it meaningless.
The law of Blume's domicile, Alabama, governs the question of whether the claimants have a right to share in Blume's estate. Because § 43-8-48 allows a child adopted by the spouse of a natural parent to inherit from either natural parent, we affirm the judgment of the probate court.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] The 1984 amendment to § 26-10-5, to which the administratrix refers, only inserted language granting natural grandparents of adopted children visitation and custody rights in some circumstances. 1984 Ala. Acts, No. 84-254.
[2] Before its amendment in 1975, UPC § 2-109 did not permit a child adopted by a natural parent's spouse to inherit from or through the child's other natural parent or kin. UPC § 2-109 (1969). The present version of § 2-109(1) provides that "an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent." UPC § 2-109 (1989).
[3] The commentary to § 43-8-48 states in pertinent part: "The provisions in this section are essentially the provisions of UPC § 2-109, except that subdivision (1) has been changed relative to the rights of the adopted child to continue to inherit from natural parents. The change is a retention of Alabama law (§ 26-10-5(c)) on this point."
This Court notes, however, that the present provision of § 43-8-48 and the provisions of former § 26-10-5(c) are not the same. For example, former § 26-10-5(c) allowed all adopted children to inherit from their natural parents, but § 43-8-48 retains that right only for children adopted by a stepparent. | March 5, 1993 |
2610ca97-7ef6-4950-af71-5c181882ab88 | Udcoff v. Freidman | 614 So. 2d 436 | 1910977 | Alabama | Alabama Supreme Court | 614 So. 2d 436 (1993)
Barry UDCOFF and Laura Udcoff
v.
Karl B. FREIDMAN, as executor of the Estate of A.C. Steiner, deceased, et al.
1910977.
Supreme Court of Alabama.
March 5, 1993.
*437 J. Gusty Yearout and C. Jeffery Ash of Yearout, Myers & Traylor, P.C., Birmingham, for appellants.
C. Lee Reeves of Sirote & Permutt, P.C., Birmingham, for appellees.
STEAGALL, Justice.
This Court's opinion of November 25, 1992, is withdrawn and the following is substituted therefor.
Barry Udcoff and his wife Laura sued Steiner/Bressler Advertising, Inc., and its owners, A.C. Steiner and Harry Bressler, alleging fraud and breach of an employment contract. The trial court entered a summary judgment in favor of the defendants, and the Udcoffs appeal.[1]
A summary judgment is proper and must be affirmed on appeal if there is 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.; Lee v. City of Gadsden, 592 So. 2d 1036 (Ala.1992).
The material facts of this case are undisputed. In 1987, Steiner/Bressler Advertising placed an advertisement in a trade magazine, seeking a creative director. Barry Udcoff, a resident of Chicago, Illinois, mailed a letter of interest and later met with A.C. Steiner and Harry Bressler in Birmingham. Both Steiner and Bressler were eager to hire Udcoff, who they thought was talented and well suited for the job. They explained to Udcoff that he would be their "partner" and that he would have complete control over the creative department. They also informed him that he would be expected to "shake up" the employees of the department and to deal with major accounts. After Udcoff returned to Chicago, Steiner telephoned him to formally offer him the position. Udcoff asked Steiner to put the terms of the offer in writing; Udcoff received a letter dated June 2, 1987, from Steiner/Bressler Advertising, which reads:
*438 After he received the letter, Udcoff telephoned Steiner to discuss the terms further. He asked Steiner to explain the meaning of the last paragraph, and Steiner replied that it meant the amount of money the agency made would depend on how much business they could generate. Udcoff accepted the job, then relocated from Chicago to Birmingham, bought a house, and enrolled his three children in Birmingham schools.
It is undisputed that from the outset of his employment with Steiner/Bressler Advertising, Udcoff did not meet the expectations it had of him. He was disliked by both the agency employees and the agency's major client. That client refused to work with Udcoff, and employee morale in the agency copy department plummeted. When the situation did not improve after Udcoff had been working about four months, Steiner and Bressler fired him.
In their motion for summary judgment, Steiner and Bressler argued, as to the contract claim, that Udcoff was an employee-at-will with the agency and was thus subject to being fired at any time. They relied on the rule that an employer must show cause for terminating an employee only if the contract is for lifetime employment or for employment for a specific period. Selby v. Quartrol Corp., 514 So. 2d 1294 (Ala.1987). Without a clear and unequivocal offer of employment for a specific time or for the employee's lifetime, the contract is merely for at-will employment; such employment may be terminated at the pleasure of the employer, with or without justification. Selby.
Udcoff argues on appeal that he was not an employee-at-will, but, rather, was promised a partnership and "equity" in the agency. To support his argument, Udcoff relies on Shirley v. Lin, 548 So. 2d 1329 (Ala.1989). There, a medical professional association sent a letter offering the plaintiff, a doctor, a position with the medical practice after the parties had negotiated the terms of employment. The letter set out in detail a graduated scale of compensation that the employee would earn over a five-year period, as well as the exact amount that he would pay as equity into the practice. After reviewing the lengthy document, this Court determined that the letter unambiguously offered the doctor a position for five years, without any indication that he could be terminated before that time.
In this case, there was no formal written contract for employment, except the June 2 letter from Steiner/Bressler Advertising to Udcoff. Unlike the letter of employment in Shirley, the letter to Udcoff does not unambiguously state any duration of employment, nor does it outline any specific plan of graduated compensation. The letter does show that Steiner and Bressler offered Udcoff a number of benefits, including the opportunity to obtain "equity," i.e., to buy stock in the agency, over the course of several years and to eventually become a "partner." The letter did not unconditionally promise Udcoff any of those listed benefits; on the contrary, it clearly stated that the terms and conditions of Udcoff's employment were contingent on how well Udcoff could perform in his position as creative director, how much business he could generate, and how much "fun" it was to work with him. The letter did not constitute an unequivocal contract for a specific period of employment; thus, Udcoff was an at-will employee of Steiner/Bressler Advertising. Because Steiner/Bressler Advertising could discharge Udcoff at any time and for any purpose, the trial court properly held that the defendants were entitled to a judgment as a matter of law on the breach of contract claim.
Udcoff next argues that the trial court erred in entering the summary judgment on the fraud claim. He claims that he would never have accepted the position with Steiner/Bressler Advertising if he had known the job was contingent upon his ability to obtain the approval of the agency's major client. He also claims that in the June 2 letter Steiner and Bressler fraudulently promised him continued employment and stock options. The essential elements of a fraud claim are: (1) misrepresentation of a material fact (2) made willfully *439 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 result. Ramsay Health Care v. Follmer, 560 So. 2d 746 (Ala.1990). In a fraud claim based on an alleged promise to perform an action in the future, the plaintiff must show that at the time the promise was made the promisor had no intention of carrying out the promise but, rather, had a present intent to deceive. Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983). If such an intent is not substantiated by the evidence, the fraud claim should not be submitted to the jury; the failure to perform is not alone evidence of intent not to perform at the time the promise was made. Purcell.
Udcoff presented no substantial evidence that Steiner or Bressler had any intent to renege on their promise to employ Udcoff or any intent not to abide by the terms contained in the June 2 letter. On the contrary, the record shows that both men fully planned to employ and to compensate Udcoff in relation to how much business was generated and how well everyone worked together. The evidence indicates that it was only after Udcoff failed to please the agency's major client or his co-workers that Bressler and Steiner displayed any intent to terminate Udcoff's employment. Because Udcoff failed to meet this burden of proof, summary judgment on this issue is affirmed.
The summary judgment is hereby affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] Although Laura Udcoff is named as a plaintiff and is a party to this appeal, she does not allege that the defendants offered her employment or that the defendants made misrepresentations to her. | March 5, 1993 |
3211b9d4-b4aa-487c-81bc-9cfdda887c5c | Ex Parte Parcus | 615 So. 2d 78 | 1911124 | Alabama | Alabama Supreme Court | 615 So. 2d 78 (1993)
Ex parte Jack PARCUS.
(Re Jack PARCUS v. Nadine S. PARCUS).
1911124.
Supreme Court of Alabama.
March 19, 1993.
Rehearing Denied May 7, 1993.
Michael L. Fees and Charles H. Pullen of Watson, Gammons & Fees, P.C., Huntsville, for petitioner.
Earl E. Cloud, Huntsville, for respondent.
PER CURIAM.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
This Court having granted certiorari review, I think it should address the following issue: Whether a person has a constitutional right to be advised of his right to counsel in a contempt proceeding arising out of a failure to pay support as ordered in a divorce judgment. The Court of Civil Appeals held that the defendant, Jack Parcus, by not specifically asking for counsel, waived his right to counsel. Because I think that a defendant is entitled to be advised of his right to counsel in a nonsupport case if the proceeding may result in a jailing of the defendant, I would reverse *79 the judgment of the Court of Civil Appeals, which requires a person to affirmatively request counsel, and remand the case. Therefore, I dissent from the order quashing the writ.
Jack and Nadine Parcus were divorced in May 1989. In its judgment of divorce, the Circuit Court of Madison County, Alabama, granted to Nadine Parcus the care, custody, and control of the parties' minor child, Jackie Lee Parcus II, who was 16 years old at the time. The judgment gave Jack Parcus visitation rights and ordered him to pay Nadine Parcus $1,000 on the first day of each month, beginning June 1, 1989, until the child became 19 years of age. It also required Jack Parcus to maintain medical, hospitalization, and dental insurance on the child until the child reached age 19 and provided that medical expenses not covered by insurance would be paid by Jack Parcus on demand. The court entered a continuing child support withholding order and further ordered Jack Parcus to pay $2,000 per month alimony beginning June 1, 1989, until the remarriage or death of Nadine Parcus.
Nadine Parcus filed a petition on September 12, 1989, alleging that Jack Parcus had violated the terms of the divorce judgment. The parties agreed to a consent judgment on the issues of alimony, child support, and attorney fees; the consent judgment, entered in November 1989, provided that Nadine Parcus recover against Jack Parcus $24,996.50, together with costs. The trial court specifically reserved the right to reset for trial at a later date all other issues presented in the petition that the court had not ruled upon or that were not part of the consent judgment.
On June 5, 1991, Nadine Parcus filed a "Motion to Set Costs for Final Hearing," in which she alleged that the amount of the consent judgment, together with interest, remained unpaid except for $5,000 paid on November 2, 1989, by Jack Parcus.
On July 1, 1991, the trial court conducted an ore tenus hearing on the allegations in the petition, after which it held that Jack Parcus had willfully violated the terms of both the divorce judgment of May 1989 and the consent judgment of November 1989. The court found that Jack Parcus had the means to pay the judgment in each case.
The court "adjudged [Jack Parcus] to be in criminal contempt of court for failure to pay [the remaining balance of the consent] judgment of $19,996.50, support and maintenance of $16,218, alimony of $40,000, and attorney's fees of $3,453.10." With respect to the months in which Jack Parcus had failed to make support, maintenance, and alimony payments, the court fined him $100 per month, or $3,700, and also sentenced him to 5 days' incarceration in the Madison County jail for each such violation, a total of 185 days, to be served on the work release program, with his earnings to go toward those amounts set out here.[1] The trial court suspended the sentence for 30 days and then ordered Jack Parcus to appear at the jail on August 1, 1991, in the event he had not purged himself of the contempt by paying the fine and all the arrearage by that date.
Although he had previously had an attorney, Parcus was not represented by counsel at the July 1, 1991, contempt hearing. In fact, Parcus had informed the trial court that he could not afford to hire an attorney. The trial court did not inform Parcus of his constitutional right to the assistance of counsel, or of any right to have counsel appointed, if he were indigent, until the conclusion of the hearing, when the court was informing Parcus of his rights regarding appeal. At that point, for the first time in the proceedings, the trial judge noted that he had an "obligation" to inform Parcus of his right to counsel. However, by that time, Parcus had already been found in contempt, and the court had already pronounced sentence upon him.
The Court of Civil Appeals affirmed the judgment of the trial court, holding that *80 Parcus had not been denied due process as a result of his not having court-appointed counsel. The court based the affirmance on its interpretation of State ex rel. Payne v. Empire Life Ins. Co., 351 So. 2d 538 (Ala.1977), cert. denied, 435 U.S. 969, 98 S. Ct. 1607, 56 L. Ed. 2d 60 (1978). In Payne, the Court set out the requirements of due process in criminal contempt cases:
351 So. 2d at 543. (Emphasis added.) It is not disputed that the trial court did not inform Parcus of his right to counsel prior to the contempt hearing. The Court of Civil Appeals, construing the holding in Payne, determined that a trial court need not inform a defendant of the right to counsel in such proceedings unless the defendant makes a specific request for counsel. The Court of Civil Appeals stated:
615 So. 2d 75, 78 (Ala.Civ.App.1992). (Emphasis added.)
I think that the Court of Civil Appeals put too much emphasis upon the words "if requested" appearing in the Payne case. In Payne, when this Court was delineating the constitutional due process requirements, it did not intend to say that the right to counsel could be waived by a failure to affirmatively request counsel. An examination of the law surrounding the requirements of constitutional due process when a person's liberty is at stake, as it is in this case, reveals that the Court of Civil Appeals interpreted Payne too narrowly.
In Alabama, contempt is generally characterized as either "civil" or "criminal":
State v. Thomas, 550 So. 2d 1067, 1072 (Ala. 1989). (Citations omitted.) See Rule 33.1, Ala.R.Cr.P. Under the law of this State, because the goals of both "civil" and "criminal" contempt are often sought simultaneously, contempt proceedings for failure to pay alimony and child support have been termed "quasi-criminal." See Sewell v. Butler, 375 So. 2d 800, 801 (Ala.Civ.App. 1979). The basis for this classification is shown in this case, where, although the goals of "civil" contempt are also present, Jack Parcus was found by the trial court to be in "criminal" contempt. This contempt is classified as "criminal" because Parcus's fine and sentence were meant as punishment for disobedience of the court order, his fine was to be paid to the court, his sentence of incarceration in the county jail was for a definite time, and his work release was unrelated to the performance of an affirmative act. See Hicks v. Feiock, 485 U.S. 624, 631-32, 108 S. Ct. 1423, 1429, 99 L. Ed. 2d 721 (1988).
Alabama has also traditionally recognized the distinction between direct and indirect contempt. A civil or criminal contempt may be either direct or indirect. The Thomas Court noted the distinction as follows:
The distinction between direct and indirect contempt is important because the "due process" to be afforded an individual charged with indirect contempt is more significant than the process due to be afforded when one is charged with direct contempt. Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767 (1925). Because indirect contempt proceedings can give rise to severe sanctions, including the deprivation of liberty, trial courts have been admonished to take all necessary steps to assure that the accused is afforded due process:
Payne, 351 So. 2d at 542. See also, State v. Thomas; and Owens v. Owens, 514 So. 2d 1041 (Ala.Civ.App.1987).
In addition, § 15-12-20, Ala.Code 1975, requires the following procedures:
Unquestionably, this statute recognizes the right of a defendant in an indirect criminal contempt proceeding to be represented by counsel. Holt v. Virginia, 381 U.S. 131, 85 S. Ct. 1375, 14 L. Ed. 2d 290 (1965); State ex rel. Payne v. Empire Life Ins. Co.; Tapley v. Liberty Super Markets of Birmingham, 53 Ala.App. 363, 300 So. 2d 401, aff'd, 293 Ala. 137, 300 So. 2d 409 (1974). Where personal freedom is at stake, the United States Supreme Court has held that a due process basis for appointment of counsel is established. Lassiter v. Department of Social Services, 452 U.S. 18, 25-31, 101 S. Ct. 2153, 2158-61, 68 L. Ed. 2d 640 (1981). As courts from other jurisdictions, both federal and state, have noted, personal freedom is obviously at stake where a court reserves the discretionary power to incarcerate a defendant in contempt proceedings for nonsupport.[2]
The more subtle issue presented in this case is whether a trial court, before beginning a contempt hearing for nonsupport, must inform an indigent defendant of the right to be represented by counsel and of the right to have counsel appointed if needed. *82 It is my opinion that the constitutional guaranty of due process mandates procedures that include informing the defendant of the right to counsel and, therefore, I would hold that an indigent defendant may not be incarcerated if this procedure is not followed.
In Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1962), the Supreme Court held that representation by counsel is essential to protect the fundamental rights of life and liberty of an accused in a criminal prosecution, and that counsel must therefore be appointed if the defendant is indigent. Id. at 342-43, 83 S. Ct. at 795-96. This rationale has been held to apply to any criminal prosecution, no matter how slight the potential punishment may be, whenever a defendant stands to be deprived of his liberty as a result of the proceeding. Argersinger v. Hamlin, 407 U.S. 25, 32, 92 S. Ct. 2006, 2010, 32 L. Ed. 2d 530 (1972).
In Argersinger, the Supreme Court noted that imprisonment is never trivial to the person being deprived of liberty and that it is the result, not the nature of the particular offense, that requires appointment of counsel. 407 U.S. at 37, 92 S. Ct. at 2012. Thus, it is a defendant's interest in personal freedom, and not simply the special Sixth and Fourteenth Amendment right to counsel in criminal cases, that triggers the right to appointed counsel. "[F]rom the perspective of the person incarcerated, the jail is just as bleak no matter which label [civil or criminal contempt] is used." Walker v. McLain, 768 F.2d 1181, 1183 (10th Cir. 1985).
The reasons the law makes these requirements relating to representation by counsel were set out in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), wherein the Court stated that counsel was needed in such cases to "make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether [the accused] has a defense and to prepare and submit it." 387 U.S. at 36, 87 S. Ct. at 1448. The right to the assistance of counsel is such a fundamental component of due process that trial courts cannot be allowed to assume that the accused has some vague knowledge of that right and has chosen to waive it. Instead, the trial judge has the responsibility "of determining whether there [has been] an intelligent and competent waiver by the accused," and "[t]o discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand." Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S. Ct. 316, 323, 92 L. Ed. 309 (1948).
In Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962), the Court noted that "it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request." 369 U.S. at 513, 82 S. Ct. at 889. This is the conclusion that has been employed by other jurisdictions facing this issue in factual settings similar to that presented in this case.[3] Furthermore, courts cannot presume that a valid waiver occurred. Instead, the record must show that the accused was offered counsel "but intelligently and understandingly rejected the offer. Anything less is not waiver." Carnley, 369 U.S. at 516, 82 S. Ct. at 890.
*83 I realize the concerns that have been raised about the costs that would be incurred if the Court adopts the position I advocate here. Several courts addressing this issue have recognized the potential increased strain on state resources that would result from such a holding. In this case, there was no persuasive evidence of these increased costs presented, and the clear majority rule favors the protection of individual rights.[4] A good example of the reasoning employed by most courts encountering this issue is found in Walker v. McLain:
768 F.2d at 1184.
Other courts have discussed this issue in greater detail. See Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990), where the Michigan Supreme Court held that if in a contempt proceeding based on nonsupport a court determines that a defendant is indigent, and the court wishes to reserve the discretionary power to incarcerate the defendant, the court shall appoint an attorney to represent the defendant, unless the right is waived.
To support the proposition that defendants represented by counsel in child nonsupport proceedings generally receive less or no jail time, the Mead court cited McKinstry v. Genesee County Circuit Judges, 669 F. Supp. 801 (E.D.Mich.1987). The McKinstry court wrote:
669 F. Supp. at 807.[5]
Based on the foregoing, I would grant the writ and then reverse the judgment of the Court of Civil Appeals. My opinion is based entirely upon 1) what I find to be an erroneous interpretation of the Payne case, namely, the conclusion of the Court of Civil Appeals that a defendant, in a criminal contempt case, must affirmatively request to be represented by counsel, and 2) the requirements of § 15-12-20.[6] My conclusions should not be interpreted as meaning that I would require notice and appointment of counsel in all such proceedings. I would hold only that in a contempt proceeding for nonsupport an indigent defendant may not be incarcerated if the defendant has not been informed of the right to counsel or has been denied counsel.[7]
[1] While it appears that the trial court's classification of Jack Parcus's actions as "multiple" contempts, i.e., a contempt per month, may violate §§ 12-1-10 and 12-11-30, Ala.Code 1975, (authorizing "fines not exceeding $100.00" and "imprisonment not exceeding five days"), this issue was not raised in the petition and is not considered here.
[2] See Walker v. McLain, 768 F.2d 1181 (10th Cir.1985), cert. denied, 474 U.S. 1061, 106 S. Ct. 805, 88 L. Ed. 2d 781 (1986); Sevier v. Turner, 742 F.2d 262 (6th Cir.1984); Ridgeway v. Baker, 720 F.2d 1409 (5th Cir.1983); McKinstry v. Genesee County Circuit Judges, 669 F. Supp. 801 (E.D.Mich.1987); Johnson v. Zurz, 596 F. Supp. 39 (N.D.Ohio 1984); Lake v. Speziale, 580 F. Supp. 1318 (D.Conn.1984); Young v. Whitworth, 522 F. Supp. 759 (S.D.Ohio 1981); Mastin v. Fellerhoff, 526 F. Supp. 969 (S.D.Ohio 1981); County of Santa Clara v. Superior Court, 2 Cal. App. 4th 1686, 5 Cal. Rptr. 2d 7 (1992); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493 (1990); Sanders v. Shephard, 185 Ill.App.3d 719, 133 Ill.Dec. 712, 541 N.E.2d 1150 (1989); In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App. 1987); Hunt v. Moreland 697 S.W.2d 326 (Mo. App.1985); Cox v. Slama, 355 N.W.2d 401 (Minn.1984); Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228 (1983); McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982); Padilla v. Padilla, 645 P.2d 1327 (Colo.App.1982); Tetro v. Tetro, 86 Wash. 2d 252, 544 P.2d 17 (1975).
[3] See Walker v. McLain, 768 F.2d 1181 (10th Cir.1985), cert. denied, 474 U.S. 1061, 106 S. Ct. 805, 88 L. Ed. 2d 781 (1986) (at a minimum, due process requires a court to inform indigent defendant threatened with incarceration for civil contempt for nonsupport of right to appointed counsel); Johnson v. Zurz, 596 F. Supp. 39 (N.D.Ohio 1984) (indigent in contempt proceedings for failure to pay child support must be informed of right to appointed counsel); Lake v. Speziale, 580 F. Supp. 1318 (D.Conn.1984) (procedural due process requires that defendant faced with potential incarceration in a civil contempt proceeding to enforce child support orders existing for the benefit of the state be notified of the right to court appointed counsel); Dube v. Lopes, 40 Conn.Supp. 111, 481 A.2d 1293 (1984) (incarceration for civil contempt for nonpayment of child support without benefit of counsel violated due process rights of indigent father not advised of right); In re Marriage of Stariha, 509 N.E.2d 1117 (Ind.App.1987) (indigent defendant who may be incarcerated for contempt for failure to pay child support has the right to be informed of that right prior to commencement of contempt hearing).
[4] I note that oral argument was heard on this case on January 11, 1993, and that this Court specifically invited amicus briefs from interested parties. However, no amicus briefs were filed.
[5] See also Michele Hermann & Shannon Donahue, Fathers Behind Bars: The Right to Counsel in Civil Contempt Proceedings, 14 N.M.L.Rev. 275 (1984). The authors conducted a two-year study of a New Mexico county. During the two years, 131 men were jailed in that county on bench warrants for civil contempt arising out of their nonpayment of child support. Of the 102 contemnors for whom records were available, 74 (72.5%) were not represented by counsel. Twenty-eight (27.5%) were represented by counsel. The contemnors who were unrepresented spent an average of 14 days in jail, while those represented by counsel spent an average of 3 days in jail.
[6] Rule 33, Ala.R.Cr.P., sets out some of the requirements of law that must be followed before a person can be held in contempt of court.
[7] I should not be understood as concluding that Jack Parcus was indigent or that he did not waive his right to be represented by counsel in some manner not apparent from the record before us. | March 19, 1993 |
cc76ebcb-14ba-45b6-9b7b-5b15b6468067 | Shepherd v. Maritime Overseas Corp. | 614 So. 2d 1048 | 1911884, 1911890 | Alabama | Alabama Supreme Court | 614 So. 2d 1048 (1993)
Bessie SHEPHERD, individually and as administratrix of the Estate of Thomas P. Shepherd, deceased
v.
MARITIME OVERSEAS CORPORATION, et al.
Willie SPIVEY
v.
AMERICAN TRADING & PRODUCTION COMPANY (American Trading Transportation Company), et al.
Melvin SILVERS, Sr., and Eunice Silvers
v.
WATERMAN STEAMSHIP CORPORATION, et al.
Gerald T. PARHAM and Mary Parham
v.
WATERMAN STEAMSHIP CORPORATION, et al.
George LEE and Nell Lee
v.
CHEVRON U.S.A., INC., et al.
Elmer CLARK
v.
WATERMAN STEAMSHIP COMPANY, et al.
Phyllis BURNETT, individually and as executrix of the Estate of James L. Burnett, Sr., deceased
v.
LYKES BROTHERS STEAMSHIP CORPORATION, et al.
1911884 to 1911890.
Supreme Court of Alabama.
March 12, 1993.
*1049 Mitchell G. Lattof, Jr. of Lattof & Lattof, P.C., Mobile, for appellants.
Joseph M. Allen, Jr., Gregory C. Buffalow and C. William Rasure, Jr. of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellees.
HOUSTON, Justice.
The plaintiffs in these consolidated actions are 1) former seamen who claim to have suffered severe and debilitating illness because of exposure to asbestos while working on board various ships that were owned and operated by the defendants; 2) the personal representatives of deceased seamen who the representatives say died as a result of exposure to asbestos; and 3) the seamen's wives, who sue derivatively for damages for loss of consortium. The plaintiffs base their right to recover damages on, among other things, the Jones Act, 46 U.S.C. App. § 688 et seq., and general maritime law. The defendants moved to dismiss the plaintiffs' complaints on the ground that the plaintiffs already had separate actions pending against certain manufacturers and distributors of asbestos products. In those actions, six of which were filed in either a state or a federal court in Dallas, Texas, and one of which was filed in the Jefferson County, Alabama, Circuit Court, the plaintiffs sought to recover damages based on allegations of negligence, wantonness, and breach of implied warranty, in connection with the sale and distribution of certain asbestos products. None of the defendants named in the present actions was named as a defendant in the Texas actions or in the action filed in Jefferson County. As an alternative ground for dismissal, the defendants argued that Mobile County was not the most convenient forum in which to try these actions. The trial court dismissed the plaintiffs' actions without stating the ground or grounds on which it based its decision. The plaintiffs appealed. We reverse and remand.
The first issue presented for our review is whether the trial court could have dismissed these actions on the ground that the plaintiffs had previously sued certain manufacturers and distributors of asbestos products.
The plaintiffs contend that Ala.Code 1975, § 6-5-440, controls this case. That section provides:
The plaintiffs argue that § 6-5-440 is a codification of the common law and that it requires that an action be dismissed only if the plaintiff has a separate action pending against the same defendant or defendants in an Alabama court, based on the same cause of action. They correctly point out that all of the federal actions previously filed were filed in a federal court in Texas and that none of the actions previously filed involved these defendant shipowners or were based on either the Jones Act or general maritime law. Therefore, the plaintiffs maintain, their actions should not have been dismissed.
The defendants contend that § 6-5-440 is more "limited in scope" than the common law. They further contend that § 6-5-440 "should not be read to exclude defenses of abatement based on the more general and more liberal common law provisions." The defendants insist that the "more liberal common law provisions" required that the plaintiffs' actions be dismissed. We disagree.
"There is a well-recognized common law rule forbidding the splitting of causes of action.... [Section 6-5-440] is but a codification of the common law." Sessions v. Jack Cole Co., 276 Ala. 10, 14, 158 So. 2d 652, 656 (1963); see, also, Ex parte Barclay-Hays Lumber Co., 211 Ala. 500, 101 So. 179 (1924) (construing the predecessor to § 6-5-440); 1 C.J.S. Abatement and Revival, §§ 17, 19, 21, 39, 40(a), 41, 42, 43, 56, 63, 65 (1936). Section 6-5-440 and the caselaw in this state interpreting it stand for the proposition that a plaintiff cannot prosecute two actions in the courts of this state at the same time, based on the same cause of action, against the same party. Johnson v. Brown-Service Ins. Co., 293 Ala. 549, 307 So. 2d 518 (1974). The purpose of § 6-5-440 and its predecessors is to prevent unnecessary and vexatious litigation. Sessions v. Jack Cole Co., supra.
Each of the plaintiffs is seeking to recover damages both from the manufacturers and distributors of certain asbestos products and from the shipowners, based on the alleged infliction of a single indivisible injury (i.e., illness caused by exposure to asbestos). It is clear, therefore, that each of the plaintiffs has a single cause of action, albeit against two separate groups of defendants, based on the alleged breach of the respective duties owed by each group of defendants. See Jones v. Russell, 206 Ala. 215, 218, 89 So. 660, 662-63 (1921), wherein Chief Justice Anderson, writing for this Court, stated:
"McCoy v. L. & N.R.R., 146 Ala. 333, 40 South. 106, and numerous authorities there cited.
"See, also, Cooley on Torts p. 247; Matthews v. Delaware Co., 56 N.J. Law, 34, 27 Atl. 919, 22 L.R.A. 261.
In Brooks v. City of Birmingham, 239 Ala. 172, 175, 194 So. 525, 527 (1940), this Court explained:
(Citations omitted.)
As the holdings in Jones and Brooks illustrate, a plaintiff does not violate the prohibition set out in § 6-5-440 by prosecuting separate actions in this state against joint tort-feasors, based on a single cause of action. The obvious reason, of course, is that the plaintiff is not prosecuting two actions "against the same party." Because the undisputed facts show that none of the defendants named in the previously filed actions were named as defendants in the present actions, and because the undisputed facts show that six of the actions were filed in Texas, we conclude that § 6-5-440 did not require the dismissal of the plaintiffs' actions.[1]
We again emphasize, however, that in these actions, as well as in those actions previously filed, the plaintiffs are seeking to enforce one primary right (i.e., the right to recover damages arising out of an illness caused by exposure to asbestos). It is a universal rule that a plaintiff, although entitled to full compensation for an injury, is entitled to only one recovery for a single injury caused by two or more tort-feasors. See Jones v. Russell, supra; Williams v. Colquett, 272 Ala. 577, 133 So. 2d 364 (1961); see, also, 22 Am.Jur.2d Damages § 559 (1988). Therefore, should the plaintiffs obtain a judgment for compensatory damages against the manufacturers and distributors of the asbestos products and thereafter receive satisfaction of that judgment, they cannot then pursue their claims for compensatory damages against the shipowners. We do not address whether an unsatisfied judgment for compensatory damages against the manufacturers and distributors of the asbestos *1052 products would, in effect, limit the amount of compensatory damages that the plaintiffs could recover against the shipowners.
The second issue presented is whether the dismissals of the plaintiffs' complaints were proper under Ala.Code 1975, § 6-5-430. That section provides:
Recently, in Donald v. Transport Life Ins. Co., 595 So. 2d 865, 867 (Ala.1992), this Court reaffirmed the standard governing dismissal on the ground of forum non conveniens:
The records in these cases reveal no evidence on which the trial court could have based a dismissal under § 6-5-430. To the contrary, based on the allegations contained in the plaintiffs' complaints (i.e., that the plaintiffs who were exposed to asbestos are all residents of Alabama who worked on ships operating in the coastal waters of Alabama), it appears to us that the Circuit Court of Mobile County would probably be the proper forum in which to try these actions.
For the foregoing reasons, we hold that the trial court erred in dismissing these seven actions.
1911884 through 1911890REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] We note that we have read all of the cases relied on by the defendants and that we have carefully considered the defendants' arguments. We specifically note the defendants' reliance on Ex parte Myer, 595 So. 2d 890 (Ala.1992), and Edelman v. Poe, 267 Ala. 387, 103 So. 2d 333 (1958). Those cases, however, are not controlling here. In Ex parte Myer, this Court, relying on Edelman, held that the defendants' failure to plead a compulsory counterclaim in an action pending against them in a federal district court in Alabama was a ground for abating a subsequent state action filed by the defendants where the parties in the two actions were substantially the same. In Edelman, this Court affirmed a dismissal of the plaintiffs' second action because the relief sought was available in an earlier action that had been filed by the plaintiff against the same defendant in the same court, even though the plaintiff had not specifically sought that relief in the earlier action. These holdings are consistent with the general rule that a second action may be abated if the party who has filed it is able to obtain in the prior pending action all of the relief sought in the second action. See 1 C.J.S. Abatement and Revival § 43 (1936). Both of these holdings further the goals underlying the abatement rule by preventing unnecessary and vexatious litigation between the same parties. They do not, in our view, stand for the proposition urged by the defendantsthat these actions were properly dismissed because the plaintiffs did not sue the defendants along with the manufacturers and distributors in their previous actions. | March 12, 1993 |
771ed603-48ba-4f08-aa80-fe5cc55b5521 | Floyd v. Title Exchange and Pawn of Anniston, Inc. | 620 So. 2d 576 | 1911562 | Alabama | Alabama Supreme Court | 620 So. 2d 576 (1993)
Robert K. FLOYD, as supervisor of the Bureau of Loans of the State Banking Department
v.
TITLE EXCHANGE AND PAWN OF ANNISTON, INC.
1911562.
Supreme Court of Alabama.
March 12, 1993.
Rehearing Denied April 30, 1993.
Terry R. Smyly, Gen. Counsel, State Banking Dept., Montgomery, for appellant.
C. Michael McInnish of McInnish & Bright, P.C., Montgomery, and Alan E. Lubel and Troutman Sanders, Atlanta, GA, for appellee.
MADDOX, Justice.
The sole issue presented by this appeal is whether a person can pawn an automobile certificate of title and retain possession of the automobile. The answer depends on whether the legislature intended an automobile certificate of title to be "tangible personal property," within the meaning of the Alabama Pawnshop Act[1] enacted in 1992.
The supervisor of the Bureau of Loans of the State Banking Department took the position that the business transaction was not a "pawn transaction," but was a small loan transaction governed by the provisions of Alabama's Small Loan Act. The trial court held that an automobile certificate of title was not a chose in action, and that the provisions of the Alabama Pawnshop Act were broad enough to permit a customer to give constructive possession of the automobile to the pawnbroker, while retaining physical possession of it. The court, therefore, ruled against the State Banking Department. We affirm, because we hold, as *577 did the trial court, that the legislature has not prohibited the pawning of an automobile certificate of title.
Title Exchange and Pawn of Anniston, Inc., is a Georgia corporation that was qualified and licensed to do business as a pawnbroker in Anniston, Alabama, before the enactment of the Alabama Pawnshop Act, which became effective on May 21, 1992. Title Exchange has voluntarily limited its business to the pawning of automobiles and automobile certificates of title.
Title Exchange's business operation can be typically described as follows: The customer goes to Title Exchange, and if the parties can agree, the customer endorses his or her automobile certificate of title in blank and delivers it and the keys to the automobile to Title Exchange for an amount of money not exceeding $750.00, the customer agreeing to repay the amount within a period not exceeding 12 weeks. The customer is permitted to keep actual possession of the automobile during the period, and most customers do keep the automobile. The customer incurs no extra charge for being allowed to keep the automobile. No fees are charged other than those allowed by law to be charged for a pawn transaction, and Title Exchange has no right of action against the customer for any money lent other than its right to sell the automobile, as permitted by a repossession agreement and a pawn ticket that the customer signs. If a customer defaults on the agreement and Title Exchange is unable to collect the amount due, Title Exchange repossesses the automobile and sells it.
Robert K. Floyd, supervisor of the Bureau of Loans of the State Banking Department, oversees all pawn activities in Alabama. After the Pawnshop Act became law, he notified Title Exchange that, in his opinion, its practice violated the Act. Title Exchange voluntarily ceased its operation and sued Floyd and the attorney general, seeking a judgment declaring that the Act did not prohibit its practice; it also sought a temporary restraining order and a preliminary injunction to prevent the closing of its business until a hearing could be held and the declaratory judgment could be entered. Floyd answered the complaint, contending that an automobile certificate of title was not "tangible personal property" within the meaning of the Act.[2]
*578 After a hearing, the trial court dismissed the attorney general as a party, granted the declaratory relief sought by Title Exchange, and permanently enjoined Floyd from trying to prevent Title Exchange's practice. Floyd appeals.
Floyd argues that Title Exchange's business practice is not a "pawn transaction" under the Pawnshop Act, and, therefore, that Title Exchange is violating the provisions of the Small Loan Act, Ala.Code 1975, §§ 5-18-1 through -24.[3] Particularly, Floyd argues that Title Exchange makes small loans without a license and charges excessive rates of interest.[4]
A "pawn transaction" is "[a]ny loan on the security of pledged goods or any purchase of pledged goods on condition that the pledged goods are left with the pawnbroker and may be redeemed or repurchased by the seller for a fixed price within a fixed period of time." § 5-19A-2(3). Sale or "leaseback" transactions are specifically excluded. Id. "Pledged goods" are "[t]angible personal property other than choses in action, securities, or printed evidence of indebtedness, which property is purchased by, deposited with, or otherwise actually delivered into the possession of a pawnbroker in connection with a pawn transaction." § 5-19A-2(6).
Our legislature did not specifically state what it meant by the words "tangible personal property" in the Act, as the legislatures of some other states have done.[5] "Tangible" means "[c]apable of being touched and seen." Black's Law Dictionary 1456 (6th ed. 1990). "Personal property" generally includes "all property other than real estate." Id. at 1217. Broadly speaking, "property" includes "every species of valuable right and interest." Id. at 1216. Thus, the phrase "tangible personal property" has been defined as "personal property, palpable, susceptible to the sense of touch, capable of ownership, and endowed with intrinsic value." Pagliarulo v. National Shawmut Bank, 353 Mass. 449, 450, 233 N.E.2d 213, 214 (1968).
The trial court, although it questioned whether a certificate of title could be classified as "tangible personal property," nevertheless concluded that the transaction was a "pawn transaction" within the meaning of the Alabama Pawnshop Act, because Title Exchange had at least "constructive possession" of the automobile.
The trial judge entered conclusions of law, which included the following:
We agree with the trial court that it is questionable whether an automobile certificate of title is "tangible personal property," as that term is generally understood, but we also agree with the trial court that an automobile certificate is not a "chose in action," which the legislature specifically excluded from the definition of "pledged goods."[6]
The supervisor of the Bureau of Loans, in his brief and at oral argument, insisted strongly that Title Exchange's business practice should be regulated under the provisions of Alabama's Small Loan Act. If our interpretation of the Alabama Pawnshop Act is incorrect, the legislature, of course, can easily amend the Act so that there will be no doubt in the mind of the lender or the regulator as to what the legislature intended.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
ALMON and SHORES, JJ., dissent.
[1] Act No. 92-597, Ala. Acts 1992; Ala.Code 1975, §§ 5-19A-1 through -20 (Supp.1992).
[2] The supervisor specifically set forth his official position regarding the taking of automobile titles in pawn:
"10. A `title' whether it be an `automobile title' or some other type of `title' is not `tangible personal property' within the meaning of the Alabama Pawnshop Act, but is mere evidence of right to possession. When a `title' is held by someone other than the person having the possession of the actual property to which the `title' applies, then the `title' is either a `chose in action' or an `evidence of indebtedness.' The taking of an `automobile title' in pawn, as Title Exchange and Pawn states that it has done for years, amounts to nothing more than the making of a secured loan. Banks, credit unions, and licensed loan companies in Alabama make such loans routinely. They require title to be held by them, and many require a set of keys for repossession purposes.
"11. It is a matter of common sense that an `automobile title' is not `tangible personal property' separate and apart from the actual automobile to which [it] applies. Title Exchange and Pawn cites no cases to the contrary. It is doubtful whether contrary cases exist anywhere. In any event, should an `automobile title' be deemed to be `tangible personal property' within the meaning of the Alabama Pawnshop Act then every lender in the State of Alabama, whether a bank, a credit union, or a loan company would be foolish not to obtain a pawnshop license and conduct all of their consumer lending operations as `pawn of title' transactions. If an `automobile title' is `tangible personal property' then so would be title to a stereo, a guitar, a washing machine, and virtually any other item of personal property a potential borrower might have.
"12. When a person `pawns' an item they leave it with the pawnbroker; they do not take it with them and they do not have to pick it up and pay the pawn charge if they do not want to. This is what makes pawnbrokers different from other lenders and this is why pawnbrokers are permitted to charge substantially higher rates. It may be assumed that a person who can leave an item in pawn for a period of time can do without that item. No similar assumption can be made with respect to an automobile which may be used by such a person as transportation to and from work and which is, in any event, a necessity for most borrowers."
Appellant's brief, pp. 4-5.
The supervisor says that if a bank, a credit union, or a licensed loan company were to charge 300% A.P.R. on a secured loan it would be unconscionable. The supervisor argues that the pawnbrokers are entitled to the pawnshop rate of 300% A.P.R. only on legitimate pawn transactions and that if they are going to make secured loans then they should obtain either a Mini-Code, Ala.Code 1975, § 5-19-1 et seq., or a small loan license and should charge only Mini-Code or small loan rates.
[3] A "bona fide pawnbroking business" is exempt from the Small Loan Act. § 5-18-4(b).
[4] The Small Loan Act permits an interest rate of either two or three percent per month, depending on the amount of the unpaid balance, § 5-18-15(a), whereas the Pawnshop Act permits a charge of 25% of the principal amount per month. § 5-19A-7(a).
[5] The Georgia legislature, for example, specifically defined "pledged goods" to include automobile certificates of title. Section 44-12-130 of the Georgia Code provides, in part:
"`Pledged goods' means tangible personal property, including, without limitation, all types of motor vehicles or any motor vehicle certificate of title, which property is purchased by, deposited with, or otherwise actually delivered into the possession of a pawnbroker in connection with a pawn transaction. However, for purposes of this Code section, possession of any motor vehicle certificate of title which has come into the possession of a pawnbroker through a pawn transaction made in accordance with law shall be conclusively deemed to be possession of the motor vehicle, and the pawnbroker shall retain physical possession of the motor vehicle at any time. `Pledged goods' shall not include choses in action, securities, or printed evidences of indebtedness."
[6] Ala.Code 1975, § 5-19A-2(6), reads:
"Pledged goods. Tangible personal property other than choses in action, securities, or printed evidences of indebtedness, which property is purchased by, deposited with, or otherwise actually delivered into the possession of, a pawnbroker in connection with a pawn transaction." | March 12, 1993 |
42538cc3-c9c6-485d-9d8d-7ae05a27dad8 | Garikes, Wilson v. Episcopal Foundation | 614 So. 2d 447 | 1911557 | Alabama | Alabama Supreme Court | 614 So. 2d 447 (1993)
GARIKES, WILSON, AND ATKINSON, INC.
v.
The EPISCOPAL FOUNDATION OF JEFFERSON COUNTY, INC.
1911557.
Supreme Court of Alabama.
March 5, 1993.
*448 James H. Starnes, Carol Ann Smith and Rhon E. Jones of Starnes & Atchison, Birmingham, for appellant.
William S. Dodson, Jr. and Warren B. Lightfoot, Jr. of Maynard, Cooper, Frierson & Gale, P.C., Birmingham, for appellee.
PER CURIAM.
The plaintiff, Garikes, Wilson, and Atkinson, Inc. ("Garikes"), appeals from a summary judgment in favor of the defendant, the Episcopal Foundation of Jefferson County (the "Foundation").
At issue is whether a contract between Garikes (an architectural firm) and the Foundation involves interstate commerce and thus, invokes federal law that would render an arbitration provision in the contract enforceable.
The following facts are undisputed:
The Foundation, located in Jefferson county, is a non-profit Alabama corporation. It owns St. Martin's-in-the-Pines, a retirement community located in Birmingham. Garikes is an Alabama corporation with its place of business in Birmingham.
On July 8, 1985, the Foundation contracted with Garikes for "design and construction administration services" related to an addition to St. Martin's-in-the-Pines. This contract was negotiated and executed in Alabama.
Also, this contract contained a predispute arbitration agreement. Such agreements are unenforceable under Alabama law. Ala.Code 1975, § 8-1-41. However, if a contract containing a predispute arbitration provision involves interstate commerce and the provision is voluntarily agreed to, then the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA"), applies. Where the FAA applies, it preempts Alabama law. See Ex parte Alabama Oxygen Co., 433 So. 2d 1158 (Ala. 1983) (Maddox, J., dissenting), review after remand from United States 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 *449 FAA, a predispute arbitration agreement is enforceable. Id.
After the addition was constructed, a dispute arose over a heating and cooling system. The Foundation sought arbitration of the dispute. Garikes sued, seeking to enjoin arbitration. Garikes argued that Alabama law, rather than the FAA, applies, because, it says, the contract did not involve interstate commerce. Under Alabama law, the arbitration provision would be unenforceable.
The Foundation correctly argues that even the "slightest nexus" of an agreement with interstate commerce will bring the agreement within the scope of the FAA. Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272, 1275 (Ala.1986); Ex parte Brice Building Co., 607 So. 2d 132 (Ala.1992). As proof of the interstate nature of the contract, the Foundation cites the following provisions; these provisions relate to another contract, one between the Foundation ("owner") and the project contractor:
Nothing in these provisions shows a nexus, even a slight one, between the contract at issue and interstate commerce. We cannot determine with specificity or precision from these provisions what it was that Garikes was to administer, much less whether it was to administer anything relating to interstate commerce. Other matters that might shed light on this question are not before us. For example, the parties do not indicate whether the contractor was an in-state or an out-of-state contractor, and the terms of the contractor's contract are not in the record.
We certainly cannot conclude that, as the Foundation argues, there was some contractual link between Garikes and the contractor's purported use of out-of-state materials.
The Foundation makes additional arguments and factual allegations. However, as to those that are are relevant, the Foundation failed to comply with Ala.R.App.P. 28(a). Accordingly, we do not discuss these arguments and allegations.
Based on the foregoing, the judgment of the trial court is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | March 5, 1993 |
da74b16f-5606-4077-a203-1264a14307f1 | Ex Parte Cash | 624 So. 2d 576 | 1911537 | Alabama | Alabama Supreme Court | 624 So. 2d 576 (1993)
Ex parte James CASH.
(In re James CASH v. BLUE MOUNTAIN INDUSTRIES OF CARISBROOK COMPANY).
1911537.
Supreme Court of Alabama.
March 12, 1993.
*577 Stewart Burns of Burns, Burns & Burns, Gadsden, for petitioner.
James S. Hubbard, Anniston, for respondent.
HORNSBY, Chief Justice.
We have granted James Cash's petition for certiorari review of a judgment of the Court of Civil Appeals affirming the trial court's denial of worker's compensation benefits. We reverse and remand.
From 1970 to 1990 Blue Mountain Industries ("BMI") employed Cash to work in its cotton mill. On March 13, 1990, Cash was admitted to a hospital with complaints of coughing, wheezing, tightening of the chest, and shortness of breath.[1] Dr. Henry Born examined him and diagnosed him as suffering from byssinosis, an asthmatic condition caused by an allergy to cotton dust. On June 4, 1990, Cash filed a worker's compensation action against BMI. The case was tried ore tenus. On May 24, 1991, the trial court entered a judgment for BMI because, it found, Cash did not suffer from byssinosis. On August 6, 1991, the trial court denied Cash's motion to alter, amend, or vacate the judgment, or, in the alternative, for a new trial. The Court of Civil Appeals affirmed. Cash v. Blue Mountain Industries of Carisbrook Co., 624 So. 2d 574 (Ala.Civ.App.1992).
Ex parte Eastwood Foods, Inc., 575 So. 2d 91, 93 (Ala.1991). However, in ore tenus cases, this standard of review is applicable only to the trial court's findings of fact, not its conclusions of law. See Moore v. McNider, 551 So. 2d 1028 (Ala.1989); Williams v. Nearen, 540 So. 2d 1371 (Ala.1989).
In this case the trial court made the following findings: "[W]hile [Cash] may suffer from adult onset asthma or hyper-reactive airways, both chronic obstructive conditions..., he does not suffer from byssinosis ..., nor is his condition caused by employment related factors." The Court of Civil Appeals affirmed the trial court's judgment, because, it said, there was legal evidence to support the trial court's finding that Cash did not have byssinosis and a reasonable view of that evidence supported the judgment denying worker's compensation benefits.
Cash argues that the Court of Civil Appeals judgment against him should be reversed because, he says, that judgment and the judgment by the trial court ignore the law in Alabama that a disease is compensable when it is caused by or is aggravated by the nature of the employment. See Taylor v. United States Steel Corp., 456 So. 2d 831, 832 (Ala.Civ.App.1984); Dodson v. Atrax Division of Wallace-Murray Corp., 437 So. 2d 1294, 1297 (Ala.Civ.App.1983); Chrysler Corp. v. Henley, 400 So. 2d 412, 415 (Ala.Civ. App.1981). Cash further argues that no reasonable view of the evidence in this case supports the trial court's judgment against him because, he says, no evidence supports any finding other than that Cash suffered from a disease, either asthma or hyper-reactive airways, that was aggravated by the nature of his employment. We agree with both of Cash's contentions.
The Court of Civil Appeals has held that, even if an employee has a pre-existing disease, his injury is compensable when job-related factors combine with his disease or aggravate his disease and, thereby, produce an injury. Taylor, 456 So. 2d at 832. Further, chronic obstructive pulmonary diseases such as asthma and hyper-reactive airways can be occupational diseases. See Dodson, 437 So. 2d at 1297; Henley, 400 So. 2d at 414.
*578 To the extent that the trial court made findings of fact in this case, we agree with the Court of Civil Appeals that there was legal evidence to support those findings. However, the trial court focused only upon whether Cash suffered from an occupational disease caused by employment-related factors. It made no finding as to whether Cash suffered from a disease aggravated by exposure to cotton dust. At trial, the parties presented expert testimony agreeing that Cash had an asthmatic condition that worsened with exposure to cotton dust. Dr. Born testified by deposition on Cash's behalf that he believed Cash suffered from asthma and that he had advised Cash not to return to work, because he had found that Cash's condition had worsened when Cash was exposed to cotton dust. BMI presented the expert testimony of Dr. John Cooper, a pulmonary specialist who examined Cash after he sued for benefits. Dr. Cooper admitted on cross-examination that he believed Cash suffered from an obstructive airway disease other than byssinosis, such as asthma or hyper-reactive airways, an asthmatic-like condition. Cooper further testified that the symptoms Cash exhibited were probably not caused by cotton dust but "that his symptoms [did] worsen when he [was] exposed to the cotton dust."
Inasmuch as the trial court and the Court of Civil Appeals focused only on whether Cash suffered from an injury caused by his work environment and not upon whether he suffered from a disease that was aggravated by his work environment, the trial court and the Court of Civil Appeals misapplied the law to the facts of this case. Further, because the experts agreed that Cash suffered from a disease, either asthma or hyper-reactive airways, or both, and that cotton dust aggravated Cash's disease, no reasonable view of the evidence supports a judgment holding that Cash's disease was not compensable. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand for that court to instruct the trial court to enter a judgment for Cash awarding worker's compensation benefits in the appropriate amount.
REVERSED AND REMANDED.
ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., dissents without opinion.
[1] Cash does not smoke. | March 12, 1993 |
d8d31063-f57e-47ac-ac65-cdb5d855d1bc | Kennedy v. Jack Smith Enterprises, Inc. | 619 So. 2d 1326 | 1911618 | Alabama | Alabama Supreme Court | 619 So. 2d 1326 (1993)
Anna M. KENNEDY
v.
JACK SMITH ENTERPRISES, INC., and McDonald's Corporation.
1911618.
Supreme Court of Alabama.
March 5, 1993.
Rehearing Denied April 23, 1993.
*1327 Clifford C. Sharpe and C.S. Chiepalich, Mobile, for appellant.
M. Kathleen Miller and Scott G. Brown of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
KENNEDY, Justice.
The plaintiff, Anna M. Kennedy, appeals from a judgment based on directed verdicts in favor of the defendant Jack Smith Enterprises ("Smith") as to a wantonness claim and the defendant McDonald's Corporation as to all of Kennedy's claims against it. We affirm.
The record indicates the following pertinent facts.
Kennedy patronized a McDonald's restaurant owned and operated by Smith, on a regular basis, usually three times a day. Typically, at lunch, she would pick up her meal at the drive-in window and eat it in her car in the restaurant parking lot.
On May 11, 1990, the restaurant parking lot was being resurfaced. Kennedy purchased her lunch at the drive-in window and decided to back into a shaded parking place to eat. After eating, Kennedy exited her car and walked down the sidewalk to dispose of her trash. After doing so, and as she was returning to her car, Kennedy tripped over a car stop and was injured.
The car stop that Kennedy tripped over was black, as was the parking lot pavement. Kennedy states that the car stop was effectively camouflaged by its paint color, and that her injuries resulted from its coloration.
Kennedy alleged that Smith had known of a similar previous tripping incident, but had never attempted to investigate or remedy any problem caused by the paint color on the car stops.
Kennedy sued McDonald's Corporation and Smith, alleging that Smith had acted negligently and wantonly and claiming that McDonald's Corporation was liable for Smith's acts, on an agency theory. Also, Kennedy made one claim against McDonald's Corporation individually, alleging that it had negligently inspected the parking lot area and that its negligent inspection had caused the injury.
After the close of Kennedy's evidence, the court directed a verdict in favor of McDonald's Corporation on the ground that there was insufficient proof of agency and, apparently, on the ground that there was insufficient proof on the negligence claim against it individually. The court directed a verdict for Smith on the wantonness claim against him. The negligence claim against Smith was submitted to the jury, which returned a verdict for Smith. Kennedy appeals.
A defendant seeking a directed verdict must show that the plaintiff's evidence shows no genuine issue of material fact *1328 and that the defendant is entitled to a judgment as a matter of law. If the defendant does so, and the claimant in rebuttal, fails to produce substantial evidence in support of each element of his or her claims, then a directed verdict is proper. Danforth v. Arnold, 582 So. 2d 545 (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 (Ala.1989). On this appeal, the issues relate to whether Kennedy presented substantial evidence. We first address the directed verdict as to the wantonness claim.
What constitutes wantonness depends on the facts presented in each particular case. Pate v. Sunset Funeral Home, 465 So. 2d 347, 349 (Ala.1984); Westbrook v. Gibbs, 285 Ala. 223, 231 So. 2d 97 (1970). For a party to be found guilty of wantonness, it must be shown that with reckless indifference to the consequences of his or her action, the party consciously and intentionally did some wrongful act or omitted some known duty, and that this act or omission caused the injury. Brown v. Turner, 497 So. 2d 1119 (Ala.1986).
After a thorough review of the evidence, we agree that the plaintiff's evidence was inadequate to justify submitting the wantonness claim to the jury. In this respect, we reject Kennedy's argument that Smith's knowledge of one tripping incident that had occurred more than three years earlier was "substantial evidence" that Smith had acted wantonly. There was no evidence suggesting that the first tripping incident was related to the color of the car stop.
Because we affirm the judgment for the defendant Smith, we need not consider any issues relating to whether Smith was the agent of the defendant McDonald's Corporation. Any error in concluding that there was no agency relationship would have been harmless.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | March 5, 1993 |
69f7feed-18bc-4026-bb0b-8e18835758cc | Weathers Auto Glass v. Alfa Mut. Ins. | 619 So. 2d 1328 | 1920238 | Alabama | Alabama Supreme Court | 619 So. 2d 1328 (1993)
WEATHERS AUTO GLASS, INC.
v.
ALFA MUTUAL INSURANCE COMPANY.
1920238.
Supreme Court of Alabama.
March 5, 1993.
Rehearing Denied April 23, 1993.
*1329 Lindsey Mussleman Davis of Holt, McKenzie, Holt & Mussleman, Florence, for appellant.
Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellee.
SHORES, Justice.
The plaintiff, Weathers Auto Glass, Inc. ("Weathers"), appeals from a summary judgment for the defendant, Alfa Mutual Insurance Company ("Alfa"). We affirm.
Weathers is in the business of installing and repairing glass in automobiles. It often does work for customers who have insurance to cover the cost of repairs; some of its customers are insured by Alfa. Weathers complained that, two years before, Alfa had negotiated an agreement with another glass repair company, Safelite Glass Company. By that agreement Safelite would make glass repairs at a price agreed upon by Safelite and Alfa if the policyholders chose Safelite to make their repairs. After negotiating the agreement with Safelite, Alfa began paying Weathers the same amount Safelite had agreed to accept, which was less than the invoices Weathers submitted for payment.
Weathers (1) alleged intentional interference with contract and sought damages for that interference, (2) sought payment of invoices in the amount of $1,500, and (3) sought a judgment declaring that it is a third-party beneficiary of Alfa policies.
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.
We affirm that portion of the summary judgment holding that Weathers is not a third-party beneficiary of Alfa's automobile insurance policies. A party claiming to be a third-party beneficiary of a contract must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party. There was no substantial evidence that, when it agreed to insure a policyholder, or at any time thereafter, Alfa intended to bestow a benefit upon Weathers or upon any other automobile repair service provider. Ramsey v. Taylor, 567 So. 2d 1325, 1327 (Ala.1990); Colonial Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390, 395 (Ala.1989); Collins Co. v. City of Decatur, 533 So. 2d 1127, 1132 (Ala.1988).
The summary judgment was also proper against Weathers's claim alleging an intentional interference with a contract, because there was no contractual relationship to be interfered with. Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590, 597 (Ala.1986). The claim for $1,500 in damages also must also fail because it is founded upon contract, but Weathers had no contractual relationship with Alfa. Marsala v. Gulf Shores Building Supply, Inc., 367 So. 2d 479, 481 (Ala. Civ.App.1979).
AFFIRMED.
HORNSBY, C.J., and HOUSTON, KENNEDY and INGRAM, JJ., concur. | March 5, 1993 |
664ee86f-eca3-4b79-87b3-1138641363bf | Robertson v. Travelers Inn | 613 So. 2d 376 | 1911424 | Alabama | Alabama Supreme Court | 613 So. 2d 376 (1993)
Frances Annette ROBERTSON and Lawrence E. Robertson
v.
TRAVELERS INN.
1911424.
Supreme Court of Alabama.
February 5, 1993.
*377 Robert M. Hill, Jr. of Hill & Young, Florence, for appellants.
J. Glynn Tubb of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee.
MADDOX, Justice.
This is a slip and fall case, in which a motel guest and her husband sued the motel, alleging that it had negligently and wantonly caused or allowed water to be on the floor of the motel unit the guest and her husband were renting. The wife sued for damages based on personal injuries she received; the husband sued for damages for loss of consortium.
The trial court entered a summary judgment in favor of the defendant, Travelers Inn, and against the plaintiffs, Frances and Lawrence Robertson, apparently on the ground that Mrs. Robertson had been aware that the floor was wet before she slipped and fell on it. The Robertsons appeal. We reverse and remand.
In May 1991, Frances and Lawrence Robertson obtained lodging at the Travelers Inn motel in Tuscumbia, Alabama, while Mr. Robertson was employed at a nearby gas line project. Travelers Inn is a business operating and maintaining a motel for lodging for the general public. Lawrence Robertson does construction work at various locations within the state, and the Robertsons obtain temporary lodging from job to job. At the defendant's motel, the Robertsons paid a weekly rate that did not include maid service or linens.
On the day of the accident, June 3, 1991, Lawrence Robertson left for work at 6:00 a.m., and Frances Robertson, during the day, cleaned the unit, made lunch, watched television, and had two beers during the afternoon, as was her custom. Mrs. Robertson, as well as other guests of the Inn, had complained to the motel manager that they were not getting hot water. The water heater in the unit occupied by the Robertsons furnished hot water to several rooms besides theirs. The motel manager arrived at about 9:00 a.m. to work on the water heater. During the course of this work, the manager drained the water heater *378 by running a hose from the bottom of it out the front door of the Robertsons' unit.
While the manager was working on the water heater, Mrs. Robertson was visiting and watching television with a friend, Anita Hopper, who was also residing at the motel with her husband. The two women remained in the Robertson unit while the manager was working on the water heater.
The water heater was located in a closet off the kitchenette of the Robertsons' unit. An area of the kitchenette floor beside the closet door was covered with carpet; the remainder of the kitchenette floor was tile. The hose that the manager had attached to the water heater ran out the closet door, then curved and ran out the front door of the Robertsons' unit.
It was after lunch when the manager finished working on the water heater. During the morning, while he was draining it, he said, "I'm making a mess; we'll have to clean it up." He then disconnected the hose and left. He later returned but did not dry up the water that had leaked onto the floor.
Mrs. Robertson and Mrs. Hopper dried the water off the tile floor with towels. The water had leaked across both the carpet area and the tile area of the kitchenette floor. They did not attempt to dry the water off the carpet, because they did not believe it was very wet. After the manager had left, Mrs. Robertson felt moisture on the carpet as she walked across it barefoot. She testified that she did not know the carpet was so wet that the water would seep from it onto the tile area that she and Mrs. Hopper had dried. After they had dried the water off the tile area, Mrs. Robertson was in and out of the kitchenette while cooking supper; she felt some dampness while walking over the carpeted area with her bare feet, but most of her activities were in the tile area of the kitchenette.
When Mr. Robertson came in from work about 6:00 p.m., Anita Hopper left. The Robertsons ate dinner. After dinner, and while Mr. Robertson was showering, Mrs. Robertson laid out his clothes and prepared the bed. She then told him that she was going to ask Anita Hopper to come and watch television with her and she then left the bedroom. When she cut across the corner of the kitchenette from the carpet area onto the tile area, she slipped in water, which had seeped from the carpet onto the tile, and fell, receiving the injuries for which she claims damages.
According to Mrs. Robertson's testimony, when she walked across the carpet area before she fell, it was still a little bit damp. The area was well lit and there was nothing to obstruct her vision as she walked across the carpet area onto the tile area. When she fell, there was a puddle of water on the tile and after the fall her pants were wet at the point where her body had come into contact with the tile floor. After the accident, the motel manager arrived and pulled the carpet back, stating, "I'm going to pull this up. I should have done it before. I'll make sure nobody else falls."
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for entering a summary judgment. The rule requires the trial court to determine (1) that there is no genuine issue of material fact and (2) that the moving party is entitled to a judgment as a matter of law. The burdens placed on the moving party by this rule have often been discussed by this Court:
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989) (quoting Schoen v. Gulledge, 481 So. 2d 1094 (Ala.1985)).
The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, *379 whether Travelers Inn was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the Robertsons and resolve all reasonable doubts against the movant, Travelers Inn. Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala. 1986). See also Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
Because this action was not pending on June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet its burden by "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
In Hillman Hotel, Inc. v. McHaley, 251 Ala. 655, 657, 38 So. 2d 566, 567 (1948), the Court stated the duty of a hotel or motel operator to its guests:
The Robertsons argue that the Travelers Inn failed to keep their room in a safe condition; that this failure to do so was negligent; that the negligent failure proximately caused Mrs. Robertson's fall and resulting injuries; and that Travelers Inn is therefore liable for those injuries and any loss resulting from them. Their position is that when Frances Robertson walked from the bedroom into the kitchenette in the motel unit, she was in a place where she had the right to go and where the defendant could have expected her to go, and that, by failing to remove the water put on the floor by the employee's repairs on the water heater, Travelers Inn created a dangerous condition that proximately caused Frances Robertson's injuries.
In Baptist Medical Center v. Byars, 289 Ala. 713, 271 So. 2d 847 (1973), the plaintiff had actual knowledge that the floor upon which she fell was wet, and she had been warned by an employee of the defendant that the floor was "slick" and to "be careful." Justice Merrill, in affirming a judgment for the plaintiff, held:
289 Ala. at 717-18, 271 So. 2d at 849-50.
In Bogue v. R & M Grocery, 553 So. 2d 545 (Ala.1989), the Court stated the following principles that are applicable to these types of cases:
282 Ala. at 482, 213 So. 2d at 215-16."
553 So. 2d at 547-48.
The testimony of Frances Robertson indicated that although she was aware that water had leaked onto the tiled area of the kitchenette floor, she did not realize the extent of the leakage onto the carpeted area next to the water heater or that gravity would eventually cause this water to seep onto the tiled area. She testified:
Viewing the evidence in a light most favorable to the Robertsons, as our standard of review requires us to view it, we cannot say, as a matter of law, that Frances Robertson was contributorily negligent or assumed the risk. Contributory negligence is an affirmative defense, and the defendant bears the burden of proof as to that defense. On its motion for summary judgment, Travelers Inn bore the burden of proving that all reasonable people would reach the same conclusion: Frances Robertson had knowledge of the dangerous condition; that she appreciated the danger under the surrounding circumstances; and that she failed to exercise reasonable care under the circumstances. Chilton v. City of Huntsville, 584 So. 2d 822, 825 (Ala. 1991).
Frances Robertson's testimony indicated that she did not know that water had seeped from the carpeted area onto the tiled area. Although she was aware that the tiled area had previously been wet and that the carpeted area still was damp, her testimony presents a question of fact as to whether she appreciated the risk associated with the wet conditions around the water heater. Likewise, an issue of fact is presented *381 as to whether she exercised reasonable care in her actions, given her knowledge of the conditions of the area surrounding the water heater.
Therefore, the trial court's judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
HOUSTON, J., concurs in part and dissents in part.
HOUSTON, Justice (concurring in part; dissenting in part).
There was no substantial evidence to support a wantonness claim. Likewise, wantonness was not made an issue by the appellant or argued in the appellant's brief. Therefore, I would affirm as to the wantonness claim, but reverse and remand as to the negligence claim. | February 5, 1993 |
56beba05-3742-45ad-9f57-c96edd7de982 | Hurley v. MARSHALL COUNTY COM'N | 614 So. 2d 427 | 1911614 | Alabama | Alabama Supreme Court | 614 So. 2d 427 (1993)
Stephen HURLEY
v.
MARSHALL COUNTY COMMISSION, et al.
1911614.
Supreme Court of Alabama.
February 26, 1993.
*428 Mary Ann Stackhouse of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellant.
George W. Royer, Jr. of Sirote & Permutt, P.C., Huntsville, for appellees.
SHORES, Justice.
Stephen Hurley appeals from a summary judgment entered on June 5, 1991, in favor of the Marshall County Commission, the Marshall County Personnel Board, and individual Marshall County commissioners. We affirm in part, reverse in part, and remand.
The Marshall County Commission ("Commission") hired Stephen Hurley as Marshall County engineer on January 9, 1984. Hurley was hired after the adoption of Act 76-616, Ala. Acts 1976, and Act 82-206, Ala. Acts 1982. At all times during his tenure as county engineer, Hurley lived in Etowah County, Alabama. The Commission was aware when it hired him that Hurley was not a resident of Marshall County.
The Commission terminated Hurley's employment as county engineer on March 11, 1991, citing his failure to reside in Marshall County, as required by Act 76-616, as the reason for his termination. On March 8, 1991, Hurley requested a written notice and a hearing concerning his termination, which the Commission denied. Hurley filed a grievance with the Marshall County Personnel Board ("Board") against the Commission on March 12, 1991. The Board, in turn, sued the Commission for a declaratory judgment, to determine whether termination of the Marshall County engineer was controlled by Act 76-616 or by Act 82-206, which established a merit system for Marshall County employees. The Board later added Hurley as a defendant in the declaratory action.
*429 Hurley filed a counterclaim against the Board and a cross-claim against the Commission, alleging a violation of his constitutional right to due process and seeking damages under 42 U.S.C. § 1983. Hurley later sued Marshall County and members of the Marshall County Commission as third-party defendants. The Board and the Commission moved independently for summary judgment, and the commissioners moved for a partial summary judgment. The trial court on June 5, 1992, entered a judgment declaring that Act 76-616 governed the employment (and termination) of Hurley as county engineer, and it entered a summary judgment in favor of the Commission, the individual commissioners, and Marshall County on Hurley's cross-claim and third-party claims. On June 16, 1992, the trial court amended its June 5 judgment to enter a summary judgment in favor of the Board on Hurley's counterclaim. Hurley appeals the June 5 order.
The primary issue is whether Act 82-206 repealed Act 76-616 by implication. A related issue is whether Hurley's employment as county engineer was governed entirely by Act 76-616, as the trial court found, or whether Hurley's employment also falls within the purview of Act 82-206, which guarantees due process in matters of employment to Marshall County merit system employees.
A summary judgment is proper when there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; King v. Breen, 560 So. 2d 186 (Ala.1990). In determining 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. 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).
The parties do not dispute the material facts in this case. Therefore, we need only address whether the court properly applied the law to those facts. The trial court, applying well-established laws of statutory interpretation, held that Act 82-206 did not repeal Act 76-616, and, therefore, that Hurley's employment with Marshall County was governed entirely by Act 76-616.
Act 76-616 creates the position of Marshall County engineer and provides for the engineer's employment and termination by the Commission, as follows:
The law establishing the Marshall County Salary Commission was expressly repealed by § 19, Act 82-206, Ala. Acts 1982, before Hurley was hired as county engineer. Thus, under Act 76-616 alone, termination of the county engineer is solely within the discretion of the Commission, without review. Because Act 76-616 contains no other guidelines for the termination of the county engineer, he is an "at will" employee unless some other act entitles him to due process rights in his employment. We conclude that under Act 82-206, Hurley is entitled to due process safeguards in his termination.
Act 82-206 created a merit system for Marshall County employees and established the Marshall County Personnel Board to govern the "appointment, hiring, salaries, benefits, removal and official conduct" of Marshall County employees. Act 82-206, *430 Acts of Alabama 1982, at 242. The pertinent parts of this act provide:
Act 82-206.
Hurley contends that the trial court erred in holding that Act 82-206 did not impliedly repeal Act 76-616. We disagree. A later statute may repeal an earlier statute by implication only under certain circumstances, such as when the two statutes, taken together, are so repugnant to each other that they become irreconcilable. "Repeal of a statute by implication is not favored, however, and a prior act is not repealed unless provisions of a subsequent act are directly repugnant to the former." Merrell v. City of Huntsville, 460 So. 2d 1248, 1251 (Ala.1984) (citing Ex parte Jones, 212 Ala. 259, 102 So. 234 (1924)). Moreover, "legislative intent is a crucial factor in determining whether two statutes are irreconcilable so as to require repeal." Id.
Act 76-616 established the Marshall County engineer as an "at will" employee whose employment could be terminated by the Marshall County Commission. Subsequently, Act 82-206 established a merit system of employment for all Marshall County employees not excepted by § 3 of the Act. As shown below, these two acts are not so repugnant to each other, or in such irreconcilable conflict, that one must be repealed by implication for the other to continue to operate. Therefore, we affirm that part of the trial court's judgment holding *431 that Act 76-616 is not repealed by Act 82-206.
The trial court's conclusion that employment of the Marshall County engineer is governed solely by Act 76-616 does not comport with our law of statutory construction, however.
Davis v. Browder, 231 Ala. 332, 335, 165 So. 89, 91 (1935), quoted in City of Tuscaloosa v. Alabama Retail Ass'n, 466 So. 2d 103, 106 (Ala.1985).
There is nothing to indicate that the legislature did not intend for Act 82-206 to apply to the Marshall County engineer. The legislature specifically listed, in § 3 of Act 82-206, five classes of Marshall County employees whose employment would not be covered by the merit system. (See § 3, quoted above.) The county engineer's position does not fit within any of these exceptions. Because the legislature drafted 82-206 to "apply to all officials and employees" of Marshall County not excluded by § 3, and because the county engineer is not excluded by § 3, then the legislature must have intended for employment of the county engineer to be covered by the merit system established by Act 82-206. Further analysis supports this conclusion.
The overlap between Act 76-616 and Act 82-206 concerning employment of the county engineer creates an ambiguity or uncertainty as to what employment status the legislature intended the county engineer to have. The earlier act not only specified conditions of employment for the county engineer, but also enumerated duties of the engineer, the role of the engineer in purchasing, and the requirement that the engineer be bonded, and allowed the Marshall County Commission to set the salary for the county engineer. §§ 12-16, Act 76-616. Most of these provisions do not conflict with Act 82-206. Because the earlier act enumerated no reasons or conditions necessary for the termination of the county engineer, other than a vote by the Marshall County Commission and approval by the Salary Commission, under Act 76-616 the engineer was an "at will" employee with no due process expectations in his employment. Act 82-206, however, grants the county engineer, and all other county employees not excepted under § 3, due process rights, as merit system employees, to a hearing and to an appeal process, in order to ensure that any such employee is not terminated without cause. To resolve this ambiguity, we must ascertain and give effect to the intent of the legislature in enacting Act 82-206. John Deere Co. v. Gamble, 523 So. 2d 95, 99 (Ala.1988); Advertiser Co. v. Hobbie, 474 So. 2d 93, 95 (Ala.1985).
When possible, the intent of the legislature "must be gathered from the language of the statute itself, and only when the language of the statute is ambiguous or uncertain will the court resort to considerations of fairness or policy to ascertain the legislature's intent." Advertiser Co., supra, at 95. We must rely on these fairness and policy considerations to determine whether the legislature, in failing to exclude the county engineer from the merit system established by Act 82-206, intended to extend to the county engineer the due process protection of the merit system.
John Deere, supra, at 100 (citations omitted).
Clearly, the legislature, in enacting §§ 12-16 of Act 76-616, intended to create the position of county engineer, in order to ensure efficient administration of the construction and maintenance of the roads, *432 parks, bridges, and other public properties of Marshall County. The hiring and firing of the county engineer were placed in the hands of the Marshall County Commission. The termination of the county engineer by the Marshall County Commission, however, was subject to review by the Salary Commission. When the legislature specifically abolished the Salary Commission by enacting the repealer clause of Act 82-206, it eliminated this review by the Salary Commission. However, at the same time Act 82-206 abolished the Salary Commission, it also established the Personnel Board to regulate the employment of Marshall County employees and created a merit system of employment whereby the termination of any merit system employee was subject to due process protectionincluding a right to appeal the terminationand whereby termination had to be for just cause. Thus, the same act abolishing review by the Salary Commission of termination of the county engineer established review by the Personnel Board of the termination of any merit employee.
We note that Act 82-206, by creating a merit system for Marshall County employees, is similar to other civil service statutes passed by the Alabama legislature. "The purpose of civil service statutes is to provide stability, continuity, and security in the various job classifications within a municipality." Williams v. Ivey, 484 So. 2d 468, 469 (Ala.Civ.App.1985) (citation omitted). These statutes also ensure that protected employees are not discharged by local authorities for political reasons. See id.; Miller v. State, 249 Ala. 14, 22, 29 So. 2d 411 (1947).
The purpose of these laws is to promote efficiency of county government by providing to county employees rights guaranteeing stability, continuity, and security in their jobs. It would seem nonsensical for the legislature to pass an act providing stability, continuity, and security to all nonexcluded county merit system employees, without intending that a position as important to county government as the county engineer also be included in the merit employment system. The performance of the county engineer, as the individual primarily responsible for the construction and upkeep of public roads and other public properties within the county, bears directly on the efficiency of the county government. This conclusion is strengthened by the fact that the county engineer does not fit within any of the classes of county employees excluded from the merit system by § 3 of Act 82-206.
We hold that the Marshall County engineer is a merit system employee under Act 82-206, and that the conditions, duties, and responsibilities of his employment are governed by Act 76-616 insofar as they do not conflict with the status of the county engineer as a merit employee under Act 82-206. We need not address the other issues raised in this appeal, because they can be addressed more properly by the trial court on remand.
Based on the foregoing, we affirm that portion of the trial court's judgment holding that Act 82-206 does not repeal Act 76-616, but we reverse that portion holding that the employment of the Marshall County engineer is governed solely by Act 76-616; and we remand the cause for further consideration consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | February 26, 1993 |
f414a585-b94a-40de-b9dd-304a229ce02d | Ex Parte Paul MacLean Land Services, Inc. | 613 So. 2d 1284 | 1920154 | Alabama | Alabama Supreme Court | 613 So. 2d 1284 (1993)
Ex parte PAUL MACLEAN LAND SERVICES, INC., et al.
(In re CANLAN OIL COMPANY, et al. v. PAUL MACLEAN LAND SERVICES, INC., et al.)
1920154.
Supreme Court of Alabama.
February 26, 1993.
*1285 Robert E. Cooper and Rhonda K. Pitts of Rives & Peterson, Birmingham, for petitioners.
John M. Johnson and William H. Brooks of Lightfoot, Franklin, White & Lucas, Birmingham, for respondents.
MADDOX, Justice.
The sole issue presented by this petition for a writ of mandamus is whether the Circuit Court of Jefferson County should be ordered to dismiss this action filed against nonresidents on the ground that the court did not have personal jurisdiction of the nonresident defendants. After studying the petition and the evidence presented in support of it, we hold that the trial court had personal jurisdiction of the nonresident defendants. We deny the writ.
This case arises out of the operation of several oil and gas properties in Louisiana. The petitioner Paul Maclean is a Louisiana citizen and is the president of the petitioner Paul Maclean Land Services, Inc., a Louisiana corporation having its principal place of business in Terrebonne Parish, Louisiana. Paul Maclean and his wife, Judith Maclean, also a resident citizen of Louisiana, own 100% of the stock of Paul Maclean Land Services, Inc.
The plaintiffs are Canlan Oil Company, Lanoco, Inc., and Hobart A. McWhorter, Jr. Canlan, a Louisiana corporation, operated numerous oil and gas fields in Louisiana. These oil and gas fields were owned by various partnerships with partners from numerous states. Paul Maclean and his company entered into an oral contract in Louisiana with Canlan to serve as the manager for Canlan's oil and gas fields in Louisiana. Maclean was entrusted with the day-to-day administrative and production decisions regarding these oil and gas properties operated by Canlan and owned by various groups of general partners. Among these partners were many Alabama residents, including plaintiff McWhorter. Paul Maclean and Paul Maclean Land Services performed these managerial and administrative services for Canlan for approximately 10 years.
Pursuant to his contract with Canlan, Maclean coordinated the activities of numerous contractors and consultants. Maclean would approve invoices submitted for payment by these contractors and consultants, and, after he approved them, he would give them to Andrew McCollam, Jr., the president of Canlan, for his approval. McCollam is a resident and citizen of Terrebone Parish, Louisiana. After McCollam approved the invoices, McCollam would generally instruct Maclean to send most of them to Canlan's accountant, Herb Raburn, who lived in Birmingham. All of these invoices were approved by McCollam and were paid to Maclean in Louisiana.
In October 1991, Lanoco, Inc., an Alabama corporation, was formed; it succeeded Canlan as operator of the oil and gas properties in Louisiana. According to Mr. Maclean, he never knew Lanoco was an Alabama corporation, never knew its offices were located in Birmingham, and really did not know anything about Lanoco until he was told that Lanoco was going to take over the operation from Canlan. Herb Raburn, who had previously handled the invoices approved by Maclean and Canlan, was the president of Lanoco.
In March 1992, Canlan, Lanoco, and McWhorter filed the complaint here involved against Paul Maclean, Maclean Land Services Inc., and several other individuals and businesses from Louisiana. The complaint, as amended, sought damages for breach of contract, breach of fiduciary duty, fraud, conspiracy to defraud, and tortious interference with business and contractual relations, and also sought equitable *1286 relief in the form of a declaratory judgment and an accounting. The gravamen of the plaintiffs' complaint was that the defendants had organized a scheme to defraud them by agreeing to submit invoices seeking payment for services not rendered and for services that previously had been invoiced and paid.
In May 1992, Maclean and Paul Maclean Land Services filed a motion to dismiss, claiming that the Alabama court lacked personal jurisdiction of each of them. Circuit Judge Jack Carl denied the motion to dismiss. Maclean and Paul Maclean Land Services subsequently filed this petition for a writ of mandamus.
This Court has repeatedly made it clear that a writ of 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) the properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala.1991). Because the order of the trial court was interlocutory, a writ of mandamus is an appropriate remedy for the petitioners in this case. Ex parte Hartford Insurance Co., 394 So. 2d 933 (Ala.1981).
Alabama's long-arm rule, Rule 4.2, Ala.R.Civ.P., extends the jurisdiction of the Alabama courts to the permissible limits of due process. Knowles v. Modglin, 553 So. 2d 563, 565 (Ala.1989); Dillon Equities v. Palmer & Cay, Inc., 501 So. 2d 459, 461 (Ala.1986). Rule 4.2(a)(2) sets out the bases for personal jurisdiction over nonresident defendants. Applicable to this case, Rule 4.2(a)(2)(I) provides in pertinent part:
Whether sufficient contacts exist so that the maintenance of the suit in Alabama does not offend reasonableness and fair play is determined on a case by case basis. Bryant v. Ceat S.P.A., 406 So. 2d 376, 377 (Ala.1981), cert. denied, 456 U.S. 944, 102 S. Ct. 2008, 72 L. Ed. 2d 466 (1982).
In Keelean v. Central Bank of the South, 544 So. 2d 153, 156 (Ala.1989), this Court set out a two-step analysis for determining whether an Alabama court can exercise personal jurisdiction over a nonresident defendant:
The fundamental question here is whether there is "a clear, firm nexus between the acts of the defendant and the consequences complained of in order to establish the necessary contacts." Duke v. Young, 496 So. 2d 37, 39 (Ala.1986). In a similar case, Ex parte Lord & Son Construction, Inc., 548 So. 2d 456 (Ala.1989), a Florida subcontractor entered into a contract with a Florida general contractor for the construction of a project in Florida. An Alabama company supplied the electrical materials. The Florida general contractor issued two checks that were jointly payable to the Florida subcontractor and the Alabama material supplier, and then wrote a check to the Florida subcontractor alone for the balance due. The Alabama material supplier sued the Florida general contractor and the Florida subcontractor in an Alabama court. The Florida general contractor petitioned for writ of mandamus after its motion to *1287 dismiss for lack of personal jurisdiction was denied. This Court denied the petition, even though in that case the Florida general contractor maintained no corporate offices in Alabama, did not advertise or solicit business in Alabama, had no bank accounts or mailing address in Alabama, and had no telephone listings in Alabama. The Court determined that, even in the absence of these typical "contacts," the Florida general contractor acted in such a manner that it reasonably could have anticipated the direct consequences of its actions to be felt by an Alabama resident. 548 So. 2d at 457.
In View-All, Inc. v. United Parcel Service, 435 So. 2d 1198, 1201 (Ala.1983), the Court, quoting Professor Moore, summarized the correct constitutional requirements in this area:
The effects of a nonresident's activities on the forum state are especially apparent in those cases where there are allegations of fraud by the nonresident defendant, as in this case, even though there is no evidence of a physical presence by the nonresident individual or corporation. Shrout v. Thorsen, 470 So. 2d 1222, 1224 (Ala.1985); Alabama Waterproofing Co. v. Hanby, 431 So. 2d 141, 145-46 (Ala.1983). However, an allegation of fraud, standing alone, does not necessarily give an Alabama court in personam jurisdiction over a nonresident defendant, especially if the cause of action does not arise out of the contacts.
In this case, the plaintiffs claim that the petitioners, together with the other defendants to this action, organized a scheme to defraud the plaintiffs by agreeing to submit invoices seeking payment for services not rendered and for services that previously had been invoiced and paid. According to the plaintiffs, Mr. Maclean was aware that this alleged fraudulent activity would be felt by Alabama residents because, as Mr. Maclean testified, he had knowledge that many of the participants in the partnerships that owned the oil and gas properties were Alabama residents. One of these Alabama residents was the plaintiff Hobart McWhorter, Jr. Mr. Maclean also testified that he knew that these allegedly fraudulent invoices were remitted to and paid from the offices of Canlan's, and later Lanoco's, accountant in Birmingham, because he submitted the invoices directly to Birmingham for payment.
Furthermore, the plaintiffs contend that Mr. Maclean was engaged by Lanoco, an Alabama corporation, to serve as operator of the oil and gas properties for the months of November and December 1991 at a monthly salary of $11,000. In October 1991, Lanoco had taken over operation of the relevant oil and gas properties from Canlan. Although the exact nature of the relationship between Lanoco and Mr. Maclean *1288 is unclear, the plaintiffs submit that Mr. Maclean was paid $11,000 by Lanoco for the month of November 1991, but did not perform the services promised and thereby breached the contract. While Mr. Maclean testified that he never dealt with Lanoco on a regular basis, he also stated that there was a "strong possibility" that he submitted invoices to Lanoco in November and December 1991.
We conclude that these contacts with Alabama were sufficient to make it foreseeable under these facts that the petitioners would be sued in this State. Therefore, we hold that the petitioners' contacts with Alabama were sufficient to establish personal jurisdiction and that the trial court, therefore, appropriately denied their motion to dismiss.
WRIT DENIED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | February 26, 1993 |
8f0d6ca4-2566-41b6-9a72-312108ffee35 | Ex Parte McWilliams | 640 So. 2d 1015 | 1911242 | Alabama | Alabama Supreme Court | 640 So. 2d 1015 (1993)
Ex parte James Edmund McWILLIAMS, Jr.
(Re James Edmund McWilliams, Jr. v. State.)
1911242.
Supreme Court of Alabama.
January 29, 1993.
*1016 Oliver W. Loewy, Montgomery, for petitioner.
James H. Evans, Atty. Gen., Jean A. Therkelsen, Asst. Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for respondent.
INGRAM, Justice.
James Edmund McWilliams, Jr., was convicted by a Tuscaloosa County jury of three counts of capital murder and was sentenced to death. The Court of Criminal Appeals affirmed the conviction and sentence. See McWilliams v. State, 640 So. 2d 982 (Ala. Crim.App.1991). This Court granted McWilliams's petition for the writ of certiorari. Rule 39(c), A.R.App.P.
In his petition to this Court, McWilliams presents 26 issues for review. He presented all but six of these issues to the Court of Criminal Appeals. That court issued a detailed and lengthy opinion, which provided a thorough treatment of each of the issues raised by McWilliams. We have thoroughly reviewed the record before us for error regarding the issues raised, as well as for plain error not raised.[1] Except as set out in Part I below, we find no error by the Court of Criminal Appeals in affirming the conviction and sentence.
McWilliams asserts that, in sentencing him to death, the trial court considered portions of victim impact statements wherein the victim's family expressed their characterizations and opinions about the crime, the defendant, and the appropriate sentence, and *1017 that the court erred in doing so. After the jury recommended that McWilliams be sentenced to death, the trial court conducted a separate sentencing hearing in accordance with §§ 13A-5-47 through -52, Ala.Code 1975, and sentenced McWilliams to death. Before the sentencing hearing, the trial court ordered the preparation of a presentence report. That report contained victim impact statements prepared by the victim's family. The statements contained two types of information: 1) statements about the victim and the impact of her death upon the family members, and 2) characterizations and opinions of the defendant, the crime, and the appropriate punishment.
In Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), the United States Supreme Court vacated a death sentence, holding that it violated the defendant's Eighth Amendment rights for the sentencer to consider victim impact statements in sentencing the defendant to death. The victim impact statements in that case contained the same types of information as were in the statements in the present case. In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the Supreme Court partially overruled Booth. The Court in Payne held that the defendant's Eighth Amendment rights were not violated by the trial court's consideration of statements regarding the victims and the impact of their deaths upon the family members. The victim impact statements in Payne did not contain characterizations or opinions about the defendant, the crime, or the appropriate punishment. That portion of Booth that proscribed the trial court's consideration of that type of statement was, therefore, left intact by Payne.
We conclude that McWilliams's Eighth Amendment rights were violated if the trial judge in this case considered the portions of the victim impact statements wherein the victim's family members offered their characterizations or opinions of the defendant, the crime, or the appropriate punishment. Because the record does not reveal whether the trial judge considered these statements in imposing the death sentence on McWilliams, this case must be remanded to the trial court for further proceedings.
On remand, the trial judge is directed to determine and make a written finding stating whether, in imposing the sentence upon James McWilliams, he considered the portions of the presentence report wherein Patricia Reynolds's family members stated their characterizations of McWilliams, the murder of Reynolds, or the appropriate sentence for McWilliams. If, and only if, the trial judge finds that he did consider those portions of the presentence report, then he is hereby directed to vacate McWilliams's death sentence and to hold another sentencing hearing consistent with this opinion.
McWilliams asserts that the prosecution used its peremptory challenges to strike black veniremembers in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The venire from which McWilliams's jury was selected consisted of 68 members, of whom 17 were black. With 9 of its 16 peremptory strikes, the prosecution removed blacks from the venire. Ultimately, four blacks were selected to serve on the jury, and one black served as an alternate. The record shows that McWilliams did not object to the State's use of its peremptory strikes. Accordingly, no hearing was held pursuant to the procedure set out in Ex parte Branch, 526 So. 2d 609 (Ala.1987).
McWilliams argues that this case should be remanded for the trial court to afford the prosecution an opportunity to present race-neutral reasons for its strikes. We find, however, that McWilliams has not made a prima facie showing that the State used its peremptory strikes in violation of Batson.
McWilliams cites several of the factors set out in Ex parte Branch that are relevant in determining whether a prima facie showing of discrimination has been made. Significantly, he argues that the State's use of its peremptory challenges evinces a pattern of strikes against black jurors on the venire. Ex parte Branch, 526 So. 2d at 623. In support of this contention, McWilliams cites Bui v. State, 627 So. 2d 849 (Ala.Crim.App.1992), *1018 rev'd, Ex parte Bui, 627 So. 2d 855 (Ala.1992). After Bui's conviction and sentence had been affirmed by the Court of Criminal Appeals and by this Court, the United States Supreme Court remanded the case for our further consideration in light of Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). Bui challenged the State's use of 6 of its 13 peremptory strikes to remove blacks from the venire.[2] The venire in that case consisted of either 13 or 15 qualified blacks.[3]Bui v. State, 627 So. 2d 849 (Ala.Crim.App. 1992).
The Court of Criminal Appeals remanded the case to the trial court for a hearing with regard to the State's use of its peremptory challenges. Bui v. State, 627 So. 2d 849. On remand, the trial court held that the State had not violated Batson in the use of its peremptory strikes. On return to remand, the Court of Criminal Appeals held that the record did establish a discriminatory use of peremptory challenges by the State. Bui v. State, 627 So. 2d 849. Holding that the trial court's conclusion was not clearly erroneous, we reversed the judgment of the Court of Criminal Appeals and remanded the case for the reinstatement of Bui's conviction and sentence. Ex parte Bui, 627 So. 2d 855.
McWilliams emphasizes that in the present case the State used its peremptory strikes to remove 53% of the qualified blacks from the venire, while in Bui the Court of Criminal Appeals remanded the case for a hearing although the State had struck only 46% percent of the qualified blacks from the venire. In Bui, 34% of the venire were blacks, and the jury consisted of only one black, or 8% of the empaneled jury. In the present case, however, 25% of the venire consisted of blacks, and 33% of the empaneled jury were blacks. In Harrell v. State, 571 So. 2d 1270, 1271-72 (Ala.1990), we stated:
Other than by conclusory statements in his brief, McWilliams has made no attempt to show that the State exercised its peremptory strikes in violation of Batson, and our review of the record discloses no such violation. Accordingly, we find no error in the State's use of its peremptory challenges.
McWilliams next argues that in its closing argument the State made adverse comments upon McWilliams's choice not to testify. Specifically, McWilliams complains of the following portion of the district attorney's closing argument:
It is the law in Alabama that in all criminal prosecutions, the accused shall not be compelled to give evidence against himself. Ala. Const.1901, Art. I, § 6. That privilege is also protected under § 12-21-220, which provides:
The Fifth and Fourteenth Amendments of the United States Constitution are also violated when the prosecutor comments on the accused's silence. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). "Alabama law clearly holds that `[w]here there is the possibility that a prosecutor's comment could be understood by the jury as reference to failure of the defendant to testify, Art. I, § 6 [Const. of Ala. of 1901] is violated.'" Ex parte Wilson, 571 So. 2d 1251, 1262 (Ala.1990) (quoting Ex parte Tucker, 454 So. 2d 552, 553 (Ala.1984)).
McWilliams asserts, and Judge Bowen agreed in his dissent, 640 So. 2d at 1014, that the comment made by the prosecutor in this case is virtually indistinguishable from that made in Windsor v. State, 593 So. 2d 87 (Ala. Crim.App.1991), wherein the Court of Criminal Appeals reversed a capital murder conviction because of the argument of the prosecutor. The court in Windsor focused on the following portion of the prosecutor's argument:
593 So. 2d at 90.
We note that while in Windsor the defendant made a proper objection to the prosecutor's argument and promptly moved for a mistrial, 593 So. 2d at 90, the record in this case reveals that McWilliams did not object to the comment he now questions. In its opinion in this case, the Court of Criminal Appeals cited Kuenzel v. State, 577 So. 2d 474, 489 (Ala.Crim.App.1990), aff'd, Ex parte Kuenzel, 577 So. 2d 531 (Ala.1991), cert. denied, Kuenzel v. Alabama, ___ U.S. ___, 112 S. Ct. 242, 116 L. Ed. 2d 197 (1991), where that court stated:
The United States Court of Appeals for the Eleventh Circuit has held that a prosecutor's comments "on the failure of the defense, as opposed to that of the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant's Fifth Amendment privilege." Duncan v. Stynchcombe, 704 F.2d 1213, 1215-16 (11th Cir.1983) (emphasis added). *1020 In the present case, the prosecutor commented that "neither of the defense attorneys have talked about" various pieces of physical evidence found in McWilliams's possession. This is clearly a comment on the failure of defense counsel to explain testimony or evidence.
McWilliams was arrested at a highway rest area in Ohio. The arresting officer testified that he recovered a handgun and some bullets from the car that McWilliams was driving. The officer further testified that when he asked about the bullets, McWilliams said that he had been chewing on them while driving. McWilliams first denied any knowledge of the handgun, but the officer testified that McWilliams later claimed that his uncle had been in the vehicle earlier and had had the handgun on his person at that time. The prosecutor's comment, therefore, was pointing out the failure of defense counsel to offer an explanation for the inconsistencies within the statements made by the defendant. Duncan, supra.
A prosecutor "may state or comment on proper inferences from the evidence and may draw conclusions from the evidence based upon his own reasoning." Harris v. State, 539 So. 2d 1117, 1123 (Ala.Crim.App. 1988) (quoting Sasser v. State, 494 So. 2d 857, 859-60 (Ala.Crim.App.1986)). Moreover, "the prosecutor does have a right to point out to the jury that the State's evidence does stand uncontradicted." Ex parte Wilson, 571 So. 2d at 1262. In United States v. Blackwood, 768 F.2d 131, 139 (7th Cir.), cert. denied, 474 U.S. 1020, 106 S. Ct. 569, 88 L. Ed. 2d 554 (1985), the United States Court of Appeals for the Seventh Circuit held that the prosecutor's reference to previous statements made by the defendant did not violate the defendant's rights under the Fifth Amendment. The Court of Criminal Appeals has held:
Owen v. State, 586 So. 2d 958, 960 (Ala.Crim. App.1990), rev'd on other grounds, Ex parte Owen, 586 So. 2d 963 (Ala.1991).
In Ex parte Williams, 461 So. 2d 852, 854 (Ala.1984), the prosecutor directly commented on an absence of testimony with regard to a specific circumstance regarding which only the defendant could have testified. In that case the Court of Criminal Appeals held:
461 So. 2d at 854. The court in Windsor relied on the rationale of Ex parte Williams and reversed the judgment of the trial court because of the prosecutor's comment that "[the defense] can't explain why this weapon was in the defendant's pocket when he was arrested." 593 So. 2d at 90. There was no evidence in that case that any other person could possibly offer an explanation.
The present case, however, presents a different set of circumstances. McWilliams stated that the handgun had been on his uncle's person earlier and that the vehicle he was driving belonged to his uncle. McWilliams's uncle could have testified regarding the presence of the handgun in his automobile, but he was not called to testify at all. Sonya McWilliams testified that she had traveled with McWilliams from Mobile to Tuscaloosa; however, she did not offer an explanation for the presence of the handgun in the vehicle.
*1021 We find that the prosecutor's comments did not constitute a direct comment on McWilliams's failure to testify and that the comments did not identify McWilliams as the only possible person who could explain the matters in question. We conclude, therefore, that the content of the prosecutor's closing argument did not constitute "error which, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity, and public reputation of the judicial proceedings." United States v. Butler, 792 F.2d 1528, 1535 (11th Cir.1986), quoted in the excerpt from Kuenzel, supra.
McWilliams asserts that his right to testify in his own defense was violated. The record shows that the following colloquy took place out of the hearing of the jury:
The right of a criminal defendant to testify at his own trial is fundamental and personal to the defendant. Nichols v. Butler, 953 F.2d 1550, 1552 (11th Cir.1992); Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). "It is basic that every person has the right in all criminal prosecutions to be heard by himself and counsel, or either ... to testify in his own behalf, if he elects to so do." Carter v. State, 424 So. 2d 1336, 1340 (Ala.Crim.App.1982) (citations omitted). A criminal defendant's decision not to testify in his own behalf must be made knowingly and voluntarily. Streeter v. State, 406 So. 2d 1024 (Ala.Crim.App.), cert. denied, Ex parte Streeter, 406 So. 2d 1029 (Ala.1981), cert. denied, Streeter v. Alabama, 456 U.S. 932, 102 S. Ct. 1984, 72 L. Ed. 2d 450 (1982).
The record shows that McWilliams was fully aware that he had the right to testify in his own behalf and that he had the right not to testify. The trial court inquired whether McWilliams understood his rights in this regard; and McWilliams had ample opportunity to state his preference whether to testify or not. We find no evidence in the record that either the trial court or McWilliams's counsel interfered with his right to testify in his own behalf. Accordingly, we reject this claim.
McWilliams claims that his Fifth and Fourteenth Amendment rights against double jeopardy were violated in that, he says, he was convicted three times for the same crime.
McWilliams was initially charged under a four-count indictment. Count I of the indictment charged McWilliams with the murder of Patricia Reynolds made capital because it was committed during a robbery in the first degree while McWilliams was armed with a deadly weapon. § 13A-5-40(a)(2); and see § 13A-8-41(a)(1). Count II charged McWilliams with the murder of Patricia Reynolds made capital because it was committed during a robbery in the first degree in which McWilliams caused serious physical injury to Patricia Reynolds. § 13A-5-40(a)(2); and see § 13A-8-41(a)(2). Count III of the indictment charged McWilliams with the murder of Patricia Reynolds made capital because *1022 it was committed during a rape in the first degree. § 13A-5-40(a)(3). Count IV of the indictment charged McWilliams with the murder of Patricia Reynolds made capital because it was committed during sodomy in the first degree. § 13A-5-40(a)(3). Count IV of the indictment was dismissed on the State's motion at the conclusion of its case-in-chief. The jury found McWilliams guilty of the three remaining charges in the indictment, and the court sentenced him to death.
In King v. State, 574 So. 2d 921 (Ala.Crim. App.1990), the defendant was prosecuted for the rape of his four-year-old daughter. The four-count indictment charged King with two counts of rape (sexual intercourse with a girl under the age of 16 and sexual intercourse with a female by forcible compulsion), and two counts of sexual abuse (sexual contact with a girl under the age of 16 and sexual contact with a female by forcible compulsion). King was convicted on all four counts. He received two life terms for the rape counts and two 20-year terms for the sexual abuse counts. All of the sentences were to run concurrently. King, 574 So. 2d at 922. Concluding that King's four convictions and multiple sentences for the same act violated his right against double jeopardy, the Court of Criminal Appeals remanded the case to the trial court with instructions to vacate three of the convictions and sentences.
King, however, is not apposite in the present case. In Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the United States Supreme Court addressed the scope of the coverage of the Double Jeopardy Clause, as follows:
Grady, 495 U.S. at 516-17, 110 S. Ct. at 2090-91, 109 L. Ed. 2d at 561. This Court has also held that the Double Jeopardy Clause of the Alabama Constitution, Art. I, § 9, applies only in the three areas enumerated above. Ex parte Wright, 477 So. 2d 492 (Ala.1985).
In this case, McWilliams was not prosecuted for the same offense after an acquittal; nor was he prosecuted for the same offense after a conviction. That is, he was not prosecuted twice for the same offense. Moreover, while in King the defendant received four separate prison sentences for the same offense, McWilliams has only been sentenced to die once and, indeed, can only be put to death once.
In the context of prescribing multiple punishments for the same offense, the United States Supreme Court has stated that "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983).
In the present case, it is clear that the jury knew that it was convicting McWilliams of murdering Patricia Reynolds only once. It is also clear that the jury knew that McWilliams's crime was made capital because his victim was murdered in the course of one robbery and one rape. We conclude, therefore, that the sentencing court has not prescribed a greater punishment than the legislature intended. Even if McWilliams's rights against double jeopardy had been violated by the two convictions of robbery-murder, the convictions for one count of robbery-murder and one count of rape-murder would remain;[4] and either of these would be sufficient to support a death sentence.
McWilliams claims that the trial court erred in allowing the jury to separate without his consent. Ala.Code 1975, § 12-16-9(a), provides:
McWilliams's jury was struck on August 19, 1986; but the jury was not seated and sworn until August 20, 1986. The members of the venire who were not selected to serve on the jury were dismissed on August 20, 1986. The record shows that the entire venire was allowed to separate on the night of August 19, 1986. Because § 12-16-9(a) applies only to the separation of the jury during the pendency of the trial, McWilliams's claim is without merit. See Stewart v. State, 601 So. 2d 491 (Ala.Crim.App.1992); Bell v. State, 475 So. 2d 601 (Ala.Crim.App.1984), aff'd, 475 So. 2d 609 (Ala.), cert. denied, 474 U.S. 1038, 106 S. Ct. 607, 88 L. Ed. 2d 585 (1985).
McWilliams claims that the trial court erred during the penalty phase in admitting certified copies of two prior criminal convictions and their associated sentences. The convictions were introduced to prove the aggravating circumstance that McWilliams had been "previously convicted of ... a felony involving the use or threat of violence to the person." § 13A-5-49(2).
McWilliams first claims that the trial court erred in admitting the certificates containing the sentences imposed for the prior crimes. The jury was instructed to consider the convictions as aggravating circumstances; but the jury was not instructed to consider the sentences as additional aggravation. Finding no authority to support this claim, we hold that it is without merit.
McWilliams further claims that the trial court erred in admitting the evidence of those prior convictions because they were obtained after the offenses underlying the present conviction were committed. Section 13A-5-39(6) provides:
See also Ex parte Siebert, 555 So. 2d 780, 784 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S. Ct. 3297, 111 L. Ed. 2d 806 (1990). We conclude that this claim is without merit.
McWilliams asserts that the guilt-phase and penalty-phase jury instruction on reasonable doubt violated his right to due process. In his introductory remarks to the guilt-phase jury, the trial court said:
Similarly, in its guilt-phase jury instruction, the trial court charged the jury as follows:
The penalty-phase jury was instructed to apply the same definition of reasonable doubt in determining whether the State had proven the existence of aggravating factors.
We first note that "beyond a reasonable doubt" and "to a moral certainty" are not exactly synonymous. In Ex parte Beavers, 598 So. 2d 1320, 1321 (Ala.1992), this Court approved a jury instruction that included the following:
(Emphasis added.) In other words, "moral certainty" is the state a jury reaches when it is convinced of the defendant's guilt beyond a reasonable doubt. We further note, however, that the trial court equated the two phrases only once, at the beginning of his introductory charge to the jury. Moreover, as set out below, the trial court's instruction, taken as a whole, does not suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. Accordingly, we hold that this error in the trial court's instruction is harmless. Rule 45, A.R.App.P.
In Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), the United States Supreme Court reversed a criminal conviction, holding that the trial court's instruction on reasonable doubt violated the defendant's due process rights. The trial court in that case had equated reasonable doubt with "actual substantial doubt" and had instructed the jury that a reasonable doubt "must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof." Cage v. Louisiana, 498 U.S. at 40, 111 S. Ct. at 329, 112 L. Ed. 2d at 342 (quoting State v. Cage, 554 So. 2d 39, 41 (La.1989)). The trial court in Cage further instructed the jury that "What is required is not an absolute or mathematical certainty, but a moral certainty." Id. The United States Supreme Court concluded that "the words `substantial' and `grave' ... suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard." Cage v. Louisiana, 498 U.S. at 40, 111 S. Ct. at 329, 112 L. Ed. 2d at 342. It then held that, considering the use of those words in conjunction with "moral certainty," a reasonable juror could have understood the instruction as allowing "a finding of guilt based on a degree of proof below that required by the Due Process Clause." Id. (footnote omitted).
"In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole." Id. (citing Francis v. Franklin, 471 U.S. 307, 316, 105 S. Ct. 1965, 1972, 85 L. Ed. 2d 344 (1985)). Having compared the instructions at question in Cage and those in the present case, we find that the instruction given here does not contain the same infirmity as that in Cage. Specifically, the instruction in the present case does not require "a grave uncertainty" for acquittal.[5] Accordingly we reject this claim.
Having searched the record and having considered each issue raised by McWilliams, we affirm that portion of the judgment of the Court of Criminal Appeals affirming the conviction. However, for the reasons set forth in Part I above, this case is remanded to the Court of Criminal Appeals with instructions for that Court to remand the case to the Circuit Court of Tuscaloosa County for further proceedings regarding the sentence, consistent with this opinion.
*1025 AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS TO SENTENCE.
HORNSBY, C.J., and ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] Our review of a death penalty case allows us to address any plain error or defect found in the proceeding under review. This is so even if the error was not brought to the attention of the trial court. Rule 45, A.R.App.P.
[2] The opinion of the Court of Criminal Appeals in that case indicates that the State actually used 9 of its 13 strikes to remove blacks from the venire. However, Bui only challenged the removal of six blacks.
[3] According to the opinion of the Court of Criminal Appeals in that case, the record fails to show what happened to two blacks who were originally on the venire.
[4] Because each of those crimes contains an element not contained in the other, there could be no possible violation of the prohibition against double jeopardy. Blockburger, supra; Ex parte Haney, 603 So. 2d 412 (Ala.1992); Ex parte Henderson, 583 So. 2d 305 (Ala.1991); Jackson v. State, 516 So. 2d 726 (Ala.Crim.App.1985).
[5] In Gaskins v. McKellar, 500 U.S. 961, 111 S. Ct. 2277, 114 L. Ed. 2d 728 (1991), one of the issues presented in the petition was whether Cage announced a new rule. In his opinion respecting the denial of the petition, Justice Stevens indicated that the central flaw in the instruction at issue in Cage was that the jury was instructed that a reasonable doubt "must be a doubt as would give rise to a grave uncertainty." Gaskins (Stevens, J., concurring in denial of certiorari). | January 29, 1993 |
84dac066-b7b5-4f9c-96ef-305906e67d8c | Ex Parte State | 620 So. 2d 739 | 1920189 | Alabama | Alabama Supreme Court | 620 So. 2d 739 (1993)
Ex parte State of Alabama.
Re William Maxwell CURREN
v.
STATE.
1920189.
Supreme Court of Alabama.
March 19, 1993.
James H. Evans, Atty. Gen., and Gregory O. Griffin, Sr., Asst. Atty. Gen., for petitioner.
Jonathan L. Tindle, Bessemer, for respondent.
INGRAM, Justice.
William Maxwell Curren was convicted under § 32-5A-191(a)(1), Ala.Code 1975, of driving a vehicle while there was 0.10% or more by weight of alcohol in his blood. Curren appealed his conviction to the Court of Criminal Appeals, arguing that the trial court's instructions to the jury regarding the elements of § 32-5A-191(a)(1) and the trial court's failure to charge the jury that the presumption that Curren was "under the influence" was a rebuttable presumption, see § 32-5A-194(b), were tantamount to a directed verdict.
The Court of Criminal Appeals held that there is a rebuttable presumption of intoxication in cases brought under § 32-5A-191(a)(1) by virtue of § 32-5A-194(b) and that failure to charge the jury on the presumption "invaded the province of the jury and amounted to a directed verdict of guilt based upon the results of the blood alcohol test alone." 620 So. 2d 737 (1992). The State of Alabama petitioned this Court for a writ of certiorari, arguing that the decisions of the Court of Criminal Appeals are in conflict on the issue of whether the presumption found in § 32-5A-194(b) applies to cases brought under § 32-5A-191(a)(1). We issued that writ.
Section 32-5A-191(a)(1) provides: "A person shall not drive or be in actual physical control of any vehicle while: (1) There is 0.10 percent or more by weight of alcohol in his blood." Cf. § 32-5A-191(a)(2) (providing that "[a] person shall not drive or be in actual physical control of any vehicle while: ... (2) Under the influence of alcohol."). Section 32-5A-194(b) provides:
The issue in this case is whether the presumption that a person with "0.10 percent or more by weight of alcohol" is "under the influence" applies in a case in which the defendant is charged under § 32-5A-191(a)(1) with driving or being in actual physical control of a vehicle with 0.10% or more by weight of alcohol in his blood.
Section 32-5A-191(a)(1) is commonly referred to as an "illegal per se law," and similar statutes have been enacted in other jurisdictions. See, e.g., Alaska Stat. § 28-35-030(a)(2) (1989); Ariz.Rev.Stat.Ann. § 28-692(A)(2) (Supp.1992); Ark.Code Ann. § 5-65-103(b) (Michie 1987); Cal.Veh.Code § 23152(b) (West Supp.1993); Colo.Rev. Stat. § 42-4-1202(1.5)(a) (Supp.1992); Conn.Gen.Stat. § 14-227a(a)(2) (1993); Del. Code Ann. tit. 21, § 4177(b) (1985); Fla. Stat.Ann. § 316.193(1)(b) (Harrison Supp. 1993); Ga.Code Ann. § 40-6-391(a)(4) (Michie 1991); Haw.Rev.Stat. § 291-4(a)(2) (Supp.1992); Idaho Code § 18-8004(1)(a) (Supp.1992); Ill.Rev.Stat. ch. 625, para. 5/11-501(a)(1) (1992); Ind.Code Ann. § 9-30-5.1 (Burns 1991); Iowa Code § 321J.2(1)(a) (1993); Kan.Stat.Ann. § 8-1567(a)(1) and (a)(2) (1991); Me.Rev.Stat. Ann. tit. 29, § 1312-B(1)(B) (Supp.1992); Mich.Comp.Laws § 257-625(1)(b) (1992 Supp.); Minn.Stat. § 169.121(1)(d) and (e) (1992); Mo.Rev.Stat. § 577.012 (1986); Mont.Code Ann. § 61-8-406 (1991); Neb. Rev.Stat. § 39-699.07(2)-(4) (1988); Nev. Rev.Stat.Ann. § 484.379(1)(b) (Michie 1990); N.H.Rev.Stat.Ann. § 265.82(I)(b) (Supp. 1992); N.J.Rev.Stat.Ann. § 39:4-50(a) (West 1990); N.M.Stat.Ann. § 66-8-102(c) (Michie Supp.1992); N.Y.Veh. & Traf.Law § 1192.2 (McKinney Supp.1993); N.C.Gen. Stat. § 20-138.1(a)(2) (1989); N.D.Cent. Code § 39-08-01(1)(a) (1987); Ohio Rev. Code Ann. § 44511.19(A)(2)-(4) (Anderson Supp.1991); Okla.Stat. tit. 47, § 11-902(A)(1) (1991); Or.Rev.Stat. § 813.010(1)(a) (1989); 75 Pa.Cons.Stat.Ann. § 3731(a)(4) (Supp.1992); S.D. Codified Laws Ann. § 32-23-1(a)(1) (1989); Utah Code Ann. § 41-6-44(1)(a) (1988); Vt.Stat. Ann. tit. 23, § 1201(a)(1) (Supp.1992); Va. Code Ann. § 18.2-266(i) (1988); Wash.Rev. Code §§ 46.61.502(1)-(2) and 46.61.504(1)-(2) (1992); W.Va.Code § 17C-5-2(d)(1)(E) (1991); Wis.Stat.Ann. § 346.63(1)(b) (West 1989-90). Such statutes are referred to as "per se" statutes because they "make driving an automobile with a blood alcohol concentration of .10% or more a crime without reference to the effect that alcohol may have on the driver." 4 Richard E. Erwin, Marilyn K. Minzer, Leon A. Greenberg, Herbert M. Goldstein, Arne K. Bergh, Harvey M. Cohen, Defense of Drunk Driving Cases § 33 A. 00, at 33A-2 (3d ed. 1991).
There are only two elements required to establish a violation of a "per se" law: (1) driving, or actual physical control of, a vehicle; and (2) a blood alcohol content of 0.10% or greater.[1]See Greaves v. State, 528 P.2d 805, 807-08 (Utah 1974) ("The statute states with sufficient clarity and conciseness the two elements necessary to constitute its violation. They are (1) a blood alcohol concentration of .10 per cent, and (2) concurrent operation or actual physical control of any vehicle."); see also, Davis v. Commonwealth, 8 Va.App. 291, 298, 381 S.E.2d 11, 15 (1989) (requires proof that "at the time [the defendant] was *741 driving his blood alcohol concentration was at least .10 percent" (emphasis in original)). Proof that the defendant was "under the influence" or that he was "intoxicated" is not required. See Long v. State, 284 Ark. 21, 24, 680 S.W.2d 686, 688 (1984) (intoxication not a violation of the "per se" law; violation per se to drive with a blood alcohol content of .10% or more); State v. Nelson, 119 Idaho 444, 447, 807 P.2d 1282, 1284-85 (Ct.App.1991) (legislative intent that prosecutions for drunk driving could be "grounded in a per se 0.10 alcohol concentration test, rather than in complicated proof over the level of impairment of any particular individual"); State v. Muehlenberg, 118 Wis.2d 502, 505, 347 N.W.2d 914, 915 (App.Ct.1984) (substantive offense is defined as act of driving with 0.10% blood alcohol content and not "driving under the influence").
Also, the "per se" statutes do not violate the prohibition against criminal statutes that declare a person "presumptively guilty" of a specified crime. In addressing this issue, the Supreme Court of North Carolina stated:
State v. Howren, 312 N.C. 454, 458, 323 S.E.2d 335, 338 (1984); see also Davis, 8 Va.App. at 298 and n. 2, 381 S.E.2d at 15 and n. 2 (holding that evidence showing the "prescribed measurement"0.10% blood alcohol contentcreates a rebuttable presumption that "the measurement accurately reflects the blood alcohol concentration at the time of driving" but does not create a "presumption of guilt" because the State must prove "beyond a reasonable doubt" that the defendant was driving or operating a motor vehicle with a blood alcohol concentration of 0.10%).
The statutory rebuttable presumption that the defendant was intoxicated if his blood alcohol content was shown to be 0.10%, § 32-5A-194(b), Ala.Code 1975, does not apply to a prosecution for driving with 0.10% or greater blood alcohol content, § 32-5A-191(a)(1), Ala.Code 1975. The Georgia Court of Appeals in Atkins v. State, 175 Ga.App. 470, 470-71, 333 S.E.2d 441, 444 (1985), overruled on other grounds, Hogan v. State, 178 Ga.App. 534, 343 S.E.2d 770 (1986), held that the Georgia presumption statute did not apply to a "per se" violation because no "presumption" arises under the statute. The Georgia Court of Appeals specifically stated:
As noted above, our own statute, § 32-5A-191(a)(1), Ala.Code 1975, enacts a prohibition against driving, or being in actual physical control of a vehicle, with a blood alcohol content of 0.10% or greater. In order to find the defendant guilty of violating § 32-5A-191(a)(1), the jury is not required to find that the defendant was "under the influence" of alcohol; therefore, the jury need not "presume," in accordance with § 32-5A-194, that he was under the influence from evidence admitted as to his blood alcohol content in order to convict. For that reason, the trial court did not err in refusing to instruct the jury on the rebuttable presumptions found in § 32-5A-194(b), Ala.Code 1975.
We note also that the Court of Criminal Appeals has characterized the failure to instruct on the statutory presumptions as tantamount to a directed verdict in favor of the State. That characterization fails to recognize that the State still must prove beyond a reasonable doubt the elements previously stated, i.e., (1) that the defendant was driving or was in actual physical control of a vehicle (2) while his blood alcohol content was 0.10% or greater. See Davis, 8 Va.App. at 298 and n. 2, 381 S.E.2d at 15 and n. 2.
Certainly, a defendant can offer evidence to rebut the State's evidence that his blood alcohol content was .10% when he was found driving, or in actual physical control of, a vehicle. "The accused may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results." Davis, 8 Va.App. at 300, 381 S.E.2d at 16 (citing Washington v. District of Columbia, 538 A.2d 1151 (D.C.App. 1988)). The following list of possible defenses in a prosecution for a per se violation is offered by way of example only:
Defense of Drunk Driving Cases, supra, § 33 A. 01 (1991).
Based on the above, we conclude that the Court of Criminal Appeals incorrectly held that intoxication is an element of the offense of driving with a blood alcohol content of 0.10% or greater. We also hold that the trial court did not err in refusing to instruct the jury on § 32-5A-194(b) presumptions. The trial court's failure to instruct the jury on those rebuttable presumptions did not have the practical effect of a directed verdict in favor of the State, because the rebuttable presumption that the defendant was intoxicated because his blood alcohol content was over 0.10% is not relevant to the charge of driving or being in actual physical control of a vehicle with a blood alcohol content of 0.10% or greater. The judgment of the Court of Criminal Appeals is reversed, and this case is remanded to that court for proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and HOUSTON, JJ., concur.
ALMON, J., dissents.
ALMON, Justice (dissenting).
I agree with the Court of Criminal Appeals that the trial court erred in refusing the request for an instruction that evidence of a blood alcohol content of .10% gives rise only to a rebuttable presumption that the defendant was guilty of violating § 32-5A-191(a)(1), Ala.Code 1975, not an irrebuttable presumption.
The Court of Criminal Appeals has construed the applicable Code sections so as to harmonize the respective provisions. Sections 32-5A-191(a)(1) and 32-5A-194(b)(3) of the 1975 Code come from the following consecutive sections of 1980 Ala. Acts, No. 80-434:
These two sections, enacted together and employing the same phrasing, clearly must be construed together and harmonized if possible. As the Court of Criminal Appeals stated, the State argues that they "cannot be reconciled" and, in effect, argues that § 32-5A-194(b)(3) should therefore be ignored when the State introduces evidence of a blood alcohol test giving a reading of.10% or more. The provisions of a statute should be read together and harmonized if possible.
Singer, Sutherland Statutory Construction, § 46.05 (5th ed., 1992 revision) (citations omitted).
The presumption created by § 32-5A-194(b)(3) has been held to be a rebuttable presumption, not an irrebuttable one. Salazar v. State, 505 So. 2d 1287 (Ala.Crim. App.1986); Sides v. State, 574 So. 2d 856 (Ala.Crim.App.), affirmed, 574 So. 2d 859 (Ala.1990). The majority's holding here makes the presumption irrebuttable in a prosecution under § 32-5A-191(a)(1).
As can be seen from § 9-102 of Act No. 80-434, as well as from the title of § 32-5A-191, the offense prohibited by that section is "driving while under the influence of alcohol." Thus, any appearance from § 32-5A-191(a)(1) that it creates what the majority calls a "per se" offense is contradicted by the section's title, as well as by § 32-5A-194(b)(3). If the offense is driving under the influence of alcohol, it would seem that the defendant can rebut the evidence of the blood alcohol test by evidence that his driving was not influenced by alcohol. In fact, the majority quotes the following as a "possible defense" to a prosecution under § 32-5A-191(a)(1):
620 So. 2d at 743. This is couched in terms of rebuttal to the blood alcohol tests, but it assumes that the alcohol's influence on the person is important. Should a jury be instructed that, if the evidence of the defendant's behavior convinced the jury that the blood alcohol test was wrong, it could acquit the defendant, but that it could not consider the evidence as rebutting the State's case if it believed that the test result was correct? Such an instruction would be confusing and would focus the jury's attention on the administration of the chemical test to the exclusion of the main question of whether the defendant was driving under the influence of alcohol.
Moreover, it seems to me that this defense should require an affirmance of the judgment of the Court of Criminal Appeals. If the blood alcohol evidence can be rebutted by evidence of the defendant's physical condition, the requested instruction should have been given. This defense simply takes the rebuttal evidence one step further in abstraction. In effect, the defendant can say, "A person who has a true blood alcohol concentration of .10% will exhibit physical signs of being under the influence of alcohol. I have introduced evidence that I was not under the influence of alcohol. Therefore, the test must have been wrong, and my true blood alcohol concentration was less than .10%." This is a roundabout way of defending against the charge, but it seems to be what the majority is allowing by its quotation from the treatise.
More directly to the point is the fact that this Court has held that subsections (a)(1) and (a)(2) of § 32-5A-191 "are merely two different methods of proving the same offense driving under the influence." Sisson v. State, 528 So. 2d 1159, 1162 (Ala. 1988). The majority opinion in this case implicitly overrules Sisson. As long as it has evidence of a blood alcohol test reading of .10% or higher, the State can choose for its own reasons whether to indict under (a)(1) or (a)(2). Under the new rule announced today, if the State indicts the defendant under § 32-5A-191(a)(2), the defendant can rebut the State's evidence by submitting evidence that his physical condition was not impaired, see Salazar, supra, Sides, supra, and Ex parte Buckner, 549 So. 2d 451 (Ala.1989), but if the State indicts him under § 32-5A-191(a)(1), the defendant can rebut the State's evidence only by trying to prove that the test gave an incorrect blood alcohol reading. Thus, in a prosecution under (a)(2), unimpaired physical condition is a proper defense even if the jury accepts as accurate a blood alcohol test result of .10% or more, but unimpaired physical condition is not a defense to a prosecution under (a)(1) if the jury accepts the blood test as accurate. These defenses *745 are clearly very different, so I cannot see how the offenses are the same, as the Court held in Sisson, supra.
I accept as undisputed the proposition that the legislature can make it a criminal offense for a person to operate a motor vehicle while the concentration of alcohol in his blood is .10% or more, without regard to whether that concentration makes him "under the influence" of alcohol in any other respect. I simply believe that the statute before us does not unambiguously create such an offense. The holding that § 32-5A-191(a)(1) does create such an offense leads to irreconcilable conflicts with other portions of Act No. 80-434. "[A]mbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056, 1059, 28 L. Ed. 2d 493 (1971) (citation omitted); State ex rel. Graddick v. Jebsen S. (U.K.) Ltd., 377 So. 2d 940 (Ala. 1979); State v. Spurlock, 393 So. 2d 1052 (Ala.Crim.App.1981).
Because I would affirm the judgment of the Court of Criminal Appeals, I must respectfully dissent.
[1] Some of the other states with a "per se" statute have reduced to 0.08% the blood alcohol content required to be proven for a violation. See, e.g., Cal.Veh.Code § 23152(b) (West Supp.1993); Me.Rev.Stat.Ann. tit. 29, § 1312-B(1)(B) (Supp. 1992); Or.Rev.Stat. § 813.010(1)(a) (1989); Utah Code Ann. § 41-6-44(1)(a) (1988); Vt.Stat.Ann. tit. 23, § 1201(a)(1) (Supp.1992). Georgia prohibits those under 18 years of age from driving with 0.06% blood alcohol content or greater. See Ga.Code Ann. § 40-6-391(k) (1991).
[2] The issue in Hogan v. State, 178 Ga.App. 534, 343 S.E.2d 770 (1986), was whether the "per se" violation and an "under the influence" violation were two different crimes. The Georgia Court of Appeals stated:
"Under OCGA § 40-6-391 subsections (a)(1), (2), and (3), being `under the influence' and `to a degree which renders [one] incapable of driving safely' are not two separate elements. They are equivalent concepts describing a physical condition. One is not `under the influence' of an intoxicant unless he is intoxicated `to a degree which renders [him] incapable of driving safely.' The condition proscribed by OCGA § 40-6-391(4) is merely that of having at least 0.12 percent blood-alcohol count. As with robbery or any other crime which may be accomplished in alternative ways, the evidentiary elements of proof of the commission of the crime proscribed by OCGA § 40-6-391 will, of necessity, vary depending upon the alternative manner or manners in which it is alleged that the crime was actually committed, to wit: driving while in the condition of intoxication denominated as `under the influence' or driving in the condition of intoxication demonstrated by 0.12 percent blood-alcohol level. It is true that the `DUI' heading that currently precedes the crime enacted by the legislature as OCGA § 40-6-391 has no legal effect and is probably a misnomer. However, the Supreme Court [of Georgia] has referred to the enactment as `the DUI statute.' So too will we.
"Thus the proper construction of OCGA § 40-6-391 is as follows: The commission of the crime of DUI by violating OCGA § 40-6-391(a)(1), (a)(2), or (a)(3) may include as an element of proof thereof, those presumptions or inferences which are established by OCGA § 40-6-392(b)(1), (b)(2), or (b)(3). The crime of DUI by violating OCGA § 40-6-391(a)(4) differs only in that proof merely of the commission of a proscribed specific act is sufficient without resort to any inference or presumption."
178 Ga.App. at 536, 343 S.E.2d at 772 (emphasis in original). Therefore, Hogan overruled that portion of the Atkins opinion that had held that the "per se" violation and the "under the influence" violations were two different crimes. The holding of the Georgia Court of Appeals in Atkins that the presumptions do not apply in a prosecution for a "per se" violation was not overruled by Hogan. | March 19, 1993 |
c5648062-2757-4649-8874-e98fcd194e7e | Towner v. Hosea O. Weaver & Sons | 614 So. 2d 1020 | 1910860 | Alabama | Alabama Supreme Court | 614 So. 2d 1020 (1993)
Louise Gordon TOWNER, et al.
v.
HOSEA O. WEAVER & SONS, et al.
1910860.
Supreme Court of Alabama.
March 5, 1993.
*1021 Michael A. Figures and Gregory L. Harris of Figures, Jackson and Harris, Mobile, for appellants.
Philip H. Partridge and Craig W. Goolsby of Brown, Hudgens, P.C., Mobile, for appellees.
MADDOX, Justice.
The plaintiffs appeal from a judgment entered on a jury verdict for the defendant in a wrongful death case that arose out of a death that occurred at a construction site when a trench caved in on a worker. Two issues are presented: (1) whether the trial court reversibly erred in refusing the plaintiffs' proposed instructions regarding the reserved right-of-control test for determining a person's status as an employee or independent contractor; and (2) whether the trial court misstated the law in its instructions to the jury regarding the "loaned servant" doctrine. We hold that the trial court's instruction to the jury on the law relating to independent contractors was incomplete; therefore, the trial court erred in refusing to instruct the jury as requested by the plaintiffs.
The deceased worker was an employee of Brasfield & Gorrie General Contractors, Inc. ("B & G"). Because the question of whether the defendant Hosea O. Weaver & Sons ("Weaver") was an independent contractor or whether B & G had reserved the right to control the manner in which the work was done was one of the most critical facts for the jury to determine, we set out, rather extensively, the facts surrounding the accident that caused the death.
The Mobile Water Service System, Inc., entered into a contract with B & G to construct a water filtration plant. The project had been essentially completed when a leak was discovered in a large 48-inch water main, buried approximately 18 to 20 feet below the surface. The original excavation for the pipe had been performed by B & G. Freddie Towner, an employee of B & G, was called on May 18, 1990, to come in and work at the plant during the weekend while his supervisor, Anthony Jones, was at home. Towner, noticing that the water had begun to reach the surface of the ground, notified Jones of this fact. Jones decided that the pipe would have to be reexcavated and repaired. Because B & G had moved its equipment to another job site, Jones, B & G's mechanical supervisor, asked Weaver to provide equipment and an operator to excavate the pipe.
On May 21, Weaver delivered a John Deere 692D track-backhoe to the work site. Ladon Hilliard, one of Weaver's regular employees, reported to the site on May 22 to dig up the pipe. Hilliard excavated the pipe, and Towner and another employee of B & G entered the trench to repair the leak. A wall of dirt collapsed, killing Towner.
Louise Gordon Towner, Towner's surviving spouse, and Julius Towner, Towner's minor son, acting through Louise Gordon Towner, filed this wrongful death action against Weaver, B & G, and Jones. The claim against Towner's employer, B & G, was later dismissed.
The jury returned a verdict for Weaver, but was deadlocked regarding whether *1022 Jones was liable. The trial court denied the plaintiffs' motion for a new trial against Weaver, but entered a judgment for Weaver and made it final pursuant to Rule 54(b), Ala.R.Civ.P. The plaintiffs appeal.
The plaintiffs' theory is that Hilliard was working in his regular capacity as an employee of Weaver at the time of Towner's death, and that Weaver was an independent contractor. Weaver contends that Hilliard was working under the control of B & G and was a loaned servant at the time of Towner's death. If Hilliard was a loaned servant from Weaver to B & G, then Hilliard would be Towner's co-employee, and the plaintiffs' action would be barred by the exclusivity provisions of the Workers' Compensation Act, Ala.Code 1975, § 25-5-1 et seq. See Gunnels v. Glenn Machine Works, Inc., 547 So. 2d 448, 449 (Ala.1989).
The trial court refused the plaintiffs' proposed instruction stating the test for determining whether Hilliard, the backhoe operator, was an employee of B & G or was an independent contractor at the time of Towner's death. It also refused Weaver's proposed instruction regarding the loaned servant doctrine but nevertheless incorporated the instruction into its oral charge.
The plaintiffs' proposed instruction 1, which the trial court refused, stated:
C.R. 194. Citing Danford v. Arnold, 582 So. 2d 545 (Ala.1991), as authority for the proposed instruction, the plaintiffs argue that the refusal of the instruction denied the jury an opportunity to find that Hilliard was working under the control of Weaver, an independent contractor, despite what they say was ample evidence to support a claim that he was. We agree that there is substantial evidence that Hilliard was working under the control of an independent contractor.
The relevant part of the charge actually given was as follows:
R. 442-44.
The trial court's instruction did not fully explain the test. There is no mention that it is the reserved right of control, whether actually exercised or not, that provides the *1023 true test of whether Hilliard was acting as an employee of B & G or as an employee of an independent contractor. E.g., Gossett v. Twin County Cable T.V., Inc., 594 So. 2d 635, 639 (Ala.1992); Danford, 582 So. 2d at 547.
The instruction is incomplete in another respect. Although the trial court explained how the jury could find in Weaver's favor, it did not refer to independent contractors or explain how the jury could find in the plaintiffs' favor if the jury found that Hilliard was working as an employee of an independent contractor.
The trial court has a duty "to instruct the jurors fully and correctly on the applicable law of the case and to guide, direct, and assist them toward an intelligent understanding of the legal and factual issues involved in their search for the truth." American Cast Iron Pipe Co. v. Williams, 591 So. 2d 854, 856 (Ala.1991). "A party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for a new trial." Hood v. Slappey, 601 So. 2d 981, 983 (Ala.1992). The record includes substantial evidence that Hilliard was working as an employee of Weaver, an independent contractor. The plaintiffs were entitled to an instruction on that theory. Because we conclude that the instruction was incomplete, we cannot hold that the failure to give the proposed instruction was harmless error, as Weaver suggests.
The plaintiffs also argue that the trial court reversibly erred when it gave Weaver's proposed instruction regarding the loaned servant doctrine, on the ground that it was an "incorrect statement of the law as to one concerning a control." R. 447. The plaintiffs now argue what they should have stated to the trial court, as reasons for the objection, that the word "control" should have been qualified by the words "reserved right of" and that the instruction did not mention the employee's consent or acquiescence as an element. The issue was not preserved for review because the objection was not specific enough to afford the trial court an opportunity to correct the instruction. See, e.g., Coleman v. Taber, 572 So. 2d 399, 402 (Ala. 1990).
We conclude that the trial court erred in refusing the plaintiffs' proposed jury instruction regarding the right-of-control test. We reverse the judgment and remand the cause for a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | March 5, 1993 |
1491f8d4-d1e2-4137-95e3-31d07349fe67 | Reserve Nat. Ins. Co. v. Crowell | 614 So. 2d 1005 | 1911098, 1911099, 1911157 | Alabama | Alabama Supreme Court | 614 So. 2d 1005 (1993)
RESERVE NATIONAL INSURANCE COMPANY
v.
Ray CROWELL and Myrtle Crowell.
Phillip BAILEY
v.
Ray CROWELL and Myrtle Crowell.
Ray CROWELL and Myrtle Crowell
v.
RESERVE NATIONAL INSURANCE COMPANY and Phillip Bailey.
1911098, 1911099 and 1911157.
Supreme Court of Alabama.
February 5, 1993.
Rehearing Denied March 19, 1993.
*1006 Philip H. Butler of Robison & Belser, P.A., Montgomery, for Reserve Nat. Ins. Co.
James W. Garrett, Jr. of Rushston, Stakely, Johnston & Garrett, P.A., Montgomery, for Phillip Bailey.
Steven F. Schmitt of Schmitt & Harper, Tallassee, FL, and Ab Powell, Andalusia, for Ray Crowell and Myrtle Crowell.
SHORES, Justice.
These appeals are from a judgment based on a jury verdict awarding compensatory and punitive damages to Ray and Myrtle Crowell in an insurance fraud action against Reserve National Insurance Company and Phillip Bailey. Reserve National and Bailey appeal the trial court's denial of their motions for a judgment notwithstanding the verdict and for a new trial. Reserve National appeals, in the alternative, from the trial court's order of remittitur. The Crowells cross-appeal from the order of remittitur. We affirm.
Bailey, a field agent for Reserve National, sold Medicare supplement policies to the Crowells on September 2, 1988. The Reserve National policies were to replace their existing policies held with Liberty National Insurance Company. Bailey told the Crowells that Reserve National offered a policy that was better than their existing coverage with Liberty National, and that, for payment of an extra month's premium, they would receive immediate coverage and a "pre-existing benefits" (PEB) rider, i.e., a policy addendum providing coverage for pre-existing conditions. The Crowells paid Bailey two months' premiums on each policy. Bailey did not indicate on their application that the Crowells were replacing an existing policy.
The evidence at trial showed that an application for a PEB rider with Reserve National must be for a replacement of an existing Medicare supplement policy (MSP), and that Reserve National requires payment of a quarterly premium rather than a monthly premium in order to obtain immediate coverage. Immediate coverage would give an effective date as the date of application, *1007 which was September 2, 1988. The reason the Crowells paid an extra month's premium was that Bailey assured them that doing so would give them immediate coverage and the PEB rider.
Jeff Reeves, of Reserve National's home office in Oklahoma City, received the Crowells' application on September 13, 1988. The application showed that the Crowells wanted PEB riders and immediate coverage for pre-existing conditions, but did not indicate that their policies were to be replacement policies. Bailey telephoned Reeves on October 17, 1988, and told him that the Crowells were, in fact, replacing an existing policy. Reeves then told Bailey to finish the paperwork (which should have included MSP replacement forms signed by the Crowells) on the Crowells' application and send it to him in Oklahoma City. However, Bailey never got the Crowells to sign a Medicare supplement replacement form, even though Reeves had earlier written three times to Bailey requesting replacement forms for the Crowells. Reeves issued the policy without a PEB rider and with an effective date of November 3, 1988.
Myrtle Crowell received her new Medicare supplement policy on November 15, 1988, and on that day she telephoned Reserve National's David Harvey. She told him that Phillip Bailey had told her that the effective date on her policy would be the day of application, September 2, 1988, and that she had paid an extra month's premium to receive immediate coverage. Mrs. Crowell also told Harvey that she had had a heart attack and surgery in October, that her old MSP insurance had lapsed, and that she needed coverage from her policy with Reserve National for October. Harvey told her that the extra month's premium waived the six-month waiting period for pre-existing conditions coverage. Mrs. Crowell understood this to mean that she had coverage for pre-existing conditions and would receive coverage for her October expenses not covered by Medicaid.
Harvey told his supervisor, Juanita Phelps, about Mrs. Crowell's telephone call because, he said, Mrs. Crowell "thought she had coverage and she didn't, which is a new issue, and Mrs. Phelps is over the new issue department." R.T. 248. Reserve National later changed the effective date of Mrs. Crowell's policy to October 3, 1988.
After Ray Crowell had prostate surgery on January 11, 1989, Reserve National denied his claim on the grounds that his prostate condition was a pre-existing condition and that he did not have PEB coverage under his health insurance policy with Reserve National. The hospital filed claims for Mr. Crowell's prostate treatment with Reserve National, which refused to honor the claims.
The Crowells' daughter, Dorothy Ziglar, telephoned Reserve National, at her parents' request, on October 23, 1989. She spoke with David Harvey and told him that when her parents applied for their policies with Bailey they had paid an extra month's premium for a waiver of the six-month waiting period, in order to receive coverage for pre-existing conditions. Harvey told Ziglar that he had no proof that her parents had paid the extra month's premium and told her what information to send him to show that they had paid the extra premium. On October 31, 1989, Harvey received Ziglar's letter containing a copy of the Crowells' September 2, 1988, receipt signed by Bailey and showing an initial payment of $207.50.[1]
Harvey turned Ziglar's letter over to his supervisor, Mrs. Phelps. No one from Reserve National responded to Ziglar's letter, although the letter was placed in Reserve National's file concerning the Crowells.
The hospital, unable to collect from Reserve National, turned Mr. Crowell's case file over to a collection agency. The Crowells received several collection letters from the credit agency between September and November 1989 about Mr. Crowell's hospital bills.
*1008 The Crowells sued Reserve National and Phillip Bailey. The case was submitted to the jury on the Crowells' claim of fraud; the jury rendered a verdict in favor of the Crowells in the amount of $25,000 compensatory damages and $1,000,000 punitive damages.
Reserve National timely filed motions for a new trial, or, in the alternative, for a judgment notwithstanding the verdict, or, alternatively, for a remittitur. The trial court denied the first two motions, but granted a remittitur of $400,000 on the punitive damages award. The Crowells accepted the remittitur of punitive damages from $1,000,000 to $600,000 on March 17, 1992. The trial court issued an amended judgment for $625,000 in favor of the Crowells on March 30, 1992.
Reserve National and Bailey appeal the trial court's denial of their motions for a judgment notwithstanding the verdict and for a new trial. Reserve National appeals, in the alternative, from the trial court's order of remittitur, contending that it was an insufficient reduction in the amount of punitive damages. The Crowells cross-appeal from the order of remittitur.
The parties raise four broad issues on appeal: Whether the award of punitive damages was appropriate in this case; whether the judgment, as amended, was sufficient; whether evidence of bias was properly admitted against Reserve National; and whether the trial court erred in its charge to the jury. No party challenges the constitutionality of the punitive damages statute, Article 2 of Chapter 11, Title 6, Code of Alabama 1975.
The defendants contend that the award of punitive damages was not supported by the evidence, because, they allege, Bailey did not know that his representations to the Crowells were false when he led them to believe that they would receive immediate coverage for pre-existing conditions by paying two monthly premiums when they applied for MSP insurance. Section 6-11-20(a), Ala.Code 1975, provides:
The Crowells sued the defendants for damages based on fraud. Fraud that allows punitive damages is defined as "[a]n intentional misrepresentation, deceit, or concealment of a material fact the concealing party had a duty to disclose, which was gross, oppressive or malicious and committed with the intention on the part of the defendant of thereby depriving a person or entity of property or legal rights or otherwise causing injury." § 6-11-20(b)(1). Clear and convincing evidence represents
§ 6-11-20(b)(4).
The jury was instructed on these requirements for the imposition of punitive damages. Whether the defendants intended to deceive the Crowells was a question of fact for the jury to decide. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So. 2d 726, 729 (1976). Although there was conflicting evidence on the matter, there was also sufficient evidence for a jury to determine that Bailey and Reserve National intended to deceive the Crowells into believing that they had paid for immediate coverage for pre-existing conditions. The evidence was undisputed that the Crowells told Bailey about Ray Crowell's prostate condition before he sold them policies to replace their existing policies with Liberty National. Bailey told the Crowells that they would receive better coverage than they had under their old policy, yet admitted at trial that their Reserve *1009 National policy offered the same coverage as the one it was replacing, even though the monthly premiums under the Reserve National policy were approximately $20 more. Reserve National knew that Bailey had collected an extra month's premium from the Crowells and that the Crowells believed that this payment provided them with more coverage than they actually received when Reserve National issued the policies without a PEB rider and with an effective date of November 3, 1988, which was two months later than the date of their initial payment on September 2, 1988.
A jury's verdict is presumed to be correct "where there is some [clear and convincing] evidence, or a reasonable inference therefrom, to support the verdict, and ... this presumption is strengthened when the trial court denies a motion for a new trial." Thompson v. Cooper, 551 So. 2d 1030, 1031 (Ala.1989). Although the trial court ordered a remittitur of the $1,000,000 verdict, that court's final judgment indicated that punitive damages were warranted against the defendants, albeit in an amount less than that awarded by the jury.
In order to reverse the judgment of the trial court, this Court "must be convinced that the verdict and judgment are contrary to the preponderance of credible evidence and are, therefore, palpably wrong and manifestly unjust." Mobile Dodge, Inc., v. Waters, 404 So. 2d 26, 27 (Ala.1981). Because there was sufficient credible evidence for a jury to award punitive damages against both defendants pursuant to § 6-11-20, we conclude that the award of punitive damages in this case was appropriate.
Reserve National contends that the award of punitive damages violated its due process rights because the amount of the award was over 600 times the amount of the Crowells' out-of-pocket expenses. However, "the essential purpose of punitive damages would be thwarted if we required that they conform to any mathematical equation." Associates Financial Services Co. v. Barbour, 592 So. 2d 191, 199 (Ala.1991). Therefore, Reserve National's contention that the award of punitive damages violates its constitutional rights is without merit in this case. See Barbour and cases cited therein.
We now must address the sufficiency of the judgment as amended. The jury returned a verdict of $1,000,000 in punitive damages to the Crowells. The trial court, following the directives of this Court in Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989), and Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), determined that the award of punitive damages was excessive, and it ordered a remittitur of $400,000. The Crowells accepted the remittitur, and the court entered an amended judgment of $600,000 in punitive damages and $25,000 in compensatory damages. The amended judgment indicated that the Crowells were entitled to recover only up to $250,000 in punitive damages from Phillip Bailey, pursuant to Alabama Code 1975, § 6-11-21.[2]
Reserve National contends on appeal that the reduced punitive damages award of $600,000 is still excessive, and that, by applying the statutory damages cap of $250,000 to Bailey and not to Reserve National, the trial court is violating the rule against apportionment of damages between joint tort-feasors. See Buchanan v. Collier, 555 So. 2d 134, 136 (Ala.1989). We disagree.
The punitive damages cap under § 6-11-21 does not represent an apportionment of damages among joint tort-feasors. The purpose of punitive damages is to deter wrongful conduct and to punish those who may profit by such conduct. See Central Alabama Elec. Coop. v. Tapley, 546 So. 2d 371, 377 (Ala.1989). The statutory cap serves to limit the amount of punitive damages that a defendant can be held liable for, unless the defendant falls within the exceptions to the imposition of that *1010 cap.[3] These exceptions address wrongful conduct that is, by its very nature, so egregious that a punitive damages award beyond the statutory cap is warranted, if the facts of the case so indicate, in order to adequately punish and deter such conduct.
The trial court found that the actions of Reserve National fell within the "pattern or practice" exception of § 6-11-21(1),[4] but that none of Bailey's conduct excepted him from the $250,000 punitive damages cap. Clearly, the legislature did not intend for the statutory cap to fall by the wayside in the situation of joint tort-feasors, when one joint tort-feasor fits beneath the statutory cap and the other does not. To so hold would make a mockery of the law, by allowing a joint tort-feasor to escape punitive damages in excess of the cap merely because another tort-feasor is less culpable, even when the jury and the trial court have determined, based on the facts of the case, that the more culpable tort-feasor is guilty of conduct that deserves greater punishment and that requires a higher degree of deterrence than that appropriate for a less culpable tort-feasor.
A law will not be interpreted in such a way as to make it meaningless. In the situation where joint tort-feasors act with differing degrees of culpability, so that one tort-feasor's conduct falls within the statutory exception to the cap on punitive damages under § 6-11-21 and the other's does not, then the statutory cap may apply to one tort-feasor and not to the other, without violating the rule against apportionment between joint tort-feasors.
We now address, in tandem with the following issue, the contention that the judgment was excessive even after the remittitur.
On cross-appeal, the Crowells request this Court to reinstate the jury's $1,000,000 punitive damages award. Absent a finding that the remittitur was not supported by the directives of Green Oil and Hammond, supra, we will not do so. We have carefully examined the trial court's analysis of the amount of punitive damages, and we conclude that the court properly ordered a remittitur of $400,000 under the guidelines of Green Oil and Hammond. In setting aside the $1,000,000 verdict as flawed, the trial court recognized the fundamental, constitutionally guaranteed right to a trial by jury. Ala. Const. of 1901, art. I, § 11. Based upon the Hammond and Green Oil directives, a thorough review of the facts of this case, and a review of the amount of punitive damages awarded in other cases, the trial court determined that the jury's verdict went beyond the amount necessary to accomplish society's goal of punishment and deterrence, and it ordered a remittitur of $400,000. We cannot say that the trial court abused its discretion in so doing, and, therefore, we affirm the order of remittitur.
The defendants contend that the trial court erred in admitting evidence that Reserve National paid the costs of Bailey's defense. The court refused to admit the evidence to show that Reserve National ratified Bailey's conduct, but admitted it as evidence of bias, to show that Bailey, who was no longer employed by Reserve National, might be influenced to testify favorably for Reserve National by its payment of the costs of his defense.
A trial court has discretion to admit evidence that will show the bias, prejudice, *1011 or interest of a witness. Osborne v. Cobb, 410 So. 2d 396, 398 (Ala.1982). This Court has specifically held that a connection between a witness and an insurance company may be used to show a tendency of bias on the part of the witness. Hinton & Sons v. Strahan, 266 Ala. 307, 313, 96 So. 2d 426, 431 (1957), and cases cited therein. Furthermore, a party may show bias of its own witness, when that witness is called as an adverse witness.
Bailey was called by the Crowells as an adverse witness. The fact that Reserve National paid Bailey's defense costs is a matter the jury should be able to consider in determining the credibility of Bailey as a witness, much as a jury can consider whether the financial gain an expert witness may receive from testifying at trial could bias that witness's testimony. See Plitt v. Griggs, 585 So. 2d 1317, 1322-23 (Ala.1991). Evidence that a principal paid the court costs of its agent or former agent who is a co-defendant in the same case should be admissible at the discretion of the trial court as tending to show bias on the part of the agent in favor of the principal. See Price v. Cox, 242 Ala. 568, 570, 7 So. 2d 288, 290 (1942) (evidence that one partner paid co-defendant partner's attorney fees in unrelated case admissible to show bias). Because there is no indication in the record before us that the trial court abused its discretion in admitting the evidence, we cannot conclude that the trial court erred in admitting evidence that Reserve National paid the costs of Bailey's defense.
The final issue before us is whether the trial court erred in submitting the claim of mental anguish to the jury and in refusing to give Reserve National's proposed jury charges number 24 and number 32. Rule 51, A.R.Civ.P., as it concerns appeals of refused jury charges, states:
Reserve National did not object to the court's refusal of charge number 32, and, thus, as to that requested charge, did not preserve this issue for appeal. The trial court did not err in refusing Reserve National's charge number 24, because the rule of law set forth in the requested charge was given to the jury when the court, in charging the jury, read Alabama Pattern Jury Instruction 11.03 and Ala. Code 1975, § 6-11-20, to the jury. A.R.Civ.P. 51.
The claim of mental anguish was properly submitted to the jury. Reserve National contends that Allen v. Walker, 569 So. 2d 350 (Ala.1990), stands for the position that a plaintiff "cannot recover [for] mental anguish or emotional distress resulting from negligence." Reserve National's brief at 33. Its interpretation of the language in Allen is too broad.
Allen involved an action containing claims of both negligent infliction of emotional distress and intentional infliction of emotional distress. The negligent infliction claim was disposed of on a motion for summary judgment. This Court affirmed the summary judgment as to the negligence claim, stating that "there is no cause of action for the negligent infliction of emotional distress." Id. at 352 (emphasis in original).
However, the case before us involves a claim of fraud, and it is not based on a cause of action for infliction of emotional distress, whether negligent or intentional. Damages for mental distress may be awarded in a case of willful fraud. Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537, 540 (Ala.1989), affirmed, 499 U.S. 1, 111 *1012 S. Ct. 1032, 113 L. Ed. 2d 1 (1991). As Haslip indicates, a fraud may be intentionally perpetrated, and that fraud, being willful fraud, could result in emotional distress to the victims. In such a case, damages for the mental distress caused by the willful fraud may be awarded by the jury, whether the actual infliction of the emotional distress by the defendant was intentional or reckless. See Associates Financial Services, supra.
Punitive damages may be awarded for willful or intentional fraud, pursuant to § 6-11-20. Because the jury awarded punitive damages against Reserve National and Bailey, we must conclude that the jury determined that the fraud was willful on the part of both defendants. For the above reasons, and because damages for mental distress may be awarded in the case of willful fraud, the trial court properly submitted the claim of mental anguish to the jury.
In view of the record, and in light of the foregoing reasoning, we conclude that the judgment of the trial court, as to all issues raised by these appeals, including the remittitur of the punitive damages award, is due to be affirmed.
1911098AFFIRMED.
1911099AFFIRMED.
1911157AFFIRMED.
MADDOX, ALMON and HOUSTON, JJ., concur.
KENNEDY, J., concurs in the result.
[1] The Crowells' monthly premium under their Reserve National policies totalled $106.80. The $207.50 initially collected by Bailey from the Crowells represented a $15.00 registration fee plus two monthly premiums of $96.25. Bailey originally told the Crowells that their monthly premiums would be $96.25 because he forgot to add an additional $10.55 for the cost of a rider.
[2] We again emphasize that the constitutionality of this statute is not challenged, and we assume for the present discussion that the statute is valid.
[3] Section 6-11-21 provides:
"An award of punitive damages shall not exceed $250,000.00, unless it is based upon one or more of the following:
"(1) A pattern or practice of intentional wrongful conduct, even though the damage or injury was inflicted only on the plaintiff; or,
"(2) Conduct involving actual malice other than fraud or bad faith not a part of a pattern or practice; or,
"(3) Libel, slander or defamation."
[4] Specifically, the trial court in its order found a pattern or practice of intentional wrongful misconduct by Reserve National and its agents based on, among other evidence, testimony of two other witnesses that, on earlier occasions, "agents of Reserve National misrepresented the truth to them regarding pre-existing condition coverage." C.R. 445. | February 5, 1993 |
5f8e47c5-ceca-41db-a0ee-f4bc7f8aacdb | Boros v. Baxley | 621 So. 2d 240 | 1910866 | Alabama | Alabama Supreme Court | 621 So. 2d 240 (1993)
George BOROS
v.
William J. BAXLEY, et al.
1910866.
Supreme Court of Alabama.
February 26, 1993.
Rehearing Denied May 28, 1993.
*241 George Boros, pro se.
Stephen A. Rowe and E. Berton Spence of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
MADDOX, Justice.
This is a legal malpractice action. The plaintiff, George Boros, acting pro se, presents five issues: whether the trial judge erred in (1) directing a verdict for the defendants; (2) refusing to recuse himself from the case; (3) denying Boros's request for a continuance; (4) granting the defendants' motion in limine as to punitive damages and damages for mental anguish; and (5) denying Boros's motion to amend his complaint. We affirm.[1]
Boros sued William Baxley, Charles Dauphin, and the law firm of Baxley, Stuart, Ward & Dillard, alleging legal malpractice; specifically, Boros alleged that in an earlier case they had failed to file his complaint within the statutory period of limitations. The underlying case involved Boros's purchase of real estate from Jack Shewmake. Boros had employed Gwen Palmer, an agent of the real estate company of Johnson-Rast & Hays, to help negotiate the purchase from Shewmake. After moving into the house, Boros found numerous problems.
Boros then retained the Baxley firm to sue Shewmake, Palmer, and Johnson-Rast & Hays on the basis of fraudulent misrepresentation. Shortly after filing suit, the Baxley firm terminated its relationship with Boros because of a dispute over attorney fees. The trial court in the underlying case entered a summary judgment for Palmer and Johnson-Rast & Hays, without stating a specific reason. Boros and Shewmake had settled their dispute before the summary judgment was entered. This Court affirmed the summary judgment, concluding that the applicable statute of limitations period had expired before the lawsuit was filed. Boros v. Palmer, 472 So. 2d 1020 (Ala.1985). On October 4, 1985, Boros filed the present suit.
In this action, Boros presented his evidence to a jury. On the defendants' motion, the trial court directed a verdict against Boros on the basis that he had failed to show that he would have recovered against Palmer and Johnson-Rast & Hays in the underlying lawsuit alleging fraudulent misrepresentation had that case been timely filed. Boros appeals from the resulting judgment for the defendants. We affirm.
Initially, we note that a motion for 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). The ultimate question presented by the motion, of course, 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 on or before June 11, 1987, the applicable standard of review is the "scintilla evidence rule." Section 12-21-12(e), Ala.Code 1975; Maharry v. City of Gadsden, 587 So. 2d 966 (Ala.1991). Under the "scintilla evidence rule" the nonmovant could defeat a directed verdict motion by showing "a mere gleam, glimmer, spark, or trace of evidence" supporting each element of his cause of action or defense. See, e.g., Gross v. Republic Steel Corp., 400 So. 2d 383 (Ala.1981), and Gadsden Paper & Supply Co. v. Washburn, 554 So. 2d 983 (Ala.1989).
Additionally, in reviewing a motion for directed verdict this Court must view all the evidence in a light favorable to the nonmovant and must entertain such reasonable evidentiary inferences as the jury would be free to draw. Williams v. Allstate Ins. Co., 591 So. 2d 38 (Ala.1991).
*242 Concerning legal malpractice, this Court has stated:
McDuffie v. Brinkley, Ford, Chestnut & Aldridge, 576 So. 2d 198, 199-200 (Ala. 1991).
The tort of fraudulent misrepresentation under § 6-5-101, Ala.Code 1975, requires "(1) a false representation, (2) regarding a material existing fact, (3) which the plaintiff relies upon, and (4) damages proximately caused by the misrepresentation." Smith v. J.H. Berry Realty Co., 528 So. 2d 314, 316 (Ala.1988); Ex parte Leo, 480 So. 2d 572, 574 (Ala.1985); and see, Country Side Roofing & Sheet Metal, Inc. v. Mutual Ben. Life Ins. Co., 587 So. 2d 987, 991 (Ala.1991).
On appeal, the defendants maintain that Boros failed to prove that "but for [their] negligence he would have recovered on the underlying cause of action," because, according to the defendants, Boros failed to prove that he relied on any representations made by Palmer. After carefully reviewing the record, we conclude that the defendants are correct.
Our review of the record reveals not even a scintilla of evidence that Boros relied on Palmer's representations. In fact, Boros's own testimony establishes that he disbelieved Palmer's assertions and relied instead on assertions made by Shewmake. Boros testified[2] as follows:
(R. at 199-203; emphasis supplied.)
Smith v. J.H. Berry Realty Co., 528 So. 2d 314, 316 (Ala.1988). (Emphasis supplied).
As in Smith, we conclude that a factfinder could not have found that Boros relied on Palmer's representations, because, according to his testimony, "he was in fact so skeptical as to [their] truth that he placed no confidence in [them]," and because he "was unwilling to accept [Palmer's representations] without verification." Id. Because Boros failed to establish a necessary element of his underlying fraudulent misrepresentation claim, necessarily he failed to establish his legal malpractice claim. The trial court properly directed a verdict for the defendants.
Boros argues that the trial judge erred in refusing to recuse himself from the case. According to Boros, the trial judge exhibited a "hostile, demeaning, and prejudiced or biased attitude" toward him. (Appellant's brief at 27-28.) Boros stresses several remarks made by the trial court and argues that these remarks establish prejudice directly resulting in the judge's entering a directed verdict for the defendants.
Initially, we note that a petition for a writ of mandamus is the proper method for challenging the denial of a motion for recusal. Ex parte Balogun, 516 So. 2d 606 (Ala.1987). However, because this is a pro se appeal, we address the issue.
The law in this area is well settled. The Canons of Judicial Ethics apply to all judges in this State and have the force and effect of law. Ex parte Balogun, 516 So. 2d at 609. Canon 3 C. states:
(Emphasis supplied.)
This Court has interpreted Canon 3 C.(1) to impose a "reasonable person in the judge's shoes" standard. In Henderson v. G & G Corp., 582 So. 2d 529, 530 (Ala.1991), this Court stated:
However, a judge's recusal is not required by the "mere accusation of bias unsupported by substantial fact." Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala.1982). Further, "there is a presumption that a judge is qualified and unbiased, and ... one alleging to the contrary has a substantial burden of proof." Henderson, 582 So. 2d at 530. Additionally, "[a]dverse rulings during the course of the proceedings are not by themselves sufficient to establish bias and prejudice" on the part of a judge. Hartman v. Board of Trustees of the Univ. of Alabama, 436 So. 2d 837, 841 (Ala.1983); Matter of Sheffield, 465 So. 2d 350, 357 (Ala.1984).
We have examined closely each of the remarks made by the trial court. We conclude that Boros has failed to establish that the trial judge should have recused himself.
Boros argues that the trial court improperly refused to grant him a continuance on the day of trial. Boros asserts that he was mentally and physically exhausted from preparing his own case and otherwise acting as his own counsel. He argues that the trial judge abused his discretion in refusing to continue the case.
Generally, parties acting pro se should be treated as parties represented by counsel are treated. See, Cofield v. McDonald's Corp., 514 So. 2d 953 (Ala.1987); Hines v. City of Mobile, 480 So. 2d 1203 (Ala.1985); Hubbard v. Montgomery, 372 So. 2d 315 (Ala.1979); and Lockett v. A.L. Sandlin Lumber Co., 588 So. 2d 889 (Ala. *244 Civ.App.1991). In particular, pro se litigants "must comply with legal procedure and court rules." Lockett, 588 So. 2d at 890. Furthermore, "continuances are not favored and ... a trial court's denial of a motion for continuance will be upset only when a palpable or gross abuse of discretion has been shown." Scullin v. Cameron, 518 So. 2d 695, 698 (Ala.1987).
Here, we note that this case began in October 1985. After every judge in the Tenth Judicial Circuit (Jefferson County) recused himself, this Court appointed Judge Billy C. Burney to handle the case. According to the defendants, Judge Burney attempted three times to have the case tried. Ultimately, Judge Burney retired before the case was tried, and Judge Robert Parker was appointed to handle the matter. Judge Parker granted Boros a continuance on May 28, 1991, and set the case for trial on October 21, 1991. On that trial date, Boros requested the continuance at issue here.
We find no abuse of discretion here. Boros had six years to prepare his case for trial. Further, the trial court was in a better position than is this Court to evaluate Boros's claims of mental and physical exhaustion and to rule on the motion for continuance.
Boros argues that the trial court erred in granting the defendants' motion in limine regarding punitive damages and damages for mental anguish arising from the defendants' alleged legal malpractice. The defendants argue that Boros failed to preserve the error alleged in this regard. Because we conclude that the motion in limine here was of the "prohibitive-absolute" type, we disagree.[3]
However, the defendants argue that any discussion of damages for mental anguish was properly disallowed because Boros alleged only professional negligence and breach of contract in his complaint. Also, the defendants argue that the facts of this case do not support any claim for punitive damages, and, therefore, that the trial court correctly excluded any discussion of punitive damages.
We agree with the following statement by the Court of Civil Appeals:
Dorsey v. Purvis, 543 So. 2d 703, 704 (Ala. Civ.App.1989) (quoting 7A C.J.S. Attorney and Client § 273 (1980)).
Here, Boros presented no evidence that the alleged malpractice involved *245 "affirmative wrongdoing" and no evidence that his contract with the defendants was "predominately personal in nature." Further, we agree with the defendants that the facts of this case did not warrant any mention of punitive damages. "Ordinarily, punitive damages are not recoverable for breach of contract." Corson v. Universal Door Systems, Inc., 596 So. 2d 565, 572 (Ala.1991). Also, some showing of fraudulent, malicious, willful, wanton, or reckless behavior or inaction must be made to support a claim for punitive damages in a legal malpractice case. Allowance of Punitive Damages in Actions Against Attorney for Malpractice, 13 A.L.R.4th 95 (1982 & Supp. 1992).
Boros argues that the trial court erred in refusing him leave to amend his complaint on the day of trial to add counts alleging involuntary servitude and consumer fraud. The defendants argue that Boros had had five years to amend his complaint, and that he failed to explain to the trial court the pertinence and applicability of the additional counts.
The applicable version of Rule 15(a), Ala. R.Civ.P.[4], reads:
Although Rule 15(a) itself calls for liberal amendment, this Court has held consistently that "the grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion." Schoen v. Styron, 480 So. 2d 1187, 1189-90 (Ala.1985); Ex parte Reynolds, 436 So. 2d 873 (Ala.1983). Further, this Court has stated:
Ex parte Tidmore, 418 So. 2d 866 (Ala. 1982) (quoting Stallings v. Angelica Uniform Co., 388 So. 2d 942, 946-47 (Ala.1980)). (Citations omitted.)
We conclude that Boros had had ample opportunity to amend his complaint before the day of trial. Clearly, the trial judge did not abuse his discretion in disallowing Boros's requested amendment here.
We pretermit any discussion of Boros's new trial issue because it is merely repetitive of the directed verdict issue. Also, we pretermit discussion of the expert witness issue because we find it meritless factually.
Based on the foregoing, we affirm the trial court's judgment entered on the directed verdict for the defendants.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Although our holding on the directed verdict issue is dispositive of this case, we discuss the remaining issues because the plaintiff is acting pro se.
[2] Because Boros was a pro se plaintiff, the trial court allowed him to testify in a narrative fashion.
[3] The defendants cite State v. Askew, 455 So. 2d 36, 37 (Ala.Civ.App.1984), quoting Charles Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1, 16 (1981), for this proposition:
"[I]t is generally held that the granting of a motion in limine can never be reversible error. The non-moving party may repeat at trial, preferably out of the hearing of the jury, his request for permission to prove the contested matter. This offer of proof is required in order to isolate the error for appeal."
(Emphasis in original.)
The defendants neglect Dean Gamble's next sentence and his earlier distinction between "prohibitive-absolute" and "prohibitive-preliminary" motions in limine.
In the sentence following the above quote, Dean Gamble states, "Of course, this ability to bring up the matter a second time would not be available if counsel had requested and the judge had granted a prohibitive-absolute motion in limine." Gamble, supra, at 16.
Earlier in his article Dean Gamble distinguishes between "prohibitive-absolute" and "prohibitive-preliminary" motions in limine. Gamble describes the "prohibitive-absolute" motion in limine: "This motion and the order issued upon it being granted absolutely prohibit the opponent from questioning about or mentioning the evidence at trial in any form." Id. at 12. (Emphasis supplied.) Gamble says of the "prohibitive-preliminary" motion, "This motion and the accompanying order merely prohibit the opponent from offering, questioning about, or mentioning the evidence without first obtaining the permission of the judge outside the hearing of the jury." Id. (Emphasis supplied.)
We conclude that the motion in limine here was of the "prohibitive-absolute" type. Thus, Boros was not required to raise the issue again to preserve it for appellate review.
[4] Rule 15(a) was amended effective August 1, 1992. The pre-amendment version would apply to this case. | February 26, 1993 |
1e69b492-1a14-4bcf-9138-9c1163e345cb | Ex Parte Williams | 613 So. 2d 1266 | 1920320 | Alabama | Alabama Supreme Court | 613 So. 2d 1266 (1993)
Ex parte Noble WILLIAMS and City of Phenix City, Alabama.
(Re Arthur SUMBRY v. Noble WILLIAMS and City of Phenix City, Alabama).
1920320.
Supreme Court of Alabama.
February 19, 1993.
*1267 James R. McKoon, Jr., Phenix City, for Noble Williams.
Charles E. Floyd, Phenix City, for City of Phenix City, Ala.
Albert O. Howard, Phenix City, for Arthur Sumbry.
INGRAM, Justice.
Noble Williams and the City of Phenix City petition this Court for a writ of mandamus directing the Circuit Court of Russell County to dismiss an election contest for lack of jurisdiction because Arthur Sumbry, the plaintiff in the contest, failed to "give good and sufficient security for the costs of the contest" within the time prescribed by law. See § 17-15-29, Ala. Code 1975.
We have held that mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) a lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Martin, 598 So. 2d 1381 (Ala.1992). We have also held that a petition for a writ of mandamus is the appropriate method to challenge the trial court's jurisdiction in an election contest. See Ex parte Shepherd, 172 Ala. 205, 55 So. 627 (1911).
Section 17-15-29, Ala.Code 1975, provides that one contesting an election for a municipal office must file a written statement of the grounds for the election contest and that this statement must be "verified by affidavit"; also, the contestant "must give good and sufficient security for the costs of the contest, to be approved by the clerk [of the circuit court]." This Court has held that the giving of such "good and sufficient security for the costs of the contest" is a jurisdictional requirement and that the security must be given within the time limits prescribed for the filing of an election contest. Dobbins v. City of Anniston, 469 So. 2d 583, 585 (Ala. 1985); Bowen v. Holcombe, 204 Ala. 549, 550, 87 So. 87, 87 (1919). Sumbry challenges the results of an election for a municipal office; therefore, he was required to file his action and to give "good and sufficient security for the costs," within five days "after the result of the election is declared." See § 11-46-69(b), Ala.Code 1975.
According to the material furnished to this Court on the petition for the writ of mandamus, a municipal election was held in Phenix City on September 1, 1992, for the office of city councilman for district #3. Williams and Sumbry were candidates for the office, and Williams was declared the winner. Sumbry filed an election contest in the Circuit Court of Russell County on September 9, 1992. When Sumbry filed the contest, Sumbry avers, his attorney asked the circuit clerk what costs would be required. Sumbry alleges that the clerk told his attorney that he thought that the payment of the filing fee was sufficient.
On October 8, 1992, in response to a motion to dismiss filed by Williams and the City, the trial court ordered that Sumbry post a bond in an unlimited amount as security for the costs of the contest. The trial court stated in its order that the payment of the filing fee was sufficient compliance with § 17-15-29 to give the trial court jurisdiction to allow the "amendment" of the security for the costs required by § 17-15-29. Williams and the City filed this petition, seeking to compel the trial court to dismiss the election contest for lack of jurisdiction.
Although § 17-15-29 states that the clerk of the circuit court is to set the amount of the security for costs, this Court has held that failure to post security "in form at least," despite an attempt to timely post such security with the court clerk, is a jurisdictional defect and cannot be cured by a subsequent, untimely posting of security. Dobbins, 469 So. 2d at 585 (circuit court clerk told the contestant that the trial court had to set the amount of the security, which is contrary § 17-15-29, and the contestant alleged that he could not timely *1268 reach the trial court). Therefore, the issue on this appeal is whether the payment of the required filing fee only is sufficient to constitute giving "good and sufficient security for the costs," for jurisdictional purposes.
"Security for costs" is defined as "[p]ayment into court in the form of cash, property or bond by a plaintiff ... to secure the payment of costs if such person does not prevail." Black's Law Dictionary 1357 (6th ed. 1990).
20 C.J.S. Costs § 3, at 11 (1990) (citing Troup v. Morgan County, 109 Ala. 162, 166, 19 So. 503, 504 (1896)).
Section 12-19-70(a) provides, "There shall be a consolidated civil filing fee, known as a docket fee, collected from a plaintiff at the time a complaint is filed in circuit court...." This fee, which apparently is what Sumbry paid, is the established charge for the service performed by the circuit clerk in docketing the cases filed. Obviously, a filing fee is the responsibility of a plaintiff; if a plaintiff is successful in his action, this filing fee may be taxed to the defendant in the action as "court costs." However, this filing fee is not an "expense" incurred by that defendant incident to his defense of the action filed in circuit court; on the contrary, the filing fee is an "expense" incurred by the plaintiff in prosecuting the action.
Moreover, the filing fee cannot constitute "security" for the defendants' costs, because such a fee is not available to the defendants, even if they successfully defend the action. The filing fee, as stated above, is payment for the services provided by the circuit clerk; therefore, that money, paid as a filing fee, is not available to the defendants to offset their expenses incurred in a successful defense of an election contest. According to § 12-19-72(3), Ala.Code 1975, the filing fee is distributed as follows: (1) $7 to the fair trial tax fund, (2) $93 to the state general fund, and (3) $10 to the county general fund. The filing fee must be paid whether or not the plaintiff is successful, unlike the defendants' costs, which the plaintiff must pay only if the defendants successfully defend the election contest.
Therefore, we hold that payment of the filing fee required by § 12-19-70 cannot be considered "good and sufficient security for the costs" in any form, because the filing fee does not represent a cost incident to the defense of the action and such money, paid as a filing fee, would not be available to pay Williams and Phenix City's costs if they were to successfully defend Sumbry's election contest. Because we hold that payment of the statutory filing fee cannot be considered "good and sufficient security for the costs," we must hold that Sumbry did not comply with the statute and, therefore, that the trial court was without jurisdiction.
The petition for the writ of mandamus is granted, and the Circuit Court of Russell County is ordered to dismiss this action for lack of jurisdiction.
WRIT GRANTED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur. | February 19, 1993 |
08d9426a-7c16-4b8d-83aa-3c4b2470c0de | Gilmore v. Shell Oil Co. | 613 So. 2d 1272 | 1910915 | Alabama | Alabama Supreme Court | 613 So. 2d 1272 (1993)
Charlie J. GILMORE, as Administrator of the Estate of Charlie M. Gilmore, deceased
v.
SHELL OIL COMPANY, a corporation, et al.
1910915.
Supreme Court of Alabama.
February 26, 1993.
*1273 William P. Traylor III, Deborah S. Braden and P. Mark Petro of Yearout, Myers & Traylor, P.C., Birmingham, for appellant.
C. William Gladden, Andrew J. Sinor, Jr. and Stephen E. Whitehead of Balch & Bingham, Birmingham, for appellees.
INGRAM, Justice.
Charlie J. Gilmore, as personal representative of the estate of Charlie M. Gilmore (the deceased, Charlie M. Gilmore, will hereinafter be called "Michael"), sued Shell Oil Company, T & P, Inc., Terry E. Parker, and Bobby McSwain, alleging that the defendants had negligently or wantonly allowed Michael, a purported business invitee, to fatally injure himself with a handgun that he had found on the defendants' premises. Gilmore also alleged that Parker negligently entrusted the handgun to McSwain and that the unguarded and accessible handgun created a private nuisance.
*1274 Gilmore appeals from a summary judgment for the defendants. Gilmore argues that he presented sufficient evidence to defeat the defendants' motion for summary judgment; specifically, he says he presented evidence creating two genuine issues of material fact: (1) whether Michael's death was "suicide"; and (2) whether the defendants had breached their standard of care owed to Michael, who the plaintiff says was a business invitee.
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, Ala.R.Civ.P. A "genuine issue of material fact" is a disputed factual issue that is "outcome determinative." "A fact is outcome determinative if the resolution of that fact [before the trial court] will establish or eliminate a claim or defense...; if the fact is determinative of an issue to be tried, it is `material.'" John J. Coleman III, Summary Judgment in Alabama: The Nuances of Practice Under Rule 56, 20 Cumb.L.Rev. 1, 5 (1989) (citing William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 480 (1982) ("An issue is not material simply because it may affect the outcome. It is material only if it must inevitably be decided") (emphasis in original)).
This Court, reviewing a summary judgment, will view the entire record, as it was before the trial court when the summary judgment was entered, in the 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). In order to defeat a properly supported motion for summary judgment, the nonmovant must show that a genuine issue as to a material fact exists and that resolution of this disputed fact is determinative of an issue to be decided. This factual dispute must be created by "substantial evidence." See § 12-21-12, 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).
The facts of this case are as follows: Michael, who was 17 at the time of his death, was an acquaintance of McSwain, who was working at T & P, Inc., a Shell gasoline station/convenience store owned by Terry Parker. The plaintiff says Michael was at the store to visit McSwain. After arriving at the store, Michael went behind the cashier's counter to make some telephone calls. While he was behind the counter, McSwain was across the store sweeping the floor. McSwain testified that he looked up from his sweeping and saw that Michael had taken a handgun from beneath the counter.
Parker, who had worked the shift before McSwain's shift, alleged that he had inadvertently left the handgun. Parker testified that he had brought the handgun to the store for his protection. The handgun was kept on a shelf under the cashier's counter toward the back of the shelf, where it could not be seen by customers in the store.
According to McSwain, he looked up and saw Michael with the handgun. He testified that Michael had opened the chamber of the handgun and removed all the bullets. Michael then replaced one of the bullets, closed the chamber, put the handgun to his head, and pulled the trigger. The shot killed him.
The dispositive issue on appeal is whether a genuine issue of material fact exists as to the cause of Michael's death, assuming, but not deciding, that Michael was a business invitee and further assuming that the presence of the handgun in an accessible area was a breach of the defendants' duty owed to Michael.
This Court has held:
Vines v. Plantation Motor Lodge, 336 So. 2d 1338, 1339 (Ala.1976). "[H]owever negligent a party may have been in some particular, he is accountable only to those injured as a proximate result of such negligence. Where some independent agency intervenes and is the immediate cause of the injury, the party guilty of prior negligence is not liable." Hall v. Booth, 423 So. 2d 184, 185 (Ala.1982).
Additionally, this Court has long recognized that a defendant who creates a dangerous "condition" is not responsible for a plaintiff's injury that results from the intervention of another agency, if at the time of the defendant's original negligence the intervening agency could not reasonably be foreseen. See, e.g., City of Mobile v. Havard, 289 Ala. 532, 538, 268 So. 2d 805, 810 (1972); Morgan v. City of Tuscaloosa, 268 Ala. 493, 496, 108 So. 2d 342, 345 (1959); Garrett v. Louisville & N.R.R., 196 Ala. 52, 53, 71 So. 685, 686 (1916). In such cases, we have held that the defendant's negligence is not the "proximate cause" of the plaintiff's injury, and, therefore, that the defendant is not liable. Vines, 336 So. 2d at 1339.
Such an unforeseen agency, which breaks the chain of causation that otherwise might have linked the defendant's negligence to the plaintiff's injury, has been referred to as an "intervening efficient cause." See General Motors Corp. v. Edwards, 482 So. 2d 1176, 1194 (Ala.1985). In order for conduct to be considered an intervening efficient cause, it must (1) occur after the defendant's negligent act, (2) be unforeseeable to the defendant at the time he acts, and (3) be sufficient to be the sole cause-in-fact of the plaintiff's injury. Id. at 1194-95; see also Vines, 336 So. 2d at 1339.
In Louisville & N.R.R. v. Maddox, 236 Ala. 594, 183 So. 849 (1938), this Court held, "The idea of contributory negligence presupposes negligence of the defendant, and contributory negligence, though it may be a contributing or concurring cause, can never be an efficient intervening cause to break the chain of causation flowing from the defendant's negligence and insulate the same." Id. at 601, 183 So. at 854 (opinion on rehearing). However,
57A Am.Jur.2d Negligence § 650 (1989) (emphasis supplied). We now expressly adopt the general rule as stated in 57A Am.Jur.2d and hold that a plaintiff's conduct can constitute an intervening efficient cause, but only if, in addition to meeting the Edwards criteria set forth above for an intervening efficient cause, the plaintiff's conduct (1) is "so highly extraordinary or unexpected that it can be said to fall without the realm of reasonable foreseeability as a matter of law," 57A Am.Jur.2d Negligence § 652 (emphasis added); and (2) is more than mere contributory negligence and is of a higher culpability level than the defendant's negligence. Id. § 650. We distinguish this rule from the rule established in Maddox that the plaintiff's own negligence cannot be an intervening efficient cause. See Maddox, 236 Ala. at 601, 183 So. at 854.
The defendants argue that Michael's conduct was an intervening efficient cause, breaking the chain of causation that otherwise might have linked the defendants' negligence and Michael's death. Assuming that Parker acted negligently and created a dangerous condition by leaving the handgun loaded and accessible, Michael's subsequent act of intentionally and deliberately shooting himself in the head was unforeseeable as a matter of law and was sufficiently culpable to supersede *1276 the defendants' negligence as the proximate cause of Michael's death.
Gilmore argues that a fact question exists as to whether Michael's death was a "suicide." In his brief to this Court, Gilmore argues that there is a presumption against suicide and that evidence in the record supports the inference that Michael did not intend his own death. For example, McSwain testified that Michael was "happy-go-lucky" and that, moments before his death, Michael had been discussing his plans for the holidays, his plans to return to high school, and his plans to purchase tennis shoes. Gilmore testified that his son had never threatened or attempted to commit suicide and that he believes his son did not intentionally shoot himself.
In Krieg v. Massey, 239 Mont. 469, 781 P.2d 277 (1989), the Montana Supreme Court held that "suicide," with certain exceptions, is a "deliberate intervening act exonerating the defendant from legal responsibility." Id., 239 Mont. at 471, 781 P.2d at 278. In Krieg, the plaintiff, Krieg, brought an action against the owners/operators (the Masseys) and the manager (Young) of an apartment complex where the plaintiff's decedent, Van Hoose, had committed suicide. The facts set out in the opinion indicate that Van Hoose told Young that he was experiencing pain in his leg and in his stomach. Young offered to take Van Hoose to a hospital, but stated that she told Van Hoose that they could not leave until Young's daughter arrived. A little while later, Young walked past Van Hoose's open door and found him walking around the room, waving a pistol. Young took the pistol away from Van Hoose, put it on the top of his closet, and then left the room. About an hour later, investigating a "thud," Young found that Van Hoose had killed himself with the pistol.
Krieg, Van Hoose's personal representative, brought a wrongful death action against Young and the Masseys. The trial court entered a summary judgment for all the defendants; the plaintiff appealed to the Montana Supreme Court, which affirmed the judgment.
On appeal, Krieg argued that when Young took the pistol away from Van Hoose, "she imposed upon herself a duty to prevent the suicide ... [and] she breached this duty because she was negligent in her intervention." Id., 239 Mont. at 472, 781 P.2d at 278. Krieg argued that Young could have prevented the suicide by taking the pistol with her from Van Hoose's room.
In affirming the summary judgment, the Montana Supreme Court adopted the general rule that, in the area of civil liability for suicide, "[n]egligence actions for the suicide of another will generally not lie since the act [of] suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility." Id., 239 Mont. at 471, 781 P.2d at 278. The Krieg court noted that there are two exceptions to the general rule: "The first exception deals with causing another to commit suicide and is not applicable in the present case. The second exception allows the imposition of a duty to prevent suicide but only in a custodial situation where suicide is foreseeable [, typically in the case of] hospitals or prisons." Id. The first exception arises in cases where a defendant's conduct "causes a mental condition in the decedent that proximately results in an uncontrollable impulse to commit suicide or that prevents the decedent from realizing the nature of his act." Id., 239 Mont. at 473, 781 P.2d at 279 (citing Liability of Attorney for Suicide of Client Based on Attorney's Professional Act or Omission, 41 A.L.R.4th 352); see also Civil Liability for Suicide, 11 A.L.R.3d 751 (discussion and example of "irresistible impulse" decisions). This exception, as noted above, was not applicable to the facts of the Krieg case. Also, the Montana court held that the second exception did not apply because the facts of the case indicated that Young was not in a custodial relationship with Van Hoose and did not foresee, and, based upon her lack of expertise, could not have been expected to foresee, Van Hoose's suicide.
On the issue of foreseeability, the Montana court noted that Young had testified "that she did not think [the decedent] should have the gun, but that she did not *1277 think he was planning on killing himself." Krieg, 239 Mont. at 473, 781 P.2d at 279. Further, the court noted, "nothing indicates that [Young] had any special training to foresee that Mr. Van Hoose intended suicide." Id. Therefore, the court concluded that no genuine issue of material fact existed regarding foreseeability. Id.
In our own case, there is no evidence that the defendants had a special custodial relationship with Michael, nor is there any evidence that any of the defendants possessed expertise in the area of recognizing suicidal tendencies and preventing suicide. The manner of Michael's death is undisputed. Michael died as a result of his own deliberate action of placing a loaded gun to his head and pulling the trigger. In addition to the testimony of McSwain as to Michael's actions, we note that Michael's death certificate lists the cause of death as suicide, and the coroner testified that Michael died as a result of a "hard contact gunshot wound to the right temporal area," which is indicative, according to the coroner, of an intentional or deliberate shot, because accidental shootings do not usually have the gun touching the skin. Also, based upon his external examination of the wound, the coroner testified that the wound was probably self-inflicted, based upon the angle of the bullet, the gape of the skin at the point of entry, and the sooty deposits around the wound. The evidence presented by the defendants is sufficient to show that Michael's death was the result of his own intentional and deliberate, as opposed to merely negligent or accidental, act. No substantial evidence suggested otherwise. Therefore, the evidence must be taken as establishing that Michael's death was the foreseeable and natural consequence of his intentionally discharging a loaded handgun while it was pressed against the side of his head. We must conclude that the defendants made a prima facie showing that Michael committed suicide.
The evidence presented by Gilmore, in opposition to the defendants' showing, consists largely of affidavits to the effect that Michael would not have committed suicide. These affidavits are from people who knew Michael and were close to him. However, this evidence is largely only speculation as to Michael's state of mind at the time he shot himself. We have held, "Mere speculation that an issue of fact exists is not enough to defeat a summary judgment motion, nor may the opposing party rest upon mere conclusory allegations to prove that a genuine issue of fact exists." Charles J. Arndt, Inc. v. City of Birmingham, 547 So. 2d 397, 399 (Ala.1989). Therefore, we are compelled to hold that Gilmore has failed to present substantial evidence that a genuine issue of material fact exists as to whether Michael's death was a suicide.
In a recent case, Watters v. TSR, Inc., 904 F.2d 378 (6th Cir.1990), a mother of a teenager who had committed suicide sued the manufacturers of the board game "Dungeons and Dragons," alleging that the board game had so dominated the mind of the teenager that it drove him to suicide. The Sixth Circuit Court of Appeals, holding that the suicide was an intervening cause, stated:
Id. at 384.
The death of Michael Gilmore is also an unexplainable tragedy. We do not understand, nor do we attempt to rationalize, his deliberate and destructive final act. However, we recognize that such acts are not the ordinary and naturally flowing consequences of the defendants' negligent conduct in leaving the handgun under the cashier's counter where it was accessible to those persons who might find themselves behind the cashier's counter. What relieves the defendants of any liability for Michael's death is that Michael, by his own hands, acted intentionally and deliberately in a manner that was calculated to result in his own death. Except for circumstances where the relationship between a decedent and a defendant is such that we expect the defendant to take affirmative steps to protect the decedent from deliberate and self-destructive injury at the decedent's own hand, we do not expect the ordinary person to be able to predict, much less guard against and prevent, another person's deliberate and self-destructive actions. Therefore, we hold that, except in the previously discussed situations, suicide and/or deliberate and intentional self-destruction is unforeseeable as a matter of law, and civil liability will not be imposed upon a defendant for a decedent's suicide. While there may have been a fact question as to whether someone would be injured accidentally or negligently by the handgun, for example, by an unplanned discharge of the gun or even by a criminal act of a third party, it was unforeseeable as a matter of law that the handgun would be used to deliberately self-inflict a mortal wound.
Because such an act was unforeseeable as a matter of law, we find that the questions of fact raised by Gilmore in opposition to the defendants' motion for summary judgment are not "genuine issues of material fact" and therefore will not defeat that properly supported motion. See Rule 56, Ala.R.Civ.P. The summary judgment in favor of the defendants is affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES and ADAMS, JJ., concur.
HOUSTON, J., concurs specially.
MADDOX and STEAGALL, JJ., concur in the result.
HOUSTON, Justice (concurring specially).
I find no initial legal liability on the part of any defendant, and I would affirm the summary judgment on that ground, although I do agree that Michael Gilmore's act was unforeseeable as a matter of law. | February 26, 1993 |
fe2bae6e-1c67-423d-8a88-08c539547c7b | Anderson v. Lee | 621 So. 2d 1305 | 1920502 | Alabama | Alabama Supreme Court | 621 So. 2d 1305 (1993)
Franklin ANDERSON, et al.
v.
Frank D. LEE.
1920502.
Supreme Court of Alabama.
June 4, 1993.
*1306 Stephen M. Gudac, Mobile, for appellants.
Ronnie E. Keahey, Grove Hill, for appellee.
SHORES, Justice.
The sole issue presented here is whether the trial court erred in awarding an attorney fee of $20,000 in an action for the sale of jointly owned real property and a division of the proceeds. The property sold for $200,000. Franklin Anderson appeals from the award to the attorney. We affirm.[1]
The attorney, Frank D. Lee, was hired by Franklin Anderson to file a complaint against J.C. Skinner and Bernice Martin to partition 140 acres in Clarke County, Alabama, on behalf of himself, Dollie Anderson, Walter P. Anderson, Evon Anderson, Molly Gibbs, and David Anderson. In the complaint, filed on August 17, 1989, Lee asked the court to award a reasonable attorney fee. The case was set for trial, but, after negotiations, the parties stipulated that the land could not be equitably divided; the court ordered an appraisal, which was made and filed with the trial court. Ultimately, the court conducted a private sale in which the plaintiffs purchased the property for $200,000. The $200,000 price was the price for the entire tract, including the plaintiffs' interest. In a judgment entered April 30, 1991, Judge J. Richmond Pearson set an attorney fee of $20,000.
Franklin Anderson then filed a motion to alter, amend, or vacate the judgment. Judge Pearson recused himself, as did Judge Hardie B. Kimbrough. Judge Samuel H. Welch, Jr., was appointed to hear the matter. On September 1, 1992, Judge Welch held a lengthy hearing, after which he concluded that $20,000 was a reasonable attorney fee; he denied the motion to alter, amend, or vacate Judge Pearson's order, holding that the "plaintiff's attorney services *1307 inured to the benefit of the common estate in this cause." Franklin Anderson appeals from this judgment.
This issue was presented to the court on ore tenus evidence. The judgment of a trial court based on ore tenus evidence is presumed correct, and its findings "will not be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without supporting evidence." McCoy v. McCoy, 549 So. 2d 53, 57 (Ala.1989); McCrary v. Butler, 540 So. 2d 736 (Ala. 1989); Jones v. Jones, 470 So. 2d 1207 (Ala. 1985); Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 12-13 (Ala.1989).
Section 34-3-60, Code of Ala.1975, provides for the court to set a reasonable attorney fee in an action to partition real property and to tax the fee as a part of the costs in the action. In Peebles v. Miley, 439 So. 2d 137 (Ala.1983), we set out the following 12 criteria that the trial court should consider in setting an attorney fee: (1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances. See Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740 (Ala.1988); Irons v. Le Sueur, 487 So. 2d 1352 (Ala.1986); Talb, Inc. v. Dot Dot Corp., 559 So. 2d 1054 (Ala. 1990); and Shirley v. Mazzone, 591 So. 2d 469 (Ala.1991). Although all of these criteria need not be met, they are available for the trial court to consider in connection with each claim for an award of attorney fees. Graddick v. First Farmers & Merchants National Bank of Troy, 453 So. 2d 1305 (Ala.1984).
We have carefully considered this case and conclude that the judgment of the trial court is due to be affirmed. The evidence reflects that the plaintiffs achieved the result they wanted and that Lee's representation inured to the common benefit. Lee testified that he expended 200 hours on this case, extending over a period of three years. Anderson admits that he knew Lee would be awarded an attorney fee; in fact, Lee explained to him that if he filed a complaint seeking partition or a sale for division, then the defendants would have to pay one-half of his attorney fee; that is what the court ordered in this case. Two practicing attorneys in Clarke County testified that $20,000 would be the fee customarily charged in the locality for similar legal services, and each testified that he considered that fee to be reasonable under the facts of this case.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] This case was filed in this Court under the style Franklin Anderson, et al. v. J.C. Skinner and Bernice Martin. Skinner and Martin have no real interest in this appeal and have filed no brief. We have restyled the case to reflect that only Frank D. Lee, as appellee, defends the judgment appealed from. | June 4, 1993 |
2ea2f898-7c4c-42ab-94f2-39f34aa1e7c9 | Altmayer v. City of Daphne | 613 So. 2d 366 | 1911236, 1911564 | Alabama | Alabama Supreme Court | 613 So. 2d 366 (1993)
Jay P. ALTMAYER, et al.
v.
CITY OF DAPHNE.
Jay P. ALTMAYER, et al.
v.
CITY OF DAPHNE, et al.
1911236, 1911564.
Supreme Court of Alabama.
February 5, 1993.
*367 Vincent F. Kilborn III and M. Lloyd Roebuck of Kilborn & Roebuck, Mobile, for appellants Jay P. Altmayer, et al.
M. Kathryn Knight of Miller, Hamilton, Snider & Odom, Mobile, and W. Beatty Pearson of Dempsey, Pearson & Cummins, Spanish Fort, for appellee City of Daphne.
Robert A. Wills of Wills and Simon, Bay Minette, for appellee SouthTrust Bank of Baldwin County.
*368 STEAGALL, Justice.
In October 1990, David Arnold, in his capacity as city manager for the City of Daphne, entered into a purchase agreement with Jay P. Altmayer and others (collectively referred to as "Altmayer"), whereby the City would purchase certain real property for $3 million. Arnold transferred $250,000 in municipal funds to an escrow account at SouthTrust Bank of Baldwin County as earnest money under the agreement. The City thereafter rejected the purchase agreement, and Altmayer sued the City, alleging breach of contract and fraudulent concealment. While this action was pending, both the City and Altmayer claimed ownership of the funds in escrow. SouthTrust Bank thereafter filed an interpleader action, and both Altmayer and the City filed claims for the money. Altmayer also counterclaimed against SouthTrust Bank, alleging that the bank had been negligent in allowing Arnold to transfer municipal funds into the escrow account.
The breach of contract and interpleader actions were consolidated for trial. Thereafter, the City moved for a summary judgment on all claims contained in the breach of contract case and, following oral argument, the trial court granted this motion. The trial court held that the breach of contract claim was barred by the Statute of Frauds, that the City could not be held liable for the intentional torts of Arnold, and that Altmayer had failed to establish the elements of its fraudulent concealment claim against the City. The trial court also declared the purchase agreement to be null and void. In the interpleader action, South-Trust Bank and the City filed a motion asking the court to release the interpleaded funds to the City. The trial court granted the motion, holding that upon release of the funds SouthTrust Bank would be discharged from all liability to the defendants and that the City's counterclaim against the Bank was moot. Altmayer appeals from the trial court's judgment in both cases.
We will first address the merits of Altmayer's action alleging breach of contract and fraudulent concealment. The record reveals these undisputed facts: In 1989, the Daphne City Council began to consider acquiring real estate on which to build a justice center complex and other administrative offices. To this end, the Council set aside $3 million in a capital fund account. One of the sites it considered for the judicial center was 45 acres of Altmayer's property, known as "the Village." The Council instructed Arnold to "negotiate for the property and report back to the council." Arnold did not have written authorization from the City or the Council members to bind the City to a contract for the purchase of the property.
On September 12, 1990, Arnold executed a purchase agreement with Altmayer, under which the City was to purchase the Village for $3 million. For the earnest money under the contract, Arnold transferred $250,000 from the City's capital growth account into an escrow account at SouthTrust Bank. Arnold presented the purchase agreement to the Council during a formal Council meeting in October 1990, and the Council learned of the transfer of funds. The Council did not take formal action at that meeting, except to require an appraisal of the Village. One week later, the Council voted in a special meeting to reject the purchase agreement, and Altmayer subsequently sued.
The first issue is whether the trial erred properly determined that Arnold lacked the authority to bind the City to the purchase agreement. In his affidavit submitted in opposition to the City's summary judgment motion, Arnold stated that his duties as city manager included "the negotiation and execution of contracts on behalf of the City, managing, transferring and handling City funds and bank accounts." Arnold also stated that he recalled "being granted express authority to sign checks and other banking and financial statements" on the City's behalf. Arnold claimed that the Council orally authorized him during several "working sessions" to negotiate with Altmayer to purchase the Village. Arnold stated that the Council was fully informed of his progress and never objected to Altmayer's price or instructed Arnold not to *369 enter into a purchase agreement with Altmayer.
From this, Altmayer concludes that Arnold had express authority to bind the City to a purchase contract; however, under the Statute of Frauds, an agreement to purchase or sell land must be in writing, and the authority of an agent to bind his principal to such an agreement must also be in writingotherwise, the contract is void. Ala.Code 1975, § 8-9-2(5); Cammorata v. Woodruff, 445 So. 2d 867 (Ala.1983). The record shows that while Arnold had written authority to write checks for the City and to otherwise manage municipal funds, he did not have written authorization to bind the City to the purchase agreement. The theories of implied and apparent authority to act for one's principal are not applicable to a situation that falls within the Statute of Frauds. Cammorata. The Statute of Frauds defense may be waived when the principal commits an affirmative act showing an intention to affirm the contract, Durham v. Harbin, 530 So. 2d 208 (Ala.1988); however, the record does not show that the City ever took such an affirmative act.
We also note that, by statute, Arnold lacked the authority to bind the City to the contract without its express approval. Section 11-43-21(b)(7), Ala.Code 1975, provides that a city manager shall have the power "[t]o make and execute all lawful contracts on behalf of the municipality as to matters within his jurisdiction; provided, that no contract, purchase or obligation involving more than $100.00 shall be binding until after approval by the governing body." Because the Council did not approve the purchase agreement in this case, Arnold's negotiated agreement with Altmayer could not bind the City. Section 11-43-21(b)(7).
Altmayer next argues that the trial court erred in entering the summary judgment for the City on Altmayer's claims alleging willful and reckless misrepresentation and promissory fraud, which were based on Arnold's alleged assurances to Altmayer that he had the authority to enter into the contract. The trial court held that the City was immune to these claims under Ala.Code 1975, § 11-47-190, which provides, in pertinent part:
This section absolves a municipality from liability for the intentional torts of its agents; thus, Altmayer cannot maintain claims against the City for Arnold's alleged misrepresentation and promissory fraud. Scott v. City of Mountain Brook, 602 So. 2d 893 (Ala.1992).
The final issue raised is whether the summary judgment was proper on the issue of concealment. On a claim alleging fraudulent concealment, a plaintiff must establish (1) that the defendant had a duty to disclose material facts, (2) that the defendant concealed or failed to disclose those facts, and (3) that the concealment or nondisclosure induced the plaintiff to act to his injury. Gary v. Kirkland, 514 So. 2d 970 (Ala.1987). When both parties are intelligent and fully capable of taking care of themselves and are dealing at arm's length, with no confidential relationship, no duty to disclose exists when information is not requested. Trio Broadcasters, Inc. v. Ward, 495 So. 2d 621 (Ala.1986). In this case, we hold that the trial court correctly determined from the evidence that the parties were dealing at arm's length and that there was no special relationship or circumstance that would give rise to a duty on the part of the City to disclose the limits of Arnold's authority.
A summary judgment is proper and must be affirmed 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. The trial court's summary judgment for the City in Case 1911236 is hereby affirmed. In Case 1911564, Altmayer's claim to the interpleaded *370 funds was premised solely upon his alleged rights under the purchase contract. Based on the foregoing, the trial court properly entered a judgment for the City in regard to the interpleaded funds; accordingly, that judgment is affirmed.
1911236 AFFIRMED.
1911564 AFFIRMED.
MADDOX, ALMON, ADAMS and INGRAM, JJ., concur. | February 5, 1993 |
15722f45-6b60-453f-8905-7870c9522a80 | Ivey v. Frankle | 619 So. 2d 1277 | 1911568 | Alabama | Alabama Supreme Court | 619 So. 2d 1277 (1993)
Jolene IVEY
v.
John FRANKLE, et al.
1911568.
Supreme Court of Alabama.
February 26, 1993.
Rehearing Denied April 23, 1993.
*1278 J. Lister Hubbard and Debra D. Spain of Capell, Howard, Knabe & Cobbs, P.A., Montgomery, for appellant.
Robert M. Alton, Jr., Montgomery, for John Frankle and Mortg. Assistance Corp.
D. Coleman Yarbrough, Montgomery, for Morgan Engineering, Inc.
Sterling G. Culpepper, Jr., and Patricia A. Hamilton of Balch & Bingham, Montgomery, for Montgomery Metro Realty, Inc., and Dan Stallings.
SHORES, Justice.
This case involves plaintiff Jolene Ivey's purchase of used residential property, which she later discovered to have structural damage. She appeals from a summary judgment for the defendants, John Frankle; Mortgage Assistance Corporation ("MAC"); Montgomery Metro Realty, Inc. ("Metro"); Morgan Engineering, Inc. ("Morgan"); and Dan Stallings. We affirm.
On March 11, 1991, Ms. Ivey filed a complaint alleging that Frankle, MAC, and Metro had failed to disclose the true condition of a house that she purchased from MAC. Frankle is a real estate agent for Metro; Frankle and his wife own MAC; MAC had purchased the house for resale. Morgan is an independent engineer hired by Frankle to inspect the house before MAC purchased it. Ms. Ivey purchased the *1279 house through Frances Walls, an agent for Metro.[1]
Ms. Ivey sought damages, or, in the alternative, the rescission of the contract, alleging fraud. Her complaint also alleged that she was a third-party beneficiary of a contract between Morgan and the other defendants, and she sued Morgan for its breach. She later amended her complaint to add Dan Stallings, the qualifying broker under whom Frankle is licensed, as a defendant; she alleged that Metro and Stallings had been negligent and were liable, under Alabama Code 1975, § 34-27-34, for Frankle's alleged misconduct. The defendants answered by denying liability; Metro and Stallings also pleaded the statute of limitations. Frankle and MAC subsequently cross-claimed against Berrey Morgan and Morgan Engineering, alleging that, in purchasing the house and reselling it to Ivey, they had relied upon Berrey Morgan's opinion concerning the condition of the house.
At the completion of discovery, the defendants moved for a summary judgment. On May 7, 1992, the trial court entered a summary judgment for Frankle, MAC, Metro, and Stallings. On June 18, 1992, the trial court entered a summary judgment for Morgan. Ms. Ivey appealed from the judgments as they relate to her claims of fraudulent suppression, negligence, breach of fiduciary duty, and statutory liability under Alabama Code 1975, § 34-27-34.
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).
We conclude that the judgments of the trial court are due to be affirmed. First, as to the claim of fraudulent suppression, it is the rule in Alabama that the seller of a house 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 (Ala.1992). Under this rule, "if the buyer specifically inquires about a material condition concerning the property, the seller has an obligation to disclose known defects" in regard to the condition inquired about. Commercial Credit Corp. v. Lisenby, 579 So. 2d 1291, 1294 (Ala.1991). Ms. Ivey contends that she made such a specific inquiry in asking about some loose dirt in the backyard. The answer given to Ms. Ivey, through her agent Walls, was, by her own testimony: "[T]hey said the dirt was because of some work that they had done around there, and that that wasit was just left." She testified that she made no further inquiry. There is no evidence that this was not a truthful response. This casual inquiry about loose dirt does not constitute a specific inquiry about a material condition.
The evidence further reflects that on the date of closing Frankle gave Ms. Ivey a letter describing the house as built on "prairie soil" and stating that houses built on such soil have a greater chance for structural cracking if the moisture content *1280 of the soil is allowed to vary between wet and dry spells. The letter stated that a moisture control system had been installed to prevent drying out and subsequent movement of prairie soil during dry spells.[2] Ms. Ivey signed to acknowledge receipt of Frankle's letter, to which was attached a HUD report and a letter from Morgan stating that vertical movement of the foundation had been brought under control by installation of a moisture control system, and that it should be stressed to any purchaser that water must be maintained in the moisture control system at all times to prevent drying out of the subgrade during dry spells. The evidence reflects that Frankle showed Ms. Ivey the moisture control system and taught her how to operate it. Although Ms. Ivey testified that she had lunch with her agent and with Frankle, she stated that she asked no questions about the letter or about the house, and she went ahead with the closing.
Ms. Ivey testified that she used the moisture control system as Frankle had demonstrated, until she received her first water bill. She thought the bill was excessive and decided to operate the system manually, turning it on and off as she deemed necessary. She further testified that in December 1989, the water in the main pipe leading into the system froze and that pipe burst, and that she decided not to replace the pipe, but instead to connect a hose to the faucet and fill the system with water until she considered it full. In September 1990, after the worst dry season since 1860, Ms. Ivey began experiencing problems with the house. She noticed that the fireplace was pulling away from the wall and that the eaves were buckling, problems she admits were not present when she purchased the house.
As to the claim of negligence, the judgment is due to be affirmed on the authority of Harrell v. Dodson, 398 So. 2d 272, 277 (Ala.1981); Chatman v. City of Prichard, 431 So. 2d 532, 533 (Ala.1983); Bay Shore Properties, Inc. v. Drew Corp., 565 So. 2d 32 (Ala.1990). The judgment is also due to be affirmed as to the claim of breach of fiduciary duty, because there is no evidence that Frankle supervised Walls or that a fiduciary relationship existed between Frankle and Ivey. Finally, the judgment is due to be affirmed as to the broker, Stallings. See Century 21 Action Realty II v. Smith, 533 So. 2d 626 (Ala.Civ.App.1988).
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Frances Walls was not a defendant in the case.
[2] The letter was in response to Dan Stallings's memorandum telling Frankle to disclose in writing to the purchaser that he was the owner/agent; that the house was located in an area where cracks are prevalent; that cracks had been discovered in the house; and that work had been done. | February 26, 1993 |
66b543bd-218c-4f26-b376-e8b7cacf6066 | Bartlett v. ALABAMA ABC BD. | 654 So. 2d 1139 | 1910325 | Alabama | Alabama Supreme Court | 654 So. 2d 1139 (1993)
In re Jean S. BARTLETT and Frank E. Bartlett, d/b/a Package Palace
v.
ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, et al.
1910325.
Supreme Court of Alabama.
February 19, 1993.
*1140 F. Wade Steed of Bachus, Dempsey, Carson & Steed, P.C., Birmingham, for Alabama Alcoholic Beverage Control Bd.
Jim L. DeBardelaben, Montgomery, for Jean S. Bartlett and Frank E. Bartlett.
MADDOX, Justice.
The issue presented in this case is whether the actions of the Alcoholic Beverage Control Board (ABC Board), in using a minor (we use the term "minor" to mean a person who has not attained the legal age for purchasing and consuming alcoholic beverages; see § 28-3-1(18), Ala.Code 1975) as a participant in an undercover operation, invoked the operation of § 13A-3-22, Ala.Code 1975, and, if not, under what circumstances the ABC Board may use minors to make undercover buys of alcoholic beverages.
On April 6, 1989, at approximately 7:35 p.m., two ABC Board agents and an 18-year-old minor arrived at Jean and Frank Bartlett's place of business, the "Package Palace," to conduct what the agents referred to as a "minor operative." One of the agents stayed outside with a video camera, while the other agent went inside to observe the transaction. The minor entered the store and requested a 200-milliliter bottle of Jack Daniel's whiskey, which an employee of Bartlett's business, Robert Douglas Howard, retrieved from the shelf. The agent who was inside the store testified that Howard checked the minor's valid driver's license before proceeding. The minor then handed Howard a $10 bill to pay for the $5.80 bottle of whiskey. Howard handed the minor his change, and the minor exited the store with the whiskey.
Subsequently, both agents and the minor entered the store and identified themselves to Howard as participants in the ABC Board undercover operation. The agents informed Howard that he had committed a violation of law and requested to see, and then reviewed, his driver's license. One of the agents then asked to see the $10 bills in the register. Howard cooperated. The agent testified that included in the bills Howard handed him was a $10 bill the serial number of which he had previously recorded. Howard was arrested and was charged with selling alcoholic beverages to a minor. The Bartletts were not on the premises when the sale or arrest occurred.
The Bartletts received a letter dated September 6, 1989, in which they were charged by the ABC Board with violating § 28-3A-25(a)(3), Ala.Code 1975, as a result of their employee's April 6, 1989, sale of alcoholic beverages to the minor. After an administrative hearing, the Board adjudged them guilty of violating § 28-3A-25(a)(3) and imposed a fine of $500.
The Bartletts filed a complaint for judicial review with the Circuit Court of Mobile County. The court affirmed. The Bartletts appealed to this Court on February 20, 1991. This Court transferred the case to the Court of Civil Appeals, which stated the dispositive issue as "whether the agents of the ABC Board had the authority to aid and abet a minor child under the age of 19 years to commit a criminal offense, or whether the agents had the authority to use a minor child to commit a criminal offense, without first complying with § 13A-3-22, Code 1975." Bartlett v. Alabama Alcoholic Beverage Control Board, 654 So. 2d 1136 (Ala.Civ.App. 1991).
The Court of Civil Appeals (with Judge Russell dissenting) stated that "[w]hile it is unlawful for a licensee to sell alcoholic beverages to any minor, it is also unlawful for any minor to purchase alcoholic beverages within this state. § 28-3A-25(a)(19), Code 1975." 654 So. 2d at 1137. The court stated that *1141 "using a minor child, without prior judicial approval, to commit an illegal act is not a reasonable exercise of the ABC Board's agent's powers, duties or functions," and held, therefore, that "the use of the minor child in this case does not fit within any of the exceptions in § 13A-3-22, Code 1975." 654 So. 2d at 1137-1138.
The Court of Civil Appeals reversed the judgment and remanded the case. This Court denied the Board's petition for the writ of certiorari on February 14, 1992 (Maddox, J., dissenting) 654 So. 2d 1138.
However, because of the public policy considerations involved in using minors as decoys in enforcing the laws regulating the sale and purchase of intoxicating liquors in this State, this Court on April 4, 1992, issued the writ ex mero motu in order to review the judgment of the Court of Civil Appeals and to set some general guidelines as to when and under what circumstances minors may be used in undercover operations.
The ABC Board argues that its use of minors in undercover operations is permitted by § 13A-3-22, Ala.Code 1975, which provides:
(Emphasis added.)
In applying § 13A-3-22 to this case, the Court of Civil Appeals held that the Board's conduct was not authorized or required by law and noted that the agents had not obtained a "judicial decree" authorizing them to use a minor child to commit what would ordinarily be a criminal act. Bartlett, 654 So. 2d at 1137. The court further held that because the minor was not working for the ABC Board, but was a "volunteer," he did not qualify as "a public servant in the reasonable exercise of his official duties." 654 So. 2d at 1137. The court stated that "the use of these minors to commit these illegal acts must be closely monitored by judicial approval, and hopefully by parental approval." 654 So. 2d at 1138.
We disagree with the framing of the issue by the Court of Civil Appeals and that court's conclusion that the minor in this undercover operation did not qualify as a "public servant" within the meaning of § 13A-3-22, but we recognize that the use of minors as decoys in undercover operations should be circumscribed by some general guidelines. The "regulation of liquor traffic is subject to the intrinsic police power of the state, a broad and plenary power." Ott v. Everett, 420 So. 2d 258, 260 (Ala.1982); see also, State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939). This intrinsic power includes the enforcement of all applicable state laws enacted for the purpose of preventing and discouraging the sale of alcoholic beverages to minors.
Under the facts of this case, the use of the minor by the enforcement agents in their undercover operations was in no way for the purpose of aiding and abetting the minor to commit a criminal offense, but was for the purpose of carrying out the powers granted to the Board by law in carrying out its duty to regulate and control the sale and use of alcoholic beverages. In Funari v. City of Decatur, 563 So. 2d 54, 55 (Ala.Cr. App.1990), the Court of Criminal Appeals correctly stated that "§ 28-3A-25(a)(3) was enacted for the purpose of protecting the public welfare, health, peace, and morals of the people of this state and should be deemed a valid exercise of the state's police power." Furthermore, that court held that "[t]he purpose of the legislation prohibiting the sale of alcohol to minors [§ 28-3A-25(a)(3)] is to promote and protect the public welfare of minors." Id. Because the sale of alcoholic beverages to minors can be effectively policed only by the use of minors, we hold that, under the provisions of § 13A-3-22, and based on the undisputed facts of this case, the minor here was a "public servant" within the meaning of the statute. We reach that conclusion based on the fact that § 13A-3-22 *1142 is patterned after New York Penal Law § 35.05 (1968), which provides:
(Emphasis added.)
The New York Supreme Court, Appellate Division, in People v. Mattison, 75 A.D.2d 959, 428 N.Y.S.2d 355, 357 (1980), interpreted "public servant" to include "public officers, employees of any political subdivision, as well as `any person exercising any functions of any such public officer or employee.'" (Emphasis added.) The defendant in Mattison, a paid police informant, committed a crime and later attempted to defend his actions by claiming that his conduct was justifiable and not criminal because, he claimed, the act was committed by him while he was acting as a public servant and in a reasonable exercise of his official powers, duties, or functions. Id., 75 A.D.2d at 960, 428 N.Y.S.2d at 357. The court rejected the defendant's claim that his actions were "justifiable" under the statute, because the defendant produced no evidence that the police condoned, encouraged, or participated in the defendant's actions, and the defendant, during the time of the act, was not under the supervision and control of the police. Id. The court stated:
Id.
Applying this rationale to the present case, we note that there is ample evidence of record to show that the minor was delegated, and that he performed, certain police functions in participating and assisting in the undercover operation. The minor at all times followed the instructions given by the ABC Board agents and at all times was under their supervision and control. In addition, the ABC Board agents, at least three and one-half hours before starting the undercover operation in question, furnished the minor with a transmitter and administered a pat-down search to ensure that he had in his possession only his valid driver's license and the bills from which the agents had recorded the serial numbers. These facts reflect the planning and organization of the undercover operation in question and the supervision and control exercised by the ABC Board agents over the minor, and they support the conclusion that the minor was operating as a "public servant" under § 13A-3-22.
Furthermore, the minor was used for the purpose of obtaining evidence indicating violations of § 28-3A-25(a)(3). This fact supports the Board's contention that the use of minors to discover illegal sales of alcoholic beverages to minors is a reasonable exercise of official powers, duties, or functions. The purpose of the operation was not to aid and abet the commission of a criminal offense, but to exercise and carry out the very powers and duties assigned by law to the ABC Board and set out in its regulationpower and duties to be exercised in controlling the sale and use of alcoholic beverages.
The analogous case of People v. Superior Court, 65 Cal. App. 3d 842, 134 Cal. Rptr. 361 (1976), involved a statute, similar to § 28-3A-25(a)(3), prohibiting the sale of marijuana to minors. In that case, a 17-year-old minor volunteered his services to the San Mateo Police Department in efforts to assist in stopping drug traffic in the local high schools. Id., 65 Cal. App. 3d at 844-45, 134 Cal. Rptr. at 362. The minor was furnished bills from which the serial numbers had been recorded, was equipped with a transmitting device, and was taken by an undercover police officer, who parked in a van on a nearby street, to interact with students near a high school. Id., 65 Cal. App. 3d at 845, 134 Cal. Rptr. at 362-63. The minor made a purchase of "one lid of marijuana" from the defendant. Id., 65 Cal. App. 3d at 845, 134 Cal. Rptr. at 363. Subsequently, the minor made another larger *1143 purchase of marijuana from the defendant. Id.
At trial, the defendant in People v. Superior Court maintained that the employment of minors as decoys in undercover law enforcement activities involving the purchase of marijuana was unlawful and that the evil inherent in this form of undercover activity could be remedied only by dismissing the criminal charges brought against him. Id. The California Court of Appeals held that neither public policy nor the statute prohibiting persons from inducing minors to use marijuana precluded the police from using minors as decoys in the undercover purchase of marijuana. Id. The court said that it did "not perceive any `evil' policy in the utilization by the police of minors as decoys in the legitimate pursuit of drug pushers whose prime markets are also minors attending high school." Id.
Following the logic of People v. Superior Court, we conclude that the conduct of the ABC Board's enforcement agents in using a minor in this undercover operation was not only proper and within the laws of this state, but was probably the most effective manner of regulating and enforcing the laws of this state prohibiting the sale of alcoholic beverages to minors. Effective enforcement can realistically be achieved only by using minors as decoys.
The use of minors in undercover operations should be strictly regulated to protect the interest of the minors and their parents or guardians and the integrity of the process. Because the questions of when and under what circumstances minors can be used as undercover agents are of great public importance, we now establish certain minimum requirements for coming within the protection of § 13A-3-22. A procedure should be adopted, preferably by an administrative rule:
In lieu of adopting an administrative rule setting out this procedure and then following that procedure, the ABC Board could petition the juvenile court for an order authorizing the use of a minor in an undercover operation. In that event, the court will ensure that the minimum standards we have set out here are met.
In this case, it appears that the ABC Board substantially complied with what we have here established as the minimum procedure to be followed in order to get the protection afforded by § 13A-3-22. Therefore, the Court of Civil Appeals erred in holding that the minor could not be used in the undercover operation in this case; its judgment is reversed and the cause is remanded for an order or proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, HOUSTON and INGRAM, JJ., concur.
ALMON[1] and STEAGALL, JJ., concur in the result.
ALMON, Justice (concurring in the result).
I agree that the judgment of the Court of Civil Appeals should be reversed. However, in deciding this case I think it unnecessary to determine whether a minor, in purchasing alcoholic beverages for the purpose of policing Board licensees, acts as a "public servant" reasonably exercising his "official powers, duties, or functions" under § 13A-3-22.
*1144 The Alabama Alcoholic Beverage Control Board charged the respondents, Jean and Frank Bartlett, with selling intoxicating beverages to a minor in violation of Ala.Code 1975, § 28-3A-25(a)(3). After an administrative hearing, the Board found the Bartletts guilty and fined them $500. The Bartletts then sought judicial review of the Board's order pursuant to the Alabama Administrative Procedures Act, Ala.Code 1975, §§ 41-22-1 through 41-22-27.
In that proceeding, the Bartletts raised two defenses: 1) that the State's dismissal of a criminal charge against their employee who actually sold the alcohol to the minor barred the action against them because of principles of res judicata; and 2) that the Board's use of a minor to purchase the alcohol constituted entrapment. The trial court rejected the Bartletts' contentions and affirmed the decision of the Board. The court specifically found that "the [Bartletts'] employee, without coercion, acted voluntarily in selling the alcoholic beverage complained of in this case to the minor."
The subsequent appeal to the Court of Civil Appeals and the review in this Court have centered entirely on the Board's authority to use minors in an undercover capacity to purchase alcoholic beverages for purposes of policing Board licensees. This is unwarranted, however, for that question has not been shown to provide a defense to the proceeding against the Bartletts for selling alcoholic beverages to a minor. The Bartletts' legal defenses asserted in the trial courtres judicata and entrapmentdo not depend upon a resolution of the issue the majority addresses here. The res judicata defense clearly has no relation to that issue. The entrapment defense also is not dependent upon that issue, for the only question in the entrapment context is whether the defendant is predisposed to commit the crime, or whether the State planted the idea in the defendant's mind. Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958). Here, the employee was not reluctant to sell the alcohol to the minor, even after the minor presented his identification; therefore the State cannot be said to have placed the criminal design in the employee's mind. Because the majority's resolution of the issue regarding the Board's use of the minor is unnecessary in order to dispose of this case, I concur only in the result.
Moreover, if I were to reach the issue addressed in the majority opinion, I would disagree with the majority's conclusion that the minor in this case was a "public servant" who bought liquor "in the reasonable exercise of his official powers, duties, or functions." The majority says that "the minor was delegated, and ... he performed, certain police functions in participating and assisting in the undercover operation." 654 So. 2d at 1142. I find it a curious proposition to assert that the ABC Board has authority to delegate its police functions to minors, when the police function in question is the prevention of sale of alcoholic beverages to minors. Assuming, arguendo, that the Board has such authority, I still do not see how the delegated functions become "his [the minor's] official powers, duties, or functions." Does the minor become a state official as well as a public servant? What office does he hold? I ask these rhetorical questions to show that the majority's strained reading of the statute is well outside its natural and reasonable reading.
In enacting this portion of § 13A-3-22, the legislature clearly intended by its use of the terms "public servant" and "official" to limit the justification for otherwise criminal acts to persons who are officers or employees of state or local government and who are thereby responsible for any misuse of their official power. All of the examples in the commentary to the section involve police officers, sheriffs, game wardens, or similar officers or employees of state and local government:
Thus the majority places the minor here in the same category with the executioner, who is protected by § 13A-3-22 from a charge of murder, and the narcotics agent, who is protected from a charge of possession of controlled substances. I do not think the ABC Board should be allowed to introduce minors into such hazardous areas of law enforcement without specific statutory authorization.
The majority points out that § 13A-3-22 was (in the words of the Committee Comments) "patterned after" New York Penal Law § 35.05. The majority then quotes a portion of People v. Mattison, 75 A.D.2d 959, 428 N.Y.S.2d 355 (1980), and argues that that case supports the majority's conclusion here. Aside from the fact that a reading of the entire case shows that the New York court's reading of the statute was narrower than the majority implies, a crucial difference between the New York statutory law and our statute makes that case entirely irrelevant to our statute. After quoting § 35.05, the New York court continued:
75 A.D.2d at 960, 428 N.Y.S.2d at 357 (emphasis added). Our legislature did not adopt this provision of the New York law when it adopted the provision that is now § 13A-3-22. The majority thus reads into the statute a provision that the legislature did not adopt.
The majority cites People v. Superior Court, 65 Cal. App. 3d 842, 134 Cal. Rptr. 361 (1976), but I find that case not at all persuasive, because that case did not turn on a legislative act analogous to § 13A-3-22.
Over and above its act of making § 13A-3-22 applicable to persons not within the terms of the legislative enactment, the majority engages in legislating by creating a set of criteria by which to judge when minors may be transformed into "public servants" with the "official function" of making otherwise illegal purchases of alcoholic beverages. This act of crafting criteria illustrates the wisdom of limiting the operation of § 13A-3-22 to its terms.
In the face of a legislative act that clearly and unequivocally specifies the circumstances in which conduct, otherwise criminal, is justifiable, I see no basis for ignoring the act or for creating an independent set of criteria for justifying such conduct. For the reasons stated at the beginning of this opinion, I concur in the result.
STEAGALL, J., concurs.
[1] Justice Almon did not sit for the oral argument on this case, but he listened to the tapes of the oral argument. | February 19, 1993 |
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